Brief at 23-24.
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The ALJ dealt with this contention, finding that Simon was "greatly distressed about his firing" when he wrote it. R. D. & O. at 7 n.5. The substance of the letter and the manner of its expression support the ALJ's finding. The fact that Simon referred to the complaints he had made and the conversations he had about weekday work did not detract from his testimony that he did not commit to reporting for work on Friday because he needed more time to arrange child care. As he testified, the letter was a "smart aleck answer" to the termination letter, because he was expecting a letter describing the weekend job. TR at 99. Therefore, we reject this argument.
Finally, the issue of Simon's reinstatement is moot. On September 26, 2006, the United States District Court for Northern Illinois issued a Consent Judgment and Order finding that Sancken reinstated Simon on September 11, 2006, pursuant to the court's previous order and that Simon resigned later that day. U.S. Sec'y of Labor v. Sancken Trucking, Inc., No. 06-CV-02890 (N.D. Ill., E.Div. Sept. 26, 2006).
Attorney's fees and costs
Sancken's attorney requested $49,841.21 in attorney's fees and costs. This amount represented 166.65 hours at a rate of $250.00 an hour, 31.75 hours of travel time at $137.50, 36.75 hours of paralegal work at $75.00 an hour, and costs of $72.38 for lodging, and $984.46 for Simon's expenses.
The ALJ discussed each of Sancken's objections to Simon's fee petition and awarded a total of $48,331.90, after deleting six hours of time entries covering brief writing and travel and reducing the travel time rate to $125.00 an hour.
On appeal, Sancken has reiterated its arguments before the ALJ, namely, that the number of hours be reduced by 65.5, that the hourly fee be only $250.00, that the travel time of 31.75 hours is excessive and should be considered part of overhead, and that paralegal payments are not recoverable as a cost of litigation. Sancken does not quarrel with the amounts awarded for lodging and Simon's costs.
As the ALJ pointed out, Simon's attorney is seeking only $250.00 an hour, with which Sancken concurs. Further, Sancken offered no rationale for its assertion that the 65.5 hours it wants cut are unreasonable. The ALJ considered all the item entries Sancken cited, dismissed Sancken's contention that the travel time was excessive, and considered Simon's affidavits in support of his fees. Because the ALJ's decision is supported by substantial evidence and legally correct, we adopt and attach the ALJ's decision regarding attorney's fees. Simon v. Sancken Trucking Co., ALJ No. 2005-STA-040 (ALJ Apr. 10, 2006).
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Conclusion
We affirm the ALJ's conclusion that Sancken violated the STAA's employee protection provision because substantial evidence in the record as a whole supports his findings. We also affirm the ALJ's award of back pay. We REVERSE as unsupported by substantial evidence his award of compensatory damages. Finally, we adopt and attach the ALJ's recommended decision awarding attorney's fees and costs.
SO ORDERED.
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
DAVID G. DYE
Administrative Appeals Judge
[ENDNOTES]
1 The STAA has been amended since Simon filed his complaint. See Implementing Recommendations of the 9/11 Commission Act of 2007, P.L. 110-53, 121 Stat. 266 (Aug. 3, 2007). We need not decide here whether the amended provisions are applicable to this complaint because even if the amendments applied, they are not at issue in this case and thus would not affect our decision.
2 A driver is exempt from the hours-of-service provisions of 49 C.F.R. § 395.8 (Driver's Record of Duty Status) if he operates within a 100-air-mile radius of the work location to which he normally reports. 49 C.F.R. § 395.1(e)(1)(i). Simon testified that he was required to drive outside the 100-mile radius of Sancken's terminal and sometimes worked more than 12 hours a day. CX 1; TR at 36-37.
3 Simon does not challenge the ALJ's findings that he worked a total of seven weeks, averaged $721.54 a week, and earned $12,459.02 from the time he was fired until the date of the R. D. & O. Subtracting the amount Simon earned from $31,314.83 (43.4 weeks times $721.54), the ALJ properly awarded $18,855.82. R. D. & O. at 7.
4 Simon explained that, before a driver could load and unload the fuel at a terminal or depot, he had to undergo training in security and safety measures as well as accident procedures and equipment handling. Prior to his discharge, Simon was "carded" at three terminals while driving for Sancken. TR at 29, 266.
5 In support of its theory that Simon had to prove that Sancken was lying before the ALJ could legally find pretext, Sancken cites a number of cases decided by the United States Court of Appeals for the Seventh Circuit, in jurisdiction of which this cases arises. Brief at 19-20. After reviewing these decisions, we conclude that they are not applicable to the circumstances of this case. The ALJ found Sancken to be not credible; therefore, he could not have honestly believed that Simon was supposed to show up for work on Friday.
6 The letter stated: "I received the letter of termination sent March 11, 2005. You expecting me to do what you say when you say to do it regardless of UNITED STATES DEPARTMENT OF TRANSPORTATION, LAWS and REGULATIONS, is why I did not show up for work. I was told on March 10, 2005, by your office this was expected of me. As you know, you and I have had conversations on this matter before. I have not and will not break laws for this job. Effective immediately, I am leaving. Further, instead of changing your policy, I was threatened with my job, harassed and discriminated against for not breaking laws, by you and your Company." RX 6.