Case No. 83-ERA-4

In the Matter of

THOMAS F. MURPHY
    Complainant

    v.

CONSOLIDATION COAL COMPANY
    Respondent

    By Decision and Order dated August 2, 1983, in a proceeding involving allegations of violations of employee protection provisions contained in several environmental statutes, I found specifically that the respondent had committed a violation of the Toxic Substances Control Act in discharging complainant for reporting violations under that Act, and that the complainant was entitled to affirmative relief and his attorney to attorney's fees. I allowed complainant and his attorney 30 days to present an affirmative relief plan and a detailed explanation for whatever attorney fee might be requested. The respondent was

allowed 15 days thereafter to reply.

    In a timely filed pleading styled: Petition of Plaintiff and Plaintiff's Attorney for Attorney's Fees on Compensatory Damages, complainant has addressed both the attorney fee and compensatory damages issues. With respect to the matter of an attorney fee, Attorney Ging states that he took Murphy's case on a contingent fee basis, with Murphy responsible for payment of costs and he, Attorney Ging, to be compensated for his services by a percentage of any recovery and/or the award of counsel's fees by this court. It is obvious from the approach taken in the instant pleading that the latter method is the attorney's choice in this matter. He has prepared and submitted an itemized list of tasks performed in Murphy's case from the initial interview on January 20, 1983, through August 23, 1983, when a "Meeting regarding Department of Labor" was held. In all, 86 hours are claimed for which Attorney Gind is charging his customary billing rate of $100.00 per hour, for a total of $8,600.00. This, claims Attorney Ging, is comparable to the rates charged by other attorney in the Pittsburgh area have special expertise in areas such as environmental law, including the Federal environmental law statutes.

    Although no specific dollar amount is suggested, Attorney Ging avers that he is entitled to a "premium award" on the basis of the risk involved in handling this case which is the first of its type, to his knowledge, to go before an administrative law judge. Additionally, he asks an upward revision based on the possibility that a delay may be incurred in receiving his fee from Consolidation Coal Company. This amounts to the assessment of interest on monies of which Attorney Ging would have the use but for any delay which might occur.

    Consol opposes both the premium fee for risk involved in taking a case for which there is no precedent on a contingency basis, and the upward adjustment in anticipation of a delay by Consol in paying the fee. With regard to the first facet of the upward revision request, Consol cites numerous cases where DOL administrative law judges handled cases arising under the whistle blower provisions of the various environmental statutes which belies Attorney Ging's representations with respect to uniqueness. As for the second ground for upward revision, anticipation of a Consol delay in paying the attorney fee, Consol replies that the fear is based on pure speculation; that Attorney

Ging has failed to show that an allowance for just such delays has not already been built into his fee schedule; and that if there should be a delay in payment of his fee, Attorney Ging has available to him relief in the form of a petition for upward adjustment of his fee based on this factor at that time.

    Murphy's claim for compensatory damages is based upon the likelihood that once he is reinstated Consol will promptly fire him, leaving him without any recourse. Should this occur, because of the influential position occupied by Consol in industry, Murphy feels his only areas of employment available in the environmental field would be government, either state or federal, or the Sierra Club. Over a 30-year period (presumably his projected working life), adjusted for annual increases at the same rate he received them while employed by Consol (an average of 11.88 percent), Murphy calculates that he would earn $9,354,375, while as a GS-11 in Federal service (the grade he would serve in if hired by the Interior Department, Office of Surface Mining) he would earn $6,465.229. Working for the Pennsylvania Department of Environmental Resources, he would earn over $5,392,087, while working for the environmentally oriented Sierra Club as an Assistant Regional Representative he would earn over 30 years $4,906,694. The differences in salaries he would receive from these potential employers and total Consol salary would be $3,189,146; $4,262,288; and $4,747,681, respectively.

    It goes without saying that Consol vigorously opposes the measure of damages employed by Murphy, labeling it as entirely unreasonable and inappropriate. While several grounds for the opposition are stated, Consol challenges as unfounded the basic premise of Murphy: that he will be terminated immediately upon reinstatement. Supposing this does not happen, Murphy would be unjustly enriched at Consol's expense. Murphy has submitted as evidence of his unemployability in the private sector rejections of applications he has made to many companies who might have use for one with Murphy's qualifications, or else notification that his application has been placed on file for consideration should an opening occur although no job is available at present. Consol argues that it has no way of testing whether these rejections and notifications of filing truly reflect industry's lack of interest in employing Murphy, or are merely a sign of the depressed economic times.

    Its general argument with assessing compensatory damages at all is that there is no way of projecting Murphy' future earnings ability without entering into speculation and conjecture, and that this remedy would be tantamount to awarding damages before the cause of action arises, which in this case would be Murphy's termination subsequent to his reemployment. If he should be terminated, Murphy would have available the same remedy he employed in instituting this proceeding.

Remedy

    With respect first to the claim for attorney's fee, it should be noted that the employer has objected neither to Attorney Ging's hourly rate ($100.00) nor to the number of hours claimed as expended in the preparation and prosecution of this case. From my own perception of the high degree of skill demonstrated at the hearing, his complete familiarity with all facets of the complicated fact situation here involved, and mindful of the fact that there are several items for which claim for expense could have been but was not made, I consider the fee petition to be fair and reasonable. I do not feel, however, that any justification has been shown for awarding fees in excess of the hourly rate claimed. I agree with the employer both on the grounds that this is hardly the unique case of first impression attorney for the complainant would picture it, and that Attorney Ging has failed to provide the underlying data from which a comparison could be made with fees received in cases Mr. Ging has both won and lost. The itemized fee request will be approved.

    As for the claim for compensatory damages, there may be a formula for the award of compensatory damages, but it certainly is not the one put forth by complainant. Perhaps a year's or even two years' wages agreed upon by the parties in lieu of reinstatement to a job where hostility can be anticipated would be fair. Multimillion dollar recovery requests are wholly unrealistic and assuredly try the patience of one who is attempting to administer even-handed justice in a relatively uncharted area. With no realistic, workable plan before me, I am constrained to limit the remedy allowed Murphy to reinstatement with back pay, and checks and controls upon the employer to insure that the reinstatement is bona fide and not a mere sham. While the attorneys who wrote the response brief for Consol argue against Murphy being allowed to speculate that he will be terminated immediately upon being reinstated, Murphy certainly

has a basis for his fears considering Consol's Pretextual grounds for firing him in January 1983 in the face of the outstanding order by Judge McGuire. It is hoped that the following order will offer the safeguards necessary to preserve Murphy's job or a comparable job without the necessity for repetitive suits which could prove financially ruinous for Murphy but would have little if any effect on the coal company and the upper corporate tier.

    Accordingly, it is ORDERED that Respondent shall:

    1. Take affirmative action to effectuate the policy of the employee protective provisions of the Toxic Substances Control Act, 15 U.S.C. § 2601, 2622, by offering Thomas F. Murphy back pay, with interest, and immediate and full reinstatement to his former job, or, if such job no longer exists, to a substantially equivalent job, less his net earnings during period which includes pay and benefits received by Murphy pursuant to the orders of Judge McGuire. In order to make Murphy whole in the manner contemplated by the statute, the offer of reinstatement shall be without prejudice to seniority, vacation or other rights and privileges which would have normally accrued during the period of discharge. The term "net earnings" means earnings and any unemployment compensation received by Murphy, less expenses such as transportation, room, board, health and life insurance, etc., incurred by Murphy in obtaining work, working elsewhere, maintaining insurance protection, etc., which would not have been incurred but for his unlawful discharge.

    2. Pay directly to Robert P. Ging, Jr., Esq., the sum of $8,600.00, as attorney fees reasonably incurred by Mr. Ging in connection with these matters; and

    3. Preserve and, upon request, make available to the U. S. Department of Labor or its agents, for examination and copying, all payroll records, Social Security payment records, time cards, personnel records and reports, and all other records necessary to analyze the back pay due under the terms of this order; and

    4. Within 35 days of receipt of this Order, notify the Area Director, Wage and Hour Division, Employment Standards Administration, U. S. Department of Labor, 1000 Liberty Avenue, Federal Building, Room 1429, Pittsburgh, Pennsylvania 15222, of

what steps Respondent has taken to comply herewith.

       GEORGE P. MORIN
       Administrative Law Judge

Dated: September 28, 1983

Pittsburgh, Pennsylvania