DATE: April 7, 1992
CASE NO. 86-ERA-36
IN THE MATTER OF
RONALD J. GOLDSTEIN,
COMPLAINANT,
v.
EBASCO CONSTRUCTORS, INC.,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND ORDER
This case arises under Section 210, the employee protection
provision, of the Energy Reorganization Act of 1974, as amended
(ERA), 42 U.S.C. § 5851 (1988). After a hearing on the
merits, the Administrative Law Judge (ALJ) issued a Recommended
Decision and Order (R.D. and O.) finding that Respondent had
discriminated against Complainant in violation of the ERA when it
laid him off from his job working for Respondent at the South
Texas Nuclear Project (STP) on April 11, 1986. Respondent is a
subcontractor of Bechtel Construction, Inc., which is
constructing the STP for its owner, Houston Lighting and Power
Company. The ALJ also recommended that Respondent be ordered to
pay Complainant back wages with interest from the date of his
layoff until the date he is reinstated, to expunge certain
documents from Complainant's record, and to pay Complainant
compensatory damages of $20,000. In addition, the ALJ ordered
Respondent to pay Complainant's costs and attorneys' fees,
although he substantially reduced the amount claimed.
The Secretary issued a briefing schedule and both parties
[PAGE 2]
filed initial and reply briefs. Respondent excepted on two
grounds to the conclusion of the ALJ that he had jurisdiction
in this case, and Respondent asserts that the ALJ incorrectly
applied the law on burdens of proof in ERA cases. Respondent
also excepted to many of the ALJ's findings of fact and to his
ultimate conclusion that Respondent violated the ERA. Finally,
Respondent excepted to the ALJ's recommended award of back wages
and compensatory damages to the extent that the award exceeded
the amounts contained in a stipulation of the parties. For the
reasons discussed below, with the exception of back wages and
compensatory damages, Respondent's exceptions are denied, and I
adopt the conclusions of the ALJ and his recommended order. The
ALJ's Recommended (R.S.D. and O.) Supplemental Decision and Order
on attorneys' fees and costs is discussed separately below.
Some of the basic facts in this case are not in dispute.
Respondent hired Complainant in February 1984 as a Craft
Supervisor in the Instrumentation and Controls Department at the
STP. Complainant was assigned to work in the Reactor Containment
Building of Unit 1. [1] Complainant was transferred to the Unit
1 Diesel Generating Building in August 1985 where he continued to
perform supervisory work. He was transferred to nonsupervisory
office work in Unit 1 on October 14, 1985, and was transferred to
similar work in Unit 2 on December 11, 1985. Complainant was
transferred back to Unit 1 and assigned nonsupervisory office
work in March 1986 when Respondent suspended its work on Unit 2.
Complainant was laid off on April 11, 1986.
I. Timeliness of Complainant's Request for Hearing.
Respondent asserts that this case should be dismissed
because Complainant did not make a timely request for a hearing
after the investigation by the Wage and Hour Administration found
no violation. 29 C.F.R. § 24.4(d)(2)(i) (1991). The Wage
and Hour Administrator sent Complainant a notice of the results
of the investigation dated June 16, 1986, which Complainant
received on June 21, 1986. The regulation provides that the
notice becomes the final order of the Secretary "unless within
five calendar days of its receipt the complainant files with the
Chief Administrative Law Judge a request by telegram for a
hearing on the complaint." Id.
Complainant testified that he sent a telegram requesting a
hearing to the Chief ALJ on June 24, 1986, and introduced a copy
of a telegram written on a Western Union form, properly addressed
to the Chief ALJ and stamp dated June 24, 1986. Complainant's
Exhibit (C)-12. Complainant further testified that he gave this
completed form to a clerk in the Western Union office in Las
[PAGE 3]
Vegas, Nevada, on June 24, 1986, and that the clerk stamp dated
it, wrote the charges for sending it on the form, and gave
Complainant a copy of the form with these additions. The
original of the telegram is not in the record in this case, and
Respondent argues that there is no proof that the Chief ALJ ever
received the telegram.
The ALJ denied Respondent's motion to dismiss on this
ground, finding that Complainant's testimony about sending the
telegram together with the copy of the properly addressed, dated
telegram proved that Complainant "substantially complied with [29
C.F.R.] § 24.4(d)(2)." R.D. and O. at 10. I agree. The
correct addressing and mailing of a letter creates a presumption
that it was received by the intended party. In Re Carter,
511 F.2d 1203, 1204 (9th Cir. 1975). Complainant has presented
enough evidence to prove that he sent the telegram within five
calendar days of receiving the notice from the Wage and Hour
Administration and to raise the presumption that his telegram was
received by the Chief Administrative Law Judge. The fact that
the record does not contain the original telegram is not
sufficient to overcome Complainant's evidence that he complied
with the regulation by sending (or filing) a request for a
hearing by telegram within five days, or to rebut the presumption
that the telegram was received by the Chief ALJ. I note that the
ALJ case tracking system computer printout which accompanies the
record shows that the case was docketed "06/24/86."
The requirement in the regulation that a copy of the request
for hearing be sent to the Respondent does not include a time
limit, so a reasonable time will be implied. Respondent did not
assert that it did not receive notice of Complainant's request
for hearing in sufficient time to prepare for trial and the
record refutes any such contention. I find that notice to
Respondent was reasonable.
II. Internal Complaints as Protected Activity.
Respondent points out that the United States Court of
Appeals for the Fifth Circuit (the Circuit in which this case
arises) has held that the ERA does not protect an employee who
makes internal quality or safety complaints to his employer.
Brown & Root, Inc. v. Donovan, 747 F. 2d 1029, 1031-1036
(5th Cir. 1984). It is undisputed in this case that Complainant
did not make any of his safety or quality complaints to any
government agency. [2]
I note that the other circuits which have considered this
question have held, either explicitly or implicitly, that
internal complaints are protected under the ERA. SeeCouty v. Dole, 886 F.2d 147 (8th Cir. 1989) (implicit);
Kansas Gas &
[PAGE 4]
Electric Co. v. Brock, 780 F.2d 1505, 1513 (10th Cir. 1985),
cert. denied, 478 U.S. 1011 (1986) (explicit);
Mackowiak v. University Nuclear Systems, Inc., 735 F.2d
1159, 1163 (9th Cir. 1984) (explicit); Consolidated Edison Co.
of New York v. Donovan, 673 F.2d 61 (2d Cir. 1982)
(implicit). I continue to be persuaded that reporting violations
of the ERA internally to one's employer is a protected activity
and that Mackowiak and Kansas Gas and Electric,
rather than Brown & Root, set forth the appropriate
resolution of this issue. For the reasons set forth below, I
respectfully decline to follow the Fifth Circuit's decision in
Brown & Root.
The legislative history of Section 210 of the ERA, states
that the section "is substantially identical to provisions in the
Clean Air Act and the Federal Water Pollution Control Act. The
legislative history of thoseacts indicated that
such provisions were patterned after the National Labor
Management Act [sic] and a similar provision in Pub. L. No. 91-
173 [the Coal Mine Health and Safety Act of 1969 (CMHSA), 30
U.S.C. § 801 et seq. (1976)]". S. Rep. No. 848, 95th Cong.,
2d Sess. 29, reprinted in 1978 U.S. Code Cong. & Admin3.
News 7303 (emphasis added). It seems clear that Congress
intended all of these laws to be interpreted in a parallel
manner. SeePoulos v. Ambassador Fuel Oil Co., No.
86-CAA-1, Dec. and Order of Remand of the Secretary (Remand
Order), slip op. at 5-7 (Apr. 27, 1987).
The comparable provision in the Coal Mine Health and Safety
Act, which was narrower on its face than Section 210, was
interpreted to protect miners who report safety problems
internally. Phillips v. Interior Board of Mine Operations
Appeals, 500 F.2d 772 (D.C. Cir. 1974), cert. denied,
420 U.S. 938 (1975). Phillips was decided before ERA
Section 210 was enacted and before the Coal Mine Health and
Safety Act was amended to add language explicitly protecting
internal safety reports. 30 U.S.C. § 815(c) (1988). At the
time of the drafting of the Committee Report stating that Section
210 was patterned after the 1969 CMHSA, Congress had explicitly
approved and adopted the Phillips interpretation as the
correct interpretation of the 1969 CMHSA. Indeed, the same
Congress that enacted Section 210, amended the 1969 CMHSA to
clarify expressly its approval of Phillips as properly
interpreting existing law. S. Rep. 181, 95th Cong., 1st Sess. 36,
reprinted in 1977 U.S. Code Cong. & Admin. News 3401,
3436, (explaining that amending the 1969 CMHSA to include
internal complaints expressly is "intend[ed] to insure the continuing
vitality of the various judicial interpretations of the [1969 Act] . . ., e.g.,
Phillips v. IBMA, 500 F.2d 772; Munsey v. Morton,
507 F.2d 1202.") Congress's patterning of Section 210 on the
1969 CMHSA, and its express approval of Phillips as the
correct interpretation of
[PAGE 5]
that Act, makes clear that Section 210 is to be interpreted in
accordance with Phillips. SeeCannon v.
University of Chicago, 441 U.S. 677, 696-701 (1979); Oscar
Mayer & Co. v. Evans, 441 U.S. 750, 756 (1979).
Moreover, the National Labor Relations Act, one of the other
models for ERA Section 210, often had been interpreted broadly
by both the courts and the National Labor Relations Board in a
variety of circumstances to protect employees who had not been in
contact with a governmental entity. Thus, the Board has held
that merely threatening to go to the NLRB is protected.
SeeFirst National Bank & Trust Co. and Darlene M.
Snyder, 1974 CCH NLRB ¶ 26,231; Austell Box Board
Corp. and Truckdrivers and Helpers Local Union No. 728, 1980
CCH NLRB ¶ 17,002; Orkin Exterminating Co., Inc. and Tony
C. Allen, 270 NLRB No. 75 (1984); Midtown Service Center
and James W. Wagner, 271 NLRB
No. 170 (1984). The United States Court of Appeals for the Sixth
Circuit has held that an employee's refusal to testify falsely
for an employer in an NLRB hearing is protected conduct, although
the employee did not appear or participate in the hearing and
never spoke to an agent of the Board. NLRB v. Retail Store
Employees Union, Local 876, 570 F.2d 586, 590, 591 (1978),
cert. denied, 439 U.S. 819 (1978). The Fifth Circuit
itself has held that an employee who appears at an NLRB hearing
but does not testify is protected. NLRB v. Dal-Tex Optical
Co., 310 F.2d 58, 62 (1962).
The courts also have interpreted the employee protection
provisions of other labor laws broadly to protect internal
complainants and former employees. Love v. Re/Max of America,
Inc., 738 F.2d 383, 387 (10th Cir. 1984) ("The [FLSA employee
protection provision] applies to the unofficial assertion of
rights through complaints at work."); Marshall v. Parking Co.
of America Denver, Inc., 670 F.2d 141, 143 (10th Cir. 1982)
(refusing to release backpay claim after Wage and Hour
investigation is protected, even though employee never spoke to
government investigator); Dunlop v. Carriage Carpet Co.,
548 F.2d 139, 142-147 (6th Cir. 1977) (former employee given bad
reference by former employer is protected under section 15(a)(3)
of Fair Labor Standards Act, even though section says "[i]t shall
be unlawful . . . to discharge or discriminate against any
employee . . . .") (emphasis added); Rutherford v.
American Bank of Commerce, 565 F.2d 1162, 1165 (10th Cir.
1977) (former employee is protected under section 704(a) of Title
VII of the Civil Rights Act of 1964 although that section on its
face protects only employees and applicants); Brennan v.
Maxey's Yamaha, Inc., 513 F.2d 179, 181 (8th Cir. 1975)
(refusal to endorse back-wage check back to employer after
government ordered payment of back wages is protected, even
though employee never contacted
[PAGE 6]
government investigator); Smith v. Columbus Metropolitan
Housing Authority, 443 F. Supp. 61, 64 (S.D. Ohio 1977)
(section 704(a) of Title VII of the Civil Rights Act of 1964
protects an otherwise uninvolved employee who refuses to
cooperate in employer's defense of race discrimination charge).
See alsoDaniel v. Winn-Dixie of Atlanta, Inc., 611
F. Supp. 57, 59-63 (N.D. Ga. 1985); Legutko v. Local 816,
International Brotherhood of Teamsters, 606 F. Supp. 352, 358
(E.D. N.Y. 1985); Hayes v. McIntosh, 604 F. Supp. 10, 16-
18 (N.D. Ind. 1984); Poulos v. Ambassador Fuel Oil Co.,
No. 86-CAA-1, Remand Order, slip op. at 10-11.
I recognize that Administrative agencies are bound to follow
the law of the circuit in which a case arises, conflicting
decision of other circuits notwithstanding, unless and until the
Supreme Court resolves the conflict. The Supreme Court has
denied a petition by an employer for a writ of certiorari to
the Tenth Circuit to review the question of whether internal
complaints are protected under the ERA, thus leaving standing a
decision by that Circuit sustaining the Secretary of Labor's
holding that internal complaints are protected. Kansas Gas &
Electric v. Brock, 780 F.2d 1505 (1985), cert. denied,
478 U.S. 1011 (1986).
With deference to the Court of Appeals for the Fifth Circuit
and due respect for its authority, I believe that the Fifth
Circuit should be given another opportunity to consider whether
internal complaints are protected, in light of the Tenth
Circuit's more recent decision and based upon full exposition of
the legislative history of the statutes as discussed above. For
purposes of this case, I hold that Complainant engaged in
protected activity when he made internal safety and quality
complaints.
III. Burdens of Proof.
Respondent excepts to the ALJ's application of the
principles governing burdens of proof and burdens of production
set forth by the Secretary in Dartey v. Zack Company of
Chicago, Case No. 82-ERA-2, Sec. Dec. (Apr. 25, 1983).
Respondent objects that the ALJ included in his statement of the
elements of a prima facie case that Respondent
"discriminated" against Complainant (R.D. and O. at 10), rather
than that Respondent took "adverse action" against Complainant.
Later in the decision, the ALJ correctly stated the last element
of Complainant's burden of production when he found that
Complainant "has met his burden of raising the inference that his
protected activity was the likely reason for the layoff."
Id. at 12.
[PAGE 7]
In any event, I find that Complainant has met his burden
of producing evidence sufficient to raise the inference that
retaliation was a motivating factor in Respondent's decision to
lay him off. Complainant engaged in several protected activities
from June to August 1985, including: notifying management that
"B" shift workers had skipped a "hold point" and altered a pipe
without following proper safety inspection procedures; that "B"
shift damaged a piece of equipment called a "flux mapping skid;"
and that Complainant's supervisor did not follow a requirement to
submit "control" documents at the end of each shift. R.D and O.
at 3. Complainant also filed complaints with Respondent's
Quality Assurance Department and with SAFETEAM. See note
2 above. Complainant was given a poor performance evaluation in
March 1986, R-38, and laid off in April. R-39; R.D. and O. at 6.
The poor evaluation and layoff followed Complainant's protected
activities with sufficient "temporal proximity" to raise an
inference of discrimination and to establish a primafacie case. Couty v. Dole, 886 F.2d at 148.
Respondent does not quarrel with the ALJ's findings that
Respondent has met its burden of production by articulating
legitimate business reasons for selecting Complainant for layoff,
and that Complainant has not shown that those reasons were
pretextual. R.D. and O. at 12. Respondent challenges the ALJ's
conclusion, however, that "[t]he evidence . . . strongly suggests
that [Complainant's] complaints about quality motivated
retaliation." Id. Respondent argues there must be a
finding that Complainant has proved by a preponderance of the
evidence that retaliation was a motivating factor in the
employer's action. Finding that the evidence "strongly suggests"
this conclusion, Respondent contends, is not enough. But in the
same paragraph, the ALJ explicitly held that "[Complainant]
has shown that [Respondent] also was motivated by his
filing of the quality complaints, or that [Respondent] had dual motives."
Id. (emphasis in original). Thus the ALJ did place the
burden on Complainant to prove, and found, that retaliation was a
motive underlying his layoff. I also find that the ALJ correctly
applied the dual motive analysis of Dartey v. Zack Company of
Chicago. [3]
IV. Dual Motive.
The ALJ held that "[Complainant] has shown that there was
retaliation, by way of the final evaluation [of Complainant's
performance] and layoff, motivated, at least in part, by his
engagement in protected activity," and that "[Respondent] did
not, by a preponderance of the evidence, prove that it
would have laid off [Complainant] even in the absence of the
protected conduct." R.D. and O. at 12 (emphasis in original).
Respondent
[PAGE 8]
challenges many of the ALJ's findings and inferences based on the
record, as well as this ultimate conclusion. [4]
The key to the ALJ's findings and conclusions was his
evaluation of the credibility of the witnesses. For example,
the ALJ found that Rick Greenwell, the supervisor who gave
Complainant the low performance evaluations leading directly to
his layoff, was "inadequate in his explanations of his motives
for actions taken against [Complainant]." R.D. and O. at 6. The
ALJ also noted that Greenwell never consulted with Paul
Plociennik, who was Complainant's supervisor for the four months
prior to Greenwell's poor performance evaluation of Complainant.
Plociennik had given Complainant a satisfactory performance
evaluation during that time which was "considerably higher than
evaluations prepared by Greenwell." R.D. and O. at 9.
See also the ALJ's evaluation of the internal consistency
of Alfred Kutowy's testimony with respect to the significance of
Complainant's safety and quality complaints, R.D. and O. at 4;
the ALJ's finding that Charles Jones, whose testimony supported
Complainant's version of events, "testified throughout in a
forthright manner," id. at 8. [5]
I am, of course, not bound by the credibility determinations
of the ALJ, although they are entitled to the weight which "in
reason and in the light of judicial experience they deserve."
Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 496
(1951). The ALJ's findings must be considered in light of "the
consistency and inherent probability of testimony." Id.
The entire record in this case has been reviewed, and I find that
it supports the ALJ's findings and conclusions.
In addition to the ALJ's explicit findings of fact, there is
one fact which lends further support to the ALJ's conclusions and
on which he did not explicitly rely. Complainant was relieved of
supervisory duties on October 14, 1985, and never again given any
supervisory responsibility up to the time of his layoff. His
duties for six months prior to his layoff involved paperwork in
an office. Respondent did not explain why Complainant was "force
ranked," or comparatively evaluated, with the other supervisors
in the Instrumentation and Controls Department for purposes of
selecting two supervisors for layoff, when he did not hold a
supervisory position. [6] In addition, Respondent did not show,
as was its burden to do under Dartey v. Zack Company, that
if it had made selections for layoff without taking the
discriminatory evaluation by Greenwell into account, Complainant
would have been laid off anyway because other employees clearly
were superior to him.
V. Relief.
Respondent excepted to the ALJ's award of back pay with
interest and compensatory damages to the extent it exceeded the
[PAGE 9]
amounts provided for in a stipulation of the parties. On the
last day of the hearing, counsel for Complainant stated on the
record that "[i]n the event that [the ALJ] should rule in favor
of Complainant, we have agreed to an amount of damages. . . .
We have agreed that the back pay amount will run from April 11,
1986, the date of layoff, to September 15th, 1987, and it will be
at the rate of pay at which Mr. Goldstein would have been paid
had he continued with his employment at EBASCO minus those wages
that he has earned since that time period . . . ." T. 1689.
Complainant's counsel also stipulated that the compensatory
damages to which Complainant was entitled were $4,314.00. T.
1690. The parties also agreed that, if the ALJ did not order
Respondent to reinstate Complainant, he would be entitled to one
year of "front pay". Id.
The ALJ said he could not accept the parties' stipulation in
its entirety because the ERA requires the Secretary to reinstate
the Complainant to the same or a substantially equivalent
position, and because "front pay" is not authorized by the ERA.
R.D. and O. at 13. The ALJ then awarded back pay from April 11,
1986, to the date of Complainant's reinstatement and compensatory
damages of $20,000. Id. Complainant has asserted that
the ALJ "was within his right" to reject the stipulation of the
parties, without citing any authority for that proposition.
Contrary to this view, the Fifth Circuit has held a number
of times that "[i]t is well settled that stipulations of fact
fairly entered into are controlling and conclusive, and courts
are bound to enforce them . . . ." A. Duda & Sons Cooperative
Association v. United States, 504 F.2d 970, 975 (5th Cir.
1974). SeealsoHoliday Inns v. C.H.
Alberding, 683 F.2d 931, 935 (5th Cir. 1982); Down v.
American Employer's Insurance Co., 423 F.2d 1160, 1164-65
(5th Cir. 1970). AccordConsolidated Grain and Barge
Co. v. Archway Fleeting and Harbor Service, Inc., 712 F.2d
1287, 1289 (8th Cir. 1983) (a stipulation on damages is binding);
Fenex v. Finch, 436 F.2d 831, 837 (8th Cir. 1971)
("[P]arties are bound by stipulations voluntarily made and . . . relief from
such stipulations . . . is warranted only under exceptional
circumstances.") Absent a provision in a stipulation which might
be contrary to public policy, a stipulation, like a settlement,
is a contract, and the parties should be held to their bargain.
Cf. Macktal v. Brown & Root, Inc., Case No. 86-ERA-
23, Sec. Order Nov. 14, 1989, slip op. at 4-5, rev'd on other
grounds, Macktal v. Sec'y of Labor, 923 F.2d 1150 (5th
Cir. 1991). Cf. Macktal, 923 F.2d at 1157.
VI. Attorneys' Fees.
A Supplemental Briefing Schedule was issued on June 3, 1990,
giving the parties an opportunity to submit briefs addressing the
ALJ's Recommended Supplemental Decision and Order (R.S.D. and O.)
[PAGE 10]
awarding attorneys' fees and costs. The R.S.D. and O. and
related record materials were not forwarded to the Secretary with
the R.D. and O., but were only received in May and June 1990,
respectively, and neither party addressed the attorneys' fees
issue in their initial or reply briefs. Both parties now have
filed briefs on attorneys' fees. [7]
Complainant's attorneys submitted a petition for attorneys'
fees and costs to the ALJ requesting fees of $51,412.50 for 411.3
hours of attorney time at $125 an hour, $13,678.00 for 390.8
hours of paralegal time at $35 an hour, and $10,279.63 in other
costs. [8] The ALJ awarded attorneys' fees and costs to
Complainant, but substantially reduced the amounts for attorneys'
fees and for paralegal costs. The ALJ recommended that the
Secretary award fees and costs for 106.7 hours of attorney time
at $65 an hour ($6,935.50), 34.5 hours of paralegal time at $35
an hour (,207.50), and substantially all of the other costs
claimed ($9,981.00). R.S.D. and O. at 6-7.
The authority of the Secretary in reviewing a recommendation
for the award of attorneys' fees and costs is the same as it is
with respect to any other recommendation of an ALJ after a
hearing under the ERA. The Secretary has "all the powers [she]
would have in making the initial decision . . . ." 5 U.S.C.
§ 557(b). Nonetheless, it is appropriate here, as in some
other areas, seesupra at 9-10, to give
considerable deference to the ALJ's findings.
Courts of appeals generally defer to the findings of trial
courts on matters of fees and costs because
an appellate court is not well situated to assess the
course of litigation and the quality of counsel. The
District Court judge, by contrast, closely monitors
the litigation on a day-to-day basis . . . [and is]
intimately familiar with the barrage of pleadings,
memoranda, and documents filed, and he observed the
proficiency of counsel in court.
Copeland v. Marshall, 641 F.2d 880, 901 (D.C. Cir. 1980).
SeeHensley v. Eckerhart, 461 U.S. 424, 437 (1983).
The Secretary and an ALJ stand in similar relative positions in
assessing the reasonableness of requests for attorneys' fees.
Accordingly, although I do not adopt the highly deferential abuse
of discretion standard applied by most federal courts of appeals,
I will give considerable deference to an ALJ's findings,
particularly in an area such as competence of counsel, because
"[t]he trial court 'saw 'the attorneys' work first hand'. . . .'"
Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1201 (10th
Cir. 1986).
The ERA provides that upon request, the Secretary shall
[PAGE 11]
award to a prevailing complainant "costs and expenses (including
attorneys' . . . fees) reasonably incurred." 42 U.S.C.
§ 5851(b)(2)(B) (emphasis added). "The most useful starting
point for determining a reasonable fee," the Court said in
Hensley v. Eckerhart, "is the number of hours reasonably
expended on the litigation multiplied by a reasonable hourly
rate." 461 U.S. at 433. This is sometimes referred to as the
"lodestar." Copeland v. Marshall, 641 F.2d at 891. Here
the ALJ reduced the number of hours requested for both attorney
and paralegal time and the hourly rate requested for attorney
time.
The ALJ found that this was a "relatively simple case" in
terms of the legal concepts involved and reduced the hours for
legal research accordingly. R.S.D. and O. at 2-3. I agree that
this case turned on its facts and broke no new legal ground. The
ALJ's most substantial reductions came in the areas of time spent
in trial preparation and trial for Complainant's attorneys and
their paralegals. The ALJ found that Complainant's lead counsel
at the hearing was a "novice [with] limited trial experience."
He evaluated her presentation of evidence and handling of
witnesses as "serious[ly] flawed," R.S.D. and O. at 3, and stated
that she had trouble meeting deadlines, communicating with
opposing counsel, and keeping the ALJ informed. Id. [9]
The ALJ noted several specific examples of how lead
counsel's inexperience led to the expenditure of nonproductive
time in trial preparation and at trial. R.S.D. and O. at 3-4.
The ALJ also found that co-counsel for Complainant, Mr. Richard
Condit, had even less experience than lead counsel and that he
was of little assistance at the hearing. Id. at 4. In
addition, the ALJ found that both attorneys spent an "excessive"
amount of time on post-trial work drafting briefs and preparing
the fee petition.
Complainant's attorneys oppose the ALJ's findings in the
R.S.D. and O. because the ALJ made substantial reductions "in
broad categories of activities without giving reference to the
number of hours for each category, or by referencing counsel's
detailed Fee Petition. [The ALJ's] failure to offer any
specific basis for his cuts is a strong indication of
arbitrariness . . . ." Complainant's Brief Supporting in Part
and Opposing in Part the Recommended Supplemental Decision and
Order at 6.
I find, however, that the ALJ's reasons for his reductions
in requested attorney hours were adequately explained. In
Mares v. Credit Bureau of Raton, the district court had
reduced requested hours for trial preparation by 77%, had granted
all requested hours for the trial, and had rejected all requested
hours for post-trial work. The district court's justification
for these substantial reductions was that the case could have
[PAGE 12]
been prepared in much less time by "a reasonably competent
lawyer . . . ." 801 F.2d 1197, 1202. The court of appeals
rejected the argument that the district court must identify and
justify each disallowed hour and the hours allowed for each task.
"Such a rule would lead to disagreements of the most odious sort
between court and counsel," and would violate the Supreme Court's
caution that a "request for attorney's fees should not result in
a second major litigation." Id., citing Hensley v.
Eckerhart, 461 U.S. at 437. Reducing hours by categories of
work to arrive at a "reasonable" number "is not an erroneous
method, so long as there is sufficient reason for its use."
Mares v. Credit Bureau of Raton, 801 F.2d at 1203. In
Hensley, for example, a one third reduction in the hours
claimed for one attorney was approved "to account for his
inexperience and failure to keep contemporaneous time records."
461 U.S. at 438 n.13. In Pennsylvania v. Delaware Valley
Citizens Council for Clean Air, 478 U.S. 546 (1986), the
Court upheld reductions of 48 percent and 33 1/3 per cent for
"unnecessary, unreasonable, or unproductive" time. 478 U.S. at
567.
The court held in Mares v. Credit Bureau of Raton
that it was not error to refuse to isolate and analyze every hour
for each task performed and state which were allowed and which
denied. The general reductions made by the district court were
supported by a review of the entire course of the case and a
finding that, given the nature and circumstances of the case, too
much time was claimed because of counsel's "inexperience." 801
F.2d at 1203. In addition, the court suggested that counsel
should have exercised "billing judgment." [10] The ALJ's
reductions for attorney time here were adequately explained in
the R.S.D. and O. and I will not disturb them.
The ALJ recommended "draconian" reductions in time claimed
for paralegal work because of "excessive 'digesting'" of
documents and duplicative legal research. R.S.D. and O. at 5.
He disallowed all of the hours claimed for one paralegal,
Ms. Bauman, as a duplication of the work of the trial attorney,
and substantially reduced the hours of the other paralegal,
Ms. Shepard, as unnecessary and unreasonable. He allowed 34.5
paralegal hours out of 390.8 claimed.
The Supreme Court has observed that "encouraging the use
of lower-cost paralegals rather than attorneys wherever
possible . . . 'encourages cost-effective delivery of legal
services . . . .'" Missouri v. Jenkins, 491 U.S. 274, 288
(1989) (citation omitted). Although I agree with the ALJ that
some of the paralegal time appears excessive, I do not accept the
ALJ's recommendation for reductions of this magnitude. Ms.
Shepherd spent 150.5 hours digesting the 1700 page hearing
transcript and one deposition of 105 pages. Almost a month to
digest 1800 pages
[PAGE 13]
certainly seems excessive. In addition, many hours were claimed
for Ms. Shepherd's work "[o]rganiz[ing] digests into findings of
fact" and "[p]repar[ing] findings of fact, conclusions of law,
and brief." I agree with the ALJ that these hours are excessive
and duplicative of what should have been attorney work. I will
allow 80 hours for Ms. Shepherd. Virtually all of Ms. Bauman's
work was digesting deposition transcripts which are not in the
record, but for which I will allow 8 hours. [11]
The ALJ rejected the request of Complainant's attorneys for
a rate of $125 an hour for attorney work. He found that the
"limited experience and the poor quality of the representation"
justified setting the rate at the lower end of the scale for
associates in major Washington, D.C., law firms. R.S.D. and O.
at 6. The ALJ also noted that Ms. Garde worked out of an office
in Appleton, Wisconsin, which he thought would have been the more
appropriate geographical area for determining the customary rate
for attorneys with her level of experience. Blum v.
Stenson, 465 U.S. 886, 895 (1984) ("'[R]easonable fees are to
be calculated according to the prevailing market rates in the
relevant community . . . ." However, neither party submitted
information on billing rates in the Appleton area.
I find the ALJ's decision to set the rate at $65 an hour was
reasonable. The ALJ based this rate on a chart of rates for
partners and associates in major District of Columbia law firms,
derived from the Directory of the Legal Profession for 1984 and
reproduced in Complainant's Petition for Attorney's Fees and
Costs, page 5. [12] Because of the "limited experience and the
poor quality of representation," R.S.D. and O. at 6, the ALJ
decided to set the hourly rate "at the lower end of the scale for
associates in the prestigious Washington, D.C. firms listed [in
the above chart]." Id. The burden was on Complainant "to
produce satisfactory evidence - in addition to the attorney's own
affidavits - that the requested rates are in line with those
prevailing in the community for similar services by lawyers of
reasonably comparable skill, experience and reputation." Blum
v. Stenson, 465 U.S. 886, 896 n.11. The ALJ found
Complainant did not carry that burden with respect to the
requested rate of $125 an hour. He concluded that the skill and
experience demonstrated proved entitlement only to $65 an hour,
the low end of the scale for associates in major Washington law
firms, because Complainant's attorney was a "novice" with
"limited trial experience." R.S.D. and O. at 3. Absent any
substantial showing that the ALJ was mistaken in his evaluation
of the level of skill and experience of Complainant's attorney, I
sustain his determination on the applicable hourly rate.
Complainant's attorneys' request for an enhancement of the
"lodestar" amount is denied. Although the governing test for
[PAGE 14]
enhancement may be somewhat unclear at this time, Complainant has
not shown he is entitled to an enhancement under any of the
recent Supreme Court decisions on this issue. SeePennsylvania v. Delaware Valley Citizens' Council, 483
U.S. 711, 734 (1987) (O'Connor, J., concurring); Blum v.
Stenson, 465 U.S. 886, 899 (1984); and see analysis of
plurality and concurring opinions in Delaware Valley in
King v. Palmer, 950 F.2d 771, 777-85 (D.C. Cir. 1991).
Finally, after the fee petition was submitted to the ALJ,
Complainant's attorney, Mr. Condit, [13] submitted a request for
time spent on this case, including preparing briefs filed before
me on both the R.D. and O. and the R.S.D. and O. Mr. Condit
submitted an initial and a reply brief in support of the ALJ's
R.D. and O., and a brief on the R.S.D. and O. The initial brief
on the R.D. and O. was limited to an overview of the facts and a
short discussion of each major point in support of the ALJ's R.D.
and O. This approach appropriately kept the time expended in
briefing the case to the Secretary to a minimum. The reply brief
contained a refutation of Respondent's arguments asserting error
by the ALJ in his application of the law to this case, and a
fairly detailed analysis of the facts in support of the ALJ's
findings of fact. The brief on the R.S.D. and O. was an
appropriate effort, even though I did not find it entirely
persuasive, to support the granting of attorneys' fees while
arguing that the ALJ's reductions were too severe. The time
spent, 91.9 hours, in relation to the overall work product
appears reasonable. Attached to this supplemental request for
attorneys' fees is an article from the National Law
Journal of November 30, 1989, entitled "Sampler of Rates
Around the Country," listing billing rates for several large
firms in Washington, D.C. I find it appropriate, therefore, to
set the rate for this supplemental request for attorneys' fees at
$85 an hour, the lower range of rates for associates in the
Washington, D.C., area (which I find is the relevant market for
work on filings before the Secretary on ALJ recommended decisions
under the ERA) indicated in the National Law Journal. [14]
The request for enhancement of these fees is denied for the same
reason stated above for denial of the enhancement of fees for the
ALJ hearing.
Respondent shall pay Complainant's attorneys' fees and
costs [15] as follows:
- Attorney work before the ALJ:
106.7 hours at $65/hour
= $ 6,935.50;
- Paralegal work:
88 hours at $35/hour
= $ 3,080.00
[PAGE 15]
- Other costs claimed:
= $ 9,981.00
- Attorney work after March 1988:
91.9 hours at $85/hour
= $ 7,811.50
Total: $27,808.00
VII. Order.
Accordingly, Respondent is ordered:
1) to reinstate Complainant to his former position or a
substantially equivalent position with the same terms, benefits,
conditions, and privileges he would have enjoyed if Respondent
had not laid him off on April 11, 1986;
2) to pay Complainant back pay from April 11, 1986, to
September 15, 1987, as provided in the parties' stipulation,
T. 1689-90;
3) to pay Complainant compensatory damages of $4,314.00 as
provided in the parties' stipulation, T.1690;
4) to expunge from its records the evaluations of
Complainant by Mr. Greenwell upon which the April 1986 layoff was
based;
5) to pay Complainant's attorneys' fees and costs as set
forth above.
SO ORDERED.
LYNN MARTIN
Secretary of Labor
Washington, D.C.
OAA:DDRACHSLER:kg:02/19/96
ROOM S-4309:FPB:523-9728
[ENDNOTES]
[1] Apparently there are two separate nuclear reactors at STP
with separate appurtenant buildings such as a Fuel Handling
Building and a Diesel Generating Building for each.
[2] I do not adopt Complainant's argument that making complaints
to the organization called SAFETEAM is equivalent to making
complaints to the government for purposes of protected activity
analysis under Brown & Root. Complainant's Initial Brief
at 4-6. (SAFETEAM is an organization established by Houston
Lighting and Power Company to receive and investigate allegations
of safety and quality violations at STP.) The fact that SAFETEAM
may have carried out its activities in a manner similar to
government investigative agencies cannot transform a private
organization, responsible only to a private corporation, into a
government agency.
In addition, I do not rest my decision here on the ALJ's
view that filing a complaint with SAFETEAM would constitute
"commencing" or "causing to be commenced" a proceeding under the
ERA which would meet the Fifth Circuit's test for protected
activity. R.D. and O. at 11.
[3] I do not accept a requirement, as asserted by Respondent,
that Complainant must prove that "but for" his protected
activity, the adverse action would not have been taken. If
the employee carries his burden of proving by a preponderance
of the evidence that retaliation was a motivating factor in the
adverse action, the employer has the burden of proving by a
preponderance of the evidence that it would have taken that same
action even if the employee had not engaged in any protected
activity. Mackowiak v. University Nuclear Systems, Inc.,
735 F.2d at 1163-64. The Supreme Court affirmed its approval of
the "even if" standard in the dual motive analysis in Price
Waterhouse v. Hopkins, 490 U.S. 228, 242 (1989) ("an employer
shall not be liable if it can prove that, even if it had not
taken gender into account, it would have come to the same
decision regarding a particular person.") (plurality opinion).
[4] Among other things, Respondent asserts that Complainant
received performance evaluations by Mr. Greenwell that were
lower than most of the other supervisors both before and after
Complainant engaged in protected activity, which shows that the
evaluations were not motivated by the protected activity.
Respondent points to Complainant's complaint to the Ebasco
Quality Assurance Department on August 13, 1985, as the first
protected activity. But Complainant began raising complaints
about the competence of Mr. Parent and some workers on the B
Shift under Mr. Parent's supervision in June 1985. Transcript of
hearing (T.) 36-37; 52-53. These concerns were borne out by the
findings of the Ebasco Quality Assurance Department. Ebasco QA
found in its investigation of Complainant's concerns that "[i]n
regards to B Shift Activities from March 1985 to August 1985 it
appears that some of the hardware discrepancies and procedural
violations noted resulted from the inadequate training and
preparation of Ken Parent. . . . B Shift personnel were not
adequately familiar with the program." Complainant's Exhibit 40,
p. 4.
[5] Complainant was transferred to the Diesel Generating
Building in August 1985, and transferred several times to
nonsupervisory office work in October and December 1985 and March
1986. Although these adverse actions are not actionable because
they occurred more than 30 days before he filed the complaint,
they are some evidence of retaliatory intent in the poor
performance evaluation and layoff which followed shortly
thereafter.
[6] The only reference to this question in the record is Mr.
Greenwell's comment in response to questions about why he filled
out a field supervision checklist on Complainant between December
1985 and March 1986 when Complainant was not a supervisor at that
time. Mr. Greenwell said "[t]hat's because he was in the
construction budget, I guess you could say." T. 1181.
[7] Respondent urges the Secretary to deny Complainant's
request for costs and attorney's fees in its entirety because the
request was not filed within the time specified by the ALJ in the
R.D. and O. The ALJ ruled in the R.S.D. and O. that
Complainant's attorneys did make a timely submission of the
petition for costs and attorneys' fees because the ALJ's order
was not received by Complainant's lead counsel, Ms. Garde, at her
office in Wisconsin. Ms. Garde requested additional time to
submit the petition, which the ALJ granted. R.S.D. and O. at 1.
There are no specific provisions, either in the regulations implementing
the ERA, 29 C.F.R. Part 24, or the Rules of Practice and
Procedure for Administrative Hearings Before the Office of
Administrative Law Judges, governing time limits set by ALJs for
submissions in cases pending before them. The ALJ did not abuse
his discretion in accepting the Fee and Costs Petition here and
Respondent has had ample opportunity to express its views on the
subject.
[8] Complainant voluntarily reduced the number of hours claimed
for paralegal work from the 576.2 purportedly shown by its
records to 390.8. See Appendix A to Complainant's
Petition for Attorney's Fees. Complainant also requested an
upward adjustment of the so-called lodestar amount of $75,370.13
to $89,765.63. In addition, Complainant requests in his
attorneys' fees brief an additional fee award of $11,487.50 for
91.9 hours spent preparing the merits brief before the Secretary
and the brief on attorneys' fees. Finally, Complainant requests
that the latter amount should be enhanced to $14,704.00.
[9] The ALJ intimates that Complainant's counsel may not have
been forthright about certain contacts she said she had made with
opposing counsel. S.D. and O. at 3.
[10] In Hensley v. Eckerhart, the Court said "[c]ases may
be overstaffed and the skill and experience of lawyers vary
widely. Counsel . . . should make a good-faith effort to exclude
from a fee request hours that are excessive, redundant, or
otherwise unnecessary, just as a lawyer in private practice
ethically is obligated to exclude such hours from his fee
submission. 'In the private sector, 'billing judgment' is an
important component in fee setting. It is no less important
here. Hours that are not properly billed to one's client
also are not properly billed to one's adversary pursuant
to statutory authority.' Copeland v. Marshall, 205 U.S.
App. D.C. 390, 401, 641 F.2d 880, 891 . . . ." 461 U.S. at 434
(emphasis in original). Here, I would note, for example, that
counsel claimed a number of 10, 12, 14, and 15 hour days. I have
no doubt that counsel was in the office for that amount of time
on each of those days, but exercise of billing judgement suggests
not claiming that every minute of every hour was billable.
[11] In reducing the hours claimed for paralegal work, I have
taken into account the court of appeals' comment in Copeland
v. Marshall that "there may be more than one reasonable
hourly rate . . . for each of the kinds of work [] involved in
the litigation." 641 F.2d 880, 892. Here again, Complainant's
attorneys should have exercised billing judgment, requesting
considerably less than $35 an hour for digesting transcripts by
paralegals. Rather than attempt to calculate costs for
different hours worked at different rates, the reduction in hours
for the paralegals takes this factor into account.
[12] The Fifth Circuit has indicated that the applicable
"market rate" is the rate in the area where the case is tried.
Young v. Pierce 822, F.2d 1376, 1378 (5th Cir. 1987);
see alsoDonnell v. United States, 682 F.2d 240,
251 (D.C. Cir. 1982) ("the relevant community is the one in which
the district court sits"). This case was tried in Houston,
Texas, by an ALJ from the Department of Labor's Office of
Administrative Law Judges regional office in San Francisco, but
neither party submitted rates for either of those areas and
Respondent did not object to use of Washington, D.C., rates.
Respondent's Brief in Support of the Supplemental Recommended
Order of Administrative Law Judge Brissenden at 5.
[13] Mr. Condit is in the Washington, D.C., office of the
Government Accountability Project. Ms. Garde apparently
performed no work on the case after the filing of the original
fee petition.
[14] Respondent did not reply to Complainant's request for
attorneys' fees for work on this case before the Secretary,
although Respondent did file a Brief in Support of the
Supplemental Decision and Order of [the ALJ] urging the Secretary
to adopt the ALJ's recommendation for reductions in the number of
hours claimed and application of the lower hourly rate.
[15] Respondent shall not be liable, however, for those costs
for which Complainant failed to provide records and
documentation. S.D. and O. at 6.
