DATE: 12-19-94
CASE NO: 94-STA-0046
IN THE MATTER OF
Ricky M. Polgar,
Complainant
v.
Florida Stage Lines,
Respondent
Counsel:
Toby Lev, Esq.
For the Complainant
The Respondent appeared pro se
Before: CHARLES P. RIPPEY
Administrative Law Judge
DECISION AND ORDER
This matter arises from the complaint of Ricky M. Polgar
under the Surface Transportation Assistance Act, Pub. L. 97-424
(1982), 49 U.S.C. §2305, hereafter referred to as the Act,
and the regulations promulgated thereunder at 49 C.F.R. §900
et seq. and 29 C.F.R. Part 1978.
A Decision and Order issued November 10, 1994 was vacated
by Order issued November 14, 1994.
A Partial Decision and Order issued November 22, 1994
found that the Respondent had discriminated against the
Complainant and ordered his immediate reinstatement. It also
afforded the Respondent an opportunity to respond to the
[PAGE 2]
Complainant's Motion for Back Pay, and for the Complainant's
attorney to file a fee application.
Back Pay
The Complainant based his calculations upon certain pay
stubs he was able to find. The Respondent filed as Exhibit 1 to
its letter of November 30, 1994 a table of gross wages paid to
the Complainant. My calculations are based upon that table as
the most complete evidence available.[1]
I will use the average pay for a trip day the $6,422 paid
to the Complainant by the Respondent during 1994 divided by the
79 trips involved, producing an average of $81.29 per trip. I
will assume that during the remainder of May, 1994, following his
discharge on May 19, 1994, that he would have had nine trips in
the remaining 12 days of May.[2] Those nine trips would have
resulted in gross pay for those 12 days of $731.61. From June
through November, 1949 Florida Stage estimates the Complainant
would have had 41 trip days and I estimate that during December,
1994 he would have had two trip days.[3] The 43 trip days for
the last six months of 1994 results in a calculation of lost
gross wages in the amount of $3,495.47. This results in total
lost wages through the end of December, 1994 in the amount of
$4,227.08.
The Complainant's statement that he received $50.00 per
week in tips appears reasonable to me, and I accept it. Failure
to report tips to the Respondent, as required by the Internal
Revenue Code, is not realistic evidence, under the circumstances
that tips were not received. Fifty dollars each for 26 weeks,
adds $130.00 to the amounts calculated above, resulting in a
total of $4,357.08.
The Respondent admits that it reported to Volusia County
Schools that there were changes in the Complainant's attitude and
performance which resulted in his discharge. The Complainant's
assertion that these reports led to his discharge by Volusia
County Schools as a driver appear reasonable to me and lend
credence to his assertion that he was discharged after only three
weeks of driving. I accept his calculations that he earned
$725.00 driving for the Volusia County Schools. This deduction
results in a net lost pay amount of $3,652.08.
The Respondent asserts that the Complainant refused a job
offer from Gainey Bus Charters on June 28, 1994. Whether such a
job was ever offered or "refused" cannot be determined from the
[PAGE 3]
second hand reports of statements contained in the Respondent's
letter, and no evidence regarding Gainey Bus Charters was
introduced into the record at the hearing. I find that there is
an insufficient basis in this record to determine that the
Complainant refused employment by Gainey.
The Respondent asserts that the Complainant was not
actively seeking work, but there is no evidence in this record to
support such a conclusion.
Attorney Fees
The Complainant's counsel, Tobe Lev. Esq., of Orlando,
Florida, has filed an application for approval of a
representation fee in the amount of $2,980.00, including $40.00
in costs. His application is based upon 19.6 hours of work at
the rate of $150.00 per hour. Both the hourly rate and the time
expended appear reasonable. The application was filed December
5, 1994. No objection has been filed to the application. The
application is approved.
I am informed that the Respondent has not reinstated the
Complainant as ordered in the November 22, 1994 Partial Decision
and Order. If that is correct, the Complainant's official
certification of that fact to the Secretary of Labor initiates
the Secretary's obligations under the Act to seek enforcement of
the reinstatement order.
ORDER
The Respondent, Florida Stage Lines, is hereby ordered to
pay to the Complainant, Ricky M. Polgar, payment equal to wages
lost by the Complainant as a result of its discrimination against
him through the end of December, 1994 in the amount of three
thousand six hundred and fifty two dollars and eight cents
($3,652.08), and to pay to pay to attorney Tobe Lev, Esq. of
Orlando, Florida the sum of $2,940.80 for representation services
rendered to the Complainant in this matter. The back wage
payment assumes that the Complainant has not been reinstated by
the Respondent by December 31, 1994. Failure to reinstate the
Complainant for any time after that date would result in
additional back wage liability on the part of the Respondent.
[PAGE 4]
CHARLES P. RIPPEY
Administrative Law Judge
Washington, D.C.
[ENDNOTES]
[1] That Exhibit and the discussion labeled Part 1, of the November 39,
1994 letter from the Respondent, are hereby admitted into evidence as being
responsive to the Complainant's Motion for Back Pay. In all other respects
the Complainant's Motion to Strike Respondent's Submissions is granted.
[2] Florida Stage's records indicate that he had 14 trips in the first 19
days of May, and applying that same ratio to the remaining 12 days of the
months produces 8.8, rounded to 9, trips.
[3] In 1993 the ratio of November to December trips was 13 to 4, and in 1992
it was 6 to 2. It is my estimate that a similar drop from the 8 trips in
November of 1994 would have resulted in 2 trips in December, 1994.
