|
|
|
 |
 |
||||||||||||||
 |
| September 24, 2008 DOL Home > OALJ Home > Whistleblower Collection |
|
USDOL/OALJ Reporter Office of Administrative Law Judges Mercedes City Center 200 S Andrews AVenue, Suite 605 Ft. Lauderdale, FL 33301 DATE: Apr 11, 1990
Case No.: 89-ERA-0028 In the Matter of
FLOYD (Mitchel) SIMMONS, and v.
FLORIDA POWER CORPORATION, and
On December 13, 1989, a decision was issued in the above captioned matter, recommending an award of certain injunctive relief and damages. Although the parameters of an award of back pay, front pay and attorneys' fees and costs were established, the parties requested an opportunity to agree on the specific amount of such an award, and were provided thirty days to reach a settlement agreement. The parties now request a supplemental decision, having failed to resolve the following issues. A. Back Pay By conditioned stipulation of the parties, Complainants were found entitled to an award of back wages beginning on February 13, 1989, the date the Simmons Brothers would have been rehired had they not been discriminatorily blacklisted by Respondents. In dispute, however, was the length of time they would have legitimately remained employed. Many of the pipefitters hired on that date were subsequently laid-off due to a reduction in Fluor's workload.. Based on the evidence available [Page 2] at the time of the hearing in June of 1989, it was determined that, as at least the top fourth and fifth pipefitters, the Simmons Brothers would have remained employed until sometime in August of 1989, when Fluor anticipated further reducing its work force from five pipefitters to three, upon the completion of a project involving mar work. The parties now stipulate, however, that at no time since February 13, 1989 has Fluor reduced its work force to less than four pipefitters. Thus, it is likely that the Simmons Brothers would have remained consistently employed by Fluor from February 13, 1989 through the present date. It is the position of Complainants that back wages should, therefore, continue to accrue until the Secretary of Labor issues a final order in this matter. Respondents, on the other hand, argue that the back pay period ended on June 8, 1989 at the formal hearing, when Complainants "renounced any desire to be reinstated," and requested an award of front pay in lieu of reinstatement. Contrary to Respondents' argument, any such "renunciation" by Complainants at the hearing did not resolve the issue of which remedy would be appropriate to award in this case. Respondents continued to oppose Complainants' preference for front pay in their post hearing briefs, and the issue was decided by the undersigned on December 13, 1989. Because the Simmons Brothers voiced legitimate concerns about returning to work at the nuclear plant, they were each awarded three years of front pay in lieu of reinstatement. Although awards of back pay and reinstatement are separate and distinct remedies, the recovery period for back pay typically closes when an order of reinstatement takes effect, since in most cases, absent the discriminatory action, the complainant would have been employed up to the date of reinstatement. The instant case was somewhat unusual in that the length of time Complainants would have remained employed if they had been rehired on February 13, 1989 was uncertain due to Fluor's fluctuating work force needs. However, the evidence now clearly establishes that Complainants would have been consistently employed from February 13, 1989 through the date front pay was ordered in lieu of reinstatement, and Respondents will be responsible for the [Page 3] payment of back wages to that date. The fact that front pay was awarded, rather than reinstatement, is immaterial to the close of the recovery period for back wages on December, 13, 1989. If immediate reinstatement had been ordered, and Respondents failed to comply, the initial award of back pay would not increase, although Complainants may request the Secretary to award additional damages incurred due to Respondents' failure to reinstate. Similarly, an award of front pay in lieu of reinstatement is also separate from the initial award of back pay. Front pay is a sum certain that wholly replaces the remedy of reinstatement. If Respondent fails to immediately pay this sum, what is lost is not additional back wages, but interest on the amount unpaid. Although the decision of the administrative law judge is only recommended in these matters, the Secretary of Labor often merely adopts the findings and conclusions of the administrative law judge as her final decision. Thus, all issues, including the effective date of the recovery periods, should be fully resolved at this level. If the Secretary disagrees with the recommended decision, she is free to establish her own effective dates for computation of back pay. Accordingly, Complainants will be awarded, back pay for the period from February 13, 1989 through December 13, 1989. The parties have stipulated that the straight time hourly wage for the job classification in which Complainants were last employed by Fluor was $14.61 for the period from August 1, 1988 through April 30, 1989. Effective May 1, 1989, the wage rate increased to $14.92 per hour. Overtime wages are computed at 1.5 times the straight time rate of pay, and double-time wages are computed at two times the straight-time rate of pay. Billy Weigelt and Ron Renney have occupied the fourth and fifth pipefitter positions at Fluor since August of 1988. The average number of hours these two employees worked between February 13, 1989 and December 13, 1989, provides a reasonable standard by which to calculate Complainants' back wages. The following chart lists the hours worked by Messrs. Weigelt and Renney during this period, and the resulting back wages to be awarded to Complainants: [Page 4]
February 13, 1989 through April 30, 1989
Straight- Double-
time: Overtime: time: Total:
*February 1989:
Weigelt 91.2 0.6 0.0 91.8
Renney 52.8 0.0 0.0 52.8
March 1989:
Weigelt 160.0 71.1 10.0 241.1
Renney 160.0 62.0 2.0 224.0
April 1989:
Weigelt 159.9 25.0 0.0 184.9
Renney 160.0 37.5 0.0 197.5
Totals Hours: 783.9 196.2 12.0 992.1
Average Hours: 392.0 98.1 6.0 496.1
Times ST/OT x $14.61 x $21.92 $29.22
& DT rates
Average Wages
02/13/89 to
04/30/89: $5,727.12 $2,150.35 $175.32 =
$8,052.79
May 1, 1989 through December 13, 1989
Straight- Double-
time: Overtime: time: Total:
May 1989:
Weigelt 191.1 18.0 0.0 209.1
Renney 189.5 30.0 0.0 219.5
June 1989:
Weigelt 157.5 0.0 0.0 157.5
Renney 160.0 0.0 0.0 160.0
July 1989:
Weigelt 121.5 3.5 0.0 125.0
Renney 133.0 7.5 0.0 140.5
August 1989:
Weigelt 168.0 14.5 10.0 192.5
Renney 191.9 14.2 10.0 216.1
September 1989:
Weigelt 148.7 14.1 0.0 162.8
Renney 152.0 6.0 0.0 158.0
Complainants are also entitled to any benefits that would have accrued during this period. Under the benefits package applicable to the job classification Journeyman Pipefitter since August 1, 1988, Fluor is required to pay .23 for each hour of work performed by an employee to the Plumbers and Pipefitters Local 111 Health and Welfare Fund, and .35 per hour to the Plumbers and Pipefitters Local 111 Pension Fund. In order to continue receiving health insurance coverage, Larry Simmons has paid out-of-pocket premiums of $947.12, and Floyd Simmons has paid ,283. Complainants are apparently requesting both reimbursement of these out-of-pocket expenses, and an order requiring Respondents to pay lost benefits to their union accounts. Granting both requests, however, would result in a double recovery. Since it is unclear which portion of the out-of-pocket health insurance premiums resulted from the failure to [Page 6] pay benefits during the recovery period at issue in these proceedings, Respondents will be required to pay the benefit sums to the Plumbers and Pipefitters Local 111 Funds, according to the total average number of hours Complainants would have worked during the relevant recovery period. Complainants will presumably then be reimbursed by the Health and Welfare Fund for the out-of-pocket sums paid. The total average number of hours worked by Messrs. Weigelt and Renney during the recovery period was 1,765.6. Respondents will accordingly be ordered to pay the Health and Welfare Fund $2,171.69, and the Pension Fund $2,383.56 for the benefit of each Complainant. Respondents may offset the award of back wages with the interim earnings of Complainant. The uncontroverted evidence submitted by Complainants establishes these earnings at $5,122. for Larry Simmons, and $4,807.87 for Floyd Simmons. B. Front Pay Complainant were also awarded three years of future earnings in lieu of reinstatement to their former positions. Under Fluor's new maintenance contract with Florida Power, which substantially reduced its workload, it was determined that Complainants could only reasonably expect to have been sporadically employed by Fluor during this three year period, when additional pipefitters were needed beyond the two or three then retained by Fluor on a more consistent basis. Thus, the parties were directed to calculate the front pay award by using the number of hours messrs. Weigelt and Renney were needed, as the fourth and fifth pipefitters, from April 1, 1988 through March 31, 1989, the first year of Fluor's new contract. Although this methodology may not have proved to be a 100% accurate measure of Complainant's lost future earnings, it was, and still appears to be the most reasonable method to calculate these speculative damages, taking into consideration all the variables in this situation. The parties agree that the average number of hours worked by Messrs. Weigelt and Renney from April 1, 1988 through March 31, 1989 were the following: 1101 straight-time hours, 93.25 over-time hours, and 11 double-time hours. Using the hourly rate of $14.92 which took effect on May 1, 1989, the [Page 7] average earnings during this period were $18,842.10. Each Complainant is also entitled to yearly benefit payments in the amount of ,482.46 to the Health and Welfare Fund, and ,627.09 to the Pension Fund, based on 1,2011.25 hours, the total average number of hours worked by Weigelt and Renney during this period. Accordingly, Complainants are each entitled to an award of front pay in the amount of $56,526.30, with additional benefit payments in the amount of $9,328.65. C. Attorneys' Fees and Costs Respondents are also liable for all costs and expenses, including attorneys' fees, reasonably incurred by Complainants in pursuing this matter. 29 C.F.R. SS 24.6(b)(3). Counsel for Complainants, Louis D. Putney and James D. Clarke, have requested a total fee of $130,725.00.for legal services rendered, and reimbursement of $5,919.76 in litigation expenses. Mr. Putney represents that he performed 396.3 hours of legal services in this matter at an hourly rate of $125.00. Mr. Clarke expended 105.5 hours at an hourly rate of $150.00. Messrs. Putney and Clarke request that the $65,362.50 "lodestar" (hours reasonably expended multiplied by a reasonable hourly rate) be enhanced 100%, resulting in a total fee of $130,725.00. In Norman v. Housing Authority of the City of Montgomery, 836 F.2d 1292 (11th Cir. 1988), the Eleventh Circuit set forth the requisite standards to be used in evaluating a request for attorney's fees. A fee applicant first carries the burden of producing satisfactory evidence that the hourly rate and the number of hours claimed are reasonable. A. Hourly rate. A reasonable hourly rate is the prevailing market rate within the relevant legal community for similar services by lawyers of reasonably comparable skills, experience and reputation. Norman, 836 F.2d at 1299. Although Complainants were represented in this case on a contingency fee basis, Messrs. Putney and Clarke state that their respective hourly billing rates of $125.00 and $150.00 are the rates they currently charge paying clients for noncontingent legal services. The record also contains the affidavit of Robert J. Shapiro, Esq., who has been extensively involved in civil rights litigation, including employee discrimination cases, in the [Page 8] Tampa, Florida area for approximately ten years. Based on an informal survey of attorneys in the area who have sought and obtained fees in civil rights cases, Mr. Shapiro believes that the relevant prevailing market rate in this similar case ranges from $125. to $195. an hour. Taking into consideration the qualifications of Messrs. Putney and Clarke, as well as the work product produced in the instant case, Mr. Shapiro feels that the hourly rates sought by counsel are well within the range of prevailing rates for the relevant legal community, and are therefore reasonable. In light of the credible and uncontroverted evidence produced by Complainants' counsel, as well as the competence and skill exhibited by these two attorneys throughout these proceedings, the hourly rates of $125. for Mr. Putney and $150. for Mr. Clarke appear reasonable, and will be allowed. B. Hours expended. Hours reasonably expended are those spent on "work that would be paid for by a reasonable client of means seriously intent on vindicating the right in issue." Perkins v. Mobile Housing Board, 847 F.2d 735 (llth Cir. 1988). Thus, those hours which are excessive, redundant or otherwise unnecessary may be disallowed. Id.; Norman, 836 F.2d at 1301. Respondent Florida Power objects to the hours claimed by Mr. Putney for time spent preparing post hearing memoranda after January 3, 1990, arguing that such memoranda was only "precipitated by the unwillingness of counsel to engage in a good faith attempt to reach an agreement" on the issues left unresolved in the initial decision. However, a review of the various documents submitted by the parties regarding the settlement negotiations reveals no evidence of bad faith. This case involved, several complex issues. Although Respondents eventually conceded liability, they continued to vigorously contest every other issue. Thus, in light of the particular circumstances of this case, the time expended by Messrs. Putney and Clarke on all issues appears to have been both necessary and reasonable. C. Adjustment of "lodestar". Once the lodestar fee is determined by multiplying the number of hours reasonably expended by a reasonable hourly rate, an adjustment may be made to reflect [Page 9] the results obtained by Complainants' counsel. If Complainants were only partially successful, the lodestar may be reduced to an amount that is not excessive. Although Complainants did not prevail on every theory they propounded in this case, their claim as a whole was very successful. Thus, the lodestar does not appear to be excessive in light of the results obtained. On the other hand, the results obtained were not "exceptional" to the extent that enhancement is warranted. After reviewing relevant Supreme Court precedents, the Eleventh Circuit in Norman set forth the criteria necessary for enhancing the lodestar fee. 836 F.2d at 1302. First and foremost, the results obtained must be deemed out of the ordinary, unusual or rare. The nature of the right vindicated or the amount recovered is not relevant to this determination. Rather, in order to be considered "exceptional" the outcome must be unexpected in the context of extant substantive law. If so, counsel must then show that the quality of representation was superior to that which one could reasonably expect in light of the rates claimed, and, finally, that such enhancement is necessary to assure the availability of counsel. Id. In the instant case, Messrs. Putney and Clarke have failed to show that the results obtained on behalf of Complainants were exceptional in light of the substantive law. As Respondents argue, liability was conceded, and the subsequent award of damages was required under the Act and regulations. Although the nature of the damages awarded was somewhat unusual in this particular case (for instance, front pay in lieu of reinstatement), such an award is fully supported by the Act, regulations and relevant case law, and does not reach the level of "exceptional" as defined by the Eleventh Circuit. Accordingly, Mr. Putney will be awarded a fee of $49,537.50 for 396.3 hours of legal services rendered at an hourly rate of $125.00, and Mr. Clarke will receive a fee of $15,825.00 for 105.5 hours of legal services rendered at an hourly rate of $150.00. D. Costs. All costs submitted by Complainants' counsel appear to be reasonably incurred, and will be allowed. Mr. Putney is entitled to reimbursement of $5,603.15 in litigation expenses, and Mr. Clarke shall be reimbursed $316.61. [Page 10]
Accordingly, it is hereby RECOMMENDED that Respondents, Fluor Constructors, Inc. and Florida Power Corp., be ORDERED to take the following additional steps to remedy their violation:
E. EARL THOMAS
*60% (would have worked only 12 of 20 work days) *45% (would have worked 9 of 20 working days, excluding Christmas day)
|
||||||||
| ||||||||
