DATE: July 10, 1997

Case No: 96-ERA-0044

In the Matter of:

KENNETH DOBREUENASKI,
    Complainant,

    v.

ASSOCIATED UNIVERSITIES, INC.
   Respondent.

Appearances:

Howard Leff and Robert Rosen, Esqs.
    For Complainant

Richard Cys and Michael Goldman, Esqs.
    For Respondent

Before: RALPH A. ROMANO
    Administrative Law Judge

    By Interim Recommended Decision and Order dated May 1,

1997, the merits of this claim were fully decided. The content of such decision is hereby incorporated herein in its entirety.

    Counsel for Complainant has now submitted a petition for legal fees and costs, and Respondent has, in part, opposed same.

    Counsel seeks $67,541.50 for fees, and $5,584.00 costs and disbursements.

    Respondent opposes, in part, this petition on the following grounds:

    1. Unnecessary duplication of efforts, through preparation and trial appearance by two lawyers and one paralegal. A reduction of $14,150 is requested.

    2. Impermissible costs are claimed for service of, and appearance witness fees for, an unauthorized subpoena, and for travel expenses of Complainant. A reduction of ,459.20 is requested.

    3. Fees for time spent pursuing an unsuccessful claim should be disallowed. A 25% estimated reduction is suggested.

    4. Fees should be reduced as unreasonable in light of the award secured. A 50% reduction is suggested.

    The party seeking fees has the burden to prove its request is reasonable. Rode v. Dallarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). To meet its burden, the fee petitioner must submit evidence supporting the hours worked and the rate claimed. Id. Once the moving party meets its burden, the party opposing the fee has the burden to challenge the reasonableness of the requested fee. Id. Mere statements in briefs are not sufficient when a factual issue is raised; the challenging party must introduce affidavits. Bell v. United Princeton Properties, Inc. 884 F.2d 713, 720 (3d Cir. 1989).

    Complainant's counsel's petition for attorneys' fees included a detailed printout of all hours expended, and affidavits of counsel. Respondent's response contains no supporting affidavits.

    I find Respondent's first point of opposition (unnecessary duplication) to be without merit. Considering the scope of this record, complexity of facts, number of witnesses called and documentation produced, the use of two lawyers and one paralegal is found to be appropriate.

    As factual issues underlie Respondent's second contended item as to certain costs claimed, in the absence of supporting affidavits, such opposition is found unsupported.

    With regard to Respondent's argument that counsel is not entitled to fees relating to effort expended on the unsuccessful claim (constructive discharge), I find that nearly all evidence submitted on Complainant's case was designed to establish a pattern of animus on the part of Respondent such as would impact upon Complainant's theory of recovery for alleged retaliatory conduct resulting in both demotion and discharge. These alleged results of employment discrimination were thus each informed by the near entirety of Complainant's evidence, and accordingly, I find these claims of unlawful demotion and unlawful discharge not distinct or unrelated so as to warrant exclusion of hours spent on either claim for purposes of arriving at a reasonable fee award. I also find that Mrs. Dobreuenaski's testimony relative to the amount of damages claimed had bearing also upon Complainant's overall reaction to such alleged pattern of retaliation, and, as such, similarly not distinct or unrelated for purposes of exclusion of hours.

    Finally, insofar as Respondent's position that the limited award secured ($168) should reduce as unreasonable 50% of the fees claimed, I note that "A reduced fee award is appropriate if the relief, however significant, is limited in comparison to the scope of the litigation as a whole." Hensley v. Eckerhart, 461 US 424 (1983), at 440. There is no question here that only a limited degree of success was obtained. By no means, however, does this render the outcome of this litigation of "nominal" or "de minimus" value, since the remedial public purpose of the statute involved (42 U.S.C. 5851) was, in a meaningful sense, viewed apart from the size of the monetary award, advanced. That is, this Respondent-employer was found to have discriminatorily demoted Complainant, and Complainant was awarded damages therefor. Moreover, employers, at large, are thereby discouraged from taking like action in the future. I find, however, that this end result having been accomplished does not go so far as to justify, reasonably, an award for the entire attorney fee here claimed, and I find a 50% reduction thereof to be in order under the circumstances.

    On the basis of the foregoing, Respondent is ORDERED to pay counsel for Complainant the sum of $33,770.75 for attorney's fees and $5,584.00 costs and disbursements.

      RALPH A. ROMANO
      Administrative Law Judge

Camden, New Jersey

NOTICE: This Recommended Decision and Order and the administrative file in this matter will be forwarded for review by the Secretary of Labor to the Administrative Review Board, U. S. Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, D.C. 20210. The Administrative Review Board has the responsibility to advise and assist the Secretary in the preparation and issuance of final decisions in employee protection cases adjudicated under the regulations at 29 C.F.R. Parts 24 and 1978. See 55 Fed. Reg. 13250 (1990).