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| October 3, 2008 DOL Home > OALJ Home > Whistleblower Collection |
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USDOL/OALJ Reporter Office of Administrative Law Judges 525 Vine Street, Suite 900 Cincinnati, OH 45202 DATE: March 9, 1998 CASE NO.: 95-STA-38
In the Matter of
STEVEN L. JACKSON
v.
PROTEIN EXPRESS
APPEARANCES:
Melinda O'Dell-Stasek, Esq.
Jane G. Morrison, Esq.
BEFORE: RUDOLF L. JANSEN
This action arises under the Surface Transportation Assistance Act of 1982 (hereinafter [Page 2] "STAA"), 49 U.S.C. Section 2305 and the Regulations found at 29 C.F.R. Part 1978. Section 405 of the STAA provides protection from discrimination to employees who report violations of commercial motor vehicle safety rules or who refuse to operate a vehicle when the operation would be a violation of these rules. Steven L. Jackson had filed a complaint with the Secretary of Labor in which he alleged that Protein Express had fired him for complaining about bad brakes on a truck which he was required to regularly drive. The complaint was subsequently investigated by the U.S. Department of Labor (hereinafter USDOL) and it was determined by USDOL that the complainant had actually abandoned his job and that he had not been terminated. Mr. Jackson appealed those findings and following a formal hearing, I issued a Recommended Decision and Order in which I also concluded that Protein Express had not violated the STAA since the complainant had abandoned his job and had not been terminated. In a later decision, the Administrative Review Board (hereinafter ARB) rejected my factual and credibility findings and concluded instead that Protein Express had, in fact, discharged Jackson in violation of the STAA. As a result, the ARB remanded the case to me for calculation of backpay, compensatory damages, if any, and attorney fees.
In my earlier Recommended Decision and Order, I concluded that all of the witnesses who testified at the hearing of this case were credible with the exception of Steven L. Jackson. [Page 3] I found his testimony to have been less than candid and patently false in some areas and I chose to give his testimony "little weight." The ARB has chosen to ignore my credibility findings and to decide this case primarily based upon the testimony of Jackson. It is unfortunate that the review body did not have the opportunity to personally observe the demeanor of each witness and to personally listen to the testimony. At the time of the hearing of this case, the complainant made the following claim for damages:
CALCULATION OF DAMAGES
SUSTAINED BY STEVEN JACKSON
1. Loss of Pay:
525.00 X 48 weeks = $25,200.00
to to
700.00 X = $33,600.00
weekly pay rate
2. Cost of automobile financed at
21% interest for work purposes: = $ 5,000.00
3. Attorneys fees (preliminary
estimate): = $ 4,000.00
TOTAL = $34,200.00
to
$42,600.00
An award of back pay under the STAA is not a matter of discretion but is mandated once it is determined that an employer has violated the Act. Moravac v. H. C. M. & Transportation, Inc., 90-STA-44 (Sec'y January 6, 1992); Hufstetler v. Roadway Express, Inc., 85-STA-8 (Sec'y August [Page 4] 21, 1986), slip op. at 50 aff'd sub nom., Roadway Express, Inc. v. Brock, 830 F.2d 179 (11th Cir. 1987). Uncertainties in calculating back pay are resolved against the discriminating party. Kovas v. Moran Transport, Inc., 92-STA-41 (Sec'y October 1, 1993); Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974). Under the STAA, the employer and not the complainant bears the burden of proving a deduction from back pay on account of interim earnings. Hadley v. Southeast Coop. Serv. Co., 86-STA-24 (Sec'y June 28, 1991) It is incumbent upon the Administrative Law Judge to estimate the number of trips the complainant made on a per week basis, multiplied by the per trip rate of compensation, which then results in an estimated weekly pay. Polger v. Florida Stage Lines, 94-STA-46 (Sec'y April 18, 1995). A successful Complainant is entitled to back pay from the date of termination until declination of a bona fide offer. Creekmore v. ABB Power Systems Energy Sprague, 93-ERA-24 slip op. at 19-20 (Sec'y February 14, 1996); Sprague, 92-ERA-37, slip op. at 12 (Sec'y December 1, 1994). Once entitlement to back pay is found, interest on the back pay award should be added to recompense the employee for loss suffered because his employer unlawfully deprived him of the use of his money. Hufstetler, supra., overruled on other grounds, Roadway Express, Inc., v. Brock, 830 F.2d 179 (11th Cir. 1987). Interest on a back pay award under STAA is calculated in accordance with 26 U.S.C. § 6621 (1988). Assist. Sec. and Park v. McLean Transportation Services. Inc., 91-STA-47 (Sec'y June 15, 1992), slip op. at 5. In his post-hearing brief, the complainant revised his request for loss of pay to $23,250.00.00 for day shift work and $31,000.00 for night shift work. The back pay computation was apparently based upon Jackson's testimony at the hearing that he was hired on September 1, 1994 and worked until September 29, 1994 without a day off. (Tr. 64) Thereafter, the complainant testified that he continued to work six days a week. (Tr. 53) The employer testified that Jackson did work the night pick-up route "occasionally" and that he did not believe that Jackson was working "every day" until he was terminated, (Tr. 104) but that Jackson worked only four or five days a week on the average. (Tr. 176) Since I give Jackson's testimony little weight, but conceding the benefit of the doubt, I conclude that he did work five days per week. [Page 5] Protein Express contends on brief that the record contains little proof on the subject of damages but that back pay at the very best should be limited to the period extending from January 14, 1995 when Jackson lost his job through June 20, 1995 which was the last day of Spring. Jackson was initially employed by Protein Express on September 1, 1994. The ARB concluded that Jackson had been discharged on January 14, 1995 by Perry Shelton who was a co-worker. The ARB also concluded that Protein Express had made an unequivocal offer to reinstate the complainant which Jackson rejected. That reinstatement offer occurred in the "spring" of 1995. (Tr. 109) The record does not reflect the exact date of that proposal. Spring officially begins on March 20 and ends on June 20. The last day of Spring is apparently the basis for the employer's position. Controversy also exists as to whether the complainant worked primarily during the day shift where he earned $75.00 per day or the night shift where he would have been paid $100.00 per day. I also found the complainant's testimony in this area to have been unconvincing. Unfortunately, the company records were not produced and the testimony of the owner was essentially an estimate as to Jackson's work record. This is information that should have been stipulated. I believe that the record does support a finding that he did work some night shifts. Employer testified that Jackson did not like making the night run which is the run paying $100.00 per day. The question was asked as to whether Jackson would have worked five days a month on the night run. Grove's response to that question was that he doubted it. (Tr. 179) Since this record will not support a definitive finding, I conclude that Jackson worked one day per week on the night run. In view of the above findings, it is my conclusion that Jackson should be compensated for back wages from January 14, 1995 until June 20, 1995. In addition, it is my conclusion that he should be compensated on a weekly basis for four days of work on the day run at $75.00 per day and one day of work on a weekly basis at $100.00 a day for the night run. Based upon these findings, Jackson would be entitled to compensation at the rate of $400.00 per week for twenty-two weeks extending from [Page 6] January 14, 1995 through June 17, 1995. In addition, he should be compensated for a $75.00 run on June 19 and a $100.00 run on June 20. Therefore, Jackson is entitled to back pay in the amount of $8,975.00. The back pay is subject to interest which is to be calculated pursuant to 26 U.S.C. § 6621. The record also does show that the claimant earned $600.00 to $800.00 for temporary service work performed after January 14, 1995. However, the dates of earnings are not established in the record, and therefore, I do not believe an offset is in order since those funds could have been earned subsequent to June 20, 1995.
Jackson also requests compensation for interest on an automobile which he purchased subsequent to January 14, 1995. His request is not for reimbursement for the cost of the car, but simply for interest paid on the car purchase at the rate of 21%. Complainant suggests that compensation for interest on the car should be awarded as punitive damages. However, punitive damages are not authorized in STAA cases. Nolan v. A.C. Express, 92-STA-37 (Sec'y January 17, 1995). Therefore, the request for interest on the automobile should be denied. These are the only other damages sought.
The STAA does allow for the award of attorney fees. 49 U.S.C. § 2305(c)(2)(B). The Supreme Court in Henley v. Eckerhart, 461 U.S. 424 (1983) established a framework for determining reasonable attorney fees. The Court noted that the fee is derived by taking the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. Reasonable fees are to be determined based upon the prevailing market rate in the community. Blum v. Stenson, 465 U.S. 866 (1984). On August 15, 1997, I issued an order requiring counsel for the complainant to submit an itemized statement of her [Page 7] attorney fees. A timely response was submitted in which Melinda O'Dell Stasek requested fees in the amount of $6,461.70 for 64.617 hours at a billing rate of $100.00 per hour. She documents her time completely and provides the basis for her hourly rate as well as her experience in handling whistleblower and other matters. Protein Express responded to the fee petition by indicating merely that complainant's counsel is not entitled to recover any fees since Steven L. Jackson is not entitled to benefits under the STAA. No specific objections to the fee petition were made. I have reviewed the fee petition of Ms. O'Dell Stasek and I find it to be complete and entirely reasonable under the circumstances of this case. Therefore, it is my recommendation that she be compensated in the amount of $6,461.70.
It is hereby recommended that Protein Express pay:
Rudolf L. Jansen
NOTICE: This Recommended Decision and Order and the administrative file in this matter will be forwarded for final decision to the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210. See 61 Fed. Reg. 19978 and 19982 (1996).
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