We consider the following issues:

   1. Whether the ALJ erred in denying the Respondent's request for a continuance.

   2. Whether the Complainant established, by a preponderance of the evidence, that the Respondent fired him for engaging in activity that the STAA protects.

   3. Whether, in addition to reinstatement, the Complainant is entitled to damages for back pay, his 401K, health benefits, emotional distress and interest, and in the amounts the ALJ awarded.

   4. Whether the Complainant is entitled to his attorney's fees and costs, and in the amounts the ALJ awarded.

   The Secretary of Labor's jurisdiction to decide this matter by authority of 49 U.S.C.A. § 31105(b)(2)(C) has been delegated to the Administrative Review Board ("ARB" or "Board"). See Secretary's Order 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002). See also 29 C.F.R. § 1978.109(c)(2003).

   When reviewing STAA cases the ARB is bound by the ALJ's factual findings if those findings are supported by substantial evidence on the record considered as a whole. 29 C.F.R. § 1978.109(c)(3); BSP Trans, Inc. v. United States Dep't of Labor, 160 F.3d 38, 46 (1st Cir. 1998); Castle Coal & Oil Co., Inc. v. Reich, 55 F.3d 41, 44 (2d Cir. 1995). Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Clean Harbors Envtl. Servs., Inc. v. Herman, 146 F.3d 12, 21 (1st Cir. 1998) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).

   In reviewing the ALJ's conclusions of law, the Board, as the designee of the Secretary, acts with "all the powers [the Secretary] would have in making the initial decision . . .." 5 U.S.C.A. § 557(b) (West 1996). Therefore, the Board reviews the ALJ's conclusions of law de novo. See Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1066 (5th Cir. 1991).

I. Denial of Request for Continuance

   The Respondent's Brief in Opposition to the R. D. & O. addresses only the denial of its motion to continue the hearing on the merits. We consider that issue first.

    By notice dated March 25, the case was set for an evidentiary hearing on May 8, 2003. On the eve of trial, May 1, Butler's newly-obtained counsel requested a continuance, citing as the only reason that he needed more time to prepare. The ALJ denied the request.

    The STAA requires that the evidentiary hearing be "conducted expeditiously," and that the final decision of the Secretary be issued within 120 days thereof. 49 U.S.C.A. § 31105(b)(2)(C); see also 29 C.F.R. § 1978.109(c). Under the ALJ rules of procedure, "Continuances will only be granted in cases of prior judicial commitments or undue hardship, or a showing of other good cause." 29 C.F.R. § 18.28(a); see also 29 C.F.R. § 1978.106(a) (ALJ rules of procedure at 29 C.F.R. Part 18 apply to STAA hearings unless Part 1978 specifically provides otherwise). Furthermore, "[e]xcept for good cause, requests for continuances must be filed within fourteen (14) days prior to the date set for hearing." 29 C.F.R. § 18.28(b). We review the ALJ's rejection of the motion to continue under the abuse of discretion standard. Malpass v. General Elec. Co., 85-ERA-38, 39, slip op. at 7 (Sec'y Mar. 1, 1994).

    The ALJ weighed the Respondent's delay in obtaining counsel against the remedial nature of the STAA (e.g., the terminated employee's right to an expedited hearing and reinstatement), and denied the continuance. See R. D. & O. at 4 n.2. See also Malpass, slip op. at 8. On appeal, the Respondent now raises an additional reason for the continuance, to secure the testimony of Deborah Hawkins: "Ms. Hawkins' testimony was not available precisely because the Court denied Butler's motion for continuance." Respondent's Brief at 3, 6. However, even now, Butler does not say what efforts were made to secure Hawkins' testimony. Butler makes no proffer that her testimony would have contradicted Jackson's contention that she fired him for refusing a trip that would have put him in violation of the hours of service rules, and therefore fails to show that her absence was prejudicial.

    Under these circumstances, we cannot say the ALJ's exercise of discretion in denying the continuance was legal error.

II. Merits of the Complaint

    The STAA, 49 U.S.C.A. § 31105(a)(1), provides that an employer may not "discharge," "discipline" or "discriminate" against an employee-operator of a commercial motor vehicle "regarding pay, terms, or privileges of employment" because the employee has engaged in certain protected activity. The protected activity includes making a complaint "related to a violation of a commercial motor vehicle safety regulation, standard, or order," § 31105(a)(1)(A), or "refus[ing] to operate a vehicle because . . . the operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety or health." § 31105(a)(1)(B)(i).

    In November 2001, the following DOT hours of service regulation was in effect. 49 C.F.R. § 395.3(a) (2001) provided that "[N]o motor carrier shall permit or require any driver used by it to drive nor shall any driver drive . . . (1) More than 10 hours following 8 consecutive hours off duty." Jackson's argument is that he was fired for complaining that, after taking his mandatory eight-hour break, he could not go to Avery Island, Louisiana, to pick up a load and deliver it to Tifton, Georgia, within ten hours; i.e., he was given an order that violated the STAA.

    To prevail under the STAA, a complainant must prove by a preponderance of the evidence that he or she engaged in protected activity, that the employer was aware of the activity, that the employer took adverse employment action against the complainant, and that there was a causal connection between the protected activity and the adverse employment action. Schwartz v. Young's Commercial Transfer, Inc., ARB No. 02-122, ALJ No. 01-STA-33, slip op. at 8-9 (ARB Oct. 31, 2003); Assistant Sec'y & Helgren v. Minnesota Corn Processors, Inc., ARB No. 01-042, ALJ No. 2000-STA-0044, slip op. at 4 (ARB July 31, 2003).

   We concur with and therefore adopt the ALJ's conclusions regarding the other arguments Butler presented regarding the termination of Jackson's employment. Butler's contention that Jackson was interested in returning home to watch a football game is speculative; he denied it. R. D. & O. at 6. Butler claimed that it had a policy prohibiting drivers from driving empty trucks and that Jackson violated that policy by returning empty to Cairo. "In the trucking industry refusing any load is a major offense." Complainant's Exhibit (CX) 20. Such a policy could not provide a legitimate, non-discriminatory reason for Jackson's termination if its enforcement would have caused him to violate a DOT regulation. See R. D. & O. at 6.

    Because the record supports the ALJ's factual findings and legal conclusions, and because Butler's brief before the Board does not contest those facts or conclusions, we affirm the ALJ's ruling that Butler violated the STAA when it fired Jackson on November 19, 2001.

III. Remedies

   We turn next to the remedies. Under 49 U.S.C.A. § 31105(b)(3)(A),

    If the Secretary [of Labor] decides, on the basis of a complaint, a person violated subsection (a) of this section, the Secretary shall order the person to—

(i) take affirmative action to abate the violation;
(ii) reinstate the complainant to the former position with the same pay and terms and privileges of employment; and
(iii) pay compensatory damages, including back pay.

   A. Reinstatement

    At the hearing, Jackson requested reinstatement to his former position at Butler. Tr. 234. Under the STAA, reinstatement is an automatic remedy for a successful complainant. 49 U.S.C.A § 31105(b)(3)(A)(ii). Reestablishment of the employment relationship is a usual component of the remedy in discrimination cases. McCuistion v. Tennessee Valley Auth., 89-ERA-6, slip op. at 23 (Sec'y Nov. 13, 1991) (under analogous provisions of the Energy Reorganization Act (ERA)). We affirm the ALJ's order that Butler reinstate Jackson to his previous position under the same terms, conditions and privileges of employment with no loss of seniority or benefits. R. D. & O. at 6.

   B. Back pay

    The Complainant is also entitled to back pay. 49 U.S.C.A § 31105(b)(3)(A)(iii). "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 STAA." Assistant Sec'y & Moravec v. HC & M Transp., Inc., 90-STA-44 (Sec'y Jan. 6, 1992), citing Hufstetler v. Roadway Express, Inc., 85-STA-8, slip op. at 50 (Sec'y Aug. 21, 1986), aff'd sub nom., Roadway Express, Inc., v. Brock, 830 F.2d 179 (11th Cir. 1987). Following the practice that the Secretary initiated, this Board calculates back pay awards to successful whistleblower complainants in accordance with the make whole remedial scheme embodied in § 706 (g) of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq. (West 1988). See, e.g., Polgar v. Florida Stage Lines, ARB No. 97-056, ALJ No. 94-STA-46, slip op. at 3 (ARB Mar. 31, 1997) (citing Loeffler v. Frank, 489 U.S. 549 (1988)). Therefore, Jackson must be restored to the economic position he would have occupied but for Butler's discriminatory act. Id. (citing Hoffman v. W. Max Bossert and Boss Insulation and Roofing, Inc., ARB No. 96-091, ALJ No. 94-CAA-004, slip op. at 2 (ARB Jan. 22, 1997)).

    Jackson testified that, after his release from employment with Butler, he began working for Celadon Trucking Services, in January 2002. Jackson's position with Celadon ended in February 2002. He was thereafter unemployed until July 2002, when he obtained a position with Arnold Transportation Services at equal or better pay than Butler. R. D. & O. at 7.

    The ALJ awarded Jackson back pay in the amounts of (1) $762.54 per week for the period of unemployment between his termination from Butler and his employment at Celadon; (2) $289.85 per week (the difference between his salary at Butler and his salary at Celadon) for the three weeks he was employed at Celadon; and (3) $289.85 per week for his period of unemployment between February and July 2002. R. D. & O. at 8. The ALJ arrived at the latter $289.85 amount by concluding that Jackson should not receive the full $762.54 of lost salary from Butler because "Complainant's loss of his job with Celadon was the result of a dispute between Complainant and Celadon" and "[r]espondent was not an insurer of Complainant's future employment." R. D. & O. at 8-9. We disagree.

    The purpose of a back pay award is to restore the complainant to the position he would have been in but for the respondent's discriminatory act. The law requires a complainant to make reasonable efforts to mitigate damages, see, e.g., Johnson v. Roadway Express, ARB No. 99-111, ALJ No. 1999-STA-5 (ARB Mar. 29, 2000), and the record does not clearly indicate that Jackson failed to exercise reasonable diligence to retain his position at Celadon. See Hobby v. Georgia Power Co., ARB Nos. 98-166, -169, ALJ No. 90-ERA-30, slip op. at 21-22 and authorities cited therein (ARB Feb. 9, 2001), aff'd sub nom. Georgia Power Co. v. United States Dep't of Labor, 52 Fed. Appx. 490, 2002 WL 31556530 (table) (11th Cir. Sept. 30, 2002). Furthermore, "uncertainties in determining what an employee would have earned but for the discrimination should be resolved against the discriminating employer." Clay v. Castle Coal & Oil Co., Inc., 90-STA-37, slip op. at 2 (Sec'y June 3, 1994) (citing Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 260-261 (5th Cir. 1974)). We believe the correct calculation for back wages simply reduces Jackson's loss by the amount he made while employed with Celadon and then eliminates back wages entirely at the point he became Arnold's employee. The effect of our ruling is to increase the amount of back pay the ALJ awarded for Jackson's period of unemployment between February and July of 2002.

    Jackson earned $34,763.00 with Butler between January 1, 2001 and November 16, 2001. Tr. 121. Johnson's expert witness on economic losses, Michael J. Piette, annualized that figure and concluded that Jackson would have earned $39,652.00 for the calendar year 2001. CX 50. His losses for the period between November 16, 2001 and December 31, 2001 were therefore calculated at $4,889.00. For the year 2002, the economist also used Jackson's estimated earnings for 2001 ($39,652.00) and subtracted $20,222.00, the amount Jackson earned that year from Celadon and Arnold, to establish a loss of $19,430.00 for 2002. Tr. 122. We therefore concur with Piette's calculations and award Jackson $24,318.00 in back pay. See CX 50, Pp. 2-3 and Appendix B.

   C. 401(k)

   A. Legal standards

   In reviewing attorney's fee awards, the ARB follows the fee-shifting precedents of the Supreme Court and other federal courts. See, e.g., Scott v. Roadway Express, ARB No. 01-065, ALJ No. 98-STA-8, slip op. at 5 (ARB May 29, 2003); Gutierrez v. Regents of the Univ. of Cal., ARB No. 99-116, ALJ No. 98-ERA-19, slip op. at 12 (ARB Nov. 13, 2002).

   Once it is established that the plaintiff has prevailed, Hensley v. Eckerhart, 461 U.S. 424 (1983) provides the framework for deciding the merits of fee petitions. The Hensley Court said, "[t]he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Id. at 433. This lodestar "calculation provides an objective basis on which to make an initial estimate of the value of a lawyer's services." Id. The district court may reduce the award for inadequately documented hours, or for hours that were not "reasonably expended" due to overstaffing or inexperience. As in private practice, "[h]ours that are not properly billed to one's client are not properly billed to one's adversary pursuant to statutory authority." 461 U.S. at 434 (emphasis in original).

   The petitioner bears the burden of proof that claimed hours of compensation are adequately demonstrated and reasonably expended. Cf. Webb v. Dyer County Bd. of Educ., 471 U.S. 234, 242 (1985); LaPrade v. Kidder Peabody & Co., Inc., 146 F.3d 899 (D.C. Cir. 1998) (under vexatious litigation statute, 28 U.S.C.A. § 1927 (West 1994); Hotel & Restaurant Employees Local 25 v. JPR, Inc., 136 F.3d 794 (D.C. Cir. 1998) (ERISA, 29 U.S.C.A. § 1132(g)(2) (West 1999). Under DiFilippo v. Morizio, 759 F.2d 231, 235-36 (2d Cir. 1985), the "reasonableness of the time expended must . . . be judged by standards of the private bar" so that "hours claimed are to be examined in detail with a view to the . . . value of the work product to the client in light of the standards of the private bar." Faced with an unreasonable number of hours, the court can reduce the lodestar fee by a reasonable amount or percentage, without performing an item-by-item accounting. Freiler v. Tangipahoa Parish Bd. of Educ., 185 F.3d 337, 348 (5th Cir. 1999) (First Amendment); Case v. Unified Sch. Dist. No. 233, Johnson County, Kan., 157 F.3d 1243, 1250-51 (10th Cir. 1998) (decision to remove book from school).

   Courts will permit a partner/associate, or first/second chair staffing, especially at trial. Delph v. Dr. Pepper Bottling Co., 130 F.3d 349, 358-59 (8th Cir. 1997) (Title VII). However, they will exclude time that is duplicative, e.g., where two or more attorneys unnecessarily attend hearings and depositions, and perform the same tasks. Cf. Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1077 (10th Cir. 1998) (Title VII; stating rule, but allowing fees in this instance); Hudson v. Reno, 130 F.3d 1193, 1209 (6th Cir. 1997) (even though defense had four lawyers, court found that plaintiff's lawyer's time with one assistant was excessive); Shrader v. OMC Aluminum Boat Group., Inc., 128 F.3d 1218, 1221-22 (8th Cir. 1997) (Title VII; disallowing half hours of second chair); Luciano v. Olsten Corp., 109 F.3d 111 (2d Cir. 1997) (ADA; excluding additional trial attorney). Also excluded is time attributed to office conferences, supervision and training, and review and revision, since such time is not normally billable to private clients.

   The other element of the lodestar calculation (besides time reasonably expended) is the reasonableness of plaintiff's attorney's hourly rates. In Blum v. Stenson, 465 U.S. 886 (1984), the Court held that fees under 42 U.S.C.A. § 1988 (West 2003) were to be "calculated according to the prevailing market rates in the relevant community." 465 U.S. at 895. It is the petitioners' burden "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." Id. at 895 n.11. See also Eddleman v. Switchcraft, Inc., 965 F.2d 422, 424 (7th Cir. 1992) (market rate is rate that lawyers of similar ability and experience in community normally charge their paying clients for type of work in question). In deciding the "prevailing market rates in the relevant community," the court may consider, among other things, rates plaintiff's attorney charges paying clients, Connolly v. National Sch. Bus. Serv., Inc., 177 F.3d 593, 596 (7th Cir. 1999) (Title VII); Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 555 (7th Cir. 1999) (FLSA); Cooper v. Casey, 97 F.3d 914, 920-21 (7th Cir. 1996) (§ 1983 inmate), and rates other lawyers in the community charge for similar work. Spegon, 175 F.3d at 555; People Who Care v. Rockford Bd. of Educ., 90 F.3d 1307, 1312 (7th Cir. 1996) (school desegregation; billing rates of other attorneys in same firm not irrelevant).

   Finally, the party seeking a fee award must submit evidence documenting the hours worked and the rates claimed. As we have said, "[A] complainant's attorney fee petition must include adequate evidence concerning a reasonable hourly fee for the type of work the attorney performed and consistent [with] practice in the local geographic area, as well as records identifying the date, time, and duration necessary to accomplish each specific activity, and all claimed costs." Gutierrez, slip op. at 13 (internal quotations and citations omitted).

   B. Application

    We begin with the reasonableness of the Complainant's counsel's hourly rates, because that has bearing on how we view the number of hours expended. Attorney Richard Johnson petitioned for approval of an hourly rate of $325 for his work. He submitted declarations from himself and two other lawyers, stating that he "should" receive $325 per hour based upon his relevant experience. Exhibits to Complainant Jackson's Petition for Attorneys' Fees and Litigation Expenses (Fee Petition), Exhibits L, P, Q. These declarations fall somewhat short of evidencing a market rate for labor and employment law or comparable work in North Florida. While Attorney Johnson's work on this case was excellent and he is highly experienced in his field, the best evidence before us of the reasonable value of his services is the decision of the District Court for the Northern District of Florida, furnished as Fee Petition Exhibit D, Creel et al. v. Washington County Bd. Of Cty. Comm'rs, Case No. 5:99cv296-SPM (Nov. 6, 2002), awarding him fees at the rate of $300 an hour. Consequently, that is the rate we award.

   With regard to the appropriate hourly rate for Attorney Lisa Lambert, we have considered the Fee Petition, Exhibits L, M, P, Q, R, which note that $175 per hour is at the high end of the market for someone of her two years' experience, the court's discussion and award in Creel, and the perception of the ALJ in this case that Attorney Lambert was experienced enough to have handled this matter, including the hearing on the merits, without assistance; indeed, that is the basis upon which the ALJ denied Attorney Johnson's fees. S. D. & O. at 2. Accordingly, we determine that $175 is a reasonable hourly rate, given her ability and experience. However, as we observe below, because we have accepted a senior associate's hourly rate, downward adjustments must be made for time that shows review and revision of her work, supervision and training, duplication of effort, and legal research on topics in her area of presumed expertise.

   We turn to the other element of the lodestar calculus, the number of hours reasonably expended. Based on the precedents we have cited, there is no bar to several lawyers being compensated in the same case. Properly managed, a team approach can result in economic efficiencies; a client has the benefit of a senior lawyer overseeing the case, taking important depositions and trying the case, while an associate at a more economical hourly rate handles paper discovery, motions and brief writing. In this case, Attorney Lambert participated both as an associate and as trial co-counsel. Attorney Johnson did the opening statement and the examination of the Complainant's damages expert, Piette. Attorney Lambert handled the direct examination of the Complainant and his wife, and the cross-examination of Lecial Hollis and Sherry Guffey. The time for both lawyers was reasonably expended.

   However, some of Attorney Johnson's time was spent providing in-house supervision and training of Attorney Lambert that is not properly awardable against Butler. For example, Attorney Johnson's time entries show meetings with Attorney Lambert and reviews of her work on: 5/21/02; 5/22/02; 6/20/02; 9/19/02; 4/22/03; 4/25/03; 5/2/03; 5/3/03; 5/14/03; and 7/11/03. See Fee Petition, Exhibit B. Those entries represent 5.6 hours of a total of 39.10 hours, or about 15 per cent of Attorney Johnson's time. Because the entries occasionally reflect more than one function (e.g., preparation and a meeting on 5/2/03), rather than trying to perform surgical excisions, we make a 15 per cent reduction in his total time, to 33.2 hours at a rate of $300, for a total award for Attorney Johnson's fees of $9,960.00.

   Attorney Lambert's time sheets show a telephone call with Jackson about an unrelated automobile accident (11/4/02); legal research of about 20.8 hours on STAA, but also procedural matters and fee awards (6/13/02; 2/25/03; 2/27/03; 3/18/03; 4/17/03; 4/25/03; 5/27/03; 5/28/03; 6/10/03; 7/7/03; 7/12/03); routine administrative tasks (3/20/03; 5/3/03); and numerous entries that include meetings with Attorney Johnson or submission of her work for his review that we regard as not chargeable to the losing party (e.g., 5/28/02; 6/9/02; 6/24/02; 3/9/03; 4/25/03/; 4/30/03; 5/2/03; 5/4/03; 5/5/03; 5/7/03; 6/12/03; 7/7/03; 7/10/03; 7/11/03). See Fee Petition, Exhibit C. Because most of these entries are batched with other, properly chargeable work, we cannot simply delete them. Instead we make a downward adjustment of Attorney Lambert's time of 15 per cent, from 139.40 hours to 118.5 hours at $175 per hour, for a total award for Attorney Lambert's fees of $20,737.50.

   Finally, we consider costs. We agree with the ALJ that in-house reproduction, postage and express package costs are generally considered part of attorney overhead and are built into the hourly rates. See S. D. & O. at 2. See also Eash v. Roadway Express, ARB No. 02-008, ALJ No. 2000-STA-47, slip op. at 8-9 (ARB June 27, 2003). We affirm the award of $2,510.00 for expert fees and $591.61 for court reporter fees. We also grant the request for hearing exhibit enlargements in the amount of $37.63 and outside copying charges of $165.64.

   The total award for attorney's fees and costs is $34,002.38.

   1. Butler shall immediately reinstate Jackson to his previous position as a truck driver under the same terms, conditions and privileges of employment, with no loss of seniority or benefits.

   2. Butler shall expunge from Jackson's personnel records any references to his termination of employment on November 16, 2001.

   3. Butler shall pay Jackson $24,318.00 in back pay.

   4. Butler shall pay Jackson $644.00 for losses under his 401k plan.

   5. Butler shall pay Jackson $10,864.00 for the actual and direct expenses resulting from his loss of Butler's health plan. This amount will continue to accrue at the rate of $45 per week until Jackson is reinstated. Butler shall also pay Jackson $3,277.00 for his out-of-pocket indirect losses. In addition, Johnson may request modification of this Final Decision and Order to establish actual indirect health care plan losses that accrued between June 25, 2003, and the issuance of this Final Decision and Order.

    6. Butler shall pay Jackson $4,000.00 in compensatory damages for emotional distress.

    7. The above sums are subject to pre-judgment interest in accordance with 26 U.S.C.A. § 6621.

    8. Butler shall pay Jackson's attorneys $34,002.38 in fees and costs. Jackson's attorneys shall have fifteen days from receipt of this Order in which to file a fully supported attorney's fee petition, with simultaneous service on opposing counsel. Thereafter, Butler shall have ten days from receipt of the fee petition to file a response.

   SO ORDERED.

       WAYNE C. BEYER
       Administrative Appeals Judge

       M. CYNTHIA DOUGLASS
       Chief Administrative Appeals Judge