Eash v. Roadway Express, Inc., 2000-STA-47 (ALJ Mar. 13, 2002)

May 9, 2009

DOL Home > OALJ Home > Whistleblower Collection

USDOL/OALJ Reporter

Eash v. Roadway Express, Inc., 2000-STA-47 (ALJ Mar. 13, 2002)

U.S. Department of Labor Office of Administrative Law Judges
Seven Parkway Center - Room 290
Pittsburgh, PA 15220
(412) 644-5754
(412) 644-5005 (FAX)
DOL Seal

Issue date: 13Mar2002
CASE NO.: 2000-STA-47

In the Matter of:

LARRY E. EASH,
Complainant

ROADWAY EXPRESS, INC.
Respondent

SUPPLEMENTAL RECOMMENDED DECISION AND ORDER
GRANTING ATTORNEY'S FEES AND COSTS

A Recommended Decision and Order was issued in this claim November 2, 2001. On November 23, 2001, counsel for Complainant, Paul O. Taylor, Esquire, filed an application for attorney's fees and costs pertaining to the time the case was pending before this office. Respondent objected to the fee petition on November 29, 2001.

Complainant's counsel requests a total amount of $31,701.54 which represents 92.9 hours of attorney time for Mr. Taylor, 34.0 hours of attorney time for Carl A. Knutson, $3,847.68 in expenses by Complainant, and $151.36 in expenses by Mr. Taylor. Complainant's counsel details all of the time spent on this claim initially in the fee petition. However, Complainant's counsel acknowledges that the time spent on each disciplinary letter or issue is not specifically recorded. Complainant's counsel estimated the time that he believed that he spent on the issue on which Complainant prevailed and determined that the aforementioned time periods were spent on the issue on which Complainant prevailed in this claim.

Respondent objects to various aspects of the fee petition. Each objection shall be discussed in turn. Respondent states that Complainant's counsel should receive a nominal fee because Complainant prevailed only on one issue and was only awarded the expungement of the January 19, 1998 warning letter. Respondent points out that Complainant's claim involved 7 separate instances of discipline and that only 1 resulted in a finding favorable to Complainant. Respondent objects to the fact that Complainant's counsel asserts that 73% of the time that was spent on Complainant's claim was allotted to this issue. Respondent points out that Complainant asked that he receive compensatory damages for the 5 day suspension that he received, interest on the back pay, a copy of the decision of this Court posted in a conspicuous place at Respondent's place of business and removal of the other warning letters from Complainant's personnel file.

[Page 2]

In consideration of the foregoing facts, Respondent requests that Complainant's counsel receive only nominal attorney fees and costs. Respondent argues that 92.9 hours could not have been "reasonably incurred" in the litigation of only one aspect of the claim. In the alternative, Respondent requests that Complainant's counsel be awarded fees for only 1/7 of the time spent preparing the claim as Complainant prevailed on only one of the seven original allegations.

When multiple issues in a single claim are so "intertwined" that the issues cannot be separated for the purpose of an attorney fee, then a reduction in the attorney fee is not warranted. Hilton v. Glas-Tec Corp., 84-STA-6 (Sec'y July 15, 1986). "Where claims are intertwined and not truly fractionable' there should not be a reduction in the fee for time spent on issues on which the complainant did not prevail." Scott v. Roadway Express, ARB No. 99-013, ALJ No. 1998-STA-8 (ARB July 28, 1999), citing Hilton, 84-STA-6.

However, "[w]hen a plaintiff recovers only nominal damages because of his failure to prove an essential element of his claim for monetary relief (citation omitted), the only reasonable fee is usually no fee at all." Scott, at 16, citing Farrar v. Hobby, 506 U.S. 103 (1992)(dealing with a nominal award in a civil rights claim and the attorney fee warranted for such an award). In Scott, the Administrative Review Board ("Board"), outlined the procedure for awarding attorney fees when a complainant has "succeeded on only some of his claims for relief." Scott, at 17.

First, did the plaintiff fail to prevail on claims that were unrelated to the claims on which he succeeded? Second, did the plaintiff achieve a level of success that make the hours reasonably expended a satisfactory basis for making a fee award?
***
Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. ***
If, on the other hand, a plaintiff has achieved only partial success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount. This will be true even where the plaintiff's claims were interrelated, nonfrivilous, and raised in good faith.

Scott, at 17, citing Hensley v. Eckerhart, 461 U.S. 424, 434-34 (1983). The Supreme Court in Hensley, determined that the fee awarded should be "reasonable in relation to the results obtained." Scott, at 17, citing Hensley, 461 U.S. at 440.

[Page 3]

The Board in Scott found that there was only "a small overlap in the evidence necessary to prove" the multiple claims. Scott, at 18. The complainant had prevailed on only one issue in Scott, and therefore, the Board found that it was "reasonable to reduce the amount of fees awarded so that they are reasonable in relation to the results obtained'." Scott, at 18. The Board stated further that "[i]f the fee petition were sufficiently detailed to permit a determination whether the attorney's time was spent on matters other than the disciplinary letters issued for illness, we would simply disallow the hours devoted to those other matters." Scott, at 18. The Board found that the petition in Scott was not sufficiently detailed to allow the for the disallowance of time spent on other matters. The Board then decided that the attorney had spent 1/3 of his case in chief on the other matters and 2/3 of the case presenting evidence on the issue on which complainant ultimately prevailed. Based on this determination, the Board reduced the attorney's fee by 1/3.

I find the procedure employed in Scott to be persuasive in determining the proper fee to be awarded in the above-captioned claim. Complainant's attorney has "estimated" the time that he believes he spent on this claim concerning the issue on which complainant prevailed. Employer, on the other hand, requests that Complainant's attorney be awarded only nominal fees or in the alternative, that 1/7 of the fee be awarded.

I find neither of these methods to be the best way to determine Complainant's counsel's fee in this claim. As a preliminary matter, I have reduced Complainant's counsel's travel time by 50%. This reduction is authorized by Clay v. Castle Coal & Oil Co. Inc., 1990-STA-37 (Sec'y June 3, 1994). As such, the 8.0 hours charged by Complainant's counsel for travel to and from the hearing is hereby reduced to 4.0 hours. In determining the appropriateness of Complainant's counsel's fee in this claim, I have reviewed the procedural posture of the claim at various points.

Before June 13, 2001, the claim involved 3 issues, the January 19, 1999 warning letter, the October 16, 1999 warning letter, and a retaliation claim that involved 4 warning letters. On June 13, 2001, this Court determined that the October 16, 1999 warning letter complaint and 2 of the retaliation complaints be dismissed. Therefore, one-half of Complainant's claim ceased to exist at that time. As such, Complainant's counsel shall receive one-half of the fees charged prior to June 13, 2001.

After June 13, 2001, the claim involved essentially 3 issues. The retaliation claim consisting of 2 warning letters and the January 19, 1999 warning letter that involved 2 separate provisions of the Surface Transportation Assistance Act. Complainant prevailed on only one of the remaining three issues, one of the provisions relating to the January 19, 1999 disciplinary letter. Therefore, Complainant's counsel shall receive 1/3 of all of the fees charged after June 13,2001.¹

Complainant's counsel charged for 54.45 hours prior to June 13, 2001 and 63.20 hours for work performed after June 13, 2001.² The 54.45 hours have been reduced to 27.23 and the 63.20 hours have been reduced to 21.10. The 8.0 hours for travel have been reduced to 4.0 hours. Therefore, Complainant's counsel is entitled to compensation for 52.33 hours of time at a rate of $225.00 per hour for a total of $11,774.25. It is the opinion of this Court that this amount will more than adequately compensate Complainant's counsel for the time spent preparing the portion of the claim on which Complainant prevailed.

[Page 4]

Next Respondent objects to the fees charged by Mr. Knutson in the amount of $3,847.68.³ Respondent argues that Mr. Knutson's fees should only be reimbursable if Mr. Knutson performed work that did not duplicate Complainant's counsel's work, and if the time was spent on the issue on which Complainant prevailed. Respondent alleges that none of Mr. Knutson's fee is reimbursable because the services performed by Mr. Knutson do not meet either of these criteria. Respondent has cited to no authority, nor has this Court found any authority, that requires a fee to be denied based on the fact that more than one attorney attended a hearing. Therefore, I have reduced Mr. Knutson's fee in the same manner as Complainant's counsel's fee has been reduced. Mr. Knutson's travel time of 8.0 hours has been reduced to 4.0 hours. Mr. Knutson preformed services only after June 13, 2001, therefore, the remaining hours have been reduced to 1/3 of the hours charged. As such, Complainant's counsel shall be reimbursed for Mr. Knutson in the amount of $3,434.00.

Complainant's counsel has requested $151.36 in costs that have not been reimbursed to counsel by Complainant. These costs are calculated as follows:

Postage:	$ 36.30
Photocopying:	$ 68.50
Airline ticket for Carl Knutson:	$300.00
Airport parking in Minnesota:	$ 39.00
Mileage to/from MSP Airport:	$ 7.56

Total:	$151.36

Respondent objects to the costs for postage and photocopying pursuant to Johnson v. Roadway Express, Inc., 1999-STA-5 (ALJ Sept. 3, 1999). Time spent performing clerical duties by an attorney is not recoverable in a petition for fees and costs. Charvat v. Eastern Ohio Regional Wastewater Authority, 1996-ERA-37 (ALJ Mar. 3, 1999); See also Doyle v. Hydro Nuclear Services, 1989-ERA-22 (ALJ Mar. 3,1999). Traditional clerical expenses, such as local telephone calls, photocopying, and postage should not be billed separately. These expenses should be considered part of the office overhead expenses when an attorney set the hourly rate and cannot be included in an award of a representative's fee. Cf. Marcum v. Director, OWCP, 2 B.L.R. 1-894; Pritt v. Director, OWCP, 9 B.L.R. 1-159 (1986).

Respondent objects to the charges of $36.30 for postage and $68.50 for photocopying. These charges are not reimbursable as they are specifically excluded. Therefore, $104.80 in costs are disallowed. As such, Complainant's counsel is entitled to reimbursement for $46.46 in costs.

[Page 5]

Complainant request reimbursement in the amount of $3,847.68 for costs that he personally incurred in this claim. Initially, Complainant requests reimbursement for $73.45 for long distance telephone calls. Long distance telephone calls are not excluded from recovery because such telephone calls are not considered part of overhead. Therefore, Complainant's telephone bill shall be reduced in the same manner as Complainant's counsel's attorney fee.

Complainant seeks reimbursement for $663.62 in cellular telephone calls. As an initial matter, I have calculated the amounts myself and find that all of the charges listed by Complainant for his cellular telephone equal $385.12. As such, the $385.12 amount shall be used in this calculation. Prior to June 13, 2001, Complainant incurred $307.25 in charges and after June 13, 2001, Complainant incurred $77.87 in charges. Complainant is entitled to reimbursement for $153.63 prior to June 13, 2001, and $25.96 for post June 13, 2001, for a total of $179.59.

Complainant seeks reimbursement for$ 73.45 in telephone charges to his home telephone. Again, Complainant miscalculates the costs. I have calculated the charges listed to be $76.05. As such, the $76.05 amount shall be used in this calculation. Prior to June 13, 2001, Complainant incurred $66.00 in charges and after June 13, 2001, Complainant incurred $10.05 in charges. Complainant is entitled to reimbursement for $33.00 prior to June 13, 2001, and $3.75 for post June 13, 2001, for a total of $36.35.

Respondent objects to several of the costs claimed by Complainant. Respondent objects to costs for postage and photocopying. Considering the precedent outlined above, I agree with Respondent that Complainant should not be reimbursed for postage and photocopying. As such, I have disallowed $193.63 in postage; $36.38 in postage $42.19 in copying expense; $95.16 in copying expense; and $63.82 in copying expense. For copying and postage, I disallow $431.18 in postage and copying expenses.

Additionally, Respondent objects to Complainant seeking reimbursement for lost wages to attend a deposition and the hearing in this matter. I agree with Respondent that Complainant presents no evidence that he would have worked on those dates. Therefore, Complainant is not entitled to reimbursement for lost wages of the date of the deposition nor on the date of the hearing.

Respondent does not object to Complainant's other costs that include mileage, transcript expenses, and evidentiary expenses. As such, those expenses shall be reimbursed to Complainant. Complainant is entitled to reimbursement of expenses in the amount of $2,528.97.

[Page 6]

Respondent is to pay to Paul O. Taylor $17,774.25 for the following: $11,774.25 for attorney's fees to Paul Taylor; $3,434.00 for attorney's fees to Carl Knutson; $46.56 for costs to Paul Taylor; and $2,528.97 for costs to Complainant, Larry Eash, Sr.

ORDER

The Respondent is ORDERED to pay the sum of $17,783.78 directly to Attorney Paul O. Taylor for costs incurred and services rendered to Complainant in this claim.

ROBERT J. LESNICK
Administrative Law Judge

NOTICE: This Supplemental Recommended Decision and Order Granting Attorney Fees and Costs is being forwarded for review by the Administrative Review Board, U.S. Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, D.C. 20210. See 29 C.F.R. § 1978.109(a); 61 Fed. Reg. 19978 (1996).

[ENDNOTES]

¹ These fees specifically exclude the 4.0 hours for counsel's travel time that have been determined to be reasonable.

² In determining these figures, the undersigned has used the original number of hours submitted and not the reduced estimated numbers of Complainant's counsel. Considering the formula used by this Court, the use of the original numbers ensure that Complainant's counsel is adequately compensated.

³ Respondent objects to Mr. Knutson's entire fee that is originally listed at $6,800.00. The $3,847.68 is the fee as estimated by Complainant's counsel to be the amount spent working on the issue on which Complainant ultimately prevailed.