U.S. Department of Labor
Office of Administrative Law Judges
Suite 201
55 West Queens Way
Hampton, Virginia 23669
804-722-0571
DATE: February 13, 1989
CASE NO. 86-ERA-4
IN THE MATTER OF
PAUL A. BLACKBURN,
COMPLAINANT,
v.
METRIC CONSTRUCTORS, INC.,
RESPONDENT.
Reynolds Williams, Esq.
For the Complainant
Charles M. Burdette, Esq.
For the Respondent
Before: Theodor P. von Brand
Administrative Law Judge
RECOMMENDED DECISION AND ORDER ON
REMAND
On June 21, 1988, the Secretary of
Labor issued her Decision
and Order finding that Metric Constructors, Inc. had violated the
Energy Reorganization Act (ERA) by discriminating against Paul A.
Blackburn for the exercise of protected activity under the Act.
[Page 2]
The Secretary's order provided as follows:
(1) Respondent reinstate Complainant to his position
as an electrician, or to a comparable position with
comparable pay and benefits;
(2) Respondent shall purge Complainant's personnel
file of all references relative to his discharge on
September 5, 1984; and
(3) This case is remanded to the ALJ for receipt of
such evidence as is necessary to determine what
back pay and/or compensatory damages are due to
Complainant and for a determination of attorneys'
fees. 5/ (Footnote omitted)
On September 12, 1988, a hearing was
held pursuant to the
remand order on the issues of back pay and compensatory damages.
FINDINGS OF FACT
Lost Wages
1. Mr. Blackburn in the period March -
September 1984 worked
approximately six months for Metric. In that time, he made
$17,595.00. His rate of pay was $12.00 an hour. on an annual
basis
Metric's straight time compensation would have been $24,000.00.1
(CX 102; Tr. 44-45).
7. The firing by Metric lowered Mr.
Blackburn's self esteem.
(Tr. 30). He became depressed and had difficulty sleeping. (Tr.
12-13, 59). The stress of the termination disrupted his family,
caused quarrels at home and adversely affected his relationship
with his wife and children. (Tr. 30-32, 59-60). The family did
not seek professional counseling because they could not afford
it. (Tr. 63).
DISCUSSION
The Back Pay Issue
Complainant contends he is entitled to
the net value of
his back pay from September 5, 1984, the date of discharge, to
the date of trial on September 12, 1988 with no offset for his
interim earnings in that period. In this connection, Complainant
urges that the statute does not provide for a deduction for
interim earnings and that allowing such an offset would be
contrary
to the objective of facilitating the Act's enforcement.
Respondent urges that its performance
of electrical work
as a subcontractor at the H.P. Robinson plant where Complainant
worked, was terminated at the end of 1984. As a result, Metric
contends Mr. Blackburn's employment would in any event have
ceased no later than the end of 1984. Metric further asserts
that Mr. Blackburn, who had no employment contact, was hired
to work specifically at this project and had no assurances or
[Page 5]
reasonable expectation that his employment would continue once
Respondent's contract at the work site was terminated. Respondent
contends back pay should not be awarded beyond 1984, since an
award beyond that time would afford Complainant benefits to
which he would otherwise not have been entitled.
The short answer is that, because of
his unlawful termination,
Complainant was clearly in a less favorable position than his
co-workers to be hired on another Metric project. Accordingly,
the end of 1984 cannot be considered an appropriate cutoff
for computing his back pay. However, Respondent's liability for
lost wages is not open ended. Complainant began self employment
as an electrician in January 1988. At that time, he took himself
out of the labor market for employment comparable to that
afforded
by Metric. His eligibility for back pay should, accordingly,
cease
on December 31, 1987.4
The item on the time sheets pertaining
to July 21, 1988
is not relevant to the attorney fee application. Since counsel
did not represent Mr. Blackburn on that date, those hours are
not compensable.
The threshhold issue is whether counsel
should be
compensated at the hourly rate in effect when the services were
performed or at the hourly rate charged by members of this
firm when the current fee application was filed. At the outset,
it should be recognized that more than three years have passed
since counsel commenced representing Mr. Blackburn in November
of 1985. Under the circumstances, some adjustment is
appropriate to compensate for inflation and value of the money
not
received in the period in question. One way to make the necessary
adjustment is to set compensation at the current rate rather than
the hourly rate in effect when the services were rendered.
Daly v. Hill, 790 F.2d 1071, 1081 (4th Cir. 1986);
Shakman v. Democratic
Organization of Cook County, 634 F.Supp. 895, 902-903 (N.D.
Ill.E.D. 1986). That procedure will be adopted here.
[Page 8]
Time spent in preparing a fee petition
and defending entitlement
to such fees is compensable. See Daly v. Hill, 790 F.2d
1071,
1080 (4th Cir. 1986); Jonas v. Stark, 758 F.2d 567 (11th
Cir. 1985).
The relevant time sheets for the period
November 5, 1985
through May 22, 1986 and for July 1988 show the following
expenditures of hours by personnel in Complainant's former law
firm
during the relevant period. (See Appendix A):
Fee Earned
Current (No. of hours
Hours Hourly Rate x hourly rate)
M. Malissa
Burnette 37.55 95.00 3,567.25
W. Allen
Nickles, III 21.40 95.00 2,033.00
Helen Nelson
Grant .90 80.00 72.00
Cynthia Hall
Ouzts 2.00 80.00 160.00
Fee Earned
Current (No. of hours
Hours Hourly Rate x hourly rate)
SL (presumably
Law Clerk) 3.45 25.00 86.25
Total $5,918.50
Accordingly, Complainant's former
counsel is entitled to
attorney fees in the amount of $5,918.59.
The time sheets show the following
reimbursable expenses:
$2.11 Time sheet as of December 20, 1985, p. 3
$390.86 Time sheet as of March 31, 1986, p. 2
$4.14 Time sheet as of May 31, 1986, p. 1
$3.81 Time sheet as of July 25, 1988, p. 16
$400.92 Total
[Page 9]
Counsel for Mr. Blackburn, retained for
purposes of the remand
proceedings, may file his attorney fee petition within 10 days of
the receipt of this decision. Respondent may file its answer to
that request in 10 days.
RECOMMENDED ORDER
Metric Constructors, Inc. is ordered:
1. to pay to Paul A. Blackburn the sum
of $52,062.40 as
damages in the form of lost wages and employee expense.
2. to pay to Paul A. Blackburn the sum
of $10,000.00
for compensatory damages.
3. to pay to the firm of Gergel,
Burnette, Nickles, Grant
and Ouzts the sum of $5,918.50 for attorney fees and the sum of
$400.92 for litigation expense.
THEODOR P. VON BRAND
Administrative Law Judge
TPvB/jbm
[ENDNOTES]
1 $12 per hour x
40 hours a week x 50 weeks a year = $24,000.00.
2 The
mathematics of this computation by Complainant's expert
do not appear to be disputed. (Tr. 45).
3 September -
December = approximately 1/3 year
1/3 x 38,680 (annual earnings from Metric)
4 There is a
conflict in the record as to whether Complainant
began self employment in March 1988 (Tr. 33) or in January of
that year as stated in the answer to interrogatories. (RX 1 p.
5).
The answer to interrogatories appears more persuasive. In any
event, since Complainant is responsible for the conflict in
the record on this point it should be resolved against him.
5
Complainant's former counsel agreed to delete the hours expended
in the period June 1986 - June 1988.
6 Excluded is
an item of $30.00 for "Mileage to and from
Darlington" which bears no discernible relation to the
preparation of the attorney fee petition.
