Hilton v. Glass-Tec Corp., 84-STA-6 (Sec'y July 15, 1986)

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Hilton v. Glass-Tec Corp., 84-STA-6 (Sec'y July 15, 1986)

U.S. DEPARTMENT OF LABOR

SECRETARY OF LABOR
WASHINGTON, D.C.

Case No. 84-STA-6

In the Matter of

Ray Hilton,
Complainant

Glas-Tec Corporation,
Respondent

FINAL DECISION AND ORDER AWARDING ATTORNEY'S FEES

Respondent Glas-Tec Corporation has excepted to the Recommended Decision and Order¹ of Administrative Law Judge (ALJ) Theodor von Brand awarding Complainant Hilton attorney's fees and costs for pursuing his complaint under section 2305 of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1982). Complainant Hilton has filed a reply supporting the ALJ's recommendation and seeking an additional sum for attorney's fees incurred in defending the fee award.

The principal issue before me is whether, under the STAA, attorney's fees, calculated on the basis of the number of hours reasonably expended times a reasonable hourly rate, must be reduced where Complainant has not prevailed on all claims.

Here, Complainant Hilton had alleged that he was both suspended and discharged by Glas-Tec in violation of the STAA. Complainant prevailed on the suspension issue but failed to prevail on the termination issue. Complainant's total monetary award was thus only $961.54 for two weeks wages lost as a result of his suspension. Secretary's Decision and Final Order, July 31, 1984. Subsequently, Complainant requested that I assess against Glas-Tec the sum of $5,910.00 as attorney's fees for work performed on this case plus the sum of $419.47 for costs incurred. Glas-Tec objected to the requested amount on the ground that ² Complainant had only limited success on his claims. The ALJ declined to reduce the fee because he concluded that the proper standard for determining the appropriate amount of the fee is whether the work appeared necessary at the time it was performed, and also because the suspension and termination issue were "so interwined that trying the case merely on the suspension issue would have required essentially

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the same amount of effort and expense." R.D. and O. at 1. The ALJ, therefore, recommended that I assess against Glas-Tec the amount of fees and costs requested by Complainant.

Having considered the parties' arguments, I adopt the recommendation of the ALJ that Complainant be awarded attorney fees and costs in the amount requested. I find that the requested number of hours and the requested hourly rate are reasonable for the quantity and quality of the work performed.

Moreover, I agree with the ALJ that "the issue of whether complainant was unlawfully terminated and whether his suspension was illegal are so intertwined that trying the case merely on the suspension issue would have required essentially the same amount of effort and expense." Id. Courts have recognized in other contexts that, where claims are intertwined and not "truly fractionable," there should be no reduction of the fee for time spent on issues on which the plaintiff has not prevailed. City of Riverside v. Rivera, No. 85-224, slip op. (June 27, 1986) (plurality decision, Powell J., concurring) (applying Hensley v. Eckerhart, 461 U.S. 424 (1983)); Lamphere v. Brown University, 610 F.2d 46, 47 (1st Cir. 1979); See also, National Association of Concerned Veterans v. Sec. of Defense, 675 F.2d at 1327, n.13 (D.C. Cir. 1982) ; Copeland v.Marshall, 641 F.2d 880, 892 n.18 (D.C. Cir. 1980); Burstyn v. Commonwealth of Virginia, 595 F. Supp. 644, (E.D. Va. 1984); Virginia Academy of Clinical Psychologist v. Blue Shield, 534 F. Supp. 126 (E. D. Va. 1982); Espinoza v. Hillwood Square Merit Assn., 532 F. Supp. 440, 447, (E.D. Va. 1982).

Complainant's alleged termination occurred only two days after he was supposed to return to work following his suspension and, therefore, proof of almost all of the events occurring during Complainant's employment, as well as proof of Glas-Tec's motivation, went equally to both issues. Thus, the suspension claim involved related facts and legal theories. Moreover, none of the reasons advanced by Respondent -- that, if Complainant had returned to work after his suspension, there would have been a greater likelihood of settlement of the case; that bringing the termination case was frivolous since the North Carolina Employment Commission and ultimately the ALJ and the Secretary concluded that Complainant had not been terminated; that Complainant's credibility was seriously questioned; and that Respondent acted in good faith -- affect the relationship of the suspension and the termination issue. I, therefore, reject Respondent's argument that the requested fee be reduced because of Complainant's failure to prevail on the termination issue.³

I also reject Respondent's suggestion that the amount of the attorney's fees be limited in view of the small monetary award received by Complainant. In awarding attorney's fees, it is essential to keep in mind that, unless attorneys are adequately compensated for their services, litigants will be unable to secure the services of competent and experienced counsel. See, City of Riverside v. Rivera, plurality at 16-17; Copeland, 641 F.2d at 890; McCormick v. Donovan, 247 F. Supp. 175 (E.D.

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La. 1965). Congress believed that the protection of whistleblowers "provides one more incentive to employers to comply with rules, regulation standards and orders issued under the title." 122 Cong. Rec. § 14018 (daily ed. December 7, 1982) (statement of Sen. Packwood). Discouraging employees from seeking redress under section 2305 because of their inability to secure competent representation thus impacts not only on the individual employee but deters the advancement of a public benefit. Accordingly, where all the circumstances of the case indicate that a larger fee is reasonable, it is not appropriate to reduce the fee simply because the amount of the award is limited.

In addition to the award of the requested fee of $6,329.47, I award Complainant attorney's fees for additional time expended by Complainant's attorney in defending her fee petition before me. Complainant's attorney has requested that she be compensated for 6.25 hours at an hourly rate of $60.00. Her fee application indicates that included in the number of hours expended is one-half hour on 11/29/84 spent for "Preparation of affidavit, etc., re: additional time expended." The affidavits are an integral part of Complainant's fee application. Time spent in preparation of a fee application is not compensable. Lindy Bros. Builders, Inc. v. American Radiator and Standard Sanitary Corp. 540 F.2d 102, 109 (3d Cir. 1976). Thus, I have reduced to 5.75 hours the time expended in defending her original fee request.

Respondent has made no challenge to either the amount of hours or the hourly rate submitted by Complainant. Based on the quality of the work and the nature of the issues, I find that 5.75 hours, as well as $60.00 per hour, are reasonable. Accordingly, I award Complainant the additional sum of $345.00 in attorney's fees for work performed in defending the original fee request.

Therefore, Glas-Tec Corporation is ordered to pay to Complainant the amount of $6,674.47 for attorney's fees and costs.

WILLIAM E. BROCK
Secretary of Labor

Dated: JUL 15 1986
Washington, D.C.

[ENDNOTES]

¹Recommended Decision and Order Awarding Attorney's Fees (R.D. and O.), issued October 19, 1984.

²Glas-Tec further objected to the award of any fee until the United States Court of Appeals for the Fourth Circuit decided Complainant's appeal. The ALJ declined to defer ruling on the fee pending the outcome of the Complainant's appeal. In view of the Fourth Circuit's affirmance of my decision, Hilton v. Glas-Tec, No. 84-1868, slip op. (4th Cir. April 22, 1985) (per curiam), this issue is now moot.

³In view of this finding, I do not decide whether the appropriate standard for determining the amount of attorney's fees is that the work is necessary at the time it was performed, or whether, where the issues are not so intertwined, attorney's fees must be denied or reduced when a party achieves only limited success.