In so ruling, we are not
persuaded by Esicorp's argument that Smith's emotional distress was caused by the fact that a
back
injury was preventing him from working as a carpenter. See Respondent's Brief to
Administrative Review Board on Remand as to Damages (Respondent's Brief to ARB) at 8-9;
R.O.
at 6-7.
II. Attorney's fees and costs.
The ALJ properly ruled that the "lodestar" approach
(multiplication of the number of hours reasonably expended on the litigation by a reasonable
hourly
rate) should be applied to the award of attorney's fees. ALJ Order at 8. See
Pennsylvania v. Delaware Valley Citizens' Council for Clean Air , 478 U.S. 546, 565
(1986)
The ALJ reduced the hourly rate requested from $250 to $150 based on affidavits submitted by
Esicorp from two experienced Houston area attorneys. They attested that the customary hourly
rate
in that area for an attorney with 25 years' experience is $185 and stated that a reasonable rate for
an
attorney with only ten years experience would range from $125 to $150 per hour. See
Affidavit of Thomas M. Callan, Exhibit A to Respondent's Response to Complainant's Motion
for
Award of Attorney Fees and Expenses. Smith submitted an affidavit by a local attorney
supporting
his claim for $250 an hour, but the ALJ credited Esicorp's affidavit that an attorney with 10
years'
experience would be compensated at $150 an hour. There is nothing in the record that would
warrant our disturbing this finding.
The ALJ also reduced the number of hours claimed because they
represented
work on "policy arguments and peripheral and irrelevant issues," such as discussing
Smith's entitlement to back pay after the Secretary found that Smith's termination was not a
violation
of the ERA. ALJ Order at 10. The ALJ also found that Smith's briefs were repetitive. For
example,
Smith repeated a full statement of background facts in his brief on damages that he had already
set
[Page 6]
forth in his original briefs to the ALJ and the Secretary. ALJ Order at 10. In addition, the ALJ
found that Smith spent unnecessary and wasteful time on an attempt to add Raytheon
Corporation
as a party to this proceeding. Id. Taking all these factors into account, the ALJ reduced
the
total number of hours claimed by 15 percent. Id. We find that the ALJ made reasonable
adjustments to the elements of the lodestar based on the record before him. See Hensley v.
Eckerhart , 461 U.S. 424, 433 (1983) (calculation of fees should exclude "hours that are
excessive, redundant, or otherwise unnecessary . . . .").
The ALJ also reduced the amount requested for costs and expenses by
$500
for lack of specificity for one item, and recommended an award of ,696.19 for this element of
damages. We adopt that recommendation as reasonable based on the record.
III. Injunctive Relief
The ALJ rejected a long litany of requests by Smith for injunctive relief,
recommending only an order to post the ALJ's decision in prominent places at the worksite for
90
days, as provided in the Secretary's Decision and Order of Remand. We agree with the ALJ that
the
facts in this case do not justify the imposition of the detailed, extensive injunctive relief sought
by
Smith. Although the Secretary held that Esicorp created a hostile working environment, there
was
no evidence that it was widespread or involved all aspects of Esicorp's operations. Rather, the
hostile environment was limited to a series of derogatory cartoons over a two month period
(October
21 to December 16, 1991) in one area of the plant. See Remand Order at 25-27.
Esicorp represents that it no longer is in business, has no presence at the
South
Texas nuclear plant and would have no way of assuring that the order for posting the decision
can
be carried out. Respondent's Brief to ARB at 14. But Esicorp also represented to the ALJ at the
hearing on remand that Esicorp would be responsible for any relief for which Ebasco would have
been held liable. T. 727 (May 26, 1996 hearing on remand). Smith has moved to add Raytheon
Corporation as a party respondent, asserting that Raytheon succeeded to all of Esicorp's property
and
personnel at the South Texas plant. However, Smith only seeks to add Raytheon as a party for
purposes of affirmative and injunctive relief. Complainant's Reply Brief on Damages and
Remedies
at 15.
We do not think any useful purpose would be served at this stage of this
proceeding to reopen the record and take evidence on whether Raytheon meets the tests for
successorship liability (see Rowland v. Easy Rest Bedding , Inc., Case No.
93-STA-
19, Sec'y Dec. and Remand Ord., Nov. 21, 1994, slip op. at 2), only to assure that the posting
relief
is carried out. The purpose of posting is to provide notice that whistleblowers will be protected
if
they are discriminated against. If Esicorp is unable to secure posting of the Secretary's March 13,
1996 decision and this decision at the South Texas nuclear plant, notification may be
accomplished
by publishing the two documents in a local general circulation newspaper. Such an order brings
this
longstanding matter to a close and provides Smith more timely relief.
[Page 7]
CONCLUSION
Accordingly, it is ordered that:
1) Respondent Esicorp shall pay Complainant Thomas H. Smith $20,000 in
compensatory damages;
2) Esicorp shall pay Smith $34,570.50 in attorney's fees and $1696.19 in
expenses;
3) Esicorp either shall secure the posting of this decision and of the Secretary's
March 13, 1996 decision in a lunchroom and another prominent place, accessible to
employees at the South Texas nuclear facility, for a period of ninety days, or shall publish
the decisions in a local general circulation newspaper.
4) Smith's motion to amend the caption is denied.
SO ORDERED.
PAUL
GREENBERG
Member
CYNTHIA L.
ATTWOOD
Acting
Member
[ENDNOTES]
1 The amendments to the ERA
contained in the National Energy Policy Act of 1992, Pub. L. No. 102-486, 106 Stat. 2776 (Oct.
25,
1992), do not apply to this case in which the complaint was filed prior to the effective date of that
Act.
2 Esicorp, Inc., was formerly
known
as Ebasco Constructors, Inc. For consistency's sake we will refer to Respondent as Esicorp.
3 On remand the ALJ also found
that a high ranking Esicorp official wore a hat with Smith's nickname in a circle and a slash
across the
name. ALJ Order at 3.
4 Smith urges this Board to
award
$3,500,000 in "compensatory" damages, arguing that nuclear workers will fear to
speak out
about pollution problems if Esicorp is ordered to pay only "small damages" and
suggesting
that employers "unwhipped by justice" may again violate the employee protection
provisions of the Energy Reorganization Act. Complainant's Reply Brief as to Damages and
Remedy
at 5, 7-14. Implicitly, the argument suggests that the Board should make large compensatory
damage
awards in order to "send a message" to the employer community.
Smith's position confuses compensatory damage awards with exemplary
(or
punitive) damage awards. The amount of a compensatory damage award is governed by the
harm done
to the complainant; the purpose of the compensatory damage award is to make the complainant
whole
for the harm caused by the employer's unlawful act. In contrast, exemplary damages are intended
to
punish and deter egregious conduct by a respondent. Although the Board is authorized to award
compensatory damages under the Energy Reorganization Act, 42 U.S.C. §5851(b)(2)(A),
we have
no authority to award exemplary damages. Compare , 15 U.S.C. §2622(b)(2)(B)
(authorizing award of exemplary damages under the Toxic Substance Control Act).