USEC also raises several issues with respect to the fee request for time expended on December 9, 2004, and June 1, 2005. USEC contends that Pierce accounted for only 10 hours worth of time on December 9, but requested compensation for 12 hours, and that the ALJ failed to reduce travel time for Pierce's attorneys on December 9, 2004, and June 1, 2005, by 50% in accordance with his prior findings in the Order. In addition, the ALJ failed to reduce Hoffman's hourly rate for the time worked on December 9 to his lower associate rate in accordance with his prior findings in the Attorney Fee Order. We have examined these entries and therefore reduce the travel time on December 9, 2004, and June 1, 2005, by 50%, and we reduce Attorney Hoffman's hourly rate to $202.50 for his work on December 9.
[Page 22]
In conclusion, we reverse the ALJ's award for attorney's fees and costs for work before the NRC, reduce his award for fees billed for December 9, 2004, and approve the remainder of his Order.
Conclusion and Order
The ALJ analyzed all the evidence and correctly applied relevant law. We have examined the record and conclude that it fully supports the ALJ's finding that USEC violated the whistleblower protection provisions of the ERA when it placed Pierce on DML and terminated his employment. Therefore, we affirm the ALJ's finding and grant the complaint.
Pierce's attorney shall have 30 days from receipt of this Final Decision and Order in which to file a fully supported attorney's fee petition for costs and services before the ARB, with simultaneous service on opposing counsel. Thereafter, USEC shall have 30 days from its receipt of the fee petition to file a response.
SO ORDERED.
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
WAYNE C. BEYER
Administrative Appeals Judge
[ENDNOTES]
1 42 U.S.C.A. § 5851(a) (West 2007). Congress has amended the ERA since Pierce filed this complaint. Energy Policy Act of 2005, Pub. L. 109-58, title VI, § 629, 119 Stat. 785 (Aug. 8, 2005). We need not decide whether the amendments would apply to this case, which was filed before their effective date, because even if the amendments applied, they are not at issue in this case and thus would not affect our decision.
2 We hereby consolidate ARB Case No. 06-055 and 06-058 (the parties' petitions for review of the Recommended Decision and Order) with ARB Case No. 06-119 (USEC's petition for review of the Attorney Fee Order in this proceeding). We note that ALJ Gerald M. Tierney issued the R. D. & O. in this proceeding, but ALJ Daniel L. Leland issued the Attorney Fee Award. Because ALJ Tierney is no longer with the Department of Labor's Office of Administrative Law Judges, ALJ Leland was assigned to determine the appropriate attorney's fees and costs in this proceeding.
3 As the ALJ noted, Pierce was under a great deal of stress at this time. Also, from October 12 through November 18, 2002, Alderson was on leave from work. In his absence, "during the 337A south crane incident, Mr. Pierce was the only supervisor in the QC Department and was covering many of Mr. Alderson's duties." R. D. & O. at 13.
4 Pierce did not understand why Labarraque considered Beal's one-day delay in recording the dropping distance to be a willful violation. R. D. & O. at 12. Both Brown and Beal did not want to approve the test without first speaking to Pierce because they were not sure that it was appropriate to record a nine-inch drop based on a visual estimate by Brown standing 12 feet away from the crane. Id.; Tr. 2204. Brown thought this could be construed as falsifying a document. R. D. & O. at 12; Tr. 2210.
5 Additional protected activity Pierce alleged includes assisting his spouse, Nancey Pierce, in her alleged protected activity, i.e., her participation in lawsuits against USEC.
6 See Secretary's Order 1-2002, 76 Fed. Reg. 64,272 (Oct. 17, 2002) (delegating the Secretary's authority to review ALJ recommended ERA decisions and other statutes set out at 29 C.F.R. § 24.100, 24.110 (2007)).
7 5 U.S.C.A. § 557(b) (West 1996).
8 See Sayre v. VECO Alaska, Inc., ARB No. 03-069, ALJ No. 2000-CAA-007, slip op. at 2 (ARB May 31, 2005).
9 72 Fed. Reg. 44,956 (Aug. 10, 2007), codified at 29 C.F.R. § 24.110(b).
10 Clean Harbors Envtl. Servs. v. Herman, 146 F.3d 12, 21 (1st Cir. 1998).
11 Cf. Fed. R. App. P. 28(j) (the parties have the burden of calling the court's attention to any pertinent and significant authorities that came to the parties' attention after its brief has been filed).
12 42 U.S.C.A. § 5851 (a)(1).
13 See Kester v. Carolina Power & Light Co., ARB No. 02-007, ALJ No. 2000-ERA-031, slip op. at 8 (ARB Sept. 30, 2003).
14 42 U.S.C.A. § 5851(b)(3)(D).
15 American Nuclear Res., Inc. v. U.S. Dep't of Labor, 134 F.3d 1292, 1295 (6th Cir. 1998)
16 Id., citing Stone & Webster Eng'g Corp. v. Herman, 115 F.3d 1568, 1574 (11th Cir. 1997).
17 Melendez v. Exxon Chems. Ams., ARB No. 96-051, ALJ No. 1993-ERA-006, slip op. at 27-28 (ARB July 14, 2000).
18 42 U.S.C.A. § 5851 (a)(1).
19 Pierce faxed all of his DOL complaints to onsite plant managers Russ Starkey and Steve Penrod.
20 Both Pierce and USEC challenge the ALJ's findings with regard to other instances of alleged protected activity. Because we decide this case on other grounds, we decline to address the parties' additional arguments in our decision. We note, however, our disagreement with the ALJ's conclusion that Pierce's complaint to USEC's Employee Concerns Department about Labarraque's behavior in a July 31, 2002 meeting and his participation in two NRC Discrimination Task Force meetings were protected activity. "To constitute protected activity under the ERA, an employee's acts must implicate safety definitively and specifically." Makam v. Pub. Serv. Elec. & Gas Co., ARB No. 99-045, ALJ Nos. 1998-ERA-022, -026, slip op. at 5 (ARB Jan. 30, 2001); Am. Nuclear Res. v. U.S. Dep't of Labor, 134 F.3d 1292, 1295 (6th Cir. 1998). Pierce did not argue that he engaged in any action during these meetings that was motivated by a belief that USEC was violating any nuclear laws or regulations, ignoring safety procedures, or assuming unacceptable risks that would lead us to conclude that he raised nuclear safety definitively and specifically. We cannot conclude that his mere attendance at these meetings, without more, implicated safety definitively and specifically. We also do not agree with the ALJ's conclusion that Pierce's duties as a QC Manager inherently involved protected activity. This conclusion directly conflicts with the decision of the Sixth Circuit in Sasse v. U.S. Dep't of Labor, 409 F.3d 773 (6th Cir. 2005).
21 Tipton v. Ind. Mich. Power Co., ARB No. 04-147, ALJ No. 2002-ERA-030, slip op. at 5 (ARB Sept. 29, 2006).
22 Clark v. Pace Airlines, Inc., ARB No. 04-150, ALJ No. 2003-AIR-028, slip op. at 12 (ARB Nov. 30, 2006).
23 The January 16 and May 16, 2003 complaints occurred after USEC placed Pierce on DML and terminated his employment. Since the final uncontested adverse action (termination) occurred on January 15, 2003, we do not address the January and May complaints because they could not have contributed to USEC's decision to place Pierce on DML and terminate his employment.
24 29 C.F.R. § 24.104(d)(3).
25 Robinson v. Northwest Airlines, Inc., ARB No. 04-041, ALJ No. 2003-AIR-022, slip op. at 9 (ARB Nov. 30, 2005).
26 Barber v. Planet Airways, Inc., ARB No. 04-056, ALJ No. 2002-AIR-019, slip op. at 6-7 (ARB Apr. 28, 2006).
27 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147-48 (2000).
28 Martin v. United Parcel Serv., ARB No. 05-040, ALJ No. 2003-STA-009, slip op. at 9 (ARB May 31, 2007).
29 Reeves, slip op. at 147.
30 In this regard, USEC introduced into evidence 13 "Memos to File" written by Labarraque between July 10, 2000, and December 13, 2002, detailing Labarraque's complaints about Pierce's performance deficiencies. Pierce avers that he never saw these memos until USEC produced them during discovery. Complainant's Reply Brief at 26. We do not find these memos probative because they directly conflict with Employee Concerns Representative Bill Reep's "Memo to File" dated October 9, 2002, responding to Pierce's request that USEC remove from its files negative statements and personnel actions made against him since 2000. Reep responded, "A review of [Pierce's] personnel file, field files and his discipline yielded little, if any information of a negative nature. . . .The last file reviewed was the discipline file in the possession of Human Resources. The only content in the file was the memo from Jorge Labarraque regarding the discipline for sleeping issued in July, 2002." RX-156.
31 Mackowiak v. Univ. Nuclear Sys., Inc., 735 F.2d 1159, 1164 (9th Cir. 1984), quoting NLRB v. Transp. Mgmt. Corp., 462 U.S. 393, 403 (1983)
32 42 U.S.C.A. 5831(b)(3)(D).
33 See Timmons v. Franklin Elec. Coop., ARB No. 97-141, ALJ No. 1997-SWD-002, slip op. at 6 (ARB Dec. 1, 1998) (temporal proximity between protected activity and termination plus employer's failure to provide plausible explanation for firing sufficient to establish retaliatory discharge).
34 42 U.S.C.A. § 5851(b)(2)(B).
35 Hobby v. Ga. Power Co., ARB Nos. 98-166, 169, ALJ No. 1990-ERA-030, slip op. at 33 (ARB Feb. 9, 2001) (citations omitted).
36 Moder v. Vill. of Jackson, Wis., ARB Nos. 01-095, 02-039, ALJ No. 2000-WPC-005, slip op. at 10 (ARB June 30, 2003).
37 Martin v. Dep't of the Army, ARB No. 96-131, ALJ No. 1993-SWD-001, slip op. at 17 (ARB July 30, 1999).
38 Gutierrez v. Univ. of Cal., ARB No. 99-116, ALJ No. 1998-ERA-019, slip op. at 9 (ARB Nov. 13, 2002).
39 42 U.S.C.A. 5851(2)(B).
40 Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
41 Order at 3, citing Louisville Black Police Officers Org. Inc. v. Louisville, 700 F.2d 268, 278 (6th Cir. 1983) (district courts are "free to look to the national market, an area of specialization market or any other market they believe is appropriate to fairly compensate particular attorneys in individual cases.").
42 Order at 4.
43 Presumably the firm could have retained a local attorney, Mark Whitlow, who had represented USEC in the past. USEC's Initial Brief, ARB Case No. 06-119 (Attorney's fee case) at 14-15.
44 Order at 4.
45 In support of its argument that Louisville hourly rates are unreasonable, USEC has not introduced evidence of the hourly rate charged or the hours billed by its own counsel. Such evidence would be probative as evidence of the appropriate rate for this type of case. See Isabel v. City of Memphis, 404 F.3d 404, 416 (6th Cir. 2005)(court refuses to adjust civil rights plaintiffs attorney's rate downward because, among other reasons, City's lead counsel's rate ($270) was higher in comparison to plaintiffs' attorneys rate ($250); Walker v. U.S. Dep't of Housing & Urban Dev., 99 F.3d 761, 770 (5th Cir. 1996)(published rates of outside opposing counsel retained by city of Dallas are probative of the customary rate in the relevant legal community. "In fact, the published rates are highly probative, as they are direct evidence of what the going rate is for the kind of complex federal litigation that occurred in the instant case.").
46 Pittman v. Goggin Truck Line, Inc., ARB No. 99-062, ALJ No. 1996-STA-025, slip op. at 1 (ARB July 30, 1999).
47 Perotti v. Seiter, 935 F.2d 761, 764 (6th Cir. 1991).
48 1990-STA-037 (Sec'y June 3, 1994).
49 In re Babcock & Wilcox Co., 526 F.3d 824 (5th Cir. 2008) (bankruptcy court did not abuse discretion by discounting fee for non-working travel time).