DOL Home > OALJ > Whistleblower > Keene v. Ebasco Constructors, Inc., 95-ERA-4 (ALJ Apr. 10, 1997) |
Date: April 10, 1997
In the Matter of
EARL VANDORN KEENE
vs.
EBASCO CONSTRUCTORS, INC.
Case No.: 95-ERA-4
Complainant
a/k/a RAYTHEON CONSTRUCTORS,
k/n/a RAYTHEON ENGINEERS AND
CONSTRUCTORS, INC.
ATTORNEY'S FEES, COSTS AND EXPENSES
This proceeding arises under the Employee Protection Provisions of the Energy Reorganization Act (Act), 42 U.S.C. §5851 (1992). The Complainant, Earl Vandorn Keene, filed a complaint with the Department of Labor on September 9, 1994, alleging that he was a protected employee who had engaged in protected activity within the scope of the Act and was a victim of retaliation as a result of that activity.
After an initial investigation by the Director, no violation of the
statute was found. The Complainant appealed that finding to the Office of Administrative Law Judges. A formal hearing was held in June, 1995, following which a Recommended Decision and Order issued on November 28, 1995.
In his complaint, the Complainant alleged that the Respondent, as well as Houston Lighting and Power, had retaliated against him by (1) laying him off on March 24, 1994, (2) subjecting him to unnecessary testing on May 24, 1994, (3) subjecting him to duties which did not befit his skills and failing to assign him to duties in early June, 1994, and (4) terminating him on June 9, 1994.
At the outset of the hearing, Houston Lighting and Power Company was voluntarily dismissed by Complainant and he also abandoned the allegation that the Respondent had wrongfully terminated him on June 9, 1994. Complainant likewise acknowledged that he was entitled to no monetary damage in connection with the alcohol testing episode on May 24, 1994, or the event in June, 1994. Complainant did not seek reinstatement, but sought as damages six months loss of wages ($23,299.20) and compensatory damages of ,155.97 for his having been laid off on March 24, 1994, plus attorney's fees and costs.
Based on the evidence presented at the hearing, it was my recommendation that the Respondent had acted unlawfully in terminating the Complainant on March 24, 1994, as well as subjecting him to alcohol testing on May 24, 1994. I awarded Complainant ,437.72 for 13 days loss of wages and recommended a revision of his final written appraisal.
On February 19, 1997, the Administrative Review Board issued its final Decision and Order in which they reversed my finding of retaliation on the part of the Respondent for the May 24 alcohol testing, affirmed my finding of no retaliation for the June working conditions and added $245.00 to the compensatory damages awarded to Complainant, thereby increasing his net monetary recovery to ,682.72. The Board further found that Complainant is entitled to an award of costs and expenses, including attorney's fees, and remanded the matter to me for a recommended decision concerning these items.
Findings of Fact and Conclusions of Law
costs in the total amount of $51,934.74 alleging that three attorneys had worked on the case and were entitled to $42,831.25 in fees and $9,103.49 in costs. The petition further alleged that the time spent was reasonable and necessary in an effort to abate the illegal activities of the Respondent and that the litigation had met with significant success. Respondent, on the other hand, urges that Complainant's counsel is entitled to no more than $25,755.07 for costs and attorney fees. Respondent bases its position on the grounds (1) that the number of hours expended by Complainant's attorneys was not reasonable, (2) that certain expenses were not documented or were unnecessary, and (3) that Complainant did not receive a level of success which would justify a fee award in the amount requested.
Regarding Complainant's claim for expenses in the amount of $9,103.49, I agree with Respondent that certain items requested were not properly proven. Specifically, Federal Express charges in the amount of $338.15 and $543.20 for meals, mileage, gas, lodging and airfare are not documented, nor is there any link provided that proves a connection between these expenses and this claim. The same can likewise be said for the alleged expense of ,474.59 for photocopies in preparation of trial exhibits; however, I also find photocopy costs to be overhead and a cost of doing business.
Based on the foregoing, it is my finding that the expenses sought by Complainant should be reduced by $2,355.94 and that Complainant is entitled to recover $6,747.55 for costs and expenses incurred in this litigation. As to the reporting costs for the depositions of Woods, Garris, Rodriguez, Hinson and Brown, I am unwilling to exclude these charges as cost of trial preparation simply on Respondent's allegations that these people were employees of Houston Lighting and Power Company. Complainant had the privilege and obligation to develop his case through discovery.
As to the fee of $42,831.25 claimed by Complainant's attorneys, while I agree with Complainant's counsel that they did meet with some success in this case, I likewise agree with Respondent that the fees in this instance should be adjusted downward to reflect Complainant's limited success.
In Hensley v. Eckerhart, 461 U.S. 424 (1983), the Supreme Court defined the conditions under which a person who prevails on only some of his claims may recover attorney's fees under the Civil Rights Attorneys Fees
Award Act of 1976, 42 U.S.C. §1988. Specifically, the Court created a two prong test focusing on the following questions, and I find the test to be applicable in this instance also:
In other words, I read the Supreme Court's mandate to mean that I should focus on the significance of the overall relief obtained by the Complainant in relation to the hours reasonably expended on litigation. If excellent results were achieved, I should not reduce the fee award simply because Complainant failed to prevail on every contention raised; however, if Complainant achieves only partial or limited success, the product of hours expended on litigation as a whole, times a reasonable hourly rate, could well result in an excessive award. In the latter instance, the fee award should be adjusted to reflect a reasonable relationship to the results obtained.
In this instance, Complainant, after review by the Board, obtained success on the single issue of his wrongful termination on March 24, 1994, and received a monetary award of less than 10 percent of what he had sought. At the hearing he acquiesced to the fact that his failure to pass a drug test was the cause of his termination on June 9, 1994; I found that he had not otherwise been retaliated against in June, 1994; and the Board found that he had not been retaliated against for the alcohol testing that he was required to undergo on May 24, 1994. Therefore, the question is what level of success did the Complainant achieve in this instance by prevailing on the issue of his wrongful termination on March 24, 1994, and his award of ,682.72 in damages?
Complainant, through counsel, argues that my finding of retaliation on the part of the Respondent, as well as requiring the Respondent to correct Complainant's termination appraisal, vindicated Complainant in the eyes of his peers and the public. As a result of that victory, Complainant's counsel argues that her award of fees and costs should not be reduced because the benefits from the award
amounted to substantial relief.
In essence, I can agree with Complainant's position, but still I question whether the use of 295.75 hours of attorney's time was justified in relation to the results accomplished. While I am unwilling to reduce specific hours as unreasonable or unnecessary, based solely on the unsupported averments of Respondent's counsel, it is my finding that the award of fees should be reduced, as a whole, to 50 percent of the amount requested in response to the Hensley guideline of whether or not the Complainant achieved a level of success that made the total hours spent a satisfactory basis for establishing a fee award. To award the total amount here sought would be to ignore the lack of success Complainant had in three areas of his litigation, but to award less then 50 percent is to ignore the fact that he did, at the least, accomplish his goal of demonstrating Respondent's unlawful act and vindicating himself from Respondent's retaliatory behavior on the one occasion.
Recommended Order
It is my recommendation that Complainant receive an award of attorney's fees from Respondent in the amount of $21,415.63 as well as costs and expenses in the amount of $6,747.55.
SO ORDERED this 10th day of April, 1997, at Metairie, Louisiana.
C. RICHARD AVERY
Administrative Law
Judge