DOL Home > OALJ > Whistleblower > Johnson v. Bechtel Construction Co., 95-ERA-11 (Sec'y Feb. 26, 1996) |
DATE: February 26, 1996 CASE NO. 95-ERA-0011 IN THE MATTER OF DAVID G. JOHNSON, COMPLAINANT, v. BECHTEL CONSTRUCTION CO., RESPONDENT. BEFORE: THE SECRETARY OF LABOR SUPPLEMENTAL ORDER CONCERNING COSTS This case arises under the employee protection provision of the Energy Reorganization Act of 1974 (ERA), as amended, 42 U.S.C.A. § 5851 (West 1994). In a Final Decision and Order issued on September 28, 1995, I found that Respondent, Bechtel Construction Co., violated the ERA when it failed to rehire Complainant, David Johnson, because of safety complaints he made during an earlier period of employment. I ordered Bechtel to pay back pay plus interest and noted that Johnson, who appeared pro se, was entitled to payment of the reasonable costs he incurred in bringing the complaint. See Final Dec. at 3 and 42 U.S.C.A. § 5851(b)(2)(B). Accordingly, I afforded Johnson the opportunity to submit a petition detailing his costs, including any fees for typing, photocopying, mailing, telegrams, long distance telephone call, and the like. Johnson submitted a petition listing costs in the amount of $1099.12 and seeking interest on that sum. Bechtel objected to some of the cost items on the ground that they are not recoverable under Fed. Rule Civ. P. 56(d) and argued that the
[PAGE 2] ERA s cost provision should be interpreted like the Federal Rule. The company contested other costs on the ground that Johnson provided no reliable documentation and also argued that interest is not recoverable on costs. Bechtel did not object to paying Johnson s $300 attorney consultation fee because it was documented by a bill attached to the petition. Contrary to Bechtel s argument for a narrow interpretation of a complainant s costs recoverable under the ERA, the provision has been interpreted broadly. See, e.g., Tritt v. Fluor Constructors, Inc., Case No. 88-ERA-29, Dec. and Ord. of Remand, Mar. 16, 1995, slip op. at 5, petition for review docketed sub nom. Fluor Constructors, Inc. v. Sec. of Labor, No. 95-2827 (11th Cir. June 19, 1995) and Creekmore v. ABB Power Systems Energy Services, Inc., Dep. Sec. Dec. and Remand Ord., Feb. 14, 1996, slip op. at 25 (costs include certified mailings, telegram, and Complainant s transportation, lodging, and meals to attend the hearing). I find that the types of items to which Bechtel objects in this case, including travel expense[1] and postage related to the hearing, are compensable under the ERA. While it is best for a Complainant to attach receipts or bills reflecting a claimed cost item, I find that it is not absolutely necessary in this case, either because of items in the record or the details Johnson provided to support his claim. The record contains the telegram Johnson sent to request a hearing and I will allow the $27 cost for this item. Johnson listed the eight documents for which he claims a certified mail fee and therefore I will allow $10.32 for the cost of certified mail. Likewise, Johnson listed the five documents for which he claims a fee for overnight mail and I will allow the $53.75 claimed. Johnson listed the names of five books for which he claims costs. Since the books concern trial preparation and Johnson represented himself at the hearing, I find that Johnson reasonably incurred the cost of purchasing those books in bringing his complaint. Consequently, I will allow the $223.85 claimed. I will disallow items for which Johnson indicates a rough estimation has been given: regular mail, long distance phone calls, and photocopies. I also disallow the claimed cost for typing since Johnson petitions that this price from Kinko s Inc. be used but does not state that he actually incurred the claimed cost in preparing pleadings and documents in this case. Finally, the ERA does not authorize interest on costs. Tritt, slip op. at 5. Accordingly, Respondent shall pay to Complainant $645.52 in costs. SO ORDERED.
[PAGE 3] ROBERT B. REICH Secretary of Labor Washington, D.C. [ENDNOTES] [1] Johnson claimed a mileage fee of $.17 per mile for 180 miles, representing round trips between his home in Kenosha, Wisconsin and the location of the hearing in Milwaukee for the three days of hearing. I find that the claimed total cost of $30.60 is reasonable.