Riley v. Dakota, Minnesota & Eastern Railroad Corp. d/b/a Canadian Pacific (agency decision, July 6, 2018)

Plain-English summary

Mark Riley alleged that Canadian Pacific violated the Federal Rail Safety Act by withholding 47 days of pay after he reported a workplace assault and injury. The Board affirmed the finding that Riley's safety and injury reports were protected and that the late-reporting discipline was inextricably intertwined with that protected activity, establishing causation. It also affirmed that the railroad did not prove by clear and convincing evidence that it would have imposed the same suspension without the report. The Board upheld $11,000 in lost earnings, $786 for missed work, and the ALJ's conclusion that the collective bargaining agreement did not control the federal back-pay award. It also affirmed $27,985 in attorney fees and $4,954.10 in costs.

Decision snapshot

• Cited authorities: 49 U.S.C. § 20109; 49 U.S.C. § 42121(b)(2)(B)(iii); 49 U.S.C. § 42121(b)(2)(B)(iv); 29 C.F.R. § 1982.104(e)(3); 29 C.F.R. § 1982.110
• Outcome: ALJ merits decision, back-pay relief, and $32,939.10 fee-and-cost award affirmed.
• Key point: Discipline for a late injury report can be inseparable from the protected report itself, establishing presumptive causation under the FRSA.

Full text (DOL official public release)

U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210

  In the Matter of:


  MARK RILEY,                                               ARB CASE NOS. 16-010
                                                                          16-052
                  COMPLAINANT,
                                                            ALJ CASE NO.    2014-FRS-044
         v.
                                                            DATE: July 6, 2018
  DAKOTA, MINNESOTA & EASTERN
  RAILROAD CORPORATION
  d/b/a CANADIAN PACIFIC,

                  RESPONDENT.


  BEFORE:         THE ADMINISTRATIVE REVIEW BOARD

  Appearances:

  For the Complainant:
         Jerry Easley, Esq.; Rome, Arata & Baxley, L.L.C; Pearland, Texas

  For the Respondent:
         Tracey Holmes Donesky, Esq. and Matthew C. Tews, Esq.; Stinson Leonard Street
         LLP; Minneapolis, Minnesota

  Before: Joanne Royce, Administrative Appeals Judge; and Leonard J. Howie, Administrative
  Appeals Judge


                             FINAL DECISION AND ORDER

USDOL/OALJ REPORTER PAGE 1 This case arises under the whistleblower protection provisions of the Federal Rail Safety
Act of 1982 (FRSA). 1 Complainant Riley filed a complaint alleging that Respondent Canadian
Pacific (CP) violated the FRSA by suspending him without pay for forty-seven days due to his
filing of a late injury/safety report. On October 20, 2015, an Administrative Law Judge (ALJ)
granted relief including back pay plus interest. In a Supplemental Decision and Order issued on
March 21, 2016, the ALJ awarded Riley’s attorney’s fee in the amount of $32,939.10. CP
petitioned the Administrative Review Board (ARB or Board) for review of the decision on the
merits (ARB No. 16-010), and the decision awarding an attorney’s fee to be paid by CP (ARB No.
16-052). For the following reasons, the Board affirms the ALJ’s decisions.

                                      FACTUAL BACKGROUND 2

          On July 4, 2012, Riley was working as a locomotive engineer on a loaded ethanol train
  traveling from Dubuque, Iowa to Chicago, Illinois. He was assigned to work with assistant
  locomotive engineer Jonathan Bollman. The train arrived in Chicago at 2:00 a.m. on July 5, 2012.
  Riley testified that upon the train’s arrival in Chicago, Bollman got angry in response to a work-
  related task request Riley asked him to perform. Bollman entered the car where Riley was seated,
  struck him with a railroad lantern, punched him in the face, and knocked him to the ground. After
  the attack, the two men proceeded to bring the train into the yard, and thus remained in close
  proximity as they completed the job. Riley and Bollman shared a taxicab when traveling from the
  yard to their hotel. At the hotel, the two men clocked out of their on-duty time on designated
  computers in the hotel lobby. Riley estimated they clocked out at 4:25 a.m., and proceeded to their
  respective hotel rooms. Riley testified that he tried to call his immediate supervisors (Brandon
  Pregler or Jeremiah Christensen) to report the incident. Riley testified that the calls went
  unanswered, so he sent a text message to a “fellow railroader” that Bollman had assaulted him,
  and then proceeded to fall asleep.

           Sometime between 10:00 a.m. and 11:00 a.m. on July 5, Riley was able to get in touch with
  Jeremiah Christensen, a manager over conductors and engineers, and let him know about the attack
  and informed him he did not want to work with Bollman on the return trip to Dubuque. Christensen
  encouraged Riley to file an injury report. Christensen called his supervisor, Steve Cork, to inform
  him of the situation. After receiving encouragement from co-workers, Riley called Christensen to
  file a formal complaint about the assault. Christensen sent an email to Cork detailing Riley’s report
  at 4:44 p.m. on July 5th.


  1
          49 U.S.C.A. § 20109 (Thomson/West 2007), as amended by Section 1521 of the Implementing
  Recommendations of the 9/11 Commission Act of 2007 (9/11 Act), Pub. L. No. 110-53, and as
  implemented by federal regulations at 29 C.F.R. Part 1982 (2017) and 29 C.F.R. Part 18, Subpart A
  (2017).

  2
          The facts for the Factual Background section are taken from the factual dispute resolutions,
  credibility determinations, and the undisputed evidence of record.

USDOL/OALJ REPORTER PAGE 2 After collecting Riley’s report as well as a conflicting report from Bollman, CP pulled both
men out of service pending the results of a formal investigation of the altercation. The
investigation took 47 days to complete. CP’s investigation concluded that Riley should have
reported the incident immediately, and the failure to do so was a violation of CP policy. Riley’s
punishment for this late reporting was forfeiture of pay for the 47 days that he had spent out of
service during the investigation. Following the investigation, CP also disciplined Bollman. Riley
filed a FRSA complaint with OSHA on September 5, 2012.

                              JURISDICTION AND STANDARD OF REVIEW

          The Secretary of Labor has delegated authority to the Administrative Review Board to act
  for the Secretary in review of an appeal of an ALJ’s decision pursuant to the FRSA. 3 We review
  the ALJ’s factual findings to determine whether they are supported by substantial evidence. 4 The
  ARB reviews the ALJ’s conclusions of law de novo. 5 We uphold an ALJ’s credibility findings
  unless they are “inherently incredible or patently unreasonable.” 6


                                              DISCUSSION

          The FRSA prohibits a railroad carrier engaged in interstate commerce or its officers or
  employees from discharging, demoting, suspending, reprimanding, or in any other way retaliating
  against an employee because the employee engages in any of the protected activities identified
  under 49 U.S.C.A. § 20109(a), including inter alia:

                  (1) to provide information, directly cause information to be
                  provided, or otherwise directly assist in any investigation regarding
                  any conduct which the employee reasonably believes constitutes a
                  violation of any Federal law, rule, or regulation relating to railroad
                  safety or security, or gross fraud, waste, or abuse of Federal grants
                  or other public funds intended to be used for railroad safety or
                  security, if the information or assistance is provided to or an
                  investigation stemming from the provided information is conducted
                  by—

  3
         Secretary’s Order No. 02-2012 (Delegation of Authority and Assignment of Responsibility to
  the Administrative Review Board), 77 Fed. Reg. 69,378 (Nov. 16, 2012); 29 C.F.R. § 24.110(a)(2015).
  4
         29 C.F.R. § 1982.110.
  5
         Kruse v. Norfolk S. Ry. Co., ARB No. 12-081, ALJ No. 2011-FRS-022, slip op. at 3 (ARB Jan.
  28, 2014).
  6
          Mizusawa v. United Parcel Serv., ARB No. 11-009, ALJ No. 2010-AIR-011, slip op. at 2 (ARB
  June 15, 2012) (quoting Jeter v. Avior Tech. Ops., Inc., ARB No. 06-035, ALJ No. 2004-AIR-030, slip
  op. at 13 (ARB Feb. 29, 2008)).

USDOL/OALJ REPORTER PAGE 3 (A) a Federal, State, or local regulatory or law enforcement
agency (including an office of the Inspector General under the
Inspector General Act of 1978; . . . .
(C) a person with supervisory authority over the employee or such
other person who has the authority to investigate, discover, or
terminate the misconduct; . . . .
(4) to notify, or attempt to notify, the railroad carrier or the Secretary
of Transportation of a work-related personal injury or work-related
illness of an employee;
(5) to cooperate with a safety or security investigation by the
Secretary of Transportation, the Secretary of Homeland Security, or
the National Transportation Safety Board; . . . .
(7) to accurately report hours on duty pursuant to chapter 211.

  49 U.S.C.A. § 20109(a).

          Section 20109 incorporates the procedures enacted by the Wendell H. Ford Aviation
  Investment and Reform Act for the 21st Century (AIR 21), which contains whistleblower
  protections for employees in the aviation industry. 7 To prevail, an FRSA complainant must
  establish by a preponderance of the evidence that: (1) he engaged in a protected activity, as
  statutorily defined; (2) he suffered an unfavorable personnel action; (3) and the protected activity
  was a contributing factor in the unfavorable personnel action. 8 If a complainant meets his burden
  of proof, the employer may avoid liability only if it proves by clear and convincing evidence that
  it would have taken the same unfavorable personnel action in the absence of the complainant’s
  protected activity. 9

          Initially, we affirm the ALJ’s finding that Riley engaged in protected activity under Section
  20109(a)(1), which states that an employee is protected when he or she provides information in
  good faith regarding any conduct that the employee reasonably believes constitutes a violation of
  any Federal law, rule, or regulation relating to railroad safety or security. In this instance, the ALJ
  found that Riley reported a physical assault that occurred on July 5, 2012. Although Riley did not
  mention the “small bruise” he received as a result of the assault, the ALJ found that this omission
  did not change the nature of the report since the record showed that Riley reported the bruise soon
  after it was discovered. Moreover, the ALJ found that the report of the assault qualified as

  7
          49 U.S.C.A. § 42121(b)(2)(B)(iii); Luder v. Continental Airlines, Inc., ARB No. 10-026, ALJ
  No. 2008-AIR-009, slip op. at 6-7 (ARB Jan. 31, 2012); see Brune v. Horizon Air Industr., Inc., ARB
  No. 04-037, ALJ No. 2002-AIR-008, slip op. at 13 (ARB Jan. 31, 2006) (defining preponderance of
  the evidence as superior evidentiary weight).
  8
         49 U.S.C.A. §§ 20109(d)(2)(A)(i), 42121(b)(2)(B)(iii)(iv); Menefee v. Tandem Transp. Corp.,
  ARB No. 09-046, ALJ No. 2008-STA-055, slip op. at 6 (ARB Apr. 30, 2010) (citing Brune, ARB No.
  04-037, slip op. at 13).
  9
         49 U.S.C.A. § 42121(b)(2)(B)(iv).

USDOL/OALJ REPORTER PAGE 4 protected activity under Section 20109(b)(1)(A) as Riley informed his managers of a hostile
violent co-worker and workplace violence has been found to be a safety issue. Leiva v. Union Pac.
R.R. Co., Inc., ARB No. 14-016; ALJ No. 2013-FRS-0019 (ARB May 29, 2015). The ALJ rejected
CP’s contention that Riley’s failure to report the bruise showed bad faith, and credited Riley’s
contention that he remained in fear of Bollman until he returned to the hotel at 4:25 a.m., that he
tried and failed to report the incident immediately, and did report it as soon as he woke up the next
morning. The ALJ’s findings are affirmed as they are reasonable and supported by the evidence. 10

          CP does not dispute that the suspension for 47 days without pay is an adverse employment
  action. Therefore, we will review the ALJ’s findings regarding whether the reports were
  contributing factors to the unpaid suspension. While CP conducted an investigative hearing into
  the altercation on July 5, the letter from CP informing Riley of discipline dated August 21, 2012,
  states only that a review of the transcript establishes his failure to promptly report the incident to
  his supervisor and does not state that he was found to have violated any other work rule or
  regulation. Because it is impossible to separate the cause of Riley’s discipline—for filing his
  injury report late—from his protected activity of filing the injury report, the two are inextricably
  intertwined and causation is presumptively established as a matter of law. But as the ALJ
  explained: “[t]his court is not suggesting that a complainant automatically establishes a causal
  nexus by simply demonstrating an employer took any unfavorable personnel action after a report
  of injury. Rather, a case is established here because the basis for Complainant’s suspension cannot
  be discussed without reference to the protected activity. Simply put, Complainant’s reporting of
  his injury set in motion the chain of events eventually resulting in the investigation and is
  inextricably intertwined with the eventual adverse employment action.” 11 In Henderson v.
  Wheeling & Lake Erie Railway, a FRSA case materially similar to the one before us, the Board
  explained in detail why disciplinary action taken against an employee for late injury reporting
  establishes presumptive causation as a matter of law:

                  The FRSA’s legislative history, as outlined above, reveals a
                  Congressional intent to comprehensively address the problem of
                  railway retaliation for occupational injury reporting. Effective
                  enforcement of the Act requires presumptive causation under
                  circumstances such as Henderson’s, where viewing the “untimely
                  filing of medical injury” as an “independent” ground for termination

  10
          Moreover, we reject CP’s contention that the claim is barred because Riley filed a claim under
  the Collective Bargaining Agreement. The Board has consistently held that the FRSA election of
  remedies provision, 49 U.S.C.A. § 20109(f), permits a whistleblower claim to run concurrently with a
  collective bargaining grievance. Mercier v. Union Pac. R.R. Co., ARB Nos. 09-101, -121; ALJ Nos.
  2008-FRS-003, -004 (ARB Sept. 29, 2011); Kruse v. Norfolk S. Ry. Co., ARB Nos. 12-081, 12-106;
  ALJ No. 2011-FRS-022 (ARB Jan. 28, 2014). We also reject CP’s contention that this is a minor
  dispute and thus the Department of Labor does not have jurisdiction. This contention is inconsistent
  with CP’s assertion that the safety violation was severe and should have been reported at the earliest
  possible moment and any injury report or safety concern is not considered “minor” under the Act.
  11
         D. & O. at 15 (citations omitted).

USDOL/OALJ REPORTER PAGE 5 could easily be used as a pretext for eviscerating protection for
injured employees.[12]

  In this case, CP did not successfully rebut the causation presumption, and we affirm the ALJ’s
  causation finding as supported by substantial evidence.

         Respondent relies on the United States Court of Appeals for the Eighth Circuit’s decision
  in Kuduk v. BNSF Railway, Co., 768 F.3d 786, 792 (8th Cir .2014), and the circuit cases that follow
  Kuduk, to argue that more than a temporal connection between the protected conduct and the
  adverse employment action is required to present a genuine factual issue on retaliation. Id. at 792.
  Respondent notes that Kuduk requires a complainant to prove intentional retaliation.

          We hold that Kuduk however, is not analogous. In that case, the plaintiff's protected
  activity, while close in time, “was completely unrelated to the fouling-the-tracks incident that led
  to his discharge.” Id. Further, as the ALJ correctly noted, the employee need not conclusively
  demonstrate the employer’s retaliatory motive. 13 Riley’s injury and safety reports were both close

  12
          Henderson v. Wheeling & Lake Erie Ry., ARB No. 11-013, ALJ No. 2010-FRS-012, slip op.
  at 14 (ARB Oct. 26, 2012).

  13
          See Kuduk, 768 F.3d at 791. Although Kuduk passingly acknowledges established law—
  namely that a complainant need not prove retaliatory motive—we question its ultimate holding that a
  complainant must nevertheless prove “intentional retaliation.” Kuduk and its progeny hold that “the
  contributory factor that an employee must prove is intentional retaliation prompted by the employee
  engaging in protected activity.” Id (emphasis added). But this pronouncement is both conclusory and
  contrary to the weight of precedent interpreting the “contributing factor” element of the statutory
  protections of most whistleblower laws. See, e.g., Halliburton v. ARB, 771 F.3d 254, 262-263 (5th
  Cir. 2014); Araujo v. N.J. Transit Rail Ops., Inc., 708 F.3d 152, 158 (3d Cir. 2013); Addis v. Dep’t of
  Labor, 575 F.3d 688, 691 (7th Cir. 2009); Allen v. ARB, 514 F.3d 468, 476 n.3 (5th Cir. 2008); Kewley
  v. U.S. Dep’t of Health & Human Svcs., 153 F.3d 1357, 1362 (Fed. Cir. 1998). In Kuduk, the Eighth
  Circuit supported this unprecedented “intentional retaliation” requirement by relying on the language
  and reasoning of the U.S. Supreme Court’s causation findings in Staub v. Proctor Hosp., 562 U.S. 411
  (2011). But the Staub “cat’s paw” theory of causation, on which Kuduk relies, was created in the
  context of an action under the Uniformed Services Employment and Reemployment Rights Act
  (USERRA). Staub v. Proctor Hosp., 562 U.S. 411, 416-417 (2011). USERRA, however, like Title
  VII, contains an explicitly different statutory causation standard than that found in the FRSA and
  similar whistleblower statutes. Kuduk adopted the Staub causation standard without properly
  accounting for the differences between the “motivating factor” causation standard under USERRA and
  the “contributing factor” standard under FRSA. We have long held that “retaliatory motive” is not
  required to show causation under the whistleblower statutes, like FRSA, containing the “contributing
  factor” standard. And we have explained in depth the reasoning behind the interpretive distinctions
  between these two causation standards. See, e.g., Beatty v. Inman Trucking Mgm’t, Inc., ARB No. 13-
  039, ALJ Nos. 2008-STA-020, -02; slip op. at 8 (ARB May 13, 2014). As we stated with respect to
  the SOX whistleblower provision, which contains the same causation standard as FRSA: “Nothing in
  Section 806 requires a showing of retaliatory intent. The statute is designed to address (and remedy)
  the effect of retaliation against whistleblowers, not the motivation of the employer. Proof of

USDOL/OALJ REPORTER PAGE 6 in time to his discipline and inextricably intertwined therewith. 14 We also affirm the ALJ’s finding
that CP’s evidence fell short of proving its affirmative defense. The ALJ rejected the comparator
evidence CP introduced to show that Riley was not selectively disciplined as a result of his injury
report. Instead, the ALJ found that CP’s discipline for late injury reporting was inconsistent and
thus incapable of clearly establishing that Riley would have been disciplined absent his injury
report. Substantial evidence supports these findings. Additionally, we agree with the ALJ’s
finding that, while Riley’s suspension may have been lenient in light of his past disciplinary record,
there were insufficient facts to find that CP proved by clear and convincing evidence that Riley
would have been suspended had he never reported the injury. As the ALJ observed, CP introduced
no evidence to show either that CP regularly monitored for compliance with the prompt reporting
rule or that a 47-day suspension was a reasonable discipline for violation of the rule. Furthermore,
it is unclear who made the decision to suspend Riley and why. Michael Morris (CP investigation
hearing officer) testified that he forwarded his recommendation to terminate Riley’s employment
to Steve Cork (Riley’s supervisor), Jerry Peck (CP General Manager), and Jennifer Manz (a labor
relations manager). But CP no longer employed any of these individuals at the time of the ALJ’s
hearing and CP presented no evidence to clarify this issue. The record shows that an unknown
manager made the decision to disregard the recommendation to terminate Riley’s employment in
favor of a 47-day suspension. Moreover, the discipline letter was sent under Morris’s name with
someone else signing his signature. Thus, we affirm the ALJ’s finding that CP did not meet its
burden of persuasion, and we affirm the ALJ’s finding that CP is liable for retaliation against Riley
pursuant to the FRSA.

  ‘retaliatory motive’ is not necessary to a determination of causation.” Menendez v. Halliburton, Inc.
  ARB Nos. 09-002, -003; ALJ No. 2007-SOX-005, slip op. at 31 (ARB Sept. 13, 2011) aff’d,
  Halliburton v. ARB, 771 F.3d 254, 262-263 (5th Cir. 2014). Although Kuduk acknowledged that the
  “contributing factor” under FRSA does not require a complainant to “demonstrate the employer’s
  retaliatory motive,” the court failed to explain why, instead, “intentional retaliation” was required or
  how “intentional retaliation” differs from “retaliatory motive.”
           Another curious pronouncement in Kuduk states that “we reject the notion—suggested in some
  ARB decisions—that temporal proximity, without more, is sufficient to establish a prima facie case.”
  Kuduk, 768 F.3d at 792. But this “notion” which Kuduk rejects is contained in the regulations
  implementing the FRSA. 29 C.F.R. § 1982.104(e)(3) states a complainant’s burden under FRSA to
  warrant an OHSA investigation. A complainant’s burden at the summary decision stage is the same:
  “The burden may be satisfied, for example, if the complaint shows that the adverse action took place
  shortly after the protected activity, or at the first opportunity available to the respondent, giving rise to
  the inference that it was a contributing factor in the adverse action.” See also Lockheed Martin Corp.
  v. ARB, 717 F.3d 1121, 1136 (10th Cir. 2013)(“Temporal proximity between the protected activity and
  adverse employment action may alone be sufficient to satisfy the contributing factor test.”).
  14
          Respondent’s attempt to challenge the ALJ’s contributing factor analysis as contrary to Eighth
  Circuit law is unavailing legally as well as factually.

USDOL/OALJ REPORTER PAGE 7 Damages—backpay

           The ALJ found that Riley lost $11,000 in earnings during his 47-day suspension 15 as well
  as $786 for missing three days of work to attend his deposition and the hearing in this case. CP
  did not address the amount of back pay claimed before the ALJ. But after the ALJ’s decision was
  filed, and at the same time as this appeal was filed, CP filed a Motion to Alter & Clarify Judgment
  Or Alternatively, To Relieve Judgment before the ALJ contending that the back pay award was
  improperly calculated and that CP had already paid $6,118.69 in back wages pursuant to a decision
  by the Public Law Board on appeal of the grievance Riley filed. In this appeal, and that motion,
  CP contends that the ALJ is bound by the back pay calculation dictated by the Collective
  Bargaining Agreement.

           The Board has held that although the calculation of back pay must be reasonable and based
  on the evidence, the determination of back wages does not require “unrealistic exactitude,” 16 and
  any uncertainty concerning the amount of back pay is resolved against the discriminating
  party. 17 The ALJ relied on Riley’s testimony, which he found to be credible, to find that he was
  entitled to back pay in the amount of $11,000, plus payment for the days he missed for the
  deposition and hearing. 18 Contrary to Respondent’s contention, the CBA is a contract that controls
  the employer/employee relationship, but does not control review of a case under federal law. Thus,
  we hold that the ALJ’s back pay finding is reasonable and supported by the evidence, and we reject
  CP’s contention that the ALJ is bound by the CBA. 19

          CP also argues that the Public Law Board awarded Riley the amount of $6,118.69 that CP
  paid and thus requests the Board to take judicial notice of this award and reduce Riley’s award
  under the FRS accordingly. But CP had evidence of this award for 10 months before the ALJ
  issued his final Decision and Order and did not raise it. Although the record was closed, CP could
  have filed a motion requesting the ALJ to consider the evidence. But CP waited until two weeks

  15
         This finding appears to be based on Riley’s testimony that he earned $3500 for a two-week
  pay period or “half” and that he missed just over 3 halves or $11,000. See Hearing Transcript (H.T.)
  at 27.
  16
          Cook v. Guardian Lubricants, Inc., ARB No. 97-055, ALJ No. 1995-STA-043, slip op. at 11-
  12, n.12 (ARB May 30, 1997).
  17
         Clay v. Castle Coal & Oil Co., No. 1990-STA-037 (Sec’y June 3, 1994); Kovas v. Morin
  Transp., Inc., No. 1992-STA-041 (Sec’y Oct. 1, 1993).
  18
          See H.T. at 30.
  19
         The OALJ Rules at 29 C.F.R. Part 18 set out the procedural and evidentiary rules for
  administering adjudicatory proceedings. Subpart B of the OALJ Rules prescribes the Rules of
  Evidence that govern formal adversarial adjudications of the United States Department of Labor
  conducted before a presiding officer that is required by, inter alia, the Administrative Procedure Act, 5
  U.S.C.A. §§ 554, 556 and 557 (West 1996). See 29 C.F.R. Subpart B, § 18.101.

USDOL/OALJ REPORTER PAGE 8 after the Decision and Order was issued to submit a motion that the OALJ did not act upon. We
reject CP’s attempt to reduce the award now with evidence not considered by the ALJ. If a dispute
remains regarding the calculation of the award, CP may wish to address this issue with the district
court that is responsible for enforcement.

  Attorney’s fee

           Riley’s counsel filed an Application for Attorney Fees and Litigation Costs before the ALJ,
  seeking fees of $28,130.00. This fee represents 97 hours of legal services at the hourly rate of
  $290 and litigation costs of $5,001.10. The ALJ found that Riley was unable to secure local
  counsel in Iowa and thus approved the fee for counsel based on the Houston, Texas market rate.
  He also found that the hourly rate of $290 was reasonable and supported by the evidence submitted
  by counsel. The ALJ recognized that Riley did not prevail in his request for compensatory and
  punitive damages, but rejected CP’s contention that the fee should be reduced to account for
  limited success as Riley prevailed on his claim of retaliation and was awarded back pay and noted
  that all relief sought by Riley rested on common factual grounds. Further, with the exception of
  .75 hours spent filing the draft, the ALJ found that the services provided were well-documented
  and reasonable to establish the claim under the Act. Therefore, the ALJ awarded counsel a fee in
  the amount of $27,985.00 and $4,954.10 in costs.

           On appeal of the Supplemental Decision and Order Awarding Attorney’s Fees and Costs
  in Part, Respondent raises a number of contentions. Specifically, CP contends that the ALJ failed
  to adjust the attorney’s fee award to account for Riley’s limited success and that the ALJ erred in
  awarding the hourly rate for work performed in Houston, Texas, when this case was litigated in
  Iowa and that Riley did not establish that he sought and could not find local counsel. CP also
  contends that the ALJ erred in awarding $4,954.10 in litigation costs that included $3,176.55 in
  counsel’s out-of-town travel costs. Lastly, Respondent contends that the ALJ erred in awarding
  any fees for work performed before the case was transferred to OALJ, which includes 5.25 hours
  of time billed during the investigation stage before OSHA. The ALJ considered and rejected CP’s
  contentions and CP does not raise any error on appeal that requires reversing the ALJ’s opinion.
  Thus, we affirm the ALJ’s finding that CP must pay Riley’s counsel a fee in the amount of
  $27,985.00 and $4,954.10 in costs.


                                            CONCLUSION

          Based on the foregoing, the Board AFFIRMS the ALJ’s Decision and Order Granting Relief
  as well as his award of an attorney’s fee and costs. Accordingly, the ALJ’s August 13, 2015
  Decision and Order and the Supplemental Decision and Order Awarding Attorney’s Fees and
  Costs, in part are AFFIRMED.

USDOL/OALJ REPORTER PAGE 9 Riley’s attorney has 30 days in which to submit a petition for attorney’s fees and other
litigation expenses for work done before the ARB. He is to serve any such petition on CP, which
will have 30 days in which to file objections to the petition.

         SO ORDERED.



                                              LEONARD J. HOWIE
                                              Administrative Appeals Judge


                                              JOANNE ROYCE
                                              Administrative Appeals Judge

USDOL/OALJ REPORTER PAGE 10