Bow Valley Coal Resources Inc.

Plain-English summary

Harley M. Smith alleged that Bow Valley Coal Resources discriminated against him after he made safety complaints and was required to perform different mine duties. An earlier decision found a prima facie violation when the company terminated his employment and reserved the amount of relief. Judge Avram Weisberger confirmed that decision, ordered Smith reinstated at the Oxford No. 5 Mine, awarded $52,880.11 in back pay and interest subject to later accrual, and awarded $2,500 in attorney fees plus expenses. The judge denied the company's motion for reconsideration.

Decision snapshot

• Cited standards: 30 U.S.C. §§ 815(c)(1) and 815(c)(3)
• Outcome: The prior discrimination decision was confirmed as final, reinstatement was ordered, and back pay, attorney fees, and expenses were awarded.
• Key point: Relief for a proven Mine Act discrimination claim may include reinstatement, back pay with interest, and reasonable attorney fees and expenses.

Full text (FMSHRC public release)

CCASE:
HARLEY SMITH V. BOW COAL
DDATE:
19870819
TTEXT:

Page 2

~1468

           Federal Mine Safety and Health Review Commission
                 Office of Administrative Law Judges

HARLEY M. SMITH, DISCRIMINATION PROCEEDING
COMPLAINANT
v. Docket No. KENT 86-23-D

BOW VALLEY COAL RESOURCES BARB CD 85-69
INC.,
RESPONDENT Docket No. KENT 86-84-D

                                       BARB CD 86-7

                                       Oxford No. 5 Mine

                                DECISION

Appearances: David M. Taylor, Esq., Smith & Carter Law
Officers, Harlan, Kentucky, for the Complainant;
Joshua E. Santana, Esq., Brown, Bucalos, Santana
& Bratt, P.S.C., Lexington, Kentucky,
for the Respondent.

Before: Judge Weisberger

Statement of the Case

 On or about September 18, 1985, Complainant filed a

Complaint with the Federal Mine Safety and Health Administration
alleging that after making safety complaints to Respondent,
commencing on December 13, 1984, he was required to work both as
a miner's helper and also as a ventilation man. He also alleged
that he was discriminated against unlawfully in that he did not
receive benefits "while I was off." On October 21, 1985,
Complainant was advised that the Mine Safety and Health
Administration determined that a violation of Section 105(c) had
not occurred. On or about November 18, 1985, Complainant filed
his complaint with the Commission.

 On or about November 15, 1985, Complainant filed another

complaint with the Mine Safety and Health Administration alleging
that he was served a letter, on November 12, 1985, terminating

Page 3

~1469
his employment, and that the termination is related to his
discrimination complaint that he filed on September 18, 1985. On
February 24, 1986, the Mine Safety and Health Administration
advised Complainant that it determined that a violation of
Section 105(c) had not occurred. On or about March 7, 1986,
Complainant filed his complaint with the Commission.

 Subsequent to notice, these cases were scheduled and heard

in Harlan, Kentucky on November 18-19, 1986.

 On April 14, 1987, I issued a decision that the Complainant

had established a prima facie case that a violation by Respondent
of Section 105(c) of the Act occurred when it terminated the
former's employment. The decision, by its terms, was not to be
final until the issuance of a further order with regard to
Complainant's relief. In this connection, the decision of April
14, 1987, ordered the Complainant to do the following:

      Complainant shall file a statement within 20 days of
      this decision indicating the specific relief requested.
      This statement shall show the amount he claims as back
      pay, if any, and interest to be calculated in
      accordance with the formula in Secretary/Bailey v.
      Arkansas Carbona, 5 FMSHRC 2042 (1984). The statement
      shall also show the amount he requests for attorney
      fees and necessary legal expenses if any. The
      statements shall be served on Respondent who shall have
      20 days from the date service is attempted to reply
      thereto.

 On May 8, 1987, Complainant filed a request to be allowed an

additional 10 days to comply with the above Order. This request
was granted. In a telephone conference call between Counsel for
both Parties and the undersigned, it was agreed that the
Complainant would have an extension until June 5, 1987, to file
his statement with regard to the relief requested. On May 27,
1987, Complainant filed a letter asking that he be immediately
reinstated to his former job. On June 15, 1987, in a telephone
conference call between Counsel for both Parties and the
undersigned, it was agreed that the time for the Complainant to
file his statement for relief shall be extended until June 22,
1987, and the Respondent shall have 10 days from June 22, 1987,
to file its response. On June 24, 1987, Complainant filed its
statement for relief. On June 29, 1987, Respondent filed
depositions of Mary Carroll Burnett taken on June 4, 1987, and a
deposition of Harley M. Smith taken on May 5, 1987. On June 29,
1987, Respondent filed a Motion for Reconsideration. On July 2,
1987, Complainant filed its opposition to Respondent's motion. On
July 9, 1987, Respondent filed its reply to the Complainant's
Statement for Relief.

Page 4

~1470
On July 15, 1987, in a conference call between Counsel for both
Parties and the undersigned, Counsel were ordered to submit
evidence as to the proper amount of attorney fees to be awarded.
Complainant filed a statement on July 15, 1987. On August 3,
1987, Respondent filed a supplement response to Complainant's
request for attorney fees. No response was filed by Complainant.

Discussion

I. Reinstatement

 Complainant has requested reinstatement, and I find that the

Complainant should be reinstated to his former position at Bow
Valley Coal Resources, Inc.

II. Back pay

 In its response to Complainant's request for back pay,

Respondent argues that the latter failed to make a diligent
reasonable effort to find new employment. In this connection,
Respondent relies on the deposition of Mary Carroll Burnett, a
vocational rehabilitation counselor and vocational consultant,
who analyzed Complainant's work skills and concluded that he is
an excellent candidate for seeking and obtaining employment. She
further indicated if a person is truly motivated to obtain work
such a person will make a daily effort to seek employment. The
Complainant in his deposition indicated that he has searched for
employment at least twice a week. Further, in his deposition, as
quoted by Respondent on pages two to four of its response to
Complainant's request for back pay, the Complainant has detailed
some of the sources that he contacted and the frequency with
which he contacted them. According to his deposition, in addition
to taking two test for Toyota, he applied to nine mines and
followed up with these applications at three mines. Thus, I find
that the Complainant did make a reasonable effort to obtain
employment.

 Respondent also argues that the award to Complainant for

back pay should be reduced by the unemployment benefits he
received during the period of unemployment, in order to avoid
unjust enrichment. I reject Respondent's argument and conclude
that the Respondent's obligation to make the Complainant whole as
the result of the former's acts of discrimination, in violation
of Section 105(c) of the Act, should not be reduced by the amount
of the Complainant's unemployment benefits. To do so would create
a windfall to the Respondent. See Boitch v. FMSHRC and Neal, 704
F.2d 275 (6th Cir.1983); NLRB v. Marshal Field and Company, 318
U.S. 253, 255 (1943); NLRB v. Gullett Gin Company, 340 U.S. 361,
369 (1951).

Page 5

~1471
Based on the above, I find that the Complainant is entitled to
back pay with interest less earned wages in the amounts set forth
and calculated in Complainant's statement filed on June 24, 1987.

III. Attorney Fees

 Complainant submitted a statement, on June 24, 1987, which

itemizes the time Counsel spent on this case and an "average
hourly rate" of a $100 per hour. Respondent in its reply, which
was filed on July 9, 1987, argued that $100 an hour is excessive
inasmuch as Complainant's attorney was admitted to the Kentucky
Bar on October 22, 1985, and does not possess any peculiar
expertise in the area litigated. Respondent further asserted that
there are few experienced Kentucky attorneys who charge $100 an
hour. In a telephone conference call, on July 15, 1987, the
Parties were ordered to submit evidence on the issue of the
proper attorney fees to be allowed. The only response received
from Complainant, a statement filed on July 20, 1987, contains an
assertion that $100 an hours is ". . . . the usual rate for legal
services before both the Social Security Administration and the
Department of Labor, Federal Black Lung Division." No further
documentation of any sort was submitted by Complainant. On August
3, 1987, Respondent filed its supplemental response to
Complainant's request for attorney fees, and submitted a copy of
an Order of Robert F. Stephens, Chief Justice of the Supreme
Court of Kentucky, entered on March 5, 1987, suspending
Complainant's Counsel for "nonpayment of dues." Also submitted
was an affidavit from Robbin Brock which indicates she is a 1984
law school graduate, and that she has been practicing in Harlan,
Kentucky, and that her hourly rate ranges from $50 to $75 per
hour. Also submitted was an affidavit from Respondent's Counsel
indicating that he has been licensed to practice law in the
Commonwealth of Kentucky since 1976, and that he is engaged in
the practice of law in Lexington, Kentucky and that in the area
in which he has particular expertise, his hourly rate is $90 per
hour and that in all other matter his customary hourly rate is
$80 per hour. Further, Respondent has submitted an affidavit from
H. Kent Hendrickson, President of the Harlan County Bar
Association, in which affiant stated that after contacting other
attorneys in Harlan, Kentucky, the range of hourly billing for
attorneys in the area of the administrative law with up to 2
years of experience is from $50 to $75 per hour. The affiant also
stated that he has an excess of 5 years experience in
administrative law and bills $75 per hour for such work.

Page 6

~1472
In calculating the amount of attorney fees to be allowed the
reasonable hourly rate must first be considered. See Hensley v.
Eckerhart, 103 S.Ct. 1933 (1983); Blum v. Stenson, 104 S.Ct. 1541
(1984); see also 2 Court Awarded Attorney Fees %57 16.03.

 Inasmuch as Complainant is the party seeking attorney fees,

he clearly has the burden of proof on this issue. I find that the
Complainant has not met his burden in establishing that $100 is a
reasonable rate for an attorney with his experience. Taking into
account the affidavits submitted by Respondent, the level of
Complainant's Counsel's experience as indicated in the
uncontradicted statements made by Respondent, and the complexity
of this case, it is concluded that $50 an hour is a reasonable
amount.

 Respondent also objected to Complainant's billing at

one-quarter hour increments. The only evidence submitted on this
issue by Complainant's Counsel is contained in a statement filed
on July 15, 1987, wherein Counsel stated that the practice of
billing by one-quarter hour increments ". . . is the customary
practice in federal litigation, and in fact, is required by the
Department of Labor's Division of Coal Mine Workers Compensation,
and is also used by the Social Security Administration."
Respondent's supplemental response filed on August 3, 1987,
contains an affidavit by Respondent's Counsel wherein the affiant
indicated that in all matters his customary billing increment is
on an one-tenth hour basis. Also in a telephone conference call
on July 15, 1987, Counsel for Complainant agreed to delete the
last two items contained in the time sheet which were filed along
with Complainant's statement on June 24, 1987. Accordingly,
Complainant asked for an attorney fee predicated upon 72 total
hours.

 There were no novel or complex legal issues in this case,

and, under the circumstances, I find that the time proffered as
expended in this case was excessive, and that a reduction to 50
hours is warranted. Thus I find that Complainant be allowed a
reasonable attorney fee of $2,500 plus cost of $89.90 as itemized
in the statement filed on June 24, 1987.

 I further find that the affidavit of Amato Hoskins of June

23, 1987, submitted by Respondent in support of its Motion of
Reconsideration, is insufficient to cause me to reconsider my
decision of April 14, 1987. Therefore, the Motion for
Reconsideration is DENIED

Page 7

~1473
ORDER

    Based on the record in the case, it is ORDERED that:

 1. The decision issued April 14, 1987, is CONFIRMED and is

now FINAL.

 2. Respondent shall, within 5 days of this decision,

reinstate Complainant to the job that he formerly held at
Respondent's Oxford No. 5 Mine.

 3. Respondent shall, within 30 days of the date of this

decision, pay Complainant the sum of $2,500 for attorney fees and
$86.90 for expenses.

 4. Respondent shall, within 30 days of the date of this

decision, pay the Complainant $52,880.11 representing back pay
and interest from November 8, 1985 through June 30, 1987, less
earnings during this period. The Respondent shall, in addition,
within 30 days of this decision, pay the Complainant back pay and
interest, at the rates set forth in Complainant's statement filed
on June 24, 1987, for the period from July 1, 1987, until the
Complainant is reinstated at his former job.

                            Avram Weisberger
                            Administrative Law Judge