Todd Descutner v. Newmont USA

Plain-English summary

After an earlier ruling that Newmont illegally terminated haul-truck driver Todd Descutner, the parties agreed on some remedies but remained divided over overtime and attorney fees. Judge David F. Barbour noted that Descutner had been reinstated and his personnel file had been cleared of references to the termination. The judge ordered Newmont to pay $3,025.20 in litigation costs, $898.30 in medical expenses, $7,914.15 in lost 401(k) matching benefits, and $7,134.55 toward Descutner's pension. He directed the parties to calculate overtime using Descutner's work at the Leeville Mine rather than his earlier work at another mine. The order also proposed reasonable hourly rates and guidance on disputed billing entries, then required the parties to report their remaining agreement within 20 days.

Decision snapshot

• Cited standards: None
• Outcome: The judge awarded agreed partial remedies and directed further negotiations over back pay and attorney fees.
• Key point: A discrimination remedy should return the miner to the position he would have occupied without the unlawful termination, using comparable work at the same mine to calculate overtime.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania Avenue, NW, Suite 520N

WASHINGTON, DC 20004

TELEPHONE: 202-434-9953 / FAX: 202-434-9949

January 9, 2013

TODD DESCUTNER,

Complainant,

v.

NEWMONT USA,

Respondent.

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DISCRIMINATION PROCEEDING:

Docket No. WEST 2011-523-DM

No. WE-MD-2010-18

Mine: Leeville Mine

Mine ID: 26-02512

ORDER AWARDING PARTIAL REMEDIES

ORDER PROVIDING GUIDELINES FOR FURTHER DISCUSSIONS

AND

ORDER TO REPORT

At the close of the initial decision in this matter, the Court ordered counsels to attempt to
stipulate to the remedies due Todd Descutner and to the attorney’s fees due to Mr. Descutner’s
counsels. Todd Descutner v. Newmont USA, 33 FMSHRC ___, WEST 2011-253-DM (Oct. 31,
2012) slip op. 24-25. Pursuant to the order counsels were able to agree on some but not all
matters, and counsels have advised the Court where they agree and where they have yet to reach
an accord. After receiving counsels’ reports and position statements, the Court enters this Order
in which it notes and orders the agreed upon relief, and directs counsels to reopen discussions
regarding the relief upon which they have yet to agree. In their discussions, counsels shall
follow as closely as possible the guidelines provided by the Court and shall report the results of
their discussions to the Court no later than 20 days from the date of this Order.

RELIEF IN EFFECT

1. The Court notes the fact that Newmont has posted at its Leeville Mine a notice that it will not violate the Mine Act.

Complainant’s Second Br. 3, para 1.

2. The Court notes that effective November 26, 2012 Todd Descutner was reinstated to
his former position of haul truck driver. Complainant’s Second Br. 3, para 2.

3. The Court notes that Todd Descutner’s personnel file has been expunged of all
references to events and circumstances associated with his June 9, 2010 termination.
Complainant’s Second Br. 3, para 3.

RELIEF ORDERED TO TAKE EFFECT WITHIN 20 DAYS OF THIS ORDER

UNLESS THE RELIEF ALREADY IS IN EFFECT

1. Newmont shall reimburse Todd Descutner $3,025.20 for his costs and expenses
associated with the litigation of his discrimination complaint. Complainant’s Second Br. 3, para
4.

2. Newmont shall reimburse Todd Descutner $898.30 in medical expenses incurred as a
result of his illegal termination. Complainant’s Second Br. 3 para 5.

3. Newmont shall reimburse Todd Descutner $7,914.15 for lost benefits regarding
Newmont’s 401(k) plan, specifically the 6% match to which Todd Descutner would have been
entitled but for his illegal termination. Complainant’s Second Br. 3, para 5.

4. Newmont shall fund Todd Descutner’s pension in the amount of $7,134.55. When
funded the pension shall reflect Todd Descutner’s approximately 7.08 years of service and will
be funded as though Todd Descutner had not been illegally terminated. Complainant’s Second
Br. 3, para 7.

CONSULTATIVE GUIDELINES

AND

ORDER DIRECTING FURTHER CONSULTATIONS

OVERTIME

Counsels have been unable to agree on the amount of overtime pay to which Todd
Descutner is entitled. An agreement on this issue is necessary because not only is Todd
Descutner entitled to overtime pay, but bonuses to which he is entitled may be based on the
amount of overtime he would have worked. Complainant’s Second Br. 3, para 8 n. 8. Therefore,
a final calculation of the total amount of wages (including various bonuses) which he is owed
must await a determination of the amount of overtime pay to which he is entitled.
Complainant’s Second Br. 3, para 8.

The question is how to calculate the overtime pay? Mr. Descutner was illegally
terminated by Newmont from his job at Newmont’s Leeville Mine on June 9, 2010. Prior to
that, he worked at Newmont’s Deep Post Mine. He was at the Deep Post Mine from July, 2006
until approximately January 1, 2010. See Complainant’s Second Br. 5, para III. A. Id. Mr.
Descutner’s counsel asserts that “the most accurate representation of the amount of overtime
[Mr. Descutner] would have worked is to average the amount of overtime he worked in the
previous 4 years [ – years that include his work at the Deep Post Mine –] and apply the average
annual hours worked to his hourly rates for the applicable years.” Complainant’s Second Br. 6,
para III A. 2. When calculated this way, counsel contends that Mr. Descutner would be awarded
significantly more overtime pay than the Respondent claims it owes. Id. 6-7. Finally, counsel
for Mr. Descutner asserts that because when he worked at the Leeville Mine, Mr. Descutner was
supervised by Gus Friesen, the supervisor involved in Mr. Descutner’s protected activity, a
“reasonable inference is [that Mr.] Descutner would have volunteered for more overtime . . . if
he was not being discriminated against” and that it is “prejudicial to calculate [Mr.] Descutner’s
overtime during the time frame in which the discriminatory action . . . took place.”

Id. The
Respondent’s counsel counters that “the appropriate method for calculating overtime is to
determine the amount of overtime Mr. Descutner worked . . . [during] the entire period of time
that he was . . . at the Leeville Mine . . . and then determine the average overtime per pay
period.” Resp.’s Position Statement 1. Counsel points out that Deep Post Mine was not
comparable in size or work force to the Leeville Mine. Id. The Respondent contends therefore
that Mr. Descutner is entitled to 1.2 hours of overtime pay per pay period. Id.

Having considered the positions of the parties, the Court concludes that counsels should
consider and be guided by only the amount of overtime pay accrued by Mr. Descutner during his
employment at the Leeville Mine. The purpose of the remedy is to return Mr. Descutner to the
status he would have been in but for the discrimination he suffered. This principle makes
consideration of his employment at the Deep Post Mine irrelevant.

ATTORNEY’S FEES

THE HOURLY RATE

Counsels have not been able to agree as to the attorney’s fees that are due and payable to
Mr. Descutner’s counsels. Their primary disagreement is on the applicable “lodestar” fee, a fee
computed, as counsel for Mr. Descutner points out, by multiplying a reasonable hourly rate by
the number of hours reasonably expended. Complainant’s Second Br. 7, para III. B. 1; See Glenn
Munsey v. Smitty Baker Coal Company, Inc., 5 FMSHRC 2085 (Dec. 1983) (ALJ). Once that
fee is arrived at, it may then be adjusted up or down to reflect a variety of factors. Id. (Citing
Randy Cunningham v. Consolidation Coal Co., 12 FMSHRC 2067 (Oct. 1990) (ALJ)).

It is necessary for counsels to agree as to a reasonable hourly rate, and in that regard the
Court offers the following guidelines. The Court concludes that for Mr. Rempfer a reasonable
hourly fee of $350 would be appropriate and would be approved by the Court. The Court further
concludes that for Mr. Welsh a reasonable hourly fee of $250 would be appropriate and would
be approved by the Court.

These rates are less than those claimed by Mr. Rempfer and Mr.
Welsh (who give billing rates of $415 per hour and $295 per hour respectively). However, the
rates of $350 per hour and $250 per hour are more than that paid by several insurance carriers to
State of Nevada to partners and associates for cases involving Employment Practices Liability
Insurance in a small to medium market (Resp.’s’s Position Statement 4, para III. B.) and
significantly more than that provided by regulation for proceedings coming before the
Commission under the Equal Access to Justice Act. Id. However, the Court believes that to
effectuate of the purposes of section 105(c) of the Act, counsels must be encouraged to take
cases on behalf of otherwise pro se litigants. An award based on a substantial but not overly
generous rate furthers this purpose.

Counsels also are at odds over the hourly rate to be used when calculating the amount
due the paralegal who worked on Mr. Descutner’s case. The Court notes that the paralegal bills
at $165 per hour. The Court agrees with counsel for the Respondent that this is excessive for the
State of Nevada. The Court notes the 2012 rate survey of the National Association of Legal
Assistants indicates that average hourly rates range between $115 per hour and $126 per hour
depending on the type of paralegal program completed by the paralegal. See
www.NALA.org/survey/aspx. The Court does not know the type of paralegal program the subject
paralegal completed, but it concludes that a rate of $165 per hour is excessive no matter the
program and finds that it would approve a rate of $120 per hour. This rate is in the mid range of
the average rates paid paralegals in 2012. Id.

HOURS EXPENDED

Counsels were unable to agree as to the number of hours for which Mr. Descutner’s
counsels should be paid. The total number of claimed hours is 216.2. The Court finds some of
the claimed hours reasonable and some not, and it offers guidelines by which counsels may steer
their forthcoming discussions.

PREPARING FOR TRIAL

Of the 216.2 hours, 78.9 hours are claimed to be the hours familiarizing counsels with the
case and preparing for trial. Counsel points out that he and Mr. Rempfer were not retained until
May 21, 2012 and that June 4, 2012 was the date of the trial. Complainant’s Second Br. 9-10,
para III. B. 1. b. (1). The Court is of the view that the claim is reasonable given the late date at
which Mr. Descutner retained counsels and the fact that the trial date was not postponed. The
Court therefore suggests that when considering the number of hours Mr. Descutner’s counsel
spent preparing for trial, they keep in mind that the Court finds 78.9 hours an overall reasonable
number, assuming that counsel for Mr. Descutner establishes the work preparing for trial on his
billing or other records.

TRIAL

Of the 216.2 hours, 12.2 are claimed to be hours spent in trial. Mr. Descutner’s counsel
points out that the trial began shortly after 8:00 a.m. and did not conclude until nearly 7:00 p.m.
Complainant’s Second Br. 10, para III. B. 1. b. (2). He is correct. There is no questions but that
his efforts at trial advanced the case and in the Court’s view the time claimed is reasonable.

POST-TRIAL BRIEF

Of the 216.2 hours, 69.9 hours are claimed to have been spent on preparing Mr.
Descutner’s post-trial brief. Counsel states that the time was spent reviewing the transcript (480 pages), that 14 of the 25 pages of the brief required an “in depth factual analysis of the
testimony” and that eleven pages of the brief were devoted to establishing “a prima facie case of
discrimination and rebutting . . . potential defenses.” Complainant’s Second Br. 10, para III. B.

1. b. (3). The Court is of the view that the time spent is reasonable assuming that counsel for
   Mr. Descutner establishes the work on his billing or other records.

SETTLEMENT DISCUSSIONS AND PREPARATION OF 2ND POST-TRIAL BRIEF

Of the 216.2 hours, 55.2 hours are claimed to have been spent reviewing the Court’s
post-trial order, engaging in discussions to reach an agreement on required remedies (referred to
by Mr. Descutner’s counsels as “settlement discussions”) and preparing a “brief” on remedies.
Complainant’s ’s Second Br. 10, para III. B. 1. b. (4). Counsel for Mr. Descutner states that Mr.
Descutner’s counsels have engaged in extensive discussions with counsel for the Respondent,
have reviewed “dozens of pages of wage records [and] a new personnel file,” have prepared at
least “six back and forth letters . . . between counsel[s,] as well as [placed] a handful of phone
calls.” Id. The Court is of the opinion that the claim is reasonable assuming that counsel for Mr.
Descutner establishes the work on his billing or other records.

RESPONDENT’S SPECIFIC EXCEPTIONS

Counsel for the Respondent takes exception to specific entries in the billing records of
Mr. Descutner’s counsels. The Court agrees with counsel as to some of the exceptions and
would exclude or modify the time when calculating a total amount of attorney’s fees. However,
on other of the exceptions, the Court agrees with counsel for Mr. Descutner that the time
expended is reasonably related to the advancement of the case and would not exclude the time
claimed when calculating a total amount of attorney’s fees. Finally, there are some exceptions
on which the Court has no opinion due to a lack of information. These exceptions must be
discussed further by counsels and may require specific disclosures before counsels can resolve
their differences.

EXCEPTION 1.

Counsel for the Respondent objects that the work described on the billing records for
May 21, 2012 as “Filled out blue sheet and gave fee agreement to Nicole,” and for which 1/5
hour is claimed (Resp.’s Position Statement, Exh. B 1), is not reasonably related to the
advancement of the case. Id., Exh. C. The Court agrees. In the Court’s view the entry describes
preliminary clerical work.

EXCEPTION 2.

Counsel for the Respondent objects that 1/5 hour is excessive time for the work described
on the billing records for May 23, 2012 as, “Left [voice mail] for opposing counsel re:
settlement.” Resp.’s Position Statement, Exh. B 2, Exh. C. The Court disagrees and would
approve the amount of time claimed.

EXCEPTION 3.

Counsel for the Respondent objects that the work described on the billing records for
May 24, 2012 as “Reviewing file, drafted request for prior discovery,” is not reasonably related
to the advancement of the case. Resp.’s Position Statement, Exh. B 3, Exh. C. The Court
disagrees and finds the tasks to be reasonably related to advancement of the case, but the hours
claimed – 2 1/6 hours – to be excessive. The Court would approve 1 1/6 hours.

EXCEPTION 4.

Counsel for the Respondent objects that the work described on the billing records for
May 28, 2012 as “Reviewed disclosures from EEOC and opposing counsel” is “[e]xcessive time
for [the] task.” Resp.’s Position Statement, Exh. B 3, Exh C. Counsel states that there is “no
involvement by EEOC in this proceeding.” Id. The Court is unable to form an opinion on the
exception. It is mindful that complainants have at times confused their Mine Act rights with
those afforded them by the Equal Employment Opportunity Act and have tried to bring what are
essentially Mine Act cases to the Equal Employment Opportunity Commission (EEOC). In so
doing they have established records of what they believed transpired, records that can be helpful
to their Mine Act attorneys in advancing their cases. If such is the case here, and if Mr. Descutner established a record before the EEOC, the Court would approve compensation for a
reasonable amount of time spent by Mr. Descutner’s counsels in reviewing such record. If,
however, the record consisted solely of the complaint Mr. Descutner filed with the EEOC, the
Court would find 2 2/5 hours excessive. The Court would consider 1 2/5 hours more in line with
the time considered reasonable.

EXCEPTION 5.

There is work described in billing records for May 29, 2012 as “Reviewed all documents
produced by client, reviewed all of judge’s previous orders, reviewed all pleadings, read relevant
case law . . . discussions with ALR, BET and TO re: strategy. Drafted reviewed and filed
Motion to Continue Trial.” Resp.’s Position Statement, Exh. B 3, Exh. C. Counsel for the
Respondent objects that the work “Applies to Motion for Continuance, when Complainant
represented that no continuance would be sought.” Id. Counsel for Mr. Descutner claims to have
expended 8 3/10 hours for the work. Resp.’s Position Statement, Exh. A at 3. The Court is of the
opinion that even if counsel for Mr. Descutner at one time represented that he would not seek a
continuance, a continuance can materially advance a case by affording counsels more time to
prepare and that counsels can and frequently do change their minds when they deem a
continuance is in the best interest of their client. If such is the case here, the Court would award
fees for the work involved. However the Court would consider 8 3/10 hours excessive and
would consider 5 hours to be more reasonable.

EXCEPTION 6.

Counsel for the Respondent objects that the work described in the billing records for May
30, 2012 as, “Correspondence with Judge’s law clerk re: our Motion for a [C]ontinuance” should be excluded from compensation for the same reason as stated in Exception 5. Resp.’s Position
Statement, Exh. C. For the reason set forth in the discussion of Exception 5, the Court might
disagree, and if so it would find the claimed time of 1/3 hour to be reasonable.

EXCEPTION 7.

Counsel for the Respondent objects that the work described in the billing records for May
31, 2012 as “Discussions with Andrew Rempfer re: outcome of telephonic hearing with the
judge and case strategy going forward,” should be excluded from compensation for the same
reason as stated in Exception 5. Resp.’s Position Statement, Exh B, 4, Exh. C. The court
disagrees. It would find that the work materially contributed to the advancement of the case and
it would find the time claimed to have been expended (1 1/6 hours) to be reasonable.

EXCEPTION 8.

Counsel for the Respondent objects that the work described in the billing records for May
31, 2012 as “Preparation for and attending telephonic conference call with judge regarding our
Motion to Extend Trial Date” and for which 1 1/6 hour is claimed should be excluded from
compensation for the same reason as set forth with regard to Exception 5. Resp.’s Position
Statement, Exh B. 4, Exh. C. The court disagrees. It would find that the work materially
contributed to the advancement of the case but that the time claimed is excessive. The Court
would consider a time of 2/3 hour to be reasonable.

EXCEPTION 9.

Counsel for the Respondent objects that 1 1/6 hours claimed for the work described in the
billing records for June 1, 2012 as “Reviewed Pleadings” is excessive. Resp.’s Position
Statement, Exh B 4, Exh. C. The Court agrees. At this point in the case, the pleadings, which
were not that extensive, were known to Mr Descutner’s counsel. The Court would consider a
time of 3/4 hour more reasonable.

EXCEPTION 10.

Counsel for the Respondent objects that the work described on the billing records for
June 20, 2012 as “call to client re: hearing transcript” and for which 1/3 hour is claimed is not
reasonably related to the advancement of the case. Resp.’s Position Statement, Exh. B 8, Exh. C.
The Court is unable to determine from the billing record description how the claimed activity is
related to advancement of the case. Without a more complete description and explanation the
Court would not approve the claim.

EXCEPTION 11.

Counsel for the Respondent objects that the work described on the billing records for
June 20, 2012 and described as “review the file” and for which 1 1/6 hours are claimed is not
reasonably related to the advancement of the case. Resp.’s Position Statement Exh B 8, Exh. C. The Court is unable to determine from the billing record description how the claimed activity is
related to advancement of the case. Without a more complete description and explanation the
Court would not approve the claim.

EXCEPTION 12.

Counsel for the Respondent objects that the work described on the billing records for July
3, 2012 as “Draft Notice of Change of Address, sent to opposing counsel and trial judge” and for
which 2/5 hour is claimed is not reasonably related to the advancement of the case. Resp.’s
Position Statement, Exh B 8, Exh. C. The Court agrees. In the Court’s view the entry describes
clerical work that is not reasonably related to advancement of the case. The Court would not
approve the claim.

EXCEPTION 13.

Counsel for the Respondent objects that the work described on the billing records for July
31, 2012 as “Review LAW draft of Descutner trial brief; discussed formatting” is a duplicate
time entry. Resp.’s Position Statement, Exh. C. After reviewing the billing records, the Court
cannot locate the entry that duplicates the July 31, 2012 entry. Unless Counsel for the
Respondent can point out the alleged “duplication,” the Court would approve the claim but
would subtract 1/6 hour for the asserted discussion of formatting, activity the Court deems not to
be reasonably related to advancement of the case.

BILLING RECORD REDACTIONS

The parties are further advised that as the matter now stands, the Court would not
approve the time claimed for May 18, 2012; May 21, 2012; August 2, 2012; September 5, 2012;
September 10, 2012; September 11, 2012; October 4, 2012; October 26, 2012; October 31, 2012;
November 1, 2012; November 2, 2012; November 6, 2012; November 7, 2012; November 8,
2012; November 9, 2012; November 11, 2012; November 12, 2012; November 13, 2012;
November 14, 2012; November 15, 2012; November 19, 2012; November 23, 2012; November
26, 2012; and November 27, 2012. At each of these entries the descriptions of the work
performed has been redacted and there is no way for counsel for the Respondent and for the
Court to determine what was done and whether what was done was reasonably related to
advancement of the case.

In his further discussions concerning attorney’s fees, counsel for Mr. Descutner should
provide counsel for the Respondent with a “clean” copy of the pertinent billing records or with
other business documents that can support his claims.

ORDER TO REPORT

In view of the above, counsels shall continue their discussions and arrive at an agreement
concerning the back pay (including the overtime pay) due to Mr. Descutner and the attorney’s
fees due to Mr. Descutner’s counsel. Counsels shall report the results of their discussions in
writing to the Court within 20 calendar days of the date of this order.

/s/ David F. Barbour

David Barbour

Administrative Law Judge

Distribution: (1st Class Mail)

Jay Mattos, Director, MSHA, Office of Assessments, U.S. Department of Labor, 1100 Wilson
Blvd., 25th Floor, Arlington, VA 22209

Larson A. Welsh, Esq.; Andrew L. Rempfer, Esq., Cogburn Law Office, 2879 St. Rose Parkway,
Suite 200, Henderson, Nevada 89052

Kristin R. White, Esq.; Karen L. Johnston, Esq., Jackson Kelly PLLC, 1099 18th Street, Suite
2150, Denver, Colorado 80202

/db