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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Jay Mattos, Director, MSHA, Office of Assessments, U.S. Department of Labor, 1100 Wilson Blvd., 25^th 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 18^th Street, Suite 2150, Denver, Colorado 80202