Petition — Reeves v. International Telephone & Telegraph Corp.

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Supreme Court, U.S.

80-443. FILED ‘|

O. |

SEP 19 1960

IN THE MICHAEL RODAK, JR, CLERK

Supreme Court of the United States

OCTOBER TERM, 1980

HEWETT M. REEVES,

Petitioner,

versus

INTERNATIONAL TELEPHONE &

TELEGRAPH CORPORATION,

Respondent,

RAY MARSHALL, Secretary of Labor,

United States Department of Labor,

Intervenor.

On Petition for a Writ of Certiorari to

The United States Court of Appeals

For the Fifth Circuit

PETITION FOR CERTIORARI

LEROY H. SCOTT, JR.

MECOM & SCOTT

310 Ricou Brewster Bldg.

Shreveport, LA 71101

Telephone: (318) 425-4433

Attorney of Record

for Petitioner

SCOFIELDS QUALITY PRINTERS. P O BOX 53096. N OLA. 70153 - 504/622-1611

QUESTIONS PRESENTED FOR REVIEW

Whether the Court of Appeal was correct in

limiting “wages” under 29 U.S.C. 203(m) to

employer furnished facilities, excluding personal ex-

penses reimbursed by the employer (board, lodg-

ing, laundry, etc.) from the definition of “wages.”

Whether an employee illegally discharged under

29 U.S.C. 215(a)(3) should have annual pay in-

creases credited to him in calculating lost wages,

when the annual pay increases sought are less

than the admitted personnel policies of the

employer.

Should the calculation of liquidated damages on

wages lost because of an illegal discharge be

based on the gross amount of lost wages prior to

deducting the amount earned in other employ-

ment after the discharge?

Are the public interest purposes of the Wage and

Hour Act thwarted by the award of clearly in-

adequate attorney’s fees where the statute pro-

vides for mandatory “reasonable attorney's

fees?” 29 U.S.C. 216(b)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........

SMU FOE ook. ccs ccccccccevecccecsce 2

Ne aids bose ss kbs ob whuosine'ece « 3

STATUTORY PROVISIONS INVOLVED ........ 3

ereemenen Gr THE CASE ........cccsscccces 4

REASONS FOR GRANTING THE

ESTE” SI a 7

1. In rejecting plaintiff’s claim under 29

USC 203(m) the decision below has

created a loophole for employers

never previously available. .............. 7

2. Employees illegally discharged under

29 USC 215(a)(3) should be made

RES ESO a 8

3. The decision below conflicts with the

ES EOE SS ERE AY (EL ee 9

4. An adequate attorneys fee is required

by the Act and the award of a plainly

inadequate fee thwarts the public

interest purposes of the Act by dis-

couraging the bringing of Wage and

TS ETE EF eae a 11

es bb sr ebdie's sn ddiccnewiece 6. 12

NT ee ek ons ckccu nce ceece's 13

PREVIOUS PAGE WAS B

LANK |

TABLE OF CONTENTS (Continued)

Page

APPENDICES

A Pi Cibelk AOMBION. 6 os isee conse Ca sco: la

B. Fifth Circuit denial of rehearing

, SOOMCACION. Heide oo cis cde ow wate ctwe ees over

C. Master’s Report and Recommendation. ...31a

D. District Court ruling on Master's

REPOe:. ccccccicsecsivcccccascseders 45a

EB. District Court Judgment. oi. ccssecccoces 50a

Deets TWUIUNG Wicd ede Kc ces cesasens 5la

G. Motion of Defendant to deposit funds. ...55a

TABLE OF AUTHORITIES

STATUTES AND REGULATIONS:

a EE oid s carne tows cbs caeecueeaes 3,7,8

, WOR ARN io ok... seSackings ce .

SEE BEE as vos Chaba a kencsscenenaad ere 3,6,9

Rate PUTED ae aN so cease cchadeesnaanaes 4,7

PEE ee ho can a hhh dem cab sees veedabepes 3

Be Ms RE bh ob cbdcecweReWhabecradobebabeuenn 3

CASES:

Albermarle Paper Co. v. Mood, 422 U.S. 405

CRONE id b nck uceredss 0s th cchnsd ty gbeabestes 9

TABLE OF AUTHORITIES (Continued)

Brooklyn Savings Bank v. O’Neal, 324 U.S.

NOES -4k HiGb so Wo: are o's Weck cleliauin whie-w ws bie Kia

vy be DT en ee POE LEO PREC

PE A CRG as OMe sin wide whine VOR awaES ES «

Mitchell v. Lublin, McGaughy & Associates,

Oe ROT UGG Re 6c na hedies dese kes

Overnight Motor Co. v. Missel, 316U.S.572.....

Reeves v. ITT, 357 F.Supp. 295 (W.D. La.

EE as ck Pe ee Aa OER s 0ik sas cutee

Reeves v. ITT, 84L.C. 33,710(W.D. La. 1977)

Reeves v. ITT, 616 F.2d 1342 (CAS, 1980) ..

Tennessee Coal, Iron & R. Co. v. Muscoda

Bee RSS, SAE WO a ob wk So voc vtvene

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

HEWETT M. REEVES,

Petitioner,

versus

INTERNATIONAL TELEPHONE &

TELEGRAPH CORPORATION,

Respondent,

RAY MARSHALL, Secretary of Labor,

United States Department of Labor,

Intervenor.

On Petition for a Writ of Certiorari to

The United States Court of Appeals

For the Fifth Circuit

PETITION FOR CERTIORARI

Petitioner, Hewett M. Reeves, prays that a writ of

certiorari issue to review the judgment and the opin-

ion of the United States Court of Appeals for the Fifth

Circuit in the above entitled case.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at

616 F.2d 1342 and is reprinted in Appendix A hereto at

pages 1a-28a, infra.

The District Court for the Western District of

Louisiana opinion and judgment is noted only at 84 L.C.

33,710 and is reprinted in full in Appendix D hereto at

pages 46a-50a, infra. Inasmuch as that opinion partly

affirmed the recommendations and findings of the

United States Magistrate acting as a Special Master,

the opinion of the Magistrate is reproduced in Appen-

dix C hereto at pages 31a-45a, infra.

An earlier opinion of the United States District

Court for the Western District of Louisiana on the

issue of professional, executive, and/or administrative

exemption, reported at 357 F.Supp. 295 (W.D. La.

1973), is not reproduced in the Appendix as the exemp-

tion question is not involved in this application and is

no longer relevant. International Telephone & Tele-

graph Corporation (hereinafter, ITT) has now ac-

quiesced in the judgment by depositing $155,405.58

less Social Security and Withholding taxes in the regis-

try of the District Court. This did not include lower

court or appellate costs or interest on the judgment fol-

lowing its rendition on November 15, 1977. Their

motion to so deposit is reproduced in Appendix G here-

to at pages 55a-60a, infra, without the attachments.

JURISDICTION

The judgment of the Court of Appeals was rendered

on May 15, 1980. Plaintiff's application for a rehearing

was denied on June 23, 1980. (See Appendix B) Juris-

diction of this Court is invoked pursuant to 28 U.S.C.

1254(1). The basis of jurisdiction of the Court of

Appeals was 28 U.S.C. 1291. The basis of jurisdiction in

the District Court was 29 U.S.C. 216(b).

STATUTORY PROVISIONS INVOLVED

29 U.S.C. 216(b) is lengthy and is found in Appendix

F. The pertinent part thereof, however, is:

ae aru Any employer who violates the pro-

visions of section 15(a)(3) of the act shall be

a ere including without limitation

employment, reinstatement, promotion, and

the payment of wages lost and an additional

equal amount as liquidated damages... .. 2

29 U.S.C. 203(m) is lengthy and is found in Appen-

dix F, infra, but the pertinent part is:

“. . . ‘Wage’ paid to an employee includes the

reasonable cost ... of furnishing such

employee with board, lodging, or other facili-

ties....

”

29 C.F.R. 778.217(d) is lengthy and is found in

Appendix F. Its pertinent part, however, is:

fe If the employer reimburses the

employee for expenses normally incurred by

the employee for his own benefit, he is, of

course, increasing the employee’s regular rate

thereby, and employees normally incur ex-

penses in travelling to and from work, buying

lunch, paying rent and the like. If the employ-

er reimburses him for these normal everyday

expenses, the payment is not excluded from

the regular rate as ‘reimbursement for ex-

penses’ ..... the amount paid to the

employee enters into the regular rate of pay

”

STATEMENT OF THE CASE

Plaintiff was employed by defendant from May, 1965

through August, 1967 as an installer of microwave

systems, with the title of microwave field engineer. His

compensation rate was $8,400.00 per year plus reim-

bursement for personal expenses, averaging $980.00

per month. During this period, plaintiff worked many

overtime hours and was paid for only some of these.

Plaintiff regularly complained of not being paid prop-

erly. On August 28, 1967, he filed a complaint with the

Wage and Hour Division of the Department of Labor.

Although Reeves had been given excellent evaluation

and fitness reports, ITT discharged him on the follow-

ing day for “poor performance.” Reeves then filed this

action charging ITT with unlawful discharge under 29

U.S.C. 215(a)(3) requesting unpaid wages, liquidated

damages, attorney fees, lost wages because of the il-

legal discharge, interest and costs.

ITT originally claimed Reeves was an exempt pro-

fessional, then later claimed he was an exempt admin-

istrative employee and still later claimed he was an

exempt executive. The case was tried piecerseal with

the court rendering a decision rejecting ITT’s claim of

exemption on April 27, 1973. 357 F.Supp. 295.

Further proceedings found the Secretary of Labor as

Intervenor to assist plaintiff. The United States Magis-

trate was appointed to take evidence and make recom-

mendations on quantum.

Following a somewhat complex procedural history,

none of which is relevant at this time, but which is

covered fully in the Court of Appeals Opinion, the

Magistrate found Reeves entitled to $22,164.28 un-

paid wages and liquidated damages, $6,134.48 as dam-

ages for unlawful discharge, and $25,000.00 as attor-

ney’s fees with the observation that these were in-

adequate. The District Court increased the lost wages

for illegal discharge for the years 1967 through 1974

(The last testimony was taken in January, 1975) to

$39,081.46 and increased the attorney's fees to $35,-

000.00 without comment as to whether this was to re-

flect the fee between January, 1975 and the date of

judgment (November, 1977), or whether it was mere-

ly to increase the fee found by the Magistrate as being

inadequate. ITT has contended in brief that it was to re-

flect the time spent between January, 1975 and

November, 1977, and plaintiff accepts this contention

for the purpose of this petition. The District Court cal-

culated Reeves’ lost wages due to his illegal discharge at

his average rate of pay for his period of employment

rather than at his final rate, and gave no annual incre-

mental increases as per ITT’s admitted personal policy

although reinstatement was ordered at current rates,

and with all benefits that he would have received but

for the illegal discharge. All parties appealed.

The Court of Appeal affirmed the trial court's judg-

ment on liability and reinstatement, but increased the

damages for lost wages and attorney’s fees, as follows:

$ 22,164.28 unpaid wages and liquidated damages

(unchanged)

$ 35,000.00 attorney’s fees (as fixed by the trial

court)

$ 5,000.00 attorney’s fees for the appeal

$ 93,241.30 back pay for lost wages from 1967-

1974, plus liquidated damages (in-

creased from $39,081.46)

$155,405.58

Federal jurisdiction in the court of first instance was

based on 29 U.S.C. 216(b).

_ ee

REASONS FOR GRANTING THE WRIT

1. In rejecting plaintiff's claim under 29

U.S.C. 203(m), the decision below has

created a loophole for employers never

previously available.

29 U.S.C. 203(m) provides in pertinent part:

“Wage paid to any employee includes the

reasonable cost ... to the employer of fur-

nishing such employee with board, lodging or

other facilities... . ”

By interpreting the above section to apply only “to

employer furnished facilities and not to reimbursed

out-of-pocket personal expenses,” the decision below

ignores 29 C.F.R. 778.217(D) which provides in perti-

nent part:

“.... if the employer reimburses the employee

for expenses normally incurred by the

employee for his own benefit he is, of course, increas-

ing the employee's regular rate thereby and

employees normally incur expenses in travel-

ling to and from work, buying lunch, paying rent and

the like. If the employer reimburses him for

these normal everyday expenses, the payment is

not excluded from the regular rate as ‘Reim-

bursement for expenses’ .... the amount

paid to the employee enters into the regular

rate of pay... .” (Emphasis supplied.)

The Court of Appeal recognized the plaintiff was

paid an average of $980.00 per month for purely per-

sonal expenses (page 2a, fn 1 and page 23a) but ex-

cluded this amount because it was“ reimbursed” rather

than “furnished.” We contend this is a distinction with-

out a difference, and creates a loophole where none

existed before.

If this figure had been used in determining Reeves’

“regular rate”, his regular rate would have been great-

er by some $3.77 per hour with a large consequent

effect on unpaid overtime, liquidated damages and

wages lost by his illegal discharge. Thus an injustice has

been done.

This application of 29 U.S.C. 203(m) has never been

ru’ don by this court. It is an important part of the law

and needs to be addressed.

2. Employees illegally discharged should be

made whole and employers need to know

that an illegal discharge will be expen-

sive.

This case has been going on since September, 1967,

now beginning its 14th year. Even though the present

opinion covered only through 1974 (the last testimony

was in January, 1975, and the case has been under con-

sideration or on appeal ever since), it is obvious that in-

flation has had a tremendous impact. In calculating lost

wages, the court granted a credit to the employer for

any wages that the employee actually earned else-

where. The problem is, the subsequent wages are earn-

ed in an inflated economy so the employer gets more

credit than is reasonable. Only by giving the employee

his lost annual wage increases is this corrected. The

trial court gave no reason, and the Court of Appeal re-

jected these as being speculative, but this is not realis-

tic when the personnel policy of the employer is shown

by the record. This is necessary to place the employee in

the position he would have occupied if he had not been

illegally discharged. Albermarle Paper Co. v. Mood, 422

U.S. 405 (1975); Mitchell v. De Mario Jewelry, 361 U.S. 288

(1960).

3. The decision below conflicts with the

statute.

The statutory liability of an employer for an illegal

discharge is clearly fixed by 29 U.S.C. at

anys re Any employer who violates the provi-

sions of section 15(a)(3) of this Act shall be liable

for .... payment of wages lost and an additional

amount as liquidated damages ....” (Emphasis

ours)

Against this liability is credited the wages earned by

the employee in other employment in the interim. This

is a jurisprudential rule, there being no mention of it in

the statutes. The Court of Appeal made an inadver-

tent error in calculation when it deducted the wages

Reeves earned after discharge from the wages he

would have earned with ITT before determining liqui-

dated damages. The offending employer thus gets a

two dollar credit on its statutory liability for each dollar

the employee earns. This is not in keeping with the

rules pronounced by this court requiring simple words

to be given their usual and ordinary meanings. Ten-

nessee Coal, Iron & R. Co. v. Muscoda Local 123, 321U.S. 590

or the long standing rule that the Act is to be liberally

construed. Mitchell v. Lublin, McGaughy & Associates, 358

U.S. 207.

The liability of the employer for liquidated damages

becomes fixed at the time he fails to pay the wages due.

Brooklun Savings Bank v. O'Neal, 324 U.S. 697; Overnight

Motor Co. v. Missel, 316 U.S. 572. Mitigation should only

apply against the liability.

This is the only way to keep the employee from

losing $2.00 for every $1.00 he earns.

4. An adequate attorney fee is required by

the Act and the award of a plainly in-

adequate fee thwarts the public interest

purposes of the Act by discouraging the

bringing of Wage & Hour suits.

Private litigation is essential to the enforcement

scheme of the Act and private litigants have been char-

acterized as having the role of ‘private Attorney Gen-

eral’ in advancing the public purposes of the Act.

We believe it is self evident that the statutory man-

date of a reasonable attorney fee is not met when the

Magistrate himself recognized that the fee as set was

inadequate. $25,000.00 for some 2,000 hours extend-

ing over an eight year period is not corrected by award-

ing $35,000.00 for some 3,000 hours extending over a

10 plus year period. This court has noted that an attor-

ney’s fee must constitute fair compensation for serv-

ices. Greenburg v. Arsenal Bldg. Corp., 324 U.S. 697.

Neither $12.50 per hour nor $17.50 per hour can

possibly be “adequate” and as such is contrary to law

and thwarts the public interest purposes of the Act by

discouraging litigation against rich and powerful

defendants. This is the essence of an abuse of dis-

cretion.

CONCLUSION

The combination of the above four (4) reasons ad-

vanced for granting the writ of certiorari demon-

strates collectively such a departure from the accepted

and usual course of judicial proceedings as to call for the

exercise of this Court’s power of supervision.

Respectfully submitted,

LEROY H. SCOTT, JR.

MECOM & SCOTT

310 Ricou Brewster Building

Shreveport, Louisiana 71101

Attorney for Petitioner

CERTIFICATE

I hereby certify that three true and correct copies of

the foregoing petition for Writ of Certiorari this day

have been served by mail, postage prepaid, properly ad-

dressed to Sidney E. Cook, Cook, Clark, Egan, Yancey

and King, 600 Commercial National Bank Building,

Shreveport, LA 71101; Donald S. Shire, Associate Soli-

citor, Office of the Solicitor, U.S. Department of Labor,

2000 Constitution Ave., N.W., Room N2620A, Wash-

ington, D.C.; and Gordon E. Jackson, 5705 Stage Road,

Suite 195, Memphis, TN 38134.

I further certify all parties required to be served have

been served.

Shreveport, Louisiana, this the ___ day of

September, 1980.

Leroy H. Scott, Jr.

310 Ricou Brewster Bldg.

Shreveport, Louisiana 71101

(318) 425-4433

Of Counsel

APPENDIX A

Hewett M. REEVES,

Plaintiff-Appellant,

Cross-Appellee,

versus

INTERNATIONAL TELEPHONE AND

TELEGRAPH CORPORATION,

Defendant-Appellee,

Cross-Appellant,

Ray Marshall, Secretary of Labor,

United States Department of Labor,

Intervenor-Appellant,

Cross-Appellee.

No. 78-1286

United States Court of Appeals,

Fifth Circuit.

May 15, 1980.

Appeals from the United States District Court for

the Western District of Louisiana.

Before GOLDBERG, FRANK M. JOHNSON, Jr. and

HATCHETT, Circuit Judges.

HATCHETT, Circuit Judge.

An employee, Hewett M. Reeves, instituted this ac-

tion in September, 1967, to recover unpaid wages and

liquidated damages allegedly due him from Inter-

national Telephone and Telegraph Corporation (IT&T)

under the Fair Labor Standards Act (Act), 29 U.S.C.

§§201-219. The Secretary of Labor (Secretary) subse-

quently intervened under section 11(a) and section 17

of the Act. By appeal and cross-appeal, the parties seek

review of the district court’s judgment ordering rein-

statement and awarding $96,245.74 toclaimant for un-

paid wages, liquidated damages, back pay and attor-

ney’s fees. We affirm, the judgment on liability and re-

instatement, but increase the damages awarded for

back pay and attorney’s fees.

FACTS

Nature of Employment.

In May, 1965, Reeves was employed by IT&T as a

microwave field engineer at a compensation rate of $8,-

400 per year.! In that capacity, he traveled to contract

sites in remote areas of the world installing and testing

microwave equipment. In conducting his duties,

Reeves followed prescribed procedures and standards

1 Reeves also received reimbursements averaging $980 per

month for travel, lodging, eating and other personal expenses in-

curred while on business with the company.

in the utilization of complex measuring devices to

ensure that equipment installed performed within a

predetermined range of tolerance. It was Reeves’

responsibility, as an employee whose primary duties

were performed outside the supervisory presence of

his employer, to maintain and report hourly work rec-

ords. These records were maintained primarily for bill-

ing purposes and, as claimant contends, to form the

basis for an accurate calculation of compensable over-

time hours.

During his period of employment, Reeves regularly

lodged complaints with supervisors and colleagues

over what he considered to be a failure on IT&T’s part

to adequately compensate him for overtime hours re-

ported. On August 28, 1967, Reeves formalized his

grievance by filing a complaint with the Wage and Hour

Division of the Department of Labor. The following

day, August 29, 1967, Reeves was terminated from his

employment at IT&T.

Procedural History.

Reeves instituted this action with his timely com-

plaint in federal court charging IT&T with unlawful

discharge under section 15(a)(3)2 and requesting un-

2 290U.S.C. §215(a)(3) [§15(a)(3) of the Act] provides as follows:

(a) After the expiration of one hundred and twenty

days from June 25, 1938, it shall be unlawful for any per-

son—

(3) to discharge or in any other manner discriminate

against any employee because such employee has filed

paid wages and liquidated damages computed from an

estimated average workweek of approximately 75

hours. Claiming that Reeves was an exempt employee

working for the company in a bona fide executive, ad-

ministrative, or professional capacity as described in 29

U.S.C. §213(a)(1)3, IT&T denied the charges.

On April 27, 1973, the district court ruled against

IT&T on the exemption question and appointed a Unit-

ed States Magistrate to take evidence and make rec-

ommendations on the quantum issue. Reeves v. Inter-

national Telephone & Telegraph, 357 F.Supp. 295 (W.D. La.

1973). In the opening hearings before the magistrate,

IT&T moved to dismiss Reeves’ action under section

15(a)(3) on the grounds that the court lacked jurisdic-

tion under the Act to entertain a private civil action to

recover damages for discharge under that provision. In

written support of its motion, IT&T maintained that

only the Secretary of Labor was authorized under the

Act to seek relief. Hearings before the magistrate were

stayed, pending a ruling by the district court on the

motion to dismiss. That ruling came on July 26, 1973,

any complaint or instituted or caused to be instituted any

proceeding under or related to this chapter, or has testi-

fied or is about to testify in any such proceeding, or has

served or is about to serve on an industry com-

mittee....

3 29U.S.C. §213(a)(1) provides:

(a) The provisions of section 206. . . and section 207 of

this title shall not apply with respect to—

(1) any employee employed in a bona fide, executive,

administrative, or professional capacity. . . . 4

when the district court denied the motion “as having

been filed too late and having further delayed the trial

of this case.” Four weeks later, the Secretary petition-

ed for intervention under section 11(a) of the Act. The

Secretary filed with the petition a complaint seeking

equitable redress on behalf of Reeves for employer vio-

lations under section 15(a)(3). The district court grant-

ed the motion for intervention, and quantum hearings

before the magistrate were reinstituted.

Magistrate's Report and District Court Judgment.

In his quantum report filed on September 9, 1977,

the magistrate concluded that IT&T unlawfully dis-

charged Reeves and willfully withheld overtime wages

during the period of his employment. Accordingly, he

recommended a judgment immediately reinstating

Reeves and awarding him appropriate back pay, un-

paid wages and attorney’s fees. Calculating the award

based on a 60 hour workweek at an average straight

time hourly wage of $4.31 per hour, the magistrate

determined that Reeves was entitled to $22,164.28 as

unpaid wages and liquidated damages, and $6,134.48

back pay and diminished earnings.4 An additional $25,-

4 The magistrate’s computations are explained in the following

excerpt from the quantum report:

The record shows that plaintiff worked a total of 118

weeks with an additional two weeks vacation. During his

periods of employment he was paid at the rate of $4.04 an

hour, $4.33 an hour, and $4.57 an hour. Thus, his

straight time hourly wage averaged $4.31 per hour.

Under the Act, he was allowed to work only forty hours

000 for attorney's fees brought the magistrate’s total

recommended award to $53,298.76. Reimbursed ex-

penses were disallowed.

The district court increased the back pay award to re-

flect the amount owed for years 1967 through 1974

per week without overtime compensation. In most in-

stances, especially while in the field, plaintiff's work week

averaged far greater than forty hours and sometimes, al-

most doubled that figure. We find, therefore, that his

average work week was sixty hours, or a twenty-hour

average of overtime. This gives a total of 2,360 overtime

hours. The record shows he was compensated by defend-

ant for straight time of 966 hours, thus revealing a total

of 1,394 hours not compensated by either straight time

or time and one-half as required by the Act. One and one-

half for overtime calculated upon his regular hourly wage

is $6.46. This amounts to $9,005.24. Moreover, defend-

ant owes one-half additional time for the 966 hours for

which plaintiff was paid straight time. This amounts to

(966 X $2.15) a total of $2,076.90, which added to the $9,-

005.24 gives a total of $11,082.14. Plaintiff, then, is en-

titled to receive as liquidated damage, double the latter

figure, or $22,164.28.

We accept the figure submitted by defendant, at page

97 of its brief, its summation being the sum of $4,134.48,

as his diminished earnings brought about by his unlaw-

ful discharge. To this we add the sum of $2,000 as dam-

ages caused by his discharge, in accordance with juris-

prudence. Thus, the total amount of back pay and liqui-

dated damages, together with damages for his unlawful

discharge, amounts to the sum of $28,298.76.

($39,081.46)5 and increased the attorney’s fees to $35,-

000. In all other respects the magistrate’s recommen-

5 The district court arrived at the $39,081.46 figure through the

following computation.

BACK PAY

Projected Average Annual Rate of Pay of Hewett M. Reeves:

Owed

Plaintiff's Plaintiff by

Year Earnings Defendant

1967

52 wks. x 40 hrs. =

2080 hrs.

at $4.31 = $ 8,964.80

52 wks. x 20 O.T. = 6,718.40

$15,683.20

Less last earnings

with ITT in 1967 9,500.00

$ 6,183.20 $ 1,307.72 $ 4,875.48

1968

Average earnings $15,683.20 8,360.00 7,323.20

1969

Average earnings $15,683.20 8,840.00 6,843.20

1970

Average earnings $15,683.20 11,285.47 4,397.73

1971

Average earnings $15,683.20 9,395.80 6,287.40

1972

Average earnings $15,683.20 14,569.00 1,114.20

1973

Average earnings $15,683.20 7,442.95 8,240.25

1974

Average earnings $15,683.20 15,715.77 —

$39,081.46

dations were adopted. Immediate reinstatement was

ordered and damages for Reeves were assessed at $96,-

245.74.° Each party finds error in this judgment.

ISSUES

IT&T contends that the district court erred in (1)

asserting jurisdiction under the Act; (2) adjudicating

Reeves’s non-exempt status; (3) finding an unlawful

discharge; (4) calculating damages and attorney’s fees;

and (5) excluding key defense witnesses. Reeves con-

tests the adequacy of damages awarded on three levels:

(a) quantum of attorney’s fees; (b) denial of reimburse-

ment expenses; and (c) computation based on a 60 hour

workweek. The Secretary defends jurisdiction and

urges a “make whole” back pay award calculated on the

basis of a higher projected income than that utilized by

the district court. We will address the issues in the

sequence provided by IT&T, discussing the Secre-

tary’s and Reeves’ claims as they logically present

themselves.

6 The district court summarized the award in his final order as

follows:

Straight time and overtime owed by defend-

ant to plaintiff plus liquidated damages $22,164.28

Back pay owed by defendant to plaintiff for

years 1967 through 1974 39,081.46

Attorney’s fee 35,000.00

$96,245.74

I. JURISDICTION

IT&T rests its jurisdictional challenge on the follow-

ing argument:7 '

(1) In 1967, when the claimant instituted this suit,

the Act did not authorize a private right of action for

damages for the wrongful discharge of an employee.

Standing to raise the section 15(a)(3) violation rested

solely with the Secretary of Labor, who did not file suit

at that time. Powell v. Washington Post Co., 267 F.2d 651

(D.C. Cir. 1959).

(2) From the earliest pre-trial stipulation in 1969,

the employer has challenged the court's jurisdiction

over the unlawful discharge claim. Before April, 1973,

7 Federal courts have always had “jurisdiction” to provide rem-

edies for retaliatory discharge in actions brought by the Secre-

tary. For this reason, the issue might more accurately have been

framed as a challenge to the procedural capacity of the employee to

bring a private action to remedy an unlawful discharge. Since we

merely set forth the argument as it was presented to us in the

briefs, we retain IT&T’s characterization of the problem as juris-

dictional. We have no serious difficulty with the terminology in

any event. The critical question in a procedural capacity or stand-

ing challenge is whether the plaintiff possesses sufficient status

and stake in the outcome “to warrant his invocation of federal-

court jurisdiction.” Village of Arlington Heights v. Metropolitan Housing

Development Corp., 429 U.S. 252, 260-61, 97 S.Ct. 555, 561, 50

L.Ed.2d 430 (1977); Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868,

49 L.Ed.2d 826 (1976); Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197,

45 L.Ed.2d 343 (1975). It is not inappropriate, therefore, to assert

that a court is without “jurisdiction” to address the claims of a

party which lacks the procedural capacity to sue.

10a

the district court limited the scope of his judicial in-

quiry to a resolution of the exemption issue. For this

reason, the employee’s challenges to jurisdiction were

not lodged in a formal motion to dismiss until after that

date. The district court erred in not dismissing the un-

lawful discharge action in response to the challenges

set forth in the pre-trial stipulations and later in the

motion to dismiss.

(3) The Secretary first attempted to intervene in

August, 1973, four weeks after IT&T moved to dis-

miss the action and nearly six years after the original

complaint was filed. The Secretary was barred from

intervening at this time by virtue of the statute of limi-

tations governing actions under section 17 of the Act.

Section 17 adopts as a limitation on injunctive pro-

ceedings the statutory time bar imposed in section 6 of

ff Portal-to-Portal Act, 29 U.S.C. §§251-262. That

section limits Secretarial enforcement to within two

years after the cause of action accrued, or within three

years if the violation was willful. In either case, the Sec-

retary’s six year delay in proceeding to enforce the Act

was time barred by statute. Even discounting the stat-

ute’s effect, the Secretary was prohibited by the doc-

trine of laches from intervening some six years after

suit was filed.

(4) Because intervention was untimely, the

Secretary’s action could not create an independent

basis for jurisdiction over the unlawful discharge claim.

lla

(5S) With no private right of action available and

with no legitimate basis for Secretarial intervention,

the district court was without jurisdiction and should

have dismissed the unlawful discharge claim in 1973.

(6) The district court’s wrongful failure to dismiss

in 1973 cannot form the basis for jurisdiction in 1977.

Congressional creation of a private right of action in

1977 for recovery under section 15(a)(3) cannot form

the basis for jurisdiction. The proposition that a court

must apply whatever law is in effect at the time a deci-

sion is rendered is inapplicable here. Although the de-

cision was rendered after the amendment creating the

private right of action, a correct ruling in 1973 would

have forever foreclosed the unlawful discharge claim.

The claimant should not be rewarded for the court’s

erroneous ruling in 1973, which kept viable an other-

wise illegitimate claim.

While IT&T’s argument is an appealing one, its

analysis does not withstand close scrutiny. First, the

record does not support IT&T’s contention that juris-

diction over the unlawful discharge was challenged in

pre-trial stipulations from 1969 to 1971.8 The only

8 Our discussion does not contradict the well-established rule

that jurisdictional challenges may be raised at any time.

Fed.R.Civ.P. 12(h)(3); Menchaca v. Chrysler Credit Corp., 613 F.2d 507

(S Cir. 1980); Mansfield, Coldwater & Lake Michigan Railway v. Swan,

111 U.S. 379, 4S.Ct. 510, 28 L.Ed. 462 (1884). We donot question

the district court's authority to rule on the jurisdictional chal-

lenge at any stage. It is necessary to determine when the claim was

first brought before the district court, however, because only

when the claim is properly raised does the court have aduty to ad-

dress the challenge. That determination bears upon a critical issue

in this appeal — the timeliness of the Secretary's intervention.

12a

basis for IT&T’s position is the general claim appear-

ing in each stipulation that: “plaintiff has no remedy for

his discharge.” We do not view this as a challenge, in-

formal or otherwise, to Reeves’ jurisdictional right to

bring his claim for unlawful discharge before the dis-

trict court. Our reluctance to so construe the phrase is

further justified by the recognition that each of the

stipulations proclaims that no jurisdictional questions

were raised by either Reeves or IT&T.

The jurisdictional challenge to Reeves’ unlawful dis-

charge claim was first presented to the district court in

the motion to dismiss filed on July 23, 1973. IT&T con-

ceded at oral argument that only when a claim is

adequately raised does a trial court have a duty to rule

on the challenge. We conclude that the district court

had no duty to address the jurisdictional point until

after the motion to dismiss was filed in July, 1973.

Having made this determination, we reject IT&T’s

claim that the Secretary's intervention was untimely.

Rule 24(b) of the Federal Rules of Civil Procedure per-

mits “timely” intervention where an applicant's claims

contain common questions of law or fact with the main

action. By the express terms of Rule 24, motions for

permissive intervention are addressed to the sound dis-

cretion of the district court. United States v. Marion County

School District, 590 F.2d 146 (Sth Cir. 1979); United States v.

Allegheny-Ludlum industries, Inc., 553 F.2d 451 (Sth Cir.

1977). We will not overturn a determination on inter-

13a

vention absent an abuse of that discretion. See, Henry v.

First National Bank of Clarksdale, 595 F.2d 291 (Sth Cir.

1979); United States v. Marion County School District; Korioth

v. Briscoe, 523 F.2d 1271 (Sth Cir. 1975). IT&T insists

that by permitting intervention nearly six years after

the action was instituted, the district court abused its

discretion. An “absolute measure of timeliness,” how-

ever, is of little significance in determining the pro-

priety of intervention under Rule 24(b). Stallworth v.

Monsanto Co., 558 F.2d 257 (Sth Cir. 1977); Diaz v. South-

ern Drilling Corp., 427 F.2d 1118 (Sth Cir. 1970). We have

before recognized that intervention is permissible

“months or even years after the original filing of the

suit ‘where the substantial litigation of the issues had

not been commenced when the motion to intervene

was filed.’ ” Smith Petroleum Service, Inc. v. Monsanto Chem-

ical Co., 420 F.2d 1103, 1115 (Sth Cir. 1970). Moreover,

in exercising its discretion the district court must “put

into the balance against the movant its prior oppor-

tunities to assert its position.” United States v. Marion

County School District, at 148. In this case, the Secretary

moved to intervene shortly after the question of

Reeves’ standing as a private party to assert the un-

lawful discharge claim was put in issue by IT&T’s for-

mal motion to dismiss. IT&T has not demonstrated

that the intervention caused undue delay or prejudice

in the federal action. McDonald v. E. J. Lavino Co., 430

F.2d 1065 (Sth Cir. 1970). We conclude that the appli-

cation for intervention was timely under Rule 24(b),

Fed.R.Civ.P.

14a

IT&T also asserts that the Secretary was barred

from filing his complaint in intervention under the

statutory limitations period set forth in section 6 of the

Portal-to-Portal Act and made applicable in 29 U.S.C.

§217. These sections place a maximum three year limi- |

tations period on suits to enforce any cause of action

“for unpaid minimum wages, unpaid overtime com-

pensation, or liquidated damages” under the Act. Uner-

celled Chemical Corporation v. United States, 345 U.S. 59, 73

S.Ct. 580, 97 L.Ed. 821 (1953). The Secretary’s com-

plaint in intervention was limited to the enforcement

of a cause of action for Reeves’ unlawful discharge

under section 15(a)(3) of the Act. He did not seek re-

dress for unpaid overtime compensation or liquidated

damages. The limitation provision of section 255 there-

fore does not apply to the Secretary’s action in equity to

enforce section 15(a)(3) of the Act. Nor does the doc-

trine of laches prohibit the Secretary’s intervention.

That doctrine does not apply as a defense against

agency action to vindicate public rights. Weiszmann v.

District Engineer, U.S. Army Corps of Engineers, 526 F.2d

1302 (Sth Cir. 1976); United States v. State of Florida, 482

F.2d 205 (Sth Cir. 1973); Chromcraft Corp. v. EEOC, 465

F.2d 745 (Sth Cir. 1972).

Finally, we reject IT&T’s contention that the 1977

amendments did not extend to Reeves a private right of

action for unlawful discharge. Private actions for dis-

criminatory discharge were denied in this circuit prior

to the amendment to section 216(b). See, Martinez v.

Behring’s Bearings Service, Inc., 501 F.2d 104 (Sth Cir.

15a

1974). In 1977, however, that section was amended to

authorize private suits for unlawful discharge “by any

one or more employees for and in behalf of himself or

themselves and other employees similarly situated.”

The question we must answer is whether passage of

the amendment during the pending action operated to

extend to Reeves a private right of action which he did

not have at the outset of his suit. In resolving the issue,

we find persuasive the reasoning of the Sixth Circuit in

Bush v. State Industries, Inc., 599 F.2d 780 (6th Cir. 1979).

In Bush, an employee’s pre-amendment action for re-

taliatory discharge was dismissed in district court for

failure to state aclaim upon which relief could be grant-

ed. Subsequent to the filing of Bush’s appeal with the

circuit court, Congress amended the Act to provide a

private right of action for violations of section 15(a)(3).

Citing the “well-established principle” that, barring

manifest injustice or express statutory proscription, “a

court is to apply the law in effect at the time it renders

its decision,” the court held the 1977 amendments

applicable to Bush’s pending case. Bush v. State Industries,

Inc., at 786; Bradley v. School Board of the City of Richmond,

416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974). The

court in Bush summarized its holding as follows:

When §16(b) of the Act was amended, sub-

sequent to the filing of this action by Bush, it

created a private cause of action for enforce-

ment of the rights protected by §15 of the Act.

Applying the law in effect at the time of our

16a

decision, we hold that Bush has an express

right to maintain this cause of action. Thus,

any question as to whether an implied right of

action existed was mooted by the 1977 amend-

ments to the Act.

599 F.2d at 787.

We apply the same rationale to hold that Reeves is

entitled to seek redress under section 15(a)(3), where

the Act was amended during the pendency of the suit to

create a private right of action under section 16(b).° We

further observe, as did the court in Bush, that amend-

ments such as those to section 16(b), which are pro-

cedural and affect only remedies, are generally appli-

cable to pending cases. Bush v. State Industries, Inc.;

Mahroom v. Hook, 563 F.2d 1369 (9th Cir. 1977); United

States v. Blue Sea Line, 553 F.2d 445 (Sth Cir. 1977); see

Pedreyra v. Cornell Prescription Pharmacies, Inc., 465 F.Supp.

936 (D.C. Colo. 1979).

9 IT&T argues that this case is distinguishable from Bush, be-

cause here the statutory period had run prior to the amendments.

This identical claim, however, was raised and rejected in Bush.

There, the court held that the existence of federal subject matter

jurisdiction under 28 U.S.C. §1333 eliminated the limitations

problem by tolling the statute upon filing of the claim. Our deter-

mination that the statutory period of 29 U.S.C. §255 does not

apply to the Secretary's claim under section 15(a)(3), renders un-

necessary a decision on the federal subject matter issue.

17a

Il. EXEMPTION

For the reasons set forth in the district court’s

thorough analysis on this issue, we reject IT&T’s claim

that Reeves should have been adjudicated an exempt

employee under 29 U.S.C. §213(a)(1). See, Reeves v. Inter-

national Telephone & Telegraph Corp., 357 F.Supp. 295

(W.D. La. 1973).

Ill. UNLAWFUL DISCHARGE

We find adequate evidence in the record to support

the district court’s determination that Reeves was dis-

charged in retaliation for the filing of his complaint for

alleged overtime violations with the Department of

Labor. During his employment Reeves had complain-

ed regularly to supervisors and colleagues about not

being properly compensated for overtime work. In

1967, IT&T established a policy prohibiting payment,

including compensation at straight time rates, for over-

time work. Although Reeves had been given excellent

evaluations and fitness reports,!°IT&T discharged him

10 The following excerpts from written performance evalua-

tions are illustrative of the appraisals Reeves received from super-

visors during his employment at IT&T.

For the period ending July 7, 1966:

Mr. Reeves’ technical knowledge and ability has proven

to be excellent and he has batted 1,000 on his complaints

and reports. . . In my opinion, Mr. Reeves is the best RF

man we have within our organization. This opinion is

shared by . . . [the] most senior microwave systems man

18a

for “poor performance” the day after he lodged his

complaints with the Wage and Hour Division of the

Department of Labor. The record shows that IT&T had

been apprised of Reeves’ wage complaint with the

Department of Labor. Having reviewed the factual

basis for the finding of unlawful discharge we have no

definite and firm conviction that a mistake was com-

mitted. We therefore affirm on this issue, Rule 52(a),

Fed.R.Civ.P., Inter-Cities Navigation Corp. v. United States,

608 F.2d 1079 (Sth Cir. 1979); Stegmaier v. Trammell, 597

F.2d 1027 (5th Cir. 1979).

IV. DAMAGES AWARD

Unpaid Wages.

Under the Act, an employee who brings suit for un-

paid overtime compensation bears the burden of prov-

ing, with definite and certain evidence, that he per-

formed work for which he was not properly compen-

sated. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66

S.Ct. 1187, 90 L.Ed. 1515 (1946); Marshall v. Dallas Inde-

pendent School District, 605 F.2¢ 19] (Sth Cir. 1979); John-

son v. Dierks Lumber & Coal Co., 130 F.2d 115 (8th Cir.

1942). Inaccurate wage and hour information, how-

ever, is not always fatal to aclaim for minimum wage or

For the period from 1967 to May 1968:

Mr. Reeves’ performance on this project has been char-

acterized by others as being one of very high efficiency

... Mr. Reeves continues to be one of the most capable

RF individuals within the installation and service organi-

zation.

19a

overtime compensation under the Act. Where the in-

accuracy is due to the employer’s failure to keep

adequate records as required by statute,1! imprecise

evidence on quantum can provide a “sufficient basis”

for damages. Anderson v. Mt. Clemens Pottery Co., 328 U.S.

at 687,66S.Ct. at 1192; Marshall v. Mammas Fried Chicken,

Inc., 590 F.2d 598 (Sth Cir. 1979); Hodgson v. Jones, 434

F.2d 1061 (Sth Cir. 1970). Under these circumstances,

we have “in effect ordered the fact finder to do the best

he could in assessing damages.” Mitchell v. Riley, 296

F.2d 614, 616 (Sth Cir. 1961). As the Supreme Court

observed in Anderson v. Mt. Clemens Pottery Co.:

The solution ... is not to penalize the

employee by denying him any recovery on the

ground that he is unable to prove the precise

extent of uncompensated work. Such a result

would place a premium on an employer’s fail-

ure to keep proper records in conformity with

his statutory duty; it would allow the employ-

er to keep the benefits of an employee’s labors

without paying due compensation as contem-

11 29U.S.C. §211(c) provides as follows:

Every employer subject to any provision of this chap-

ter or of any order issued under this chapter shall make,

keep, and preserve such records of the persons employ-

ed by him and of the wages, hours and other conditions

and practices of employment maintained by him, and

shall preserve such records for such periods of time, and

shall make such reports therefrom to the Administrator

as he shali prescribe by regulation or order as necessary

or appropriate for the enforcement of the provisions of

this chapter or the regulations or orders thereunder.

**%

20a

plated by the Fair Labor Standards Act. In

such a situation we hold that an employee has

carried out his burden if he proves that he has

in fact performed work for which he was im-

properly compensated and if he produces

sufficient evidence to show the amount and

extent of that work as a matter of just and

reasonable inference. The burden then shifts

to the employer to come forward with evi-

dence of the precise amount of work per-

formed or with evidence to negative the

reasonableness of the inference to be drawn

from the employee’s evidence. If the employ-

er fails to produce such evidence, the court

may then award damages to the employee,

even though the result be only approximate.

328 U.S. at 687-688, 66 S.Ct. at 1192.

The unpaid wages awarded by the fact finder in this

case reflect a conscientious adherence to the rule enun-

ciated in Anderson v. Mt. Clemens. The record supports

the magistrate’s finding that IT&T did not keep

adequate records and that employees were ordered to

report incomplete and deflated figures on overtime

hours. Moreover, IT&T failed to produce any perti-

nent records in accordance with discovery orders for

certain periods in 1967.

2la

Reeves introduced what he termed a “running total”

of hours worked that he apparently kept in his mind

during his employment. According to Reeves, he work-

ed approximately 3100 uncompensated hours for

IT&T. From this figure, Reeves estimates an average

workweek of 74.5 hours. Reeves first testified to the

running total in 1973. At that time, he conceded that

the totals corresponded to the rough computations of

his subconscious mind. Expressly cognizant of his duty

under the circumstances to premise an award “upon as

close an approximation as possible,” the fact finder

based his calculations on an average workweek of 60

hours.!2 We are satisfied that the 60 hour workweek

represents a fair and “just” approximation under the

facts presented and within the guidelines for determi-

nation observed in other inadequate company records

cases. See, Anderson v. Mt. Clemens; Mitchell v. Riley; Mitchell

v. Mitchell Truck Line, Inc., 286 F.2d 721 (Sth Cir. 1961).

For this reason, we reject Reeves’ and IT&T’s claim that

the resulting unpaid overtime award was clearly erro-

neous. See, Weisel v. Singapore Joint Venture, Inc., 602 F.2d

1185 (Sth Cir. 1979); Bunn v. Central Realty of Louisiana,

592 F.2d 891 (Sth Cir. 1979),

12 The average 60 hour workweek computed over Reeves’

term of employment resulted in a total of 2,360 overtime hours,

966 of which were compensated by IT&T at the undisputed

straight time rate. When the additional overtime wages ($2.15)

are added for those 966 hours and the full time and a half rate

($6.46) is calculated for the remaining 1,394 overtime hours, this

results in a total unpaid overtime damages award of $11,082.14.

22a

Liquidated Damages.

Citing its alleged good faith belief that Reeves was an

exempt employee under 29 U.S.C. §213(a)(1), IT&T

argues that there is no basis for the additional assess-

ment of liquidated damages under section 216(b) of the

Act. We disagree. Section 11 of the Portal-to-Portal

Act, imposes upon an employer seeking to escape liqui-

dated damages the plain and substantial burden of

proving that its violation was “both in good faith and

predicated upon such reasonable grounds that it would

be unfair to impose upon him more than a compensa-

tory verdict.” Barcellona v. Tiffany English Pub, Inc., 597

F.2d 464, 468 (Sth Cir. 1979). IT&T has not offered

sufficient evidence to demonstrate that its failure to

pay overtime wages in accordance with the Act was in

reasonable good faith. As decisions have shown, the

presumption of willfullness stands, absent positive and

compelling proof of good faith. It is not enough, for in-

stance, to plead and prove ignorance of the wage re-

quirements. Knowledge will generally be imputed to

the offending employer. Marshall v. A & M Consolidated

Independent School District, 605 F.2d 186 (Sth Cir. 1979).

Nor does the complete ignorance of the possible appli-

cability of the Act shield the employer from liability for

liquidated damages. Coleman v. Jiffy June Farms, Inc., 458

F.2d 1139 (Sth Cir. 1972). Good faith requires some

duty to investigate potential liability under the Act.

Barcellona v. Tiffany English Pub, Inc.

23a

Lack of good faith is demonstrated when an employ-

er “knows, or has reason to know, that his conduct is

governed by the [Act].” Brennan v. Heard, 491 F.2d 1, 3 (Sth

Cir. 1974). Because we find substantial evidence to con-

clude that IT&T “knew or suspected that [its] actions

might violate the [Act],” we uphold the district court's

award of liquidated damages.13 Coleman v. Jiffy June

Farms, at 1142; Pearce v. Wichita County, City of Wichita Falls,

Texas, Hospital Board, 590 F.2d 128 (5th Cir. 1979).

Back Pay Award.

Reeves decries the failure of the district court to add

to his projected annual earnings an amount equivalent

to the $980 per month he received as reimbursed ex-

penses during his employment period at IT&T. Accord-

ing to Reeves, reimbursements constitute recoverable

wages under 29 U.S.C. §203(m). That section defines

“wages” to include the reasonable cost of furnishing

board, lodging, or other facilities if they are customari-

ly furnished by the employer to his employees. We con-

strue this section to apply to employer furnished facili-

ties, and not to reimbursed out-of-pocket personal ex-

13 The fact finder was justified in concluding from a number of

factors that IT&T knew or should have known it was violating the

overtime provisions of the Act. These factors include: the com-

pany’s instructions not to report overtime hours, the willful dis-

charge of Reeves; supervisors’ statements that employees would

have to realize they would be working uncompensated overtime

hours; and the uncooperativeness of IT&T during discovery.

Additionally, as the district court aptly concluded and as we have

so held, Reeves was not an exempt employee under the Act.

24a

penses incurred by employees during their business

travels. 29 U.S.C. §207(e)(2).14

In calculating annual earnings, the court based its

figure of $15,683.20 on Reeves’ average hourly rate

($4.31) during his employment with IT&T. The Secre-

tary argues that the calculation should have been based

on the hourly wage Reeves was making upon termina-

tion. The Secretary also asserts that the back pay award

is inadequate because the district court failed to con-

sider probable pay increases for the years 1967-1975.

We agree with the Secretary that in order to reason-

ably restore the employee “to the same situation he

would have occupied if he had not been discharged,”

the award must be based on the rate of pay Reeves was

receiving upon termination. Goldberg v. Bama Manufac-

turing Corp., 302 F.2d 152, 156 (Sth Cir. 1962). The dis-

trict court did not abuse its discretion, however, in re-

fusing to consider possible pay increases from 1967 to

1975. Because of the speculative nature of that deter-

mination, we believe it rested within the sound exer-

cise of the district court’s discretion “to decide what

measure of damages is appropriate.” Id. at 156; Mitchell

14 Under section 207(d)(2) of the Act, as amended in 1974, the

“regular rate” of an employee does not include “reasonable pay-

ments for traveling expenses, or other expenses, incurred by an

employee in the furtherance of his employer's intrests and prop-

erly reimbursable by the employer, and other similar payments to

an employee which are not made as compensation for his-hours of

employment.”

25a

v. Robert De Mario Jewelry, Inc., 361 U.S. 288, 80 S.Ct. 332,

4 L.Ed.2d 323 (1960); Mitchell v. Goodyear Tire & Rubber

Co., 278 F.2d 562 (8th Cir. 1960).

With an average hourly rate of $4.57, the back pay

award is increased to $46,620.65. Section 16(b) of the

Act now authorizes an additional equal amount as

liquidated damages, bringing the total back pay and

liquidated damages award to $93,241.30.

Reinstatement.

IT&T argues that reinstatement is a remedy “wholly

outside the purview of the Fair Labor Standards Act.”

As the Supreme Court observed in Robert De Mario

Jewelry, however, reinstatement and reimbursement

may properly be combined to provide a complete judi-

cial remedy, where an employee has been the victim of

an unlawful discharge under section 215(a)(3). See, Gold-

berg v. Bama Manufacturing Corporation. Reinstatement is

an appropriate remedy for unlawful discharge under

the Act.

Attorney's Fees.

Section 16(b) of the Act provides that in any action

successfully brought under its provisions, the court

shall “allow a reasonable attorney's fee to be paid by the

defendant.” In accordance with this section, the dis-

trict court awarded attorney's fees in the amount of

$35,000. According to Reeves, this sum is woefully in-

26a

adequate to properly compensate his attorney for the

nearly 3,000 hours he claims to have spent on the case

throughout its thirteen year federal court history.

Reeves argues that his attorney is entitled to at least

$50 an hour, an amount bringing his total attorney’s

fee claim to $150,000. We find no basis upon which to

alter the district court’s award. The attorney's fee

determination rests in the sound discretion of the dis-

trict court and will not be overturned in the absence of

abuse. Baxter v. Savannah Sugar Refining Corp., 495 F.2d 437

(Sth Cir. 1974); Montalvo v. Tower Life Building, 426 F.2d

1135 (Sth Cir. 1970). Although it is well-established

that a district court need not take evidence concerning

the value of attorney’s services, the fact finder con-

sidered evidence presented by Reeves’ attorneys on the

length and complexity of their representation. Montal-

vo v. Tower Life Building; Day & Zimmerman, Inc. v. Reid, 168

F.2d 356 (8th Cir. 1948); Campbell v. Green, 112 F.2d 143

(Sth Cir. 1940). As the magistrate’s recommended

order illustrates, the determination rested on factors

recognized as critical in the assessment of attorney's

fees in Johnson v. Georgia Highway Express, 488 F.2d 174

(Sth Cir. 1974). We have recently recognized the appli-

cability of the Johnson guidelines in a non-Title VII set-

ting, Piambino v. Bailey, 610 F.2d 1306 (Sth Cir. 1980).

The district court entered its award after considering

the time and labor required, the complexity involved,

and the skill necessary to properly perform the serv-

ices needed. See, Johnson, at 718-719. As we observed in

Montalvo, “[a] trial court has firsthand knowledge of the

27a

proceedings” and is in a uniquely qualified position to

“place a value on [the attorney’s] services.” 426 F.2d at

1150. We affirm the district court’s $35,000 award of

attorney's fees.

We think an additional fee of $5,000 for this appeal is

merited, and increase the award to $40,000 in accord-

ance with our authority to make such an assessment.

See Montalvo; Bable v. T. W. Phillips Gas & Oil Co., 287 F.2d

21 (3rd Cir. 1961); Holtville Alfalfa Mills, Inc. v. Wyatt, 230

F.2d 398 (9th Cir. 1955).

Conclusion.

We summarize the damages award as redetermined

by this decision as follows:

Straight time and overtime owed by

defendant to plaintiff, plus liqui-

dated damages $22,164.28

Back pay owed by defendant to

plaintiff for years 1967 through

1974, plus liquidated damages 93,241.30

Attorney’s fee 40,000.00

Total award $155,405.58

V. EXCLUSION OF CERTAIN WITNESSES

The record discloses that on August 22, 1973, coun-

sel for IT&T met for three hours with at least eleven

28a

prospective witnesses and discussed the case in prep-

aration for testimony at the quantum hearing. The

meeting and discussion constituted a direct and

flagrant violation of a previously entered sequestra-

tion and separation order. The determination as to

whether a violating witness shall be permitted to testi-

fy “is generally left to the sound discretion of the trial

court.” United States v. Suarez, 487 F.2d 236, 238 (Sth Cir.

1973); United States v. Moriarty, 497 F.2d 486 (Sth Cir.

1974). “[P]articular circumstances” support exclusion

of testimony where the violation occurred with the

“consent, connivance, procurement or knowledge” of

counsel. Holder v. United States, 150 U.S. 91, 92, 14S.Ct.

10, 37 L.Ed. 1010 (1893); Braswell v. Wainwright, 463 F.2d

1148, 1156 (Sth Cir. 1972); United States v. Schaefer, 299

F.2d 625 (7th Cir. 1962). In light of the willful nature of

the violation on the part of the witnesses and counsel,

we do not overturn the district court’s order prohibit-

ing any testimony from the violating witnesses. Holder

v. United States; United States v. Torbert, 496 F.2d 154 (9th

Cir. 1974); United States v. Eastwood, 489 F.2d 818 (Sth Cir.

1973).

The district court judgment for immediate rein-

statement is AFFIRMED, and the damages award is in-

creased in accordance with this decision.

29a

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 78-1286

HEWETT M. REEVES,

Plaintiff-Appellant,

Cross-Appellee,

versus

INTERNATIONAL TELEPHONE AND

TELEGRAPH CORPORATION,

Defendant-Appellee,

Cross-Appellant,

RAY MARSHALL, Secretary of Labor,

United States Department of Labor,

Intervenor-Appellant,

Cross-Appellee.

Appeals from the United States District Court for the

Western District of Louisiana

ON PETITION FOR REHEARING

30a

Dated: June 23, 1980

Before GOLDBERG, FRANK M. JOHNSON and

HATCHETT, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed

in the above entitled and numbered cause be and the

same is hereby denied.

ENTERED FOR THE COURT:

ls) JOSEPH W. HATCHETT

JOSEPH W. HATCHETT

United States Circuit Judge

3la

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

HEWETT M. REEVES,

Plaintiff,

versus C.A. No. 13234

INTERNATIONAL TELEPHONE AND

TELEGRAPH CORPORATION,

Defendant,

W. J. USURY, JR., Secretary of Labor,

United States Department of Labor,

Intervenor.

Filed: September 9, 1977

SPECIAL MASTER’S REPORT

AND RECOMMENDATION ON QUANTUM

32a

HISTORY OF THE CASE

Plaintiff, Hewett M. Reeves, brought this action on

September 19, 1967, under the Fair Labor Standards

Act, (FLSA), 29 U.S.C. §201, et seq. He alleged he

worked an average of at least seventy-five hours per

week; that he was paid by the hour and was in a non-

exempt status; and that for overtime he was due the

sum of at least $12,500 and a like sum for liquidated

damages, plus reasonable attorney fees and all costs of

suit.

Extensive discovery was conducted, and the case pro-

ceeded to trial before this Court. Following the Court’s

study of the record and briefs, plaintiff was held to bea

non-exempt employee; consequently he was covered

by the FLSA as shown by the Court’s published opin-

ion on the coverage question. Reeves v. 1.T. & T. Co., 357

F.Supp. 295 (April 27, 1973). Plaintiff was employed by

defendant as a microwave field engineer. He had two

stateside bases of operation, one at defendant's micro-

wave home office at Raleigh, North Carolina, and the

other at plaintiff’s residence in Shreveport, Louisiana,

where he operated a place of business for himself as

well as a warehouse for storage of ITT equipment.

From these two bases plaintiff was sent as “trouble-

shooter” to contract job sites, literally to all parts of the

earth, as directed by defendant. Plaintiff was employ-

ed by defendant in that capacity during the calendar

years 1965, 1966, and until August 29, 1967, having

33a

been terminated by ITT on the latter date immediately

after he lodged a complaint with the Wage-Hour Divi-

sion, Department of Labor, concerning his underpay-

ments by defendant. During his employment, and

especially while in the field, it was his responsibility to

keep a record of his work time. This was done on a re-

port form furnished by defendant, called“Time, Travel

and Automobile Report”, referred to often during

hearings as “TTAR-S”.

After determination was made by the Court that he

was not an “exempt” employee, and that plaintiff's

work was covered by the FLSA, an order of the Court

was entered on July 26, 1973, wherein the undersign-

ed Magistrate was appointed Special Master to con-

duct all necessary hearings as to the quantum of plain-

tiff’s claims, the first hearing to be conducted on

August 20, 1973. The designation of the undersigned

Special Master was made pursuant to 28 U.S.C. §636,

now 28 U.S.C. §636(b)(1)(B) and (C), Rule 53,

F.R.Civ.P., and Local Court Rule 28 C.

During the course of the quantum hearings, by re-

quest of counsel for the parties, numerous settlement

conferences were conducted among counsel, out of the

presence of the Magistrate. This was one of riany

reasons, including scheduling problems, prior com-

mitments of counsel, etc., for continued delay in com-

pletion of the trial on the quantum questions.

34a

A memorandum minute entry of August 24, 1973

made by the Magistrate shows that, at the first quan-

tum hearing on August 20, 1973, with all trial counsel

present, the witnesses present were placed under the

Rule of Sequestration. All attorneys then were order-

ed to place any and all other witnesses under this Rule,

whether they then were present before the Court or

not. This was agreed to specifically by all counsel.

After the quantum hearing commenced, the Secre-

tary of Labor, through James F. Gruben, Esq., attor-

ney for the Secretary, filed an intervention, which was

allowed by the Court.

CONTENTIONS OF THE PARTIES

Plaintiff, defendant, and intervenor have favored us

with extensive original and reply briefs, covering the

quantum involved here. In plaintiff's original brief, it

was contended that defendant failed to maintain prop-

er records, and failed to furnish records in compliance

with discovery orders. Plaintiff further contends that

defendant committed a willful violation of the Act in

discharging him, and that the three-year statute of

limitations applies, covering the entire period of his

employment; and that liquidated damages should be

awarded; moreover, that plaintiff is entitled to an

award of attorney fees from defendant as a part of the

liquidated damages covered by the Act; and that

defendant discharged plaintiff unlawfully under Sec-

tion 15(a)(3) of the Act. (29 U.S.C. §215(a)(3)) Plaintiff

35a

further contends that the expenses he had incurred,

which were reimbursed by defendant, amounted to

$980.00 per month, which should be added to plaintiff's

earnings and included within the weekly amount to be

awarded as liquidated damages. It is contended that

plaintiff worked a total of 3,110 overtime hours for

which he was not paid, either in straight time or in

overtime. In summary, plaintiff claimed as liquidated

damages for unpaid overtime hours the sum of $56,-

228.74. He contends further that, because he was dis-

charged unlawfully, he should be paid for his losses of

income during the years 1967 through 1974, a total of

$191,271.21. With respect to his claim for attorney

fees, he asserts that his principal attorney spent 1,852

hours working on the case, as testified at the hearings,

and that his associate counsel had expended 268 hours;

consequently, that the award of attorney fees should

be $101,980.00; and that interest should be allowed on

the total amount of any judgment rendered.

In defendant’s original brief, with attachments, there

are posed seven specific categories affecting quantum

which we consider pertinent, these being listed as

follows:

(1) The number of overtime hours worked

by plaintiff and any monies due for these

not already paid.

(2) Whether defendant’s failure to pay prop-

er overtime was a willful violation of the

36a

FLSA, thus extending the normal two-

year statute of limitations to three years.

(3) Whether defendant had a good faith de-

fense to the overtime violation which

would preclude an award of liquidated

damages.

(4) Whether reimbursed expenses paid to

plaintiff are to be treated as compensa-

tion and part of his regular rate of pay.

(5) Whether the Court has jurisdiction to

grant relief under Section 15(a)(3) of the

FLSA; whether plaintiff was discharged

in violation of that Section; and what

damages, if any, exist because of the dis-

charge.

(6) What attorney fees, if any, must be paid

by defendant for plaintiff's counsel.

(7) Whether defendant is liable for interest

upon any judgment rendered against it.

In summary, defendant contends that the net maxi-

mum overtime pay due plaintiff, not already paid, is

$4,698.19, because of the two-year statute of limita-

tions. At fn. 40 of defendant's brief is shown the total

dollar amount of overtime hours paid as straight time

by defendant for the years 1965, 1966 and 1967 in the

total amount of $4,088.82.

37a

Without conceding that there was an unlawful dis-

charge, defendant urges that, if it were determined

that such indeed had occurred, the maximum amount

which defendant would owe to plaintiff for this would

be the sum of $4,134.48. Defendant denies liability for

attorney fees, contending that no adequate proof was

shown to justify award of tne fees claimed. Defendant

further denies that any interest on any judgment found

against it should be allowed. It lastly claims that pro-

cedural errors occurred during the hearings in not per-

mitting defendant’s witnesses to testify. (See Judge

Dawkins’ ruling on this, in the record.)

_ Intervenor, in his brief and supplemental brief, urges

that plaintiff was unlawfully discharged from employ-

ment in violation of the FLSA, 29 U.S.C. §215(a)(3).' In

his supplemental brief, he points to a handwritten note

made by James R. Bennett, a representative of defend-

ant: “M.H. Reeves [initials reversed] terminated

8/29/67, J. R. B.” This was immediately after plaintiff

went to the Wage-Hour Board to file his complaint on

August 28, 1967. He urges that this unlawful dis-

1 Prohibited acts; prima facie evidence

(a) After the expiration of one hundred and twenty days from

June 25, 1938, it shall be unlawful for any person —

(3) to discharge or in any other manner discriminate against

any employee because such employee has filed any complaint or

instituted or caused to be instituted any proceeding under or re-

lated to this chapter, or has testified or is about to testify in any

such proceeding, or has served or is about to serve on an industry

committee;

38a

charge entitles plaintiff to be reinstated by defendant

to his former position; and to receive restitution of

wage losses sustained by him as the result of his

wrongful discharge.

FINDINGS OF FACT

AND CONCLUSIONS OF LAW

We have considered the entire record, including the

transcript of the quantum hearings, the briefs of the

parties, and observed the witnesses as they testified.

From this, we make the following Findings of Fact and

Conclusions of Law:

We find that defendant did not keep proper records,

and those which were kept were at variance with each

other, the TTAR-S which were completed by plaintiff

with mandatory instructions from his supervisor not

to show upon them the correct hours of overtime. Con-

overtime hours worked by plaintiff. Moreover, as seen

from some of the exhibits on file, defendant was cog-

nizant of the fact that, if overtime were paid to an

employee, it should be paid on the basis of one and one-

half times the regular hourly wage. Defendant dis-

couraged, even ordered, its employees (including plain-

tiff) not to list overtime hours, even though the

employee in the course of performing his job properly

worked many so-called “gratis” hours for which he did

not receive overtime pay, either straight or one and

39a

one-half times his regular hourly wage, as required by

the Act, 29 U.S.C. §207(a)(1). We further find that

defendant's failure to pay proper overtime was a will-

ful violation of the FLSA, thus extending the normal

two-year statute of limitations to three years, as pro-

vided by 29 U.S.C. §255(a).2 Support for these find-

ings is seen in Day and Zimmerman v. Reid, 168 F.2d 356.

Defendant knew, or should have known, it was cover-

ed by the Act, Coleman, et al v. Jiffy June Farms, Inc., 458

F.2d 1139 (Sth Cir., 1972). There the Court held that,

even though the employer’s lawyer advised him he

need not fear federal overruling of an agreement witha

union, changing rates of pay, this constituted a willful

violation, thus entitling the employee plaintiffs to re-

cover their unpaid wages for a three-year period. This

also was the holding by Honorable Nauman S. Scott,

now Chief Judge of this District, in Thomas v. State of

Louisiana, 348 F.Supp. 792 (D.Ct. W.D. La., 1972). There

the Court held that the State was in willful violation of

the Act in relying upon a case pending before the

2 Statute of limitations

Any action commenced on or after May 14, 1947, to enforce any

cause of action for unpaid minimum wages, unpaid overtime com-

pensation, or liquidated damages, under the Fair Labor Standards

Act of 1938, as amended, the Walsh-Healey Act, or the Bacon-

Davis Act —

(a) if the cause of action accrues on or after May 14, 1947 —

may be commenced within two years after the cause of action ac-

crued, any every such action shall be forever barred unless com-

menced within two years after the cause of action accrued, except

that a cause of action arising out of a willful violation may be com-

menced within three years after the cause of action accrued;

40a

Supreme Court for determining whether the Act ap-

plied to State employees. The Court cited Coleman v. Jiffy

June Farms, Inc., supra, in support of the ruling.

Reimbursed expenses may not be treated as com-

pensation or part of plaintiff's regular rate of pay. No

citation from the Act or cases has been given us con-

cerning this question; and none have been found. Plain-

tiff was discharged unlawfully from his employment. It

is clear that defendant knew that plaintiff was claim-

ing overtime pay and had gone to the Wage-Hour

Board to lodge a claim against it. This is evidenced by

the record, which shows that plaintiff filed a complaint

with that Board in Raleigh, North Carolina, defendant

was aware of this, and discharged him the following

day. Prior to then, defendant had given plaintiff excel-

lent evaluation and fitness reports for the work he had

done while employed on an hourly basis. This consti-

tuted a wrongful and unlawful discharge under the ex-

press terms of 29 U.S.C. §215(a)(3). Walling v. O'Grady,

146 F.2d 421 (2nd Cir., 1944). In that case, the Second

Circuit reversed the District Court, holding that the

employee had been discharged because he filed suit. It

held further that the employee was entitled to back pay

because of this unlawful discharge, remanding the case

to the District Court to render an award. See, also,

Mitchell v. Dyess, 180 F.Supp. 852 (So. D. Ala. 19€9).

Plaintiff is entitled to recover reasonable attorney

fees from detendant. This is provided by the Act,? as

3 29 U.S.C. §216(b)

4la

explicated by the jurisprudence. Foster v. Irwin, 258

F.Supp. 709 (E.D. La. 1966), held that where various

employees were not properly compensated under the

FLSA, and the amount due was not capable of exact

mathematical ascertainment, an award must be made

based upon estimate, opinion, and reasonable infer-

ences to be drawn from available evidence. That deci-

sion also held that an award of attorney fees was man-

datory but the amount due was left to the sound dis-

cretion of the Court. For willful violation of the Act and

unlawful discharge, attorney fees must be allowed.

Foremost Dairies v. Ivey, 204 F.2d 186 (5th Cir., 1953).

There the Court awarded $2,000 in attorney fees on a

recovery by the employees of $6,350.95. In United

Finance and Thrift Corp. of Dallas v. Chapman, 369 S.W.2d

782 (1963), the jury awarded $1500 attorney fees while

granting a $629.90 verdict for plaintiff, and a like

amount as liquidated damages. An allowance of $6,000

as attorney fees, where the plaintiff recovered $3,-

417.02 was held to be neither excessive nor in-

adequate, though $18,000 had been claimed. Michigan

Window Cleaning Co. v. Martino, 173 F.2d 466 (6th Cir.,

1949).

It is well settled under the Act that where an award is

made to an employee as liquidated damages, interest on

the award is not allowable. Brooklyn Sav. Bank v. O'Neal,

65 S.Ct. 895, 324 U.S. 697, Reh. Den. 65 S.Ct. 1189,

325 U.S. 893; Thomas v. State of Louisiana, supra.

42a

Plaintiff has made substantially more than a prima

facie showing that he actually worked overtime during

the nearly three-year period during which he was

employed by defendant. The record shows, and it is

conceded by defendant, that plaintiff performed work

well beyond 40 hours per week and was paid straight

time for a total of 966 hours. He never was paid time

and one-half of his regular wages, as provided by the

Act, for any overtime hours. He claims he has per-

formed 3,110 hours of overtime work for which he was

not paid. This is denied by defendant, but it did not

complete ordered discovery requirements, and at least

seven weeks of records are missing completely from its

files. Moreover, as has been alleged and shown, defend-

ant did not keep proper records and, in fact, urged or

mandated its employees not to list any overtime unless

permission was granted. This prevented an employee

from performing the work, especially in the field, as

plaintiff was required to do, within a forty-hour week,

and when he worked “gratis” hours, he was not allow-

ed to list his hours or even be paid straight time for

overtime. Thus, we are required, under the Act and

jurisprudence, Foster v. Irwin, supra; Foremost Dairies v. Ivey,

supra; and Anderson v. Mt. Clements, 66 S.Ct. 1187, 328 U.S.

680, (1946), to make an award based upon as close an

approximation as possible as may be gleaned from the

record.

The record shows that plaintiff worked a total of 118

weeks with an additional two weeks vacation. During

his periods of employment he was paid at the rate of

43a

$4.04 an hour, $4.33 an hour, and $4.57 an hour. Thus,

his straight time hourly wage averaged $4.31 per hour.

Under the Act, he was allowed to work only forty hours

per week without overtime compensation. In most in-

stances, especially while in the field, plaintiff’s work

week averaged far greater than forty hours and some-

times, almost doubled that figure. We find, therefore,

that his average work week was sixty hours, or a

twenty-hour average of overtime. This gives a total of

2,360 overtime hours. The record shows he was com-

pensated by defendant for straight time of 966 hours,

thus revealing a total of 1,394 hours not compensated

by either straight time or time and one-half as re-

quired by the Act. One and one-half for overtime cal-

culated upon his regular hourly wage is $6.46. This

amounts to $9,005.24. Moreover, defendant owes one-

half additional time for the 966 hours for which plain-

tiff was paid straight time. This amounts to

(966 x $2.15), a total of $2,076.90, which added to the

$9,005.24 gives a total of $11,082.14. Plaintiff, then, is

entitled to receive as liquidated damage, double the

latter figure, or $22,164.28.

We accept the figure submitted by defendant, at page

97 of its brief, its summation being the sum of $4,-

134.48, as his diminished earnings brought about by his

unlawful discharge. To this we add the sum of $2,000

as damages caused by his discharge, in accordance with

the jurisprudence. Thus, the total amount of back pay

and liquidated damages, together with damages for his

unlawful discharge, amounts to the sum of $28,298.76.

44a

Attorney fees are claimed for Leroy Scott, Esq. for a

total of 1,852 hours at $50.00 per hour, and for B. J.

Woods, Esq., his associate, 268 hours at $35.00 per

hour. We are aware of the complexities involved in this

case, their numerous days in court and their more

numerous days of legal work performed by these

lawyers out of court. We also are well aware that there

are many cases where numerous hours are involved

where an attorney is not compensated adequately. This

appears to be one of those cases. We would consider,

therefore, that an award for attorney fees for plaintiff's

counsel should be assessed in the sum of $25,000. This

totals an award to plaintiff of $53,298.76.

This award made to plaintiff for hourly wages and

overtime wages, which defendant must pay, should be

subject to withholding and social security taxes, and

any other taxes required by law to be deducted.

Defendant also should be required to reinstate plaintiff

in his former job category with seniority equal to that

which he would have attained, but for his wrongful dis-

charge, and at current rates of pay for that position.

RECOMMENDATIONS

It is recommended, therefore, that judgment be

entered making an award to plaintiff, for all of his

claims, in the total sum of $53,298.76, and that he be

reinstated as immediately above indicated.

45a

THUS DONE AND SIGNED, in Chambers, at

Shreveport, Louisiana, this 8th day of September,

1977.

ls) JAMES M. BARTON

JAMES M. BARTON

UNITED STATES MAGISTRATE

(SPECIAL MASTER)

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

(Number and Title Omitted)

Filed: November 15, 1977

RULING ON SPECIAL MASTER'S REPORT —

AND RECOMMENDATION ON QUANTUM

Pursuant to 28 U.S.C. §636, now 28 U.S.C.

§636(b)(1)(B) and (C), Rule 53 F.R.Civ.P., and Local

Court Rule 28 C, the United States Magistrate was

appointed Special Master to conduct hearings and

make a report and recommendation on quantum.

46a

The Special Master made his twelve-page Report, in-

cluding findings of fact and conclusions of law and rec-

ommendations. This was filed on September 9, 1977.

Plaintiff, Intervenor and Defendant, all have filed ob-

jections to the report and recommendations submitted

by the Magistrate.

The findings of fact and conclusions of law contain-

ed in the Special Master’s Report and Recommenda-

tions are adopted with the following amendments as to

back pay and attorney’s fee owed by defendant to plain-

tiff:

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49a

The attorney’s fee to be awarded in this type of case

is discretionary with the Court, according to the juris-

prudence. We take notice that this litigation extended

over approximately ten years; the time spent in court

by all attorneys involved on the trial of the merits, and

before the Magistrate on the quantum hearing, as well

as time spent out of court in consultations, preparing

pleadings and briefs, and status conferences, concern-

ing this case.

Consequently, the award of an attorney’s fee on be-

half of plaintiff is increased to the sum of $35,000.00.

Accordingly, summarizing, the award to plaintiff is

as follows:

Straight time and overtime owed by

defendant to plaintiff, plus liqui-

dated damages $22,164.28

Back pay owed by defendant to plaintiff

for years 1967 through 1974 39,081.46

Attorney’s fee } 35,000.00

$96,245.74

Otherwise, the Magistrate’s recommendations are

adopted as the judgment of the Court.

THUS DONE AND SIGNED, in Chambers, at

Shreveport, Louisiana, this 15th day of November,

1977.

50a

ls) BEN C. DAWKINS, JR.

BEN C. DAWKINS, JR.

UNITED STATES SENIOR

DISTRICT JUDGE

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

(Number and Title Omitted)

Filed: November 15, 1977

JUDGMENT

Considering the Special Master’s Report filed with

this Court on September 9, 1977, the objections to the

report and recommendations filed by plaintiff, inter-

venor, and defendant, and considering all pleadings

filed in this case, supported by briefs;

IT IS ORDERED, ADJUDGED AND DECREED that

there be judgment in favor of plaintiff Hewett M.

Reeves and against defendant International Tele-

S5la

phone and Telegraph Corporation in the sum of

Ninety-Six Thousand Two Hundred Forty-Five

Dollars and Seventy-Four Cents ($96,245.74).

IT IS FURTHER ORDERED that defendant Inter-

national Telephone and Telegraph Corporation im-

mediately reinstate Hewett M. Reeves to the former

position he held with the Company with all benefits he

would have received had he not been terminated il-

legally by defendant. All costs are to be borne by

defendant.

JUSTMENT ENTERED AND SIGNED, in

Chambers, at Shreveport, Louisiana, this 15th day of

November, 1977.

ls) BEN C. DAWKINS, JR.

BEN C. DAWKINS, JR.

UNITED STATES SENIOR

DISTRICT JUDGE

APPENDIX F

29 U.S.C. 216(b)

(b) Any employer who violates the provisions of

section 6 or section 7 of this Act shall be liable to the

employee or employees affected in the amount of their

unpaid minimum wages, or their unpaid overtime com-

52a

pensation, as the case may be, and in an additional equal

amount as liquidated damages. Any employer who vio-

lates the provisions of section 15(a)(3) of this Act shall

be liable for such legal or equitable relief as may be

appropriate to effectuate the purposes of section

15(a)(3), including without limitation employment, re-

instatement, promotion, and the payment of wages lost

and an additional equ+l amount as liquidated damages.

An action to recover the liability prescribed in either of

the preceding sentences may be maintained against any

employer (including a public agency) in any Federal or

State court of competent jurisdiction by any one or

more employees for and in behalf of himself or them-

selves and other employees similarly situated. No

employee shall be a party plaintiff to any such action

unless he gives his consent in writing to become sucha

party and such consent is filed in the court in which

such action is brought. The court in such action shall, in

addition to any judgment awarded to the plaintiff or

plaintiffs, allow a reasonable attorney's fee to be paid

by the defendant, and costs of the action. The right pro-

vided by this subsection to bring an action by or on be-

half of any employee, and the right of any employee to

become a party plaintiff to any such action, shall termi-

nate upon the filing of a complaint by the Secretary of

Labor in an action under section 17 in which (1) re-

straint is sought of any further delay in the payment of

unpaid minimum wages or the amount of unpaid over-

time compensation, as the case may be, owing to such

employee under section 6 or section 7 of this Act by an

53a

employer liable therefor under the provisions of this

subsection or (2) legal or equitable relief is sought as a

result of alleged violations of section 15(a)(3).

29 U.S.C. 203(m)

(m) “Wage” paid to any employee includes the

reasonable cost, as determined by the Secretary of

Labor, to the employer of furnishing such employee

with board, lodging, or other facilities, if such board,

lodging, or other facilities are customarily furnished by

such employer to his employees: Provided, That the cost

of board, lodging, or other facilities shall not be in-

cluded as a part of the wage paid to any employee to the

extent it is excluded therefrom under the terms of a

bona fide collective-bargaining agreement applicable to

the particular employee: Provided further, That the Sec-

retary is authorized to determine the fair value of such

board, lodging, or other facilities for defined classes of

employees and in defined areas, based on average cost

to the employer or to groups of employers similarly sit-

uated, or average value to groups of employees, or

other appropriate measures of fair value. Such evalua-

tions, where applicable and pertinent, shall be used in

lieu of actual measure of cost in determining the wage

paid to any employee. In determining the wage of a

tipped employee, the amount paid such employee by his

employer shall be deemed to be increased on account of

tips by an amount determined by the employer, but not

by an amount in excess of 40 per centum of the appli-

cable minimum wage rate, except that the amount of

¢%>

54a

employer may not exceed the value of tips actually re-

ceived by the employee. The previous sentence shall

not apply with respect to any tipped employee unless

(1) such employee has been informed by the employer

of the provisions of this section, and (2) all tips re-

ceived by such employee have been retained by the

employee, except that nothing herein shall prohibit the

pooling of tips among employees who customarily and

regularly receive tips.

29 C.F.R. 778.217(d)

(d) Payments for expenses personal to the employee. The

expenses for which reimbursement is made must, in

order to merit exclusion from the regular rate under

this section, be expenses incurred by the employee on

the employer’s behalf or for his benefit or conveni-

ence. If the employer reimburses the employee for ex-

penses normally incurred by the employee for his own

benefit, he is, of course, increasing the employee’s reg-

ular rate thereby. An employee normally incurs ex-

penses in travelling to and from work, buying lunch,

paying rent, and the like. If the employer reimburses

him for these normal everyday expenses, the payment

is not excluded from the regular rate as “reimburse-

ment for expenses.” Whether the employer “reim-

burses” the employee for such expenses or furnishes

the facilities (such as free lunches or free housing), the

amount paid to the employee (or the reasonable cost to

the employer or fair value where facilities are fur-

55a

nished) enters into the regular rate of pay as discussed

in §778.116. See also §531.37(b) of this chapter.

APPENDIX G

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

HEWETT M. REEVES,

Plaintiff,

versus CA No. 13,234

INTERNATIONAL TELEPHONE AND

TELEGRAPH CORPORATION,

Defendant,

PETER J. BRENNAN, Secretary of Labor,

United States Department of Labor,

Intervenor.

MOTION

NOW INTO COURT, through undersigned counsel,

comes INTERNATIONAL TELEPHONE AND TELE-

GRAPH CORPORATION (“ITT”), and respectfully

shows that:

56a

The judgment of the District Court in this matter

was entered November 15, 1977.

Hewett M. Reeves (“Reeves”) appealed from that

judgment, and ITT filed a cross appeal.

By opinion dated May 15, 1980 (a copy of which is

attached) the United States Court of Appeals for the

Fifth Circuit amended and affirmed the judgment of

the District Court.

The Fifth Circuit found Reeves to be entitled to the

following: straight time and overtime pay, plus liqui-

dated damages, in the amount of $22,164.28; back pay

for the years 1967 through 1974, plus liquidated dam-

ages, in the amount of $93,241.30; attorney’s fees of

$40,000.00; for a total award of $155,405.58.

Reeves’ petition for rehearing in the Court of

Appeals was denied, and on July 3, 1980, the opinion of

the Fifth Circuit became its mandate.

57a

Reeves, through counsel, claims entitlement to legal

interest on his award of $155,405.58 from November

15, 1977, until paid, and further contends he is entitled

to receive back pay and liquidated damages from 1975

until November 15, 1977, and full pay thereafter at the

rate of $32,375.00 per year (assuming sixty hour work

weeks), together with lost employee benefits.

Although the judgment of this Court as affirmed in

the mandate of the Fifth Circuit entitles Reeves to im-

mediate reinstatement and restoration of benefits, ITT

denies that Reeves is entitled to legal interest on his

award, and Reeves has shown no proof of entitlement

to back pay and liquidated damages for the years 1975

forward.

As more fully appears from the copy of the com-

plaint in the matter styled “Hewett M. Reeves v. Arco

Pipe Line Company,” Civil Action Number P-78-22-

CA on the docket of the U.S. District Court for the

Eastern District of Texas, Paris Division, attached as

Exhibit “A”, Reeves was employed for at least some

portion of the period from 1975 forward, and any

wages received by him during that period, plus any

award which he might receive as a result of his action

against Arco, would be required to be offset against any

potential liability of ITT.

58a

As more fully appears from the letter attached here-

to as Exhibit “B”, Reeves has been tendered reinstate-

ment by ITT in the position of Associate Field Engi-

neer at an annual salary of $19,900.00.

10.

ITT attaches hereto and tenders into the registry of

the Court the sum of $141,411.81 in satisfaction of the

mandate of the U.S. Court of Appeals for the Fifth Cir-

cuit, which sum has been calculated as follows: From

the award of $155,405.58 have been deducted FICA

Withholdings of $1,587.67 for the year 1980; Federal

Income Tax Withholdings of $11,540.56; and Louisiana

Income Tax Withholdings of $865.54.

11.

The mandate of the Fifth Circuit is therefore satis-

fied to the extent of Reeves’ monetary award for

straight time, overtime and back pay owed him for the

years 1967 through 1974, together with liquidated

damages and attorney’s fees.

12.

Therefore, the supersedeas bond filed in this pro-

ceeding by ITT February 9, 1978, should be ordered

cancelled.

59a

13.

In order properly to determine the value of any

retroactive employee benefits to which Reeves may be

entitled and to determine the amount of back wages

and liquidated damages due him, if any, for the years

1975 forward, an evidentiary hearing should be

scheduled.

WHEREFORE, APPEARER MOVES:

a) That the Clerk of this Court be directed to re-

ceive the tender of $141,411.81 in satisfaction of the

mandate of the U.S. Court of Appeals for the Fifth Cir-

cuit in this matter and to hold that sum in the registry

of the Court pending further order of Court;

b) That the Court fix an evidentiary hearing for the

purpose of implementation and clarification of the

mandate of the U.S. Court of Appeals for the Fifth Cir-

cuit respecting the value of any retroactive employee

benefits due Reeves and his entitlement to back wages

and liquidated damages, if any, for the years 1975 for-

ward; and

c) That the supersedeas bond filed in this matter by

ITT February 9, 1978, be cancelled.

60a

COOK, YANCEY; KING

& GALLOWAY

Is} Sidney E. Cook

Sidney E. Cook

600 Commercial National Bank

Bldg.

Shreveport, Louisiana 71101

CERTIFICATE

I HEREBY CERTIFY that a copy of the above and

foregoing has been served upon all counsel of record by

placing same in the United States mail, properly ad-

dressed and postage prepaid thereon.

Shreveport, Louisiana, this 16th day of July, 1980.

Is! Sidney E. Cook

OF COUNSEL

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.