The Tenth Circuit Court of Appeals will require the Equal Employment Opportunity Commission (EEOC) to pay attorney’s fees of $140,000 for continuing to pursue litigation after it became clear that the agency’s claims could not be proved. EEOC v. TriCore Reference Laboratories (10th Cir. 2012).
The EEOC sued TriCore for disabilty discrimination and failure to accommodate on behalf of Rhonda Wagoner-Allison. Wagoner-Allison worked as a clinical lab assistant. Her job required her to stand and walk for one- to two-thirds of her normal eight-hour shift. Surgeries on Wagoner-Allison’s feet and ankles left her unable to stand for up to two-thirds of her normal shift. TriCore provided Wagoner-Allison with additional leave beyond her 12 weeks of FMLA leave and, although not obligated to do so, created a light-duty position for her on a trial basis. Wagoner-Allison made many errors in the modified position, however, some of which compromised patient safety. TriCore encouraged Wagoner-Allison to apply for other open positions, and terminated her when she did not.
The Tenth Circuit upheld the fee award based on evidence that the EEOC knew early on that its claims could not be successful. During the discovery phase, the EEOC conceded that Wagoner-Allison was unable to perform the essential functions of her job due to her inability to stand and walk for up to two-thirds of her work day. Also, following discovery, TriCore sent a letter outlining this and other flaws in the EEOC’s case and saying that it would pursue summary judgment and ask for attorney’s fees if the EEOC persisted. Still, the EEOC kept going.
The court said, “Substantiating the old saw that no good deed goes unpunished, the EEOC persisted in litigating this case in spite of clear evidence that TriCore went well beyond ADA requirements in trying to oblige an employee.”
The Tenth Circuit has jurisdiction over Colorado, Wyoming, Utah, Kansas, New Mexico, and Oklahoma.