Daily Labor Report®

EEOC May Owe Union’s Legal Fees in Mediator Dismissal Case (2)

March 29, 2019, 6:27 PMUpdated: March 29, 2019, 9:56 PM

A union that represents government employees may recoup its attorneys’ fees for helping an ousted Equal Employment Opportunity Commission mediator get his job back, the Federal Circuit ruled March 29.

The arbitrator who granted reinstatement to David Hamilton failed to explain why AFGE Local 3599 wasn’t entitled to attorneys’ fees as the prevailing party, the appeals court said. That left no way to tell whether a valid reason existed for denying the award, the court said.

“The Federal Circuit remanded the case because the arbitrator denied the attorney fee petition without giving an explanation why—and it is the arbitrator’s job to explain such a denial,” said Deborah Hopkins, executive director of the Federal Employment Law Training Group.

The court’s ruling means that the case goes back to the arbitrator to either explain why the fees were denied or award fees, Hopkins said. Her group trains federal agency managers on matters of employment law.

Sharon Baker, the president of the local, told Bloomberg Law she “was curious about why we didn’t get the fees” when Hamilton prevailed in getting reinstated.

“We thought we should get the fees and our attorney thought so, too,” Baker said. The local is happy with the court’s decision, she added.

The Department of Justice, which represented the EEOC, declined to comment on the ruling.

Removed for Erratic Behavior

Hamilton, a 20-year EEOC employee, was removed from his position following a one-time incident during which he “began to act erratically” during a mediation session. Hamilton allegedly started spouting racial slurs and became physically violent. He denies the allegations.

In ordering Hamilton’s reinstatement, the arbitrator found the EEOC didn’t show his behavior adversely affected its reputation, Judge William Curtis Bryson said. The arbitrator also found that the EEOC failed to consider Hamilton’s previously discipline-free tenure and that his behavior “was caused by his obvious medical condition,” Bryson said.

Whether to award a successful party attorneys’ fees following union arbitration is generally within the discretion of the arbitrator, the judge said. The denial of such an award typically won’t be overturned absent evidence that it was legally deficient in some way, he said.

But arbitrators, like administrative bodies, have a general duty “to articulate a rational explanation” for fee awards and other rulings, the Federal Circuit said. The failure to do so may sometimes be excused when the reason is clear. “But this is not such a case,” the court said.

The EEOC presented the arbitrator with two possible bases for denying the union its fees. It’s unclear which of those bases the union relied on, Bryson said. Moreover, one reason was premised on the EEOC’s mistaken reading of its contract with the union, he said.

Further proceedings are necessary to make sure that arbitrator’s fees denial was not based on that mistaken ground, the court said.

Judges Richard G. Taranto and Kara Farnandez Stoll joined the opinion.

Barbara B. Hutchinson represents AFGE Local 3599. The Justice Department’s Civil Rights Division represents the EEOC.

The case is AFGE Local 3599 v. EEOC, Fed. Cir., No. 18-01888, 3/29/19.

(Updated with additional comment.)

To contact the reporters on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com; Louis C. LaBrecque in Washington at llabrecque@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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