The first paragraph of the Tenth Circuit’s recent decision in EEOC v. TriCore Reference Laboratories says: “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.”
When an appellate court talks about you like that at the beginning, it’s a good bet that the rest of the opinion isn’t going to be pleasant either. And for the EEOC, it certainly wasn’t.
The facts were these: An employee at TriCore had foot surgery, after which she could no longer perform some of the essential duties of her job as a clinical lab assistant, which required her to stand and walk. The nature of her job meant that no reasonable accommodation was possible. But TriCore, although the ADA did not require it to do so, offered the employee a light-duty desk job registering patients. The employee made lots of mistakes, thereby threatening patient safety. TriCore ended up terminating her employment.
The EEOC sued TriCore, alleging that it discriminated against the employee in violation of the ADA. The EEOC admitted that the employee could not perform the essential functions of the job. Therefore, to prove a violation, the EEOC had to show that a reasonable accommodation could be made that would allow her to perform those functions.
The trouble with the EEOC’s approach was that while the lawsuit was proceeding, it conceded (in response to requests for admission) that it could not demonstrate that any reasonable accommodation was possible. At that point, the EEOC should have recognized that its case was hopeless, but it continued to litigate the case, despite TriCore’s warning that it would seek attorney’s fees.
The District Court granted TriCore’s later motion for summary judgment, and awarded just over $140,000 in attorney’s fees against the EEOC because its claims against TriCore were frivolous.
Apparently not wanting to quit even when it was behind, the EEOC appealed, but the Tenth Circuit, in an opinion written by Judge Terence O’Brien, easily affirmed on the merits. In addition, the Court held that the EEOC’s appeal was frivolous, and authorized the trial court to award appellate attorney’s fees to TriCore on remand.
The lesson here is clear. Like Kenny Rogers said — You’ve got to know when to fold ‘em.
Congratulations to my partners Lisa Mann and Alex Walker, who obtained this excellent victory for their client, TriCore.
