EEOC just declared again that, as outlined in MD-110, an award of attorney’s fees “may be reduced where the quality of representation was poor, the attorney’s conduct resulted in undue delay or obstruction of the process, or where settlement likely could have been reached much earlier but for the attorney’s conduct.” This issue arose in a reasonable accommodation case filed to get the employee one more day of telework a week where the employee’s attorneys said that 16 attorneys and 22 paralegals did work on the case. We would have slashed the fees for that reason alone.  But the agency did not seem to argue such a massive division of labor was reasonable for what otherwise looks like a straight-forward case.  (Remember, although we at Fedsmill strongly support reasonable fees for employee and union attorneys, we have said for a while excessive, absurd demands are going to kill this proverbial golden egg laying goose.) Rather, the Commission upheld reducing the fees because the attorneys’ behavior delayed closure of the case. Agencies are going to jump all over this reason for reducing fees because often the attorney’s behavior is unreasonable.  For example,

assume an employee’s attorney refuses to move a case with back pay potential quickly to a hearing.  That often results in the agency having to reimburse the employee far more than a timely hearing would have required Consequently, shouldn’t the attorney’s fees be reduced for that delay?  (We doubt the employee in this hypothetical was happy either having to wait years rather than perhaps months to get her job back.)

If an employee’s attorney demands and gets thousands of pages of documents, but then does not use anything from them in presenting the employee’s case (or even show that he analyzed them), shouldn’t the attorney be denied fee for the time spent reviewing the documents?

In this particular EEOC decision the attorney had his fees reduced for unprofessional behavior in the hearing, which we will admit is extremely rare in our experience.  EEOC wrote,

In her March 18, 2015 “Order of Dismissal of Hearing Request,” the AJ sets forth in detail some of Attorney-G’s actions. For example, while questioning the Agency’s Director of Diversity and Inclusion, he badgered the witness by raising his voice, standing close to her, and exhibiting a confrontational demeanor. According to the AJ, “[b]ecause of his threatening conduct, I had to stop the hearing, and told [Attorney-G] to leave and take some time to compose himself.” However, when he returned, the AJ stated that Attorney-G “began shouting at the top of his voice” and “gesticulate[ing] with his hands and arms in a very aggressive manner while rapidly approaching the witness.” The AJ explained that she again admonished Attorney-G and asked that he leave. He did so, but “slammed the doors in such a manner that caused a loud bang and made the room walls tremble.” As a result, the witness “began sobbing and shaking, fearing for her safety.” Agency counsel, noted the AJ, “was also visibly shaken and distressed. …” Agency employees, who had heard Attorney-G’s “shouting and violent slamming of the conference room doors” began gathering in front of the room to learn what happened. Even when he later returned to the conference room, the AJ observed that he “remained very upset”, “spoke in a belligerent manner”, and kept interrupting her in an effort to make a statement on the record. The AJ, however, closed the hearing. While preparing to leave, the court reporter described the incident as “terrifying” and commented that in all her years of court reporting she had never witnessed such outrageous behavior by an attorney.

A review of the hearing transcript reveals that the AJ consciously chose not to issue a sanction at the time of the incident, noting that “everyone is very upset”, “everyone is very emotional right now.” Instead, she took the time to reflect upon the events, considered both a letter of apology from Attorney-G and a Motion for Sanctions by the Agency, and issued her Order months later. We agree with the AJ that Attorney-G engaged in contumacious conduct that was disrespectful, threatening, and insulting to both those participating in the hearing and the process itself. Not only did Attorney-G’s behavior rob Complainant of the fruits of the hearing, but also a possible earlier finding of discrimination by the AJ.3 As set forth in EEOC’s Management Directive 110 (MD-110), an award of attorney’s fees “may be reduced where the quality of representation was poor, the attorney’s conduct resulted in undue delay or obstruction of the process, or where settlement likely could have been reached much earlier but for the attorney’s conduct.”…,.

Moreover, the AJ specifically found that at no point during the hearing, even in light of her repeated admonishments, did Attorney-G’s associates “try to intervene on behalf of their client to counsel [Attorney-G] on his actions and prevent further escalation of the incident.” To the extent that Complainant argues that counsel was already sanctioned by the dismissal of the hearing and the denial of associated fees would constitute an unfair, additional sanction, we disagree. The dismissal of the hearing resulted in a detriment to Complainant, while the denial of fees for the time at hearing is more appropriately directed toward Complainant’s counsel and focused upon the conduct at issue. Therefore, we find that exclusion of, not simply Attorney-G’s hours at the hearing, but all hours expended by Complainant’s counsel, is appropriate.4 Therefore, we find the Agency’s disallowance of the time spent at hearing was proper. (See Doria v. Cordova, NSF, EEOC No. 0120181319 (2019).

Given that the Trump FLRA appointees are frothing from every aperture with excitement to reduce union attorney fees wherever possible, union would be wise to tighten up their hearing practices to avoid agencies raising the “undue delay and obstruction behavior” grounds for reducing fees.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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