By Christopher DeGroff and Gerald L. Maatman, Jr.

Employers sued by the EEOC under the ADA litigate with the threat of the full weigh of the government being brought to bear upon them.  But the tables were turned on the EEOC recently in a rare decision by the U.S. District Court for the District of New Mexico in EEOC v. Tricore Reference Laboratories (Case No. 09-CV-956 (D.N.Mex. April 27 2011), where Judge John Conway awarded attorneys’ fees to the employer prevailing on summary judgment. The ruling follows on the heels of other fee sanction awards recently entered against the EEOC.

In EEOC v. Tricore, the Commission claimed that the employer failed to reasonably accommodate Rhonda Wagner-Alison’s disability and ultimately terminated her based on her disability, all in violation of the Americans With Disabilities Act.  Wagner-Alison’s job duties as a phlebotomist included standing and walking – functions that the EEOC eventually admitted she simply could not perform.  Tricore attempted to accommodate Wagner-Alison’s condition by moving her into a temporary data-entry position that did not involve standing or walking.  The EEOC could not dispute that Wagner-Alison committed numerous errors in that new position, so many so that Tricore ultimately had to fire her.  Given these fatal flaws in the EEOC’s case, the Court granted summary judgment for Tricore.  Tricore then filed a motion for an “Order Deeming the EEOC’s Claims as Frivolous, Unreasonable, or Without Foundation.”

Like the recent decision in EEOC v. Peoplemark, Inc., the Court in Tricore applied the well-established standard from Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), that “[w]here a claim is initially viable but later becomes frivolous, unreasonable, or groundless,” a defendant may recover  attorneys’ fees if the plaintiff – here, the EEOC – continues to pursue those claims.  The Court observed that “despite…black-letter law, with which the EEOC is presumably intimately familiar,” it nevertheless pursued a failure to accommodate theory even though it answered a set of Rule 34 requests to admit that gutted its claim.  Likewise, defense counsel for Tricore sent the EEOC a letter specifically cataloging how it could not support its unlawful termination claim.  The EEOC ignored the letter and nevertheless pressed on in the litigation.  Since the EEOC knew or should have known its case was – as the Court put it, “frivolous, unreasonable and without foundation”  – it was deemed responsible for Tricore’s attorney’s fees.  The exact amount of those fees is to be set in subsequent proceedings.

The EEOC is an aggressive litigator and only reluctantly throws in its hand.  EEOC v. Tricore represents another example of how employers faced with hard line EEOC tactics must maintain their composure and methodically chronicle their discovery efforts to be reasonable.  Although there may be a perceived tactical disadvantage to telegraphing defense arguments, EEOC v. Tricore shows that highlighting the fatal flaws in an EEOC case may work to the employer’s advantage in the end.