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49:1403(127)AR - - AFGE, Local 2241 and VA Medical Center, Denver, CO - - 1994 FLRAdec AR - - v49 p1403

[ v49 p1403 ]
The decision of the Authority follows:

49 FLRA No. 127





LOCAL 2241










June 21, 1994


Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to a supplemental award of attorney fees of Arbitrator Donald H. Wollett filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition to the Union's exceptions.

The Arbitrator granted in part and denied in part the Union's request for attorney fees. For the following reasons, we conclude that the award is deficient and must be remanded to the parties for resubmission to the Arbitrator.

II. Background and Supplemental Award

In the underlying grievance, the grievant challenged a 14-day suspension for allegedly abusing a patient. In the original award, the Arbitrator denied the grievant's claim that the Agency's decision to suspend him was based on racial discrimination, but found that the Agency violated the parties' collective bargaining agreement when it suspended the grievant without just cause. The Arbitrator awarded the grievant back pay and ordered the Agency to remove "all adverse entries" regarding the incident in question from the grievant's personnel files. Exceptions, Exhibit B at 10. No exceptions were filed to the Arbitrator's award. Subsequently, the Union moved for attorney fees pursuant to the Back Pay Act, 5 U.S.C. § 5596.

In a supplemental award, the Arbitrator found that the statutory requirements for an award of attorney fees were met.(1) However, the Arbitrator denied all fees relating to the grievant's racial discrimination claim. According to the Arbitrator, that claim was unrelated to the "significant issue" of whether the Agency had just cause for the suspension and, as the grievant did not prevail on his discrimination claim, he was not entitled to attorney fees for that claim. Supplemental Award at 6.

III. Positions of the Parties

A. Union

The Union argues that the portion of the award denying attorney fees for the grievant's discrimination claim is contrary to law. In particular, the Union asserts that the Arbitrator misapplied the Supreme Court's decision in Hensley v. Eckerhart, 461 U.S. 424 (1983) (Hensley). In this regard, the Union argues that the grievance asserted only one claim--that the suspension was improper--and that the grievant was successful on that claim. The Union contends that, although the grievant raised several arguments in support of its claim, "[t]he fact that not all the issues raised were successful does not detract from the [grievant's] overall success . . . ." in the grievance. Exceptions at 4. According to the Union, the Authority and the Merit Systems Protection Board (MSPB)(2) hold that attorney fees may be awarded for work performed on an unsuccessful discrimination claim "so long as the employee prevails on the personnel action which is the subject of the appeal." Id. at 5.

B. Agency

The Agency claims that the award is not contrary to law because the grievance concerned two unrelated claims which were supported by separate facts and evidence. In this connection, the Agency contends that one claim disputed the suspension and sought its recision, while the other claim alleged that the Agency discriminated against the grievant. Relying on Hanson v. Department of Transportation, Federal Aviation Administration, 28 MSPR 176 (1985) (Hanson), the Agency maintains that, in applying Hensley, the MSPB has held that where a prevailing party's separate claims "are based on different facts and legal theories, time spent on unrelated claims where the party does not prevail should not be compensated." Opposition at 3.

IV. Analysis and Conclusions

For the following reasons, we conclude that the Arbitrator's award is deficient insofar as it denies the requested attorney fees for work performed on the grievant's racial discrimination claim. As relevant here, in addressing whether a litigant may recover attorney fees, the Supreme Court stated in Hensley that "[w]here the plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee." Hensley, 461 U.S. at 440. However, the Court further stated that "[l]itigants in good faith may raise alternative legal grounds for a desired outcome, and the court's rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee." Id. at 435. The Court distinguished the latter situation from one where the prevailing party's different claims for relief are based on different facts and legal theories and held that, where a plaintiff fails to prevail on a claim that is distinct in all respects from a successful claim, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee. See id. at 440. The Court emphasized, however, that "[w]here a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have [the] attorney's fee reduced simply because the district court did not adopt each contention raised." Id. The Court stated that when a plaintiff's claims for relief involve a common core of facts, or are based on related legal theories, the "lawsuit cannot be viewed as a series of discrete claims." Id. at 435. The Court stated further, as follows:

Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation, and indeed in some cases of exceptional success an enhanced award may be justified. In these circumstances the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit. . . . Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court's rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee. The result is what matters.

Id. (Citation omitted, footnote omitted).

In this case, it is clear that the grievant's claims arose solely from the Agency's decision to impose the suspension. See Exceptions, Exhibit B at 9 (Arbitrator stated that "the act being challenged is the 14-day suspension."). Although the grievant alleged both that the suspension was issued without just cause, in violation of the parties' agreement, and was based on racial discrimination, the grievant's claims were intertwined in that they constituted parts of a single action challenging the 14-day suspension. In these circumstances, the racial discrimination claim is not distinct in all respects from the grievant's successful claim that the suspension violated the parties' agreement, and attorney fees for the racial discrimination claim are warranted. See Morgado v. Birmingham-Jefferson County Civil Defense Corps, 706 F.2d 1184, 1193 (11th Cir. 1983) (citations omitted), cert denied, 464 U.S. 1045 (1984). See also United States Department of Treasury, Internal Revenue Service, Austin Compliance Center, Austin, Texas, 48 FLRA 1281, 1297 (1994) (IRS, Austin Compliance Center).

Moreover, the grievant recovered essentially the same relief on his successful claim that he would have recovered on his discrimination claim. In particular, the Arbitrator ordered the disputed suspension revoked, awarded back pay, and directed the Agency to remove all entries relating to the incident and suspension from the grievant's records. The Arbitrator acknowledged, and the parties do not dispute that the grievant "achieved most of the benefits he sought . . . ." in filing the grievance. Supplemental Award at 6. As such, an award of fees incurred in connection with both claims is warranted. See Dominic v. Consolidated Edison Company of New York, Inc., 822 F.2d 1249, 1259-60 (2nd Cir. 1987).

For the foregoing reasons, consistent with Hensley, we conclude that the Arbitrator erred by reducing the fee award to exclude fees incurred in connection with the discrimination claim. That is, we conclude that the Union is entitled to recover fees in connection with both the contract and the discrimination claim. See IRS, Austin Compliance Center, 48 FLRA at 1297. Accordingly, we will set aside the portion of the award denying the fees relating to the discrimination claim and we will remand the question of the reasonableness of the request for fees on that claim to the parties to obtain from the Arbitrator a reasoned decision on this issue. See id.

V. Decision

The portion of the Arbitrator's award denying the Union's request for attorney fees for time expended on the grievant's claim of racial discrimination is deficient. We remand that portion of the award to the parties for further proceedings consistent with this decision.

(If blank, the decision does not have footnotes.)

1. The fees were awarded under the standards of 5 U.S.C. § 7701(g)(1), which requires generally that an employee be the prevailing party, the award of fees must be warranted in the interest of justice, the fees must be reasonable, and the fees must have been incurred by the employee.

2. The Union cites U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center, Washington, D.C. and American Federation of Government Employees, Local 3407, 47 FLRA 1187 (1993); Morey v. Department of Navy, 55 MSPR 604 (1992); Overseas Education Association and U.S. Department of Defense, Dependents Schools, 39 FLRA 1261 (1991) (Overseas Education Association); and Robinson v. Department of Health and Human Services, 32 MSPR 683 (1987), among others.