AFGE Local 3599 v. Equal Employment Opportunity Commission, No. 18-1888 (Fed. Cir. 2019)Annotate this Case
Hamilton had been employed by the EEOC for 20 years, with no disciplinary problems, until one day in 2016, when, while engaged in mediation, he suddenly began using racial epithets, engaging in physical violence, and refusing to follow orders. The EEOC removed him from federal service. The union filed a grievance, which led to arbitration. During a hearing, the EEOC called 11 witnesses; the union called Hamilton. Although the arbitrator found that certain aspects of the EEOC’s case had not been proved, he credited the testimony of EEOC witnesses to conclude that Hamilton “had a major physical and/or mental breakdown.” Because Hamilton denied taking any of the actions he was charged with, the arbitrator concluded that Hamilton “did not remember.” The arbitrator found that the EEOC had not shown that Hamilton’s behavior had any negative effect on its reputation and had failed to consider that Hamilton’s behavior “was caused by his obvious medical condition,” and set aside Hamilton’s removal, awarding back pay. The arbitrator denied the union’s request for arbitration costs and attorney fees. The Federal Circuit vacated the denial of attorneys’ fees; 5 U.S.C. 7701(g) provides that an adjudicator may require an agency to pay the employee’s reasonable attorney fees if the employee is the prevailing party and the adjudicator determines that payment by the agency “is warranted in the interest of justice.” On remand, the arbitrator must reconsider the issue and include a statement of reasons.