OCAHO Orders Hospital to Pay Attorney’s Fees in Doctor’s Discrimination Case

The Office of the Chief Administrative Hearing Officer (OCAHO), one of three adjudicative components within the Executive Office for Immigration Review (EOIR), is charged with, among other things, adjudicating unfair immigration-related employment practices claims under INA § 274B [8 USCA § 1324b]. In John A. Breda v. Kindred Braintree Hospital, LLC, 10 OCAHO 1202 (Oct. 10, 2013), OCAHO Administrative Law Judge (ALJ) Ellen K. Thomas entered a cease and desist order against a hospital found to have retaliated against a doctor, John A. Breda, for having filed a discrimination complaint with the Department of Justice’s (DOJ’s) Office of Special Counsel for Unfair Immigration-Related Employment Practices (OSC).1 ALJ Thomas has now ordered Kindred Braintree Hospital, LLC (KBH) to pay Dr. Breda $2,312 in attorney’s fees, Breda v. Kindred Braintree Hospital, 11 OCAHO 1225 (Aug. 26, 2014).

John A. Breda, M.D., a U.S. citizen, filed a complaint alleging that KBH retaliated against him in violation of INA § 274B(a)(5) [8 USCA § 1324b(a)(5)] because he previously filed a discrimination charge with the OSC, which is responsible for enforcing the INA’s antidiscrimination provision. Breda also filed a civil lawsuit against KBH in the Superior Court of the Commonwealth of Massachusetts, charging KBH with breach of contract and deceptive practices under Massachusetts law. KGH filed an answer to Breda’s Massachusetts complaint together with a counterclaim seeking damages and attorney’s fees. The Superior Court for the Commonwealth of Massachusetts issued a ruling in December 2011, finding that KBH had no valid counterclaim and that the purported counterclaim was properly a post-adjudicatory motion and not a cause of action. Thereafter, Breda filed a second OSC charge and the OSC subsequently sent Breda a letter advising him that he had the right to file a complaint with OCAHO, which he did, asserting that KBH’s counterclaim in the Massachusetts action was made in retaliation for his filing his original OSC charge. ALJ Thomas found that review of the multiple paragraphs of KBH’s counterclaim referring to Breda and his OSC charge reflected a strong animus against Breda for filing the OSC charge, and that Breda suffered an adverse action in having to pay at least $13,996 to defend against KBH’s unjustified counterclaim. As relief, ALJ Thomas ordered, among other things, that KBH cease and desist from pursuing either by counterclaim or by post-adjudicatory motion any damages, costs, attorney’s fees, penalties, or other relief against Dr. Breda based on the fact that he filed a charge with the OSC, remove any negative or derogatory information from Dr. Breda’s personnel file or other records, educate its human resource personnel about the requirements of 8 USCA § 1324b(a)(5), and prominently post a proscribed notice of the OCAHO order and of the protections afforded KBH employees under federal law in a minimum of six locations within the KBH facility for a minimum period of 180 consecutive days. Dr. Breda was given until November 15, 2013, to file a petition for attorney’s fees pursuant to 8 USCA § 1324b(h), which he did.

INA § 274B(h) provides that an award of reasonable attorney’s fees may be made “if the losing party’s argument is without reasonable foundation in law and fact.” Dr. Breda sought $2,362.19 in attorney’s fees which included $51.19 in shipping costs billed by his attorney. KBH argued that Dr. Breda was not entitled to a fee award at all because he could not meet the statutory standard for an award of fees in that (1) he was not the prevailing party on his “primary damage claim,” (2) KBH’s position was not without reasonable foundation in law and fact and Dr. Breda mischaracterized the nature of KBH’s counterclaim in the Massachusetts action, which was not retaliatory, and (3) Breda’s itemization of shipping costs was inconsistent with an affidavit Breda filed with the Massachusetts court, and that, in any event, OCAHO lacks the authority to award costs.

ALJ Thomas opined that Dr. Breda was clearly the prevailing party in his OCAHO retaliation case and the fact that he did not prevail in some other case was of no consequence. Moreover, she said, KBH’s assertion that its counterclaim against Dr. Breda in the Massachusetts court was not retaliatory simply reflected its disagreement with the findings made in OCAHO’s final decision and order on the merits, which specifically found not only that KBH’s counterclaim was retaliatory on its face but also found that it lacked any basis in law or fact. She found the billing rate of $340 per hour for Dr. Breda’s attorney, Douglas C. Reynolds, a member of the Massachusetts bar since 1973, to be eminently reasonable. Moreover, she said, the number of hours Mr. Reynolds expended (fewer than seven) was “exceedingly modest” and she noted that the invoices reflected that some of his services were provided without charge. ALJ Thomas also observed that while a number of OCAHO decisions have awarded prevailing parties the costs and incidental expenses of litigation “as a matter of course without discussion,” that practice has been called into serious question as neither the statute nor the regulations makes any mention of costs or incidental expenses, but rather are addresses solely to attorney’s fees. Accordingly, she found that Beda was entitled to an award of actual attorney’s fees, $2,312, together with interest for any period in which the fees remain unpaid after the expiration of 30 days, but that each party must be responsible for its own incidental expenses.

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