A recent Law 360 story by Matthew Santoni, “Don’t Give Attys Fees for Losing ADA Award ‘Win’. Co. Says,” reports that a Pittsburgh claims administration and management company said that attorneys for a woman denied extra breaks for her post-traumatic stress disorder shouldn't get to claim a "win" and seek fees after a federal judge vacated a jury's $285,000 damage award in May.

Premier Comp Solutions said that under a contingency fee structure, Stember Cohn & Davidson-Welling LLC shouldn't be able to ask for the company to pay almost $312,000 in fees and $24,000 in costs, since their client, former billing assistant Beth Schirnhofer, hadn't actually won the case after the judge tossed the award.

"Having lost the case, they want to be rewarded while their client receives nothing," said Premier's brief in opposition to the fees.  "If a contingent fee lawyer does not win money for the client, he or she does not get paid a fee.  For some reason, plaintiff's counsel believe they should get paid a fee even though they lost."

U.S. District Judge Billy Roy Wilson had erased the jury's award of $35,000 in back pay and $250,000 in noneconomic damages following a trial in April, citing its affirmative answer to the question of whether the company would have fired Schirnhofer regardless of her alleged disability.

Under the Americans with Disabilities Act, Judge Wilson said, the court could grant declaratory relief, injunctive relief and attorney fees in verdicts, but not any compensatory or punitive damages when the jury believed there could have been some other reason for firing Schirnhofer, also known as a "mixed motive."

Premier argued Monday that fees were inappropriate if there were no awards for Schirnhofer.  "Plaintiff's counsel took the risk that they would not win.  They should not be allowed to avoid the consequences of losing," Premier's brief said.  "By requesting a mixed-motive instruction on plaintiff's disability discrimination claims, plaintiff's counsel caused plaintiff to lose out on the $285,000 jury verdict and potential punitive damages."

Schirnhofer sued Premier in 2016, saying her doctor had provided the company with paperwork detailing her need for extra breaks due to PTSD, but Premier refused to provide them.  Premier allegedly decided Schirnhofer's PTSD was a disability, but it just didn't warrant accommodation, her suit said.  Her later firing, the company said, was because she violated its social media policy with Facebook comments about committing suicide, complaints about her coworkers, and a picture of a woman with a gun — not out of retaliation for her complaints.

Stember Cohn had claimed that the ADA and case law had shown the firm could still seek compensation for fighting the contentious case, since the jury had rejected Premier's claims it did no wrong.

"In mixed motive cases the award of attorney's fees is a matter left to the discretion of the district court," the firm wrote in its June 11 brief. "A court may award fees absent monetary or other tangible relief."

Premier countered that there had been no relief at all for Schirnhofer, since all she had sought was money damages. Five of her 11 claims were tossed before trial, three were determined in Premier's favor, and the three disability discrimination claims were not an "outright win" for her because of the mixed-motive verdict, the company said. After the judge had thrown out the award, nothing had changed for Schirnhofer; no precedents had been set and no declaratory judgments were made, Premier argued.

"Plaintiff and her counsel's principal purpose in bringing this lawsuit was to recover money from defendant ... Plaintiff did not make any specific claim for declaratory, injunctive, or any other kind of equitable relief," Premier's brief said.  "Plaintiff received none of the relief she sought in her complaint.  Such a result could not, with a straight face, be called a 'success.' ... Accordingly, plaintiff's counsel should not be rewarded with fees or costs."

Premier also said Stember Cohn's strategy had harmed its client's case because they had asked for the mixed-motive jury question rather than trying to present the social-media policy issue as a pretext for Schirnhofer's firing.  The firm could not then claim fees for work that had cost its client an award in her favor, the company said.