783 F.2d 6 (1st Cir. 1986), 85-1764, Diver v. Goddard Memorial Hosp.

Docket Nº85-1764.
Citation783 F.2d 6
Party NameJoan DIVER, Plaintiff, Appellant, v. GODDARD MEMORIAL HOSPITAL, Defendant, Appellee.
Case DateFebruary 05, 1986
CourtUnited States Courts of Appeals, United States Court of Appeals (1st Circuit)

Page 6

783 F.2d 6 (1st Cir. 1986)

Joan DIVER, Plaintiff, Appellant,



No. 85-1764.

United States Court of Appeals, First Circuit

February 5, 1986

Submitted Jan. 8, 1986.

Helen Horn Figman and Lipman & Figman, Brockton, on brief, for plaintiff, appellant.

Pamela J. Wood, Joseph E. O'Leary and Choate, Hall & Stewart, Boston, Mass., on brief, for defendant, appellee.

Before COFFIN, Circuit Judge, ROSENN, [*] Senior Circuit Judge, and BOWNES, Circuit Judge.


In addition to competence and skill, a successful advocate brings a reasonable amount of enthusiasm and tenacity to the client's cause. A lawyer, however, must temper energy with good judgment, know when to pursue litigation and when to cease the pursuit. The present case, in which the plaintiff's counsel claims to have spent what seems an inordinate portion of her time on a minor part of her client's lawsuit, appears to be an example of unchecked enthusiasm. Among the hazards of such a lack of judgment, as shown in this appeal for an increased award of attorney's fees, is the risk that payment will not be shifted to the other party if one's efforts are unsuccessful.

Joan Diver worked as a secretary for Goddard Memorial Hospital (the Hospital) from May 1982 until she was discharged in August 1983. Following her dismissal, Diver sued the Hospital in the United States District Court for the District of Massachusetts, alleging that she had been fired in breach of her employment contract and in retaliation for a complaint she had made to the United States Department of Labor about the Hospital's overtime policy. She also claimed that she was owed overtime. 1 Her claims aggregated $125,000. After a seven-day trial, a jury awarded her $369 overtime over and above the $1659 which the Hospital offered following a Department of Labor investigation. Diver did

Page 7

not prevail on her other claims of retaliatory discharge and breach of contract.

Diver sought approximately $25,000 attorney's fees as the prevailing party in a labor action, 29 U.S.C. Sec. 216(b) but the district court awarded her a fee of $1,000 for her partial and nominal victory. She appeals, seeking a larger award of attorney's fees. We affirm.


After working several months as a secretary at the Hospital, Diver requested and received a transfer because of a personality conflict with her supervisor. She was assigned duties as a secretarial floater and in September 1982 commenced an assignment as a secretary in a newly-created ambulatory department. Diver complained repeatedly to her supervisors that her new responsibilities in this department required lengthy hours of overtime for which she was not paid. Her supervisors checked her time cards and determined that she had been correctly compensated for the time she had recorded. At trial, Diver testified that she did not always punch her actual time on the time card, although she had been told to do so and that she would be paid only for the time recorded.

The Hospital asserts that it terminated Diver, after numerous attempts to counsel her and assist her, because of insubordination and the poor quality of her work. Diver said the Hospital fired her in retaliation for her criticism of its overtime policy and her threat to file an overtime complaint with the Department of Labor. Diver did file such a complaint the day she was fired, but apparently the jury did not believe her testimony that she suffered a retaliatory discharge.

The Department of Labor investigation revealed that the Hospital owed fifty-five employees overtime, mostly for nominal sums, and that it owed Diver $1659.54. The Hospital promptly tendered the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT