Garcia v. Surprise, City of

Filing 62

ORDER AND OPINION that defendant's 52 Motion for Attorneys' Fees is denied. Signed by Judge John W Sedwick on 07/21/11.(ESL)

UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA

ROSEMARY GARCIA, et al.,
Plaintiffs,
vs.
CITY OF SURPRISE,
Defendant.

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2:09-cv-02671 JWS
ORDER AND OPINION
[Re: Motion at Docket 52]

I. MOTION PRESENTED
At docket 52, defendant the City of Surprise (“the City”) moves pursuant to Local
Rule 54.2, 42 U.S.C. § 2000e-5(k), and 28 U.S.C. § 1927 for an award of attorneys’
fees. Plaintiffs Apreel Nye (“Nye”) and Rosemary Garcia (“Garcia”; collectively
“plaintiffs”) oppose the motion at docket 60. Defendant’s reply is at docket 61. Oral
argument was not requested and would not assist the court.
II. BACKGROUND
Plaintiffs were detectives with the City of Surprise Police Department. Nye and
Garcia each asserted claims against the City for gender discrimination and retaliation
based on termination of their employment and based on their treatment during an
internal affairs investigation. Nye asserted a separate claim for gender discrimination

based on the City’s refusal to permit her to test for a special assignment. Garcia
asserted a separate claim based on discipline stemming from a traffic citation.
More detailed factual background is provided in the order and opinion at
docket 49. That order and opinion granted summary judgment in favor of defendant on
all claims.
III. DISCUSSION
A. Entitlement to an Award Under 42 U.S.C. § 2000e-5(k)
Section 2000e5-(k) of Title 42 provides that “[i]n any action or proceeding under
this subchapter the court, in its discretion, may allow the prevailing party . . . a
reasonable attorney’s fee . . . as part of the costs.”1 However, fees may not be routinely
awarded to a prevailing defendant. Rather, a district court may exercise its discretion to
award fees to a defendant “upon a finding that the plaintiff’s action was frivolous,
unreasonable, or without foundation, even [if] not brought in subjective bad faith.”2 An
action is without foundation if it has “no legal or factual basis.”3 The Supreme Court has
indicated that a complaint is frivolous “where it lacks an arguable basis in either law or
in fact.”4 The “inability to defeat summary judgment does not mean that [a plaintiff’s]
claims were groundless at the outset.”5

1

42 U.S.C. § 2000e-5(k).

2

Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978).

3

See Mitchell v. Office of Los Angeles County, 805 F.2d 844, 847 (9th Cir. 1986).

4

See Neitzke v. Williams, 490 U.S. 319, 325 (1989).

5

Karam v. City of Burbank, 352 F.3d 1188, 1196 (9th Cir. 2003).

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1. Discrimination Claims
a. Termination of Employment
Plaintiffs were unable to establish that similarly situated male officers were not
terminated after refusing to answer questions during an internal affairs investigation.6
Neither plaintiff, therefore, made a prima facie showing of discrimination with respect to
termination of their employment. However, the other elements of a Title VII
discrimination claim were present. Plaintiffs’ discrimination claims based on termination
of their employment therefore had an arguable basis in law and fact.
b. Treatment During Internal Affairs Investigation
Plaintiffs also claimed that they were discriminated against during the internal
affairs investigation. Defendants contended that conduct during an investigation does
not constitute an adverse employment action. The court declined to address
defendant’s contention in the order at docket 49. The court instead assumed that
plaintiffs had made out a prima facie case of discrimination, but granted summary
judgment in defendant’s favor because defendant provided a legitimate,
nondiscriminatory reason for its actions to which plaintiffs did not respond.7 In order to
determine whether plaintiffs’ claims had a legal basis, it is necessary to determine
whether defendant’s conduct could be considered an adverse employment action.
An adverse employment action is “any adverse treatment that is based on a
retaliatory motive and is reasonably likely to deter the charging party or others from

6

Doc. 49 at 6–7.

7

Id. at 8–9.

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engaging in protected activity.”8 The question is whether the treatment complained of
would dissuade employees from engaging in protected activity.9 Plaintiffs were required
to relinquish their weapons, cell phones, and recording devices while being interviewed.
Nye was not permitted phone calls to her mother, her child’s caretaker, or her attorney.
Garcia was interviewed five times. Although the actions complained of might be
considered adverse treatment, the setting was unique–plaintiffs were only treated that
way during an internal affairs investigation. Moreover, the investigation did not stem
from protected activity. Consequently, plaintiffs’ discrimination claims based on their
treatment during the investigation were without legal foundation.
c. Nye’s Application for a Special Assignment
The court granted summary judgment in the City’s favor with respect to Nye’s
separate discrimination claim because Nye did not show that the City’s legitimate,
nondiscriminatory reason for denying the special assignment was pretextual.10 The
court did not determine whether Nye had made out a prima facie case of discrimination.
Whether Nye did turns on whether two officers who received special assignments after
having been disciplined were similarly situated. Because that question is itself close,
Nye’s separate claim was not frivolous.

8

Ray v. Henderson, 217 F.3d 1234, 1242–43 (9th Cir. 2000) (internal quotations
omitted).
9

See id. at 1243.

10

Doc. 49 at 10.

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d. Garcia’s Discipline
The court granted summary judgment in the City’s favor on Garcia’s separate
discrimination claim because Garcia did not establish that similarly situated employees
were treated differently. However, Garcia’s individual claim had an arguable basis in
law and fact–disposition of the claim turned on the fact that Garcia did not establish that
she contested her traffic citation, whereas two male officers clearly had. Consequently,
Garcia’s separate claim was not frivolous or without foundation.
2. Retaliation Claims
Garcia and Nye claimed that they were retaliated against because they had
personal relationships with Atwell. Defendant correctly argues that personal
relationships are not “protected activity” under 42 U.S.C. § 2000e-3. Plaintiffs respond
that their retaliation claims were not based on their relationships with Atwell, but
reporting acts of discrimination. It is clear from the face of Garcia’s complaint that her
retaliation claim was based on the notion that the City retaliated against her because of
her relationship with Atwell.11 Garcia’s retaliation claim was therefore frivolous.
Nye also asserted that she was retaliated against because of her personal
relationship with Atwell. However, Nye’s complaint also states that “she was retaliated
against because she filed a complaint of discrimination.”12 Defendant argues that Nye
had no basis to assert any causal relationship between her discrimination complaint and

11

Doc. 1 at 5–6.

12

Complaint at 5, Nye v. City of Surprise, No. 2:09-cv-2705 (D. Ariz. Dec. 30, 2009), ECF

No. 1.

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subsequent termination.13 The court concludes that although Nye was unable to
demonstrate that the City’s actions were pretextual, her individual retaliation claim was
not without an arguable basis in law or fact.
In sum, although some of plaintiffs’ claims were frivolous, on the whole the court
concludes that the consolidated action was not and declines to exercise its discretion to
award fees pursuant to 42 U.S.C. § 2000e-5(k).
B. Entitlement to an Award Under 28 U.S.C. § 1927
Section 1927 of Title 28 provides that “[a]ny attorney . . . who so multiplies the
proceedings in any case unreasonably and vexatiously may be required by the court to
satisfy personally costs, expenses, and attorneys’ fees reasonably incurred because of
such conduct.”14 Defendant has not demonstrated that plaintiffs’ counsel “knowingly or
recklessly raise[d] a frivolous argument.”15 Defendant is therefore not entitled to fees
under § 1927.
V. CONCLUSION
For the reasons above, defendant’s motion at docket 52 for attorneys’ fees is
DENIED.
DATED this 21st day of July 2011.
/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

13

See, e.g., Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1196–97 (9th
Cir. 2003).
14

28 U.S.C. § 1927.

15

See B.K.B v. Maui Police Dep’t, 276 F.3d 1091, 1107 (9th Cir. 2002).

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