Equal Employment Opportunity Commission v. Placer ARC

Filing 219

ORDER signed by District Judge Kimberly J. Mueller on 6/9/16 ORDERING that ARC's motion for attorneys' fees is DENIED. ARC's costs of $19,696.25 are taxed to the EEOC. This order resolves ECF Nos. 202 and 204 . (Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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UNITED STATES EQUAL
EMPLOYMENT OPPORTUNITY
COMMISSION,

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Plaintiff,

No. 2:13-cv-0577-KJM-EFB

ORDER

v.
PLACER ARC d/b/a PLACER
ADVOCACY RESOURCES & CHOICES,
Defendant.

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The U.S. Equal Employment Opportunity Commission (EEOC) sued Placer ARC

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on behalf of Homeyra Kazerounian, ARC’s former employee. The EEOC claimed ARC

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discriminated against Ms. Kazerounian because she is deaf. The EEOC also claimed ARC

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retaliated against Ms. Kazerounian after she requested sign-language interpreters and then forced

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her to quit, all in violation of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.

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§ 12101 et seq.

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The court granted ARC’s motion for summary judgment on the retaliation claim,

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and a jury trial was completed for the other two claims last December. The jury found that ARC

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had neither discriminated against Ms. Kazerounian nor forced her to quit. After the trial, ARC

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filed its bill of costs and requested an award of its attorneys’ fees. After reviewing the parties’
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briefing, the court determined a hearing would not be necessary, and the matter was submitted.

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ARC’s motion for attorneys’ fees is denied, and it is awarded $19,696.25 in costs.

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I.

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ATTORNEYS’ FEES
The ADA allows a court to award attorneys’ fees to a “prevailing party.”

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42 U.S.C. § 12205. The United States may be liable under this provision as would a private

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individual. Id. Both plaintiffs and defendants can be prevailing parties in ADA cases, but not

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every defendant who defeats an ADA claim is entitled to its fees. See, e.g., Kohler v. Bed Bath &

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Beyond of Cal., LLC, 780 F.3d 1260, 1266 (9th Cir. 2015) (citing Christiansburg Garment Co. v.

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Equal Emp’t Opportunity Comm’n, 434 U.S. 412, 418–19 (1978)). A defendant will receive an

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award only if it shows the plaintiff’s case was frivolous, unreasonable, or lacked any foundation,

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id., or if it became apparent the case fit this description midway through the litigation, but the

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plaintiff persevered nonetheless, Christiansburg, 434 U.S. at 422.

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Frivolousness is relatively difficult to prove; only in “exceptional circumstances”

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are prevailing defendants awarded their fees under the Christiansburg test. Harris v. Maricopa

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Cty. Superior Court, 631 F.3d 963, 971 (9th Cir. 2011). Certainly if the plaintiff pursued the case

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in bad faith, the defendant is entitled to its attorneys’ fees. Christiansburg, 434 U.S. at 422. But

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because a case may seem strong at the outset and weak in retrospect, the court must take care not

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to rationalize an award with the benefit of hindsight. Id. at 421–22. This is true even when a

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defendant secures summary judgment in its favor. Kohler, 780 F.3d at 1266–67. The facts may

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have been uncertain or the law in flux. Id.; Christiansburg, 434 U.S. at 421–22. Frivolous cases

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have been described as those with obvious results, “wholly without merit,” brought in the face of

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abundant contrary legal authority or without any evidentiary support. See, e.g., C.W. v.

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Capistrano Unified Sch. Dist., 784 F.3d 1237, 1245 (9th Cir. 2015); E.E.O.C. v. Glob. Horizons,

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Inc., 100 F. Supp. 3d 1077, 1091–92 (E.D. Wash. 2015).

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In this case, ARC secured partial summary judgment in its favor and a unanimous

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exonerating jury verdict, but it has not shown the EEOC’s case against it was frivolous,

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unreasonable, or without a factual or legal foundation. First, the jury credited the EEOC’s

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evidence to find that Ms. Kazarounian was qualified to perform the essential functions of her
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position, and the parties agreed she had a disability. See Verdict, ECF No. 197. Second, at

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summary judgment and trial, the EEOC presented evidence that would have allowed a reasonable

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jury to conclude that ARC discriminated against Ms. Kazerounian when it refused to provide her

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with a certified sign language interpreter and treated her more harshly than its hearing employees;

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ARC’s corresponding motions for summary judgment and a directed verdict were denied. See

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Order July 13, 2015, ECF No. 97; Minutes, ECF No. 192. And third, although ARC’s motion for

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summary judgment was granted with respect to the EEOC’s retaliation claim, the EEOC

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presented evidence that would have allowed a reasonable jury to find that soon after Ms.

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Kazerounian hired a lawyer and filed internal complaints, she received negative performance

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evaluations, was disciplined, and was threatened with termination. See Order July 13, 2015,

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at 16–17. ARC’s motion for summary judgment was granted because the EEOC relied too

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heavily on timing to establish ARC’s discriminatory intent. See id. at 17–18. Questions of

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circumstantial evidence like these rarely lend themselves to predictable answers; “the course of

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litigation is rarely predictable.” Christiansburg, 434 U.S. at 422.

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ARC protests that long before this case began, it forwarded the EEOC the very

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evidence the jury eventually believed. See Fees Mem. 3–7, ECF No. 205 (citing Global

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Horizons, 100 F. Supp. 3d at 1080). But as explained above, the EEOC also relied on a

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reasonable interpretation of the evidence and law when it decided to go forward with the case. In

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retrospect, ARC’s evidence may appear stronger, but the court cannot rely on hindsight to find the

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EEOC’s case was frivolous, foundationless, or unreasonable. ARC’s motion for attorneys’ fees

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and non-taxable costs is denied.

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II.

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BILL OF COSTS
Ordinarily, a prevailing party is awarded its costs other than attorneys’ fees; these

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costs “should be allowed.” Fed. R. Civ. P. 54(d)(1). Costs may be awarded against the United

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States and its agencies. See id. Local Rule 292 limits taxable costs to those enumerated in 28

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U.S.C. § 1920. E.D. Cal. L.R. 292(a); see also Crawford Fitting Co. v. J.T. Gibbons, Inc., 482

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U.S. 437, 442–443 (1987). A district court generally has discretion to determine what costs may

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be taxed under these rules. See Amarel v. Connell, 102 F.3d 1494, 1523 (9th Cir. 1997). The
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court also has discretion to refuse an award entirely. Ass’n of Mexican Am. Educators v. State of

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Cal., 231 F.3d 572, 591 (9th Cir. 2000). The court must explain its reasons for refusing to tax the

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prevailing party’s costs. Id. at 592.

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Here, ARC requests an award of $23,270.35 for its non-attorneys’-fee costs. Bill

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of Costs, ECF No. 202. The EEOC objects to ARC’s request for $2,200.00 in expert witness fees

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paid to Dr. Shana Williams and $1,454.10 in expert witness fees paid to James Brune, in both

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instances for their depositions. ECF No. 203. Expert witness fees are limited to the amount

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allowed by 28 U.S.C. § 1821(b), “$40 per day for each day’s attendance,” absent statutory or

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other authority to the contrary. Crawford Fitting Co., 482 U.S. at 439; Yeager v. AT & T

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Mobility, LLC, No. 07-2517, 2012 WL 6629434, at *7 (E.D. Cal. Dec. 19, 2012). ARC is

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therefore awarded $80 for costs incurred for Dr. Williams’s and Mr. Brune’s depositions.

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Otherwise ARC’s non-attorneys’-fee costs are taxed as requested, and the EEOC’s objections are

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overruled.

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III.

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CONCLUSION
ARC’s motion for attorneys’ fees is DENIED. ARC’s costs of $19,696.25 are

taxed to the EEOC. This order resolves ECF Nos. 202 and 204.
IT IS SO ORDERED.
DATED: June 9, 2016.

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UNITED STATES DISTRICT JUDGE

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