Mondero et al v. Lewes Surgical & Medical Associates P.A. et al

Filing 92

MEMORANDUM ORDER Denying 73 MOTION for Attorney Fees. Signed by Judge Richard G. Andrews on 5/19/2017. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DR. NANCY MONDERO, JUDY L.
HOWETT NP, MARGARET M. SAWYER,
TANIKKA R. MILLER, and MARIAN L.
LONG,
Plaintiffs;
Civil Action No. 14-588-RGA

V.

LEWES SURGICAL & MEDICAL
ASSOCIATES P.A., a Delaware Professional
Association, SEMAAN M. ABBOUD M.D.,
BETH E. BITTNER,
Defendants.

MEMORANDUM ORDER

Before me is Defendants' Semaan N. Abboud, M.D., and Lewes Surgical & Medical
Associates, P.A.'s ("Defendants") Motion for Attorney's Fees. (D.I. 73). I have considered
Defendants' opening brief and Plaintiffs' response. (Id.; D.I. 87). Defendants did not file a
reply. Familiarity with the summary judgment decision (D.I. 71; D.I. 72) and reargument
decision (D.I. 84) is presumed.
Defendants seek recovery of attorney's fees under 42 U.S.C. § 2000e-5(k). (D.I. 73 at 3).
The statute provides:
In any action or proceeding under this subchapter the court, in its discretion, may
allow the prevailing party, other than the Commission or the United States, a
reasonable attorney's fee (including expert fees) as part of the costs, and the
Commission and the United States shall be liable for costs the same as a private
person.

42 U.S.C. § 2000e-5(k). "[A] district court may in its discretion award attorney's fees to a
prevailing defendant in a Title VII case upon a finding that the plaintiffs action was frivolous,
unreasonable, or without foundation, even though not brought in subjective bad faith."
Christiansburg Garment Co. v. Equal Employment Opportunity Comm 'n, 434 U.S. 412, 421

(1978).
'" [F]rivolous, unreasonable, or without foundation,' in this context, implies
'groundless ... rather than simply that the plaintiff has ultimately lost his case."' E.E.O.C. v.
L.B. Foster Co., 123 F.3d 746, 751 (3d Cir. 1997). "[I]t is important that a district court resist

the understandable temptation to engage in post hoc reasoning by concluding that, because a
plaintiff did not ultimately prevail, his action must have been unreasonable or without
foundation." Id. "It is clear from Christiansburg that attorney's fees [to a prevailing Title VII
defendant] are not routine, but are to be only sparingly awarded." Id.
"In determining if an award of counsel fees to a Title VII defendant is appropriate, courts
should consider several factors including ' ( 1) whether the plaintiff established a prima facie case;
(2) whether the defendant offered to settle; and (3) whether the trial court dismissed the case
prior to trial or held a full-blown trial on the merits."' Id. "These factors are, however,
guideposts, not hard and fast rules." Id. "Determinations regarding frivolity are to be made on a
case-by-case basis." Id.
Defendants argue that Plaintiffs failed to make a prima facie case for both Counts I and
Il. 1 (D.I. 73 at 4). While it is true that I ultimately found that Plaintiffs did not establish a prima
facie case, Plaintiffs did put forward some evidence as to the existence of a causal connection,

1 Count

I was a Title VII claim. Count II was the state law counterpart to Title VII.

2

such as timing evidence and Bittner's affidavit. (D.I. 71 at 6; D.I. 84 at 3-4). Although I found
that the evidence fell short, I cannot say that Plaintiffs causation case was completely without
foundation. See E.E.O.C., 123 F.3d at 751 ("[I]t is important that a district court resist the
understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff
did not ultimately prevail, his action must have been unreasonable or without foundation."). For
example, Plaintiffs' timing evidence would have been comparable to that in Fasold v. Justice,
409 F .3d 178 (3d Cir. 2005), had Plaintiffs provided stronger evidence of retaliatory animus.
(D.I. 71 at 6). Plaintiffs were not pursuing a frivolous case.
Defendants argue that they offered to settle with Plaintiffs at mediation and made a
significant offer to do so. (D.I. 73 at 4). Plaintiffs contend that they also made numerous offers
of settlement and that Defendants' offers were at best nominal. Plaintiffs allege that Defendants
were unreasonable in negotiating. (D.I. 87 at 5-6). Without actual numerical information about
the negotiation, I cannot say whether Defendants made a reasonable offer or whether Plaintiffs
acted unreasonably.
Defendants argue that Counts I and II were decided prior to trial. (D.I. 73 at 4). While it
is true that these counts were decided at summary judgment, it is also true that I allowed
Plaintiffs' retaliation theory to proceed after a motion to dismiss. (D.I. 21; D.I. 22).
With all of this in mind, Defendants fall short of establishing that Plaintiffs' actions with
respect to Counts I and II were frivolous, unreasonable, or without foundation.

NOW, THEREFORE, at Wilmington this

Ji_ day of May, 2017, it is HEREBY

ORDERED that Defendant's motion for attorney's fees (D.I. 73) is DENIED.

United States
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istrict Judge