Wigfall et al v. Sodexo, Inc. et al

Filing 114

ORDER granting 103 Motion for attorneys' fees and costs. Saint Leo is entitled to recover $181,216.50 in attorneys' fees and $10,314.27 in costs from Plaintiffs. Signed by Judge Susan C Bucklew on 9/5/2012. (LSC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MELISSA WIGFALL,
VIRGINIA LARRY,
CONNIE DANIELS,
GENETHEL DANIELLE PYE,
ANTHONY MILLS,
MELISSA WORLEY, and
MALISA BUTLER
Plaintiffs,
vs.

Case No. 8:10-CV-2232-T-24-TGW

SAINT LEO UNIVERSITY,
INCORPORATED,
Defendant.
______________________________________/
ORDER
This cause comes before the Court for consideration of a Verified Motion to Tax Costs
and for Attorneys’ Fees, filed by Defendant Saint Leo University, Incorporated (“Saint Leo”).
(Dkt. 103). Plaintiffs Melissa Wigfall, Virginia Larry, Connie Daniels, Genethel Danielle Pye,
Anthony Mills, Melissa Worley, and Malisa Butler filed a response in opposition to the motion
(Dkt. 106), and Saint Leo filed a reply (Dkt. 109).
I.

Background
Plaintiffs brought this lawsuit against Saint Leo under the Florida Whistleblower Act, the

Florida Civil Rights Act, the Fair Labor Standards Act, 42 U.S.C. § 1981, and Title VII. The
following facts are part of the Court’s March 6, 2012 Order, granting summary judgment to Saint
Leo:
Saint Leo formerly had a contract with Sodexo, Inc. (“Sodexo”), where Sodexo would

provide food services on the Saint Leo campus. Plaintiffs were food service workers on the
Saint Leo campus under the contract between Saint Leo and Sodexo. Importantly, Plaintiffs
conceded that they were “‘supervised, directed, evaluated and subject to discipline by Sodexo’s
personnel.’”
On February 4, 2010, Plaintiffs and several others filed a lawsuit against Sodexo
asserting claims of race discrimination, retaliation, unpaid overtime wages, and battery. Daniels
et al v. Sodexo, Case No. 8:10-cv-375-JDW-AEP (hereafter, “the Sodexo Lawsuit”). Saint Leo
was not named as a defendant in the Sodexo Lawsuit. Plaintiffs’ claims in the Sodexo Lawsuit
settled during a confidential mediation that took place on June 17, 2010. Saint Leo did not
participate in the mediation and did not confer with Sodexo before it agreed to the settlement
terms, including the removal of Rich Vogel, a food services manager.
For several reasons, including its desire to keep Vogel as the head of an in-house dining
program on campus, Sodexo’s failure to communicate with Saint Leo regarding the Sodexo
Lawsuit, and the anticipated cost savings of running its own food services, Saint Leo decided to
terminate its contract with Sodexo. On July 30, 2010, Saint Leo notified Sodexo that it was
terminating the Sodexo contract, and that it would handle food services in-house. Following this
notification, Sodexo sent its food service workers at the Saint Leo campus, including Plaintiffs, a
letter stating that, as a result of Saint Leo’s cancellation of the Sodexo contract, Sodexo would
no longer employ them.
On October 5, 2010, Plaintiffs filed the present lawsuit against Saint Leo, alleging
discrimination and retaliation claims under Section 1981, the Florida Whistleblower Act, and the
Fair Labor Standards Act. Following the Court’s Orders of October 18, 2011 on Saint Leo’s

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Motion for Judgment on the Pleadings and Motion to Consolidate, Plaintiffs filed their Second
Amended Complaint, in which they asserted a claim that Saint Leo terminated their employment
in retaliation for their participation in the Sodexo Lawsuit. Specifically, Plaintiffs argued that, on
October 1, 2010, Saint Leo wrongfully terminated their employment in violation of the Florida
Whistleblower Act, the Florida Civil Rights Act, the Fair Labor Standards Act, Section 1981,
and Title VII.
On December 13, 2011, the Court ruled that Plaintiffs were judicially estopped from
asserting any claim other than their retaliatory termination claim. On March 6, 2012, in its
summary judgment order, the Court found that Plaintiffs failed to establish a prima facie case for
retaliation because they did not provide any evidence that Saint Leo was a joint employer, that
Saint Leo terminated their employment, or that there was a causal connection between their
participation in the Sodexo Lawsuit and the termination of their employment. The Court further
ruled that, even if Plaintiffs had established a prima facie case, they had presented no evidence
that Saint Leo’s three legitimate, non-retaliatory reasons for terminating its contract with Sodexo
were a pretext for retaliation.
On March 7, 2012, a judgment was entered against Plaintiffs and in favor of Saint Leo
on Plaintiffs’ retaliatory termination claim, and the case was closed.
II.

Costs
Saint Leo seeks to recover $10,314.27 in costs incurred in defending this action. Saint

Leo submitted an affidavit for its bill of costs in support of its motion to tax costs. See Velez v.
Levy World Ltd., Partnership, 182 Fed. Appx. 929, 932 (11th Cir. 2006) (finding that an award
of costs without an invoice is sufficient so long as the declaration of the bill of costs includes a

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statement from counsel under the penalty of perjury that the costs are properly taxable).
Rule 54(d)(1) of the Federal Rules of Civil Procedure provides that costs “shall be
allowed as of course to a prevailing party unless the court directs otherwise.” While the Court
retains discretion to deny costs to a prevailing party, the presumption is in favor of the award of
costs. Arcadian Fertilizer, L.P. v. MPW Indus. Servs., Inc., 249 F.3d 1293, 1296 (11th Cir.
2001).

Because Saint Leo is the prevailing party in this action, it is entitled to recover its costs.

See Head v. Medford, 62 F.3d 351, 354-55 (11th Cir. 1995).
Plaintiffs do not dispute that Saint Leo is entitled to recover costs pursuant to Rule
54(d)(1) as the prevailing party. Additionally, they do not object to the amount of costs that
Saint Leo is seeking recover, with one exception. They object to Saint Leo’s request to tax costs
in the amount of $1,476.02 for legal research.
The Court has reviewed Saint Leo’s motion to recover costs, and the affidavits submitted
in support of the motion, and finds that all of the costs, including the costs incurred for legal
research, are properly taxable under Rule 54(d)(1) and 28 U.S.C. § 1920. Accordingly, Saint
Leo is entitled to recover $10,314.27 for the costs it incurred in defending this action.
III.

Attorneys’ Fees
Saint Leo also seeks to recover $181,216.50 in attorneys’ fees for having to defend what

it describes as a frivolous and unreasonable case that lacked any factual or legal merit.
A.

Entitlement to Fees

Saint Leo contends that it is entitled to recover its attorneys’ fees as the prevailing
defendant in this employment discrimination case, pursuant to the standard set forth by the U.S.
Supreme Court in Christianburg Garment Co. v. EEOC, 434 U.S. 412 (1978). Under

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Christianburg, a prevailing defendant should recover fees only “upon a finding that the
plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in
subjective bad faith.” Id. at 421. Pursuant to Florida Statute Section 760.11(5), the Florida Civil
Rights Act’s provision for attorney’s fees shall “be interpreted in a manner consistent with
federal case law involving a Title VII action.” Thus, the same federal standard applies to the
state statute.
In determining entitlement to fees under the Christianburg standard, the district court
“must focus on the question whether the case is so lacking in arguable merit as to be groundless
or without foundation rather than whether the claim was ultimately successful.” Sullivan v. Sch.
Bd. of Pinellas County, 773 F.2d 1182, 1189 (11th Cir. 1985) (quotation omitted). The cases in
which findings of “frivolity” have been sustained typically are cases in which “the plaintiffs did
not introduce any evidence to support their claims.” Id. The important factors to determine
whether a claim is frivolous also include: (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
before trial, or held a trial on the merits. Id. These factors, however, are “general guidelines
only, not hard and fast rules,” and “[d]eterminations regarding frivolity are to be made on a caseby-case basis.” Id.
1.

Plaintiffs did not establish a prima facie case.

A plaintiff’s failure to establish a prima facie case supports a finding that his claim is
frivolous and that an award of attorneys’ fees is appropriate. Torres v. City of Orlando, F. Supp.
2d 1046, 1052 (M.D. Fla. 2003).
First, Saint Leo argues, and the Court agrees, that Saint Leo is entitled to fees on all

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claims that were dismissed when Saint Leo’s motion for judgment on the pleadings was granted.
In the order granting that motion, the Court emphasized that the allegations in Plaintiffs’
complaint against Saint Leo were not separate and distinct from the allegations in the prior
lawsuit against Sodexo: the conduct giving rise to Plaintiffs’ claims was the same as the conduct
that gave rise to Plaintiffs’ claims in the Sodexo Lawsuit; and Plaintiffs were merely trying to
hold Saint Leo liable, instead of Sodexo. The Court noted, “it appears that Plaintiffs have ‘cut
and paste’ the underlying core of their allegations into a new lawsuit against Saint Leo, only now
asserting that Saint Leo is also liable on a ‘joint employer’ theory for the same claims that the
Sodexo Court already dismissed with prejudice.” The Court further noted that Plaintiffs could
have moved the Sodexo Court to permit them to add Saint Leo as a defendant, but failed to do so.
Based on these findings, the Court concludes that Plaintiffs’ claims that were dismissed
when Saint Leo’s motion for judgment on the pleadings was granted were frivolous,
unreasonable, and without foundation because: (1) Plaintiffs could not establish a prima facie
case against Saint Leo on these claims because they were barred by the doctrine of collateral
estoppel; (2) Plaintiffs had already settled claims based on the same facts with Sodexo before
this suit; and (3) Plaintiffs’ claims were dismissed early in the litigation. As such, the Court
concludes that Saint Leo is entitled to attorneys’ fees for the claims that were dismissed when the
Court granted the motion for judgment on the pleadings.
Next, Saint Leo argues, and the Court agrees, that it is entitled to recover its fees for the
retaliation claim for which the Court granted summary judgment in favor of Saint Leo on March
6, 2012. In that ruling, the Court found that Plaintiffs’ attempt to hold Saint Leo liable for
retaliation under a joint employer theory was not supported by any evidence in the record. The

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Court ruled, “[n]othing in the record shows that Saint Leo exercised the necessary control over
Plaintiffs] to be deemed a joint employer.” Additionally, the Court emphasized the fact that
Plaintiffs had conceded that they were “‘supervised, directed, evaluated, and subject to discipline
by Sodexo’s personnel.’”
Likewise, the Court found that Plaintiffs had failed to produce any record evidence to
establish a prima facie case of retaliation. The Court found that there was no evidence that
Plaintiffs suffered an adverse employment action as the result of Saint Leo’s conduct, or that
Saint Leo even terminated Plaintiffs. In fact, the record showed that Plaintiffs had been notified
that Sodexo was terminating their employment. Additionally, the Court found that Plaintiffs
failed to present any evidence that there was a causal connection between their termination and
their participation in the previous lawsuit. Rather, the evidence showed that Sodexo terminated
their employment based on Saint Leo’s cancellation of the contract, which decision had been
made by Saint Leo for three legitimate, non-retaliatory reasons that Plaintiffs had not shown
were pretextual.
Based on these findings, the Court concludes that Plaintiffs’ retaliation claims, and
particularly their joint employer theory of liability, were frivolous, unreasonable, and without
foundation because: (1) Plaintiff’s own admissions prevented any showing that Saint Leo was a
joint employer; (2) Plaintiffs were aware, through the Sodexo notices provided to them, that
Sodexo–not Saint Leo–had terminated their employment; and (3) Plaintiffs presented no
evidence to support a prima facie case for retaliation.

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2.

Saint Leo’s attempt to settle does not weigh against an award of fees.

A defendant’s attempt to settle a case does not necessarily weigh against an award of fees
to a prevailing defendant. For example, offering to settle a case as part of a court-ordered
mediation does not weigh against an award of fees because the parties are expected to participate
in the mediation in good faith. See El Shahawy v. Lee, No. 8:95-cv-269 RWN, 1999 WL
33919538, at *6-7 (M.D. Fla. Apr. 23, 1999) (“[A]ny offer made by the Defendants was made
during the course of Court-ordered mediation, and thus should not be weighed so heavily against
Defendants who participated therein in good faith. In any event, the Court concludes that this
factor weighs more in favor of a fee award than against one.”). Here, Saint Leo participated in
the Court-ordered mediation, and therefore made a good faith attempt to resolve this case. This
attempt to resolve the case at a court-ordered mediation does not weigh against an award of fees.
3.

The Court dismissed Plaintiffs’ claims before trial.

If a court grants a motion for summary judgment in favor of a defendant, the prevailing
defendant satisfies the third factor of Sullivan. Torres, 264 F. Supp. 2d at 1052 (“[T]he Court
dismissed the case on summary judgment, another factor in Defendant’s favor”). The presence
of the third factor is enhanced where, as here, the plaintiffs failed to point to any evidence in the
record to support their opposition to summary judgment. See George v. Orange County
Corrections Dep’t, 6:04-cv-1356-Orl-22DAB, 2007 WL 737569, at *2 (M.D. Fla. Mar. 7, 2007)
(emphasizing that the plaintiff’s case was frivolous because the plaintiff presented no evidence
in the record to support an inference that race was the actual reason for the adverse action when
opposing the summary judgment motion).
Here, most of Plaintiffs’ claims against Saint Leo were dismissed with prejudice when

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the Court granted Saint Leo’s motion for judgment on the pleadings, early in the litigation.
Plaintiffs’ sole surviving retaliation claim was dismissed when the Court granted Saint Leo’s
summary judgment motion because Plaintiffs failed to present any evidence that Saint Leo was
their joint employer, that Saint Leo terminated their employment, that there was a causal
connection between their termination and their participation in the Sodexo Lawsuit, or that Saint
Leo’s legitimate, non-retaliatory reasons for terminating its contract with Sodexo were a pretext
for retaliation. Based on the Court’s findings, Saint Leo has satisfied the third Sullivan factor,
entitling it to an award of attorneys’ fees.
4.

Plaintiffs’ arguments against an attorneys’ fees award lack merit.

Plaintiffs argue that Saint Leo is not entitled to an award of attorneys’ fees for several
reasons, all of which lack merit. First, Plaintiffs argue that because attorneys’ fees may not be
awarded under the Fair Labor Standards Act (“FLSA”) without a showing of bad faith, and
because all of the claims are intertwined from a common nucleus of operative fact, Saint Leo is
not permitted to recover fees under any of the other statues pled in this case.
The Court rejects this argument. Here, Saint Leo is seeking its attorneys’ fees under Title
VII, Section 1988, the Florida Civil Rights Act, and Florida Statute Section 448.104. Saint Leo
is not seeking to recover fees under the FLSA, and therefore, need not show bad faith. The
FLSA simply requires a showing of bad faith under its provision for attorneys’ fees.
Importantly, the statute does not prohibit an award of fees under another applicable statute.1

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Plaintiffs’ reliance on Alansari v. Tropic Star Seafood, Inc., 395 Fed. Appx. 629 (11th
Cir. 2010), is misplaced. Alansari addressed the narrow issue of whether Florida Statute Section
768.79 may be used to obtain attorneys’ fees for an offer of judgment made on FWA and
workers’ compensation retaliation claims in federal civil rights litigation. It does not address the
issues raised in this case.
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The Eleventh Circuit has demonstrated this principle by analyzing defendants’ requests
for fees under Title VII, even though the plaintiffs have also brought intertwined Age
Discrimination in Employment Act (“ADEA”) claims, which borrow the remedial provisions of
the FLSA found in 29 U.S.C. § 629(b). For example, in Bonner v. Mobile Energy Services Co.,
LLC, 246 F.3d 1303, 1304 (11th Cir. 2001), the plaintiff sued under Title VII and the ADEA.
The district court declined to award fees under the ADEA, but did award fees under Title VII.
Id. The Eleventh Circuit did not find that the district court’s application of Christianburg was
erroneous, although the plaintiff had brought ADEA claims arising from a common nucleus of
facts, but reversed solely because it found that the district court abused its discretion in finding
that Christianburg had been satisfied. Id.; see also Walker v. Nationsbank of Fla., N.A., 53 F.3d
1548, 1559 (11th Cir. 1995); Lawver v. Hillcrest Hospice, Inc., 300 Fed. Appx. 768 (11th Cir.
2008).
The Court also rejects Plaintiffs’ argument that Saint Leo is not entitled to fees under the
Florida Whistleblower Act (“FWA”), without a showing of bad faith, due to federal preemption.
That argument was rejected in James v. Wash Depot, 489 F. Supp. 2d 1336 (S.D. Fla. 2007), a
case in which the plaintiff brought retaliation claims under the FCRA, the FLSA, and the FWA.
After receiving summary judgment on all retaliation claims, the defendant sought attorneys’ fees
under the FWA. Id. at 1338. The court held that “Florida law governs whether Defendants may
recover attorneys’ fees or not. Under Florida Statute § 448.104, a prevailing party on a FWA
claim may recover its reasonable attorneys’ fees and costs.” Id. The court did not apply FLSA
preemption and require that the defendant demonstrate bad faith. Id. at 1339; see also McGregor
v. Bd. of County Comm’rs, 130 F.R.D. 464, 468 (S.D. Fla. 1990) (awarding fees under the FWA

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to the defendant as a “prevailing party”). Here, the fact that Plaintiffs’ retaliation claims were
pursued under the FWA, as well as the FLSA, Section 1981, Title VII, and the FCRA, does not
mean that Saint Leo must meet the FLSA bad faith standard.
The Court also rejects Plaintiffs’ minimal arguments that Saint Leo did not meet the
Christianburg standard. Plaintiffs argue that the Court’s order on the motion for judgment on
the pleadings shows that their joint employer theory was not frivolous because the Court stated
that “it is unclear” whether Saint Leo qualified as an employer. The Court, however, specifically
recognized that the joint employer issue was beyond the scope of Saint Leo’s motion. Thus, the
order provides no basis to argue against frivolity. The Court also rejects Plaintiffs’ contention
that Saint Leo’s request to enlarge discovery weighs against a finding of frivolity. In this case,
the request for additional discovery has no relevance to the merit of the claims. Finally, the
Court rejects Plaintiffs’ contention that the in-person attendance of a claims professional, who
had been given leave to appear by phone, at the mediation shows that the attempt to settle was
not minor. The fact that a claims professional appeared in person at the mediation does not
weigh against an award of fees.
B.

Amount of Fees

Having determined that Saint Leo is entitled to recover its attorneys’ fees, the Court now
must determine the amount of fees that Saint Leo can recover. The lodestar method is the
accepted means to determine a reasonable award of attorneys’ fees. Padurjan v. Aventura Limo.
& Transp. Serv., 441 Fed. Appx. 684, 686 (11th Cir. 2011) (citing Resolution Trust Corp. v.
Hallmark Builders, Ins., 996 F.2d 1144, 1149-50 (11th Cir. 1993)). The lodestar is the number
of hours reasonably expended in the legal work on the case, multiplied by a reasonable hourly

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rate for the services. Atlanta Journal v. City of Atlanta, 442 F.3d 1283, 1289 (11th Cir. 2006).
1.

Reasonable Hours Expended

Counsel for Saint Leo expended 560.90 hours in successfully defending this suit. These
hours involved conducting discovery, and filing motions, including a motion for judgment on the
pleadings and a motion for summary judgment. In preparing these motions, defense counsel
examined key issues such as res judicata, collateral estoppel, the theory of joint employers, and
retaliatory termination. Furthermore, defense counsel were assisted by two paralegals, who
expended 165.1 hours in preparation for filing these motions and taking depositions.
The Court has reviewed the time records submitted by Saint Leo, and concludes that none
of the attorneys’ or paralegals’ hours were redundant or unnecessary. The Court rejects
Plaintiffs’ conclusory argument that the time records lacked sufficient detail. To the contrary,
the time records contain enough detail to show that the hours expended involved communicating
with clients and opposition counsel, preparing for depositions, legal research, review of Court
filings, and drafting motions. Accordingly, the Court finds that the number of hours expended in
defending this action was reasonable.
2.

Reasonable Hourly Rates

Saint Leo’s counsel consisted of five attorneys and two paralegals. Four of the five
attorneys were billed at a rate of $295 per hour, while the fifth attorney was billed at a rate of
$240 per hour. The two paralegals were billed at a rate of $95 per hour.
When considering what constitutes a reasonable hourly rate, the Court may consider the
following factors: (1) the time and labor required; (2) the novelty and difficulty of the questions;
(3) the skill requisite to perform the legal services properly; (4) the preclusion of other

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employment by the attorney due to acceptance of the case; (5) the customary fee in the
community; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client
or circumstances; (8) the amount involved and the results obtained; (9) the experience,
reputation, and the ability of the attorney; (10) the “undesirability” of the case; (11) the nature
and length of the professional relationship with the client; and (12) awards in similar cases.
Bivins v. Wrap It Up, Inc., 380 Fed. Appx. 888, 890 (11th Cir. 2010) (citing Johnson v. Ga.
Highway Express, 488 F.2d 714, 717-19 (5th Cir. 1974)).
With respect to factors 1 and 2, Saint Leo contends that it was required to expend a
significant amount of time and labor on discovery-related issues, as well as filing a substantive
motion for judgment on the pleadings, which required a review of Plaintiffs’ previous litigation
against Sodexo and extensive research of res judicata and collateral estoppel issues. With
respect to factor 3, Saint Leo contends that employment litigation requires specialized
knowledge and skill, which counsel used to handle this case efficiently and effectively.
Regarding factor 5, Saint Leo’s attorneys note that they charged a fixed hourly rate in this
case that is substantially lower than the hourly rates they customarily charge in employment
litigation. This negotiated rate is given to independent universities and colleges, like Saint Leo,
due to their mission. Finally, regarding factor 8, Saint Leo contends that it was able to obtain a
favorable judgment when faced with complex legal issues as a result of its counsel’s experience
and expertise in the area of employment litigation.
Having considered these relevant factors, the Court concludes that the hourly rates
charged by Saint Leo’s attorneys and paralegals were reasonable for the reasons stated by Saint
Leo. Notably, Plaintiffs failed to make any argument concerning the reasonableness of the

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number of hours billed or the hourly rate.
In conclusion, the Court has determined that both the hours expended and the hourly
rates charged by Saint Leo’s counsel are reasonable and justified. Accordingly, Saint Leo is
entitled to its attorneys’ fees of $181,216.50.
IV.

Conclusion
Accordingly, it is ORDERED AND ADJUDGED that Saint Leo’s Verified Motion to

Tax Costs and for Attorneys’ Fees is GRANTED. Saint Leo is entitled to recover $181,216.50
in attorneys’ fees and $10,314.27 in costs from Plaintiffs.
DONE AND ORDERED at Tampa, Florida, this 5th day of September, 2012.

Copies to:
Counsel of Record

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