Peack v. Polk County Sheriff's Office

Filing 60

ORDER: Defendant Polk County Sheriff's Office's Motion for an Award of Attorney's Fees and Costs against Plaintiff Evangelene Peack (Doc. # 59 ) is granted in part and denied in part. The Sheriff's Office is awarded $1,676.35 in costs. Signed by Judge Virginia M. Hernandez Covington on 3/28/2017. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
EVANGELENE PEACK,
Plaintiff,
v.

Case No.:

8:15-cv-2859-T-33JSS

POLK COUNTY SHERIFF’S OFFICE
Defendant.
/
ORDER
This cause comes before the Court on Defendant Polk
County Sheriff’s Office’s Motion for an Award of Attorneys’
Fees and Costs against Plaintiff Evangelene Peack (Doc. # 59),
filed on February 14, 2017. Peack failed to file a response to
the Motion. For the reasons that follow, the Motion is granted
in part and denied in part.
I.

Background
This Title VII action arose from Peack’s termination from

the Polk County Sheriff’s Office on July 19, 2013. (Marcum
Decl. Doc. # 49-3 at ¶ 18; Fulse Decl. Doc. #49-2 at ¶ 5).
Peack,

proceeding

December

12,

2015

pro

se,

(Doc.

#

filed
1),

her
and

first

Complaint

on

Amended

Complaint

on

February 1, 2016 (Doc. #17). Subsequently, Peack filed her
Second Amended Complaint on May 12, 2016 (Doc. # 36), to which
the Sheriff’s Office filed its Answer on May 26, 2016 (Doc.

#37).
The Sheriff’s Office timely filed its Motion for Summary
Judgment on November 15, 2016. (Doc. # 48). Peack responded on
January 12, 2017. (Doc. # 53). The Sheriff’s Office did not
file a reply. On February 2, 2017, this Court granted the
Motion

for

Summary

Judgment.

(Doc.

#

56).

The

Clerk

subsequently entered judgment in favor of the Sheriff’s Office
on February 3, 2017. (Doc. # 57).
On February 14, 2017, the Sheriff’s Office filed its
Motion seeking an award of attorney’s fees and costs. (Doc. #
59). At this juncture, the time for filing a response to the
pending Motion has expired and Peack has failed to respond.
The Court now turns to the Sheriff’s Office’s Motion.
II.

Legal Standard
A.

42 U.S.C. § 2000e-5(k)

District

courts

are

afforded

discretion

in

awarding

reasonable attorney’s fees to the prevailing party in actions
brought under Title VII of the Civil Rights Act. Sayers v.
Stewart Sleep Ctr., Inc., 140 F.3d 1351, 1353 (11th Cir.
1998). When determining whether attorney’s fees should be
awarded, the Court reviews the evidence in the light most
favorable to the non-prevailing party. Johnson v. Florida, 348
F.3d 1334, 1354 (11th Cir. 2003). The equitable considerations
2

involved depend, however, upon whether the prevailing party is
the defendant or the plaintiff. Sayers, 140 F.3d at 1353.
Policy concerns militate against awarding attorney’s fees to
defendants in civil rights cases because such practice may
discourage plaintiffs from bringing civil rights lawsuits. Id.
In Christiansburg Garment Company v. EEOC, 434 U.S. 412
(1978), the Supreme Court announced the relevant criteria
governing an award of attorney’s fees to a prevailing Title
VII defendant. The Supreme Court held that awarding attorney’s
fees in such cases is appropriate “upon a [district court’s]
finding

that

the

plaintiff’s

action

was

frivolous,

unreasonable, or without foundation, even though not brought
in subjective bad faith.” Id. at 421. The Court added that, in
applying these criteria, it is important the district court
resist the 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. Sayers, 140 F.3d at 1353 (citing Christiansburg,
434 U.S. at 421-422).
The

Eleventh

Circuit

instructs

that

frivolity

determinations be “made on a case-by-case basis, taking into
account various factors, including (1) whether the plaintiff
established a prima facie case, (2) whether the defendant
3

offered to settle[,] and (3) whether the suit was dismissed
before trial.” Vavrus v. Russo, 243 Fed. Appx. 561, 563 (11th
Cir. 2007). The Eleventh Circuit also provided a fourth
factor: a “‘claim is not frivolous when it is “meritorious
enough to receive careful attention and review.”’” Barnes v.
Zaccari, 592 Fed. Appx. 859, 872 (11th Cir. 2015)(quoting
Busby v. City of Orlando, 931 F.2d 764, 787 (11th Cir. 1991)).
Ultimately, these factors are “general guidelines only, not
hard and fast rules.” Barnes, 592 Fed. Appx. at 872.
B.

28 U.S.C. § 1920

“Federal Rule of Civil Procedure 54(d)(1) prescribes an
award

of

costs

for

a

prevailing

party

unless

a

federal

statute, the Federal Rules of Civil Procedure, or a court
order provides otherwise.” Tempay Inc. v. Biltres Staffing of
Tampa Bay, LLC, No. 8:11-cv-2732-T-27AEP, 2013 WL 6145533, at
*2 (M.D. Fla. Nov. 21, 2013); see Durden v. Citicorp Tr. Bank,
FSB, No. 3:07–cv–974–J–34JRK, 2010 WL 2105921, at *1 (M.D.
Fla. Apr. 26, 2010)(stating that Rule 54 establishes a strong
presumption that costs should be awarded unless the district
court decides otherwise)(citing Chapman v. Al Transp., 229
F.3d 1012, 1038 (11th Cir. 2000)). However, “the district
court’s discretion not to award the full amount of costs
incurred by the prevailing party is not unfettered;” the
4

district court must articulate a sound reason for not awarding
full costs. Chapman, 229 F.3d at 1039 (internal citations
omitted).
Pursuant to 28 U.S.C. § 1920, the following may be taxed
as costs:
(1)

Fees of the clerk and marshal;

(2)

Fees for printed or electronically recorded
transcripts necessarily obtained for use in
the case;

(3)

Fees and
witnesses;

(4)

Fees for exemplification and the costs of
making copies of any materials where the
copies are necessarily obtained for use in the
case;

(5)

Docket fees under [28 U.S.C. § 1923]; [and]

(6)

Compensation of court appointed experts,
compensation of interpreters, and salaries,
fees,
expenses,
and
costs
of
special
interpretation services under [28 U.S.C. §
1828].

disbursements

for

printing and

28 U.S.C. § 1920; see Crawford Fitting Co. v. J.T. Gibbons,
Inc., 482 U.S. 437, 440-41 (1987), superseded on other grounds
by 42 U.S.C. § 1988(c) (finding that 28 U.S.C. § 1920 defines
the term “costs” as used in Rule 54(d) and enumerates the
expenses that a federal court may tax as a cost under the
discretionary authority granted in Rule 54(d)). The party
seeking an award of costs or expenses bears the burden of
5

submitting a request that enables the court to determine what
costs or expenses were incurred by the party and the party’s
entitlement to an award of those costs or expenses. Loranger
v. Stierheim, 10 F.3d 776, 784 (11th Cir. 1994).
III. Analysis
A.

Attorney’s Fees

In applying the first three frivolity factors, this Court
determines: (1) Peack failed to establish a prima facie case,
(2) the Sheriff’s Office did not offer to settle, and (3)
Peack’s action was dismissed before trial. While the first and
third factors weigh in favor of granting attorney’s fees, the
Court finds that the second factor — the Sheriff’s Office’s
refusal to settle — “is of questionable value in determining
whether [Peack’s] claims are frivolous.” Myers v. City of W.
Monroe, 211 F.3d 289, 292 (5th Cir. 2000). As the Fifth
Circuit has explained,
Whether a municipality offers to settle simply
seems less indicative of the weakness of a
plaintiff’s case than whether a private employer
offers to settle. A private employer who is insured
and who sees few of these cases may settle to make
the problem go away. A municipality may choose not
to address the problem in as businesslike a fashion
and may be more worried that settlement will simply
generate more lawsuits.
Id. at 292 n.3. In Myers, the Fifth Circuit acknowledged that
the defendant city “may have [had] a policy of rarely settling
6

claims in order to discourage lawsuits” and that allowing such
a policy “to further enable the city to obtain attorney’s fees
from losing plaintiffs” was counterintuitive. Id. at 292.
Therefore,

the

Court

is

not

persuaded

by

the

Sheriff’s

Office’s refusal to make a settlement offer, as that decision
may have been motivated by practical factors wholly unrelated
to the merit of Peack’s claim.
Next, in applying the fourth frivolity factor, this Court
considers whether Peack’s claim was “meritorious enough to
receive careful attention and review.” Busby, 931 F.2d at 787.
Peack’s claim required the Court’s “careful attention and
review” for multiple reasons. First, there were conflicts
between Peack’s deposition testimony and her supervisor’s
sworn declaration: Peack asserted that Lt. Palmer approved her
vacation

request,

while

Lt.

Palmer

denied

approving

her

request (Doc. # 56 at 5), and Peack interpreted Lt. Palmer’s
instruction to obtain an updated doctor’s note as an optional
course of action, while Lt. Palmer deemed his instruction
mandatory (Doc. #58 at 8, 9). Additionally, a reemployment
assistance appeals referee found Peack’s testimony to be “more
credible” than that provided by her supervisors (Doc # 58 at
12, 13). While the Court ultimately determined that the
conflicts between sworn statements did not create a genuine
7

issue of material fact, it was necessary for this Court to
give serious consideration to these disputed issues. Thus, the
fourth frivolity factor has been satisfied, which weighs
against a grant of attorney’s fees.
Reviewing the evidence in the light most favorable to
Peack, the Court does not find Peack’s claim to be frivolous.
Thus, the Court does not award the Sheriff’s Office attorney’s
fees.
B.

Costs

Defendant seeks to recover $65 paid in fees for service
of a summons and subpoena. (Doc. # 58 at 3). The Court will
allow $65 to be recovered for the service of summons and
subpoena. See Berlinger v. Wells Fargo, No. 2:11-CV-459-FtM29CM, 2016 WL 4920079, at *3 (M.D. Fla. Sept. 15, 2016)(“[T]he
Court will limit the cost for service of each subpoena to
$65.”). Defendant also seeks to recover $1,611.35 in fees for
printed or electronically recorded transcripts necessarily
obtained for use in the case. (Doc. # 58 at 5). These costs
are enumerated under 28 U.S.C. § 1920. See also Lozman v. City
of Riviera Beach, No. 15-14981, 2017 WL 781591, at *1 (11th
Cir. Feb. 28, 2017)(awarding transcript fees to prevailing
party against pro se plaintiff, “because fees for transcripts
are taxable if they were ‘necessarily obtained for use in the
8

case’” (quoting 28 U.S.C. § 1920(2))). Furthermore, by failing
to

file

a

entitlement

response,

Peack

to

costs.

Sheriff’s Office

these

does

not

Thus,

contest

the

Court

Defendant’s
awards

the

$1,676.35 for service and transcript fees.

Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Defendant Polk County Sheriff’s Office’s Motion for an
Award

of

Attorney’s

Fees

and

Costs

against

Plaintiff

Evangelene Peack (Doc. # 59) is GRANTED IN PART AND DENIED IN
PART. The Sheriff’s Office is awarded $1,676.35 in costs.
DONE and ORDERED in Chambers, in Tampa, Florida, this
28th day of March, 2017.

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