Davis v. Penn Aluminum International, LLC

Filing 48

ORDER DENYING Motion for Attorney Fees (Doc. 39 ). Signed by Judge Staci M. Yandle on 9/25/2019. (sgp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TERI DAVIS,
Plaintiff,
vs.
PENN ALUMINUM INTERNATIONAL,
LLC.,
Defendant.

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Case No. 17-CV-727-SMY-RJD

MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Teri Davis filed this action, alleging she was subjected to disparate treatment,
gender discrimination, and sexual orientation discrimination by her employer, Penn Aluminum
International, LLC. (“Penn”), after a consensual sexual relationship with a supervisor ended in
August, 2015. Summary judgment was granted in favor of Penn on March 8, 2019 by now-retired
District Judge Michael J. Reagan on the basis that Davis presented no evidence demonstrating she
was discriminated against on account of her gender or sexual orientation (Doc. 36). Now pending
before the Court is Penn’s Motion for Attorney Fees (Doc. 40) to which Davis has responded (Doc.
46). For the following reasons, the Motion is DENIED.
The sole basis for Penn’s request for attorney fees is Davis’ purported failed attempt to
establish a claim of hostile work environment/sexual harassment. The claim was not set forth in
Davis’ Complaint (Doc. 1) nor did Davis attempt to amend the Complaint to assert such a claim.
However, because Davis allegedly attempted to raise a hostile work environment claim during her
deposition, Penn preemptively addressed the claim in its Memorandum in Support of its Motion
for Summary Judgment (Doc. 25, pp. 16-21). Following Penn’s lead, in her Response to the

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Motion for Summary Judgment, Davis argued that she was subjected to a hostile work environment
in addition to discrimination (Doc. 26). Penn then devoted almost 2 of its 5-page Reply Brief
arguing that Davis had not alleged a hostile work environment/sexual harassment claim and could
not support such a claim. Judge Reagan subsequently found that Davis could not assert the claim
in her Response and concluded that even if the Court were to entertain such a claim at that juncture,
it would fail as a matter of law because Davis presented no evidence that she was subjected to a
hostile work environment or sexual harassment.
Penn now argues that the hostile work environment claim was frivolous, lacked support in
the evidence, and should not have been pursued and claims that it incurred $5,876.50 in attorney
fees addressing the claim.1 Title VII of the Civil Rights Act of 1964 permits the Court, in its
discretion, to award “reasonable attorney’s fee” to a prevailing party. 42 U.S.C. § 2000e-5(k).
However, a prevailing defendant may be awarded fees only in exceptional cases; “only upon a
finding that the plaintiff’s action was frivolous, unreasonable, or without foundation, even though
not brought in subjective bad faith.”

Equal Employment Opportunity Commission v. CVS

Pharmacy, Inc., 907 F.3d 968, 973 (7th Cir. 2018) (quotation marks and citations omitted).
Here, Penn clearly baited a hook and now is crying foul. Davis did not assert a hostile
work environment or sexual harassment claim in her Complaint. By preemptively arguing against
such a non-existent claim in its Memorandum in Support of Summary Judgment, Penn took it upon
itself to raise the issue and to address the claim on the merits. Had it not done so, the issue would

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In fact, Penn claims that it spent more than this amount (Doc. 40-1). The amount requested includes 10 hours at
$325.00 an hour for the work of attorney Tabitha G. Davisson (at partner at Thompson Coburn, LLP) and 10.3 hours
at $225.00 an hour for the work of attorney Conor P. Neusel (presumably an associate at Thompson Coburn). Penn
is not seeking reimbursement for the time of a third attorney, Hope K. Abramov, or other time spent on this matter
that was not billed. In total, Thompson Coburn attorneys spent 96.60 billable hours drafting and revising the Motion
for Summary Judgment, the memorandum, and the reply brief. The amount of the request is a pro rata share reflecting
the number of pages devoted to the hostile work environment claim in their memorandum and reply briefs (17.5% and
50%, respectively).

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not have been addressed by the Court and the result would have been the same – judgment for
Penn. To be sure, Davis took the bait and bundled sexual harassment arguments with her
discrimination claim arguments. But Penn gave the claim life by addressing it on the merits in the
first instance. Under these circumstances, this Court does not find Davis’ pursuit of the same
wholly unreasonable. Accordingly, Penn’s Motion for Attorney Fees (Doc. 40) is DENIED.
IT IS SO ORDERED.
DATED: September 25, 2019

STACI M. YANDLE
United States District Judge

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