Kennedy v. Parkview Baptist School

Filing 87

RULING denying 77 Motion for Award of Attorneys' Fees. Signed by Magistrate Judge Stephen C. Riedlinger on 11/2/2015. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

MELISSA KENNEDY
VERSUS

CIVIL ACTION

PARKVIEW BAPTIST SCHOOL, INC.

NUMBER 13-478-SCR

RULING ON DEFENDANT’S MOTION FOR AWARD OF ATTORNEYS’ FEES
Before the court is a Motion for Award of Attorneys’ Fees
filed by the defendant Parkview Baptist School, Inc.
document

number

77.

Plaintiff

Melissa

Kennedy

Record

filed

an

opposition.1
It is unnecessary to repeat in this ruling any background
information on the plaintiff’s claims and the outcome of the
summary judgment motion.

That information is already set forth in

detail in the summary judgment ruling, and the judgment entered in
favor of the defendant.2
Plaintiff brought plaintiff’s claims alleging discrimination,
harassment and retaliation in violation of the Age Discrimination
in Employment Act (“ADEA”) and the Americans With Disabilities Act
(“ADA”).

29 U.S.C. § 623(a)(1); 42 U.S.C. § 12112.

After a final

judgment was entered in its favor, the defendant filed this motion

1

2

Record document number 80.

Record document numbers 73, 75 and 76. Plaintiff appealed
the judgment. The Fifth Circuit issued an opinion on October 8,
2015 affirming the judgment.

for an award of attorney’s fees as the prevailing party.3
Defendant argued that it is entitled to attorney’s fees based
on the standards governing such awards and based on the bad faith
exception to the American Rule.
Review of the record as a whole in light of the applicable law
does not support granting the defendant’s motion.
Applicable Law
Under Title VII, 42 U.S.C. § 1988(b), and the ADA,

the court

uses the same standards to determine whether a prevailing defendant
should

be

awarded

attorney’s

Christiansburg/Hughes standard.4

fees

and

costs

-

the

Christiansburg Garment Co. v.

EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700 (1978); Hughes v. Rowe,
449 U.S. 5, 14, 101 S.Ct. 173, 178 (1980).

These cases direct the

district court as follows:
[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. This kind of
hindsight logic could discourage all but the most
airtight claims, for seldom can a prospective plaintiff
be sure of ultimate success.

3

Plaintiff filed a Notice of Appeal on January 23, 2015. The
Fifth Circuit issued an opinion on October 8, 2015 affirming the
summary judgment ruling in favor of the defendant.
4

The ADA adopts the remedies and procedures found in 42
U.S.C. § 2000e-5(k), which states in relevant part that “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.”
2

Christiansburg, 434 U.S. at 421-422, 98 S.Ct. at 700.
The Christiansburg/Hughes standard is intended to insure that
plaintiffs with uncertain but arguably meritorious claims, are not
altogether deterred from initiating litigation by the threat of
becoming liable for onerous legal fees if their claims fail. Myers
v. City of West Monroe, 211 F.3d 289, 292 n. 1 (5th Cir. 2000).
Under the standard, the defendant may recover attorney’s fees from
the plaintiff only upon a finding that the plaintiff’s action was
frivolous, unreasonable or without foundation, even though it was
not brought in subjective bad faith.

The action must be meritless

in the sense that it is groundless or without foundation. The fact
that the plaintiff in the end lost the case is not in itself a
sufficient justification for imposing fees and costs.

Courts must

be careful not to use the benefit of perfect hindsight in assessing
frivolousness. Id.
To determine whether the case was frivolous, unreasonable or
without foundation, the court should ask whether the case was so
lacking in merit that it was groundless, rather than whether the
claim was ultimately successful.
in

making

this

determination

Factors which the court examines
are:

(1)

whether

the

plaintiff

established a prima facie case; (2) whether the defendants offered
to settle the case, and (3) whether the case was dismissed or a
full blown trial was held.

Myers, 211 F.3d at 292.

These factors

are guideposts and frivolousness must be judged on a case-by-case

3

basis.

Provensal v. Gaspard, 524 Fed.Appx. 974 (5th Cir. 2013).

The Supreme Court has addressed the approach the courts must
take under Christiansburg in mixed civil rights cases involving
frivolous and non-frivolous claims.

A defendant is permitted to

receive only the portion of his fees that he would not have paid
but for the frivolous claim.
S.Ct. 2205, 2213-14 (2011).5

Fox v. Vice, ____ U.S. ____, 131
The purpose is to relieve defendant

of the burdens associated with fending off frivolous litigation.
So, if a frivolous claim occasioned the attorney’s fees at issue,
a court may decide that the defendant should not have to pay them.
But if the defendant would have incurred those fees anyway, to
defend against non-frivolous claims, then a court has no basis for
transferring the expense to the plaintiff.
In contrast, the ADEA contains no prevailing party attorney
fee provision.

The Fair Labor Standards Act’s (“FSLA”) attorney's

fee statute, which applies to age discrimination claims under the
ADEA, mandates only that a district court award attorney’s fees to
a plaintiff who is a prevailing party.
626(b).

29 U.S.C. §§ 216(b) and

The FLSA does not provide for an award of attorneys' fees

to defendants or prevailing parties generally.

In the absence of

an express provision in the ADEA or FLSA that permits an award of
attorney’s fees to a prevailing party, the American Rule applies
5

This same approach is used when the award of fees is brought
under Title VII and the ADA. See, Provensal, supra.
4

and each party bears its own attorney’s fees, unless an exception
is established.6

Bad faith is a recognized exception to the rule,

and the defendant in an ADEA case must show bad faith on the
plaintiff’s part for a district court to award attorney’s fees to
a defendant.

Flanagan v. Havertys Furniture Cos, Inc.,

484

F.Supp.2d 580, 581 (W.D.Tex. 2006); Fassbender v. Treasure Chest
Casino, 2008 WL 170071, *8 (E.D.La. Jan. 16, 2008).
The bad faith exception is designed to cover situations in
which a party has acted in bad faith, vexatiously, wantonly, or for
oppressive reasons.

See, NASCO v. Calcasieu Television and Radio,

Inc., 894 F.2d 696, 701 (5th Cir. 1990).

The bad faith exception

to the American Rule is not limited to suits that are filed in bad
faith, but also encompasses bad faith conduct preceding and during
the litigation.

Roadway Express, Inc. v. Piper, 447 U.S. 752, 100

S.Ct. 2455, 2464 (1980).
Analysis
Defendant

essentially

argued

that

it

should

be

awarded

reasonable attorney’s fees because the record establishes the
plaintiff’s claims were meritless, pursued in bad faith and with
improper motive.

However, considering the record as a whole, the

defendant failed to carry its burden of establishing that the

6

Under the American Rule used in federal courts, absent a
statute or an enforceable contract, litigants pay their own
attorney’s fees. Alyeska Pipeline Serv. Co. v. Wilderness Soc’y,
421 U.s. 240, 95 S.Ct. 1612, 1621 (1975).
5

plaintiff’s claims were frivolous, unreasonable, meritless, or
conducted in bad faith.
With regard to the defendant’s argument that the plaintiff’s
disability discrimination claim was frivolous or meritless, the
defendant cited four statements from the 46 page ruling on the
summary judgment motion.7

This is insufficient to carry the

defendant’s burden under the Christianburg/Hughes standard that
applies to attorney’s fee awards to prevailing defendants under the
ADA.

The summary judgment ruling determined that even though the

plaintiff had evidence to support a prima facie case, summary
judgment

was

proper

because

the

plaintiff

did

not

present

sufficient evidence to create a genuine dispute for trial as to the
defendant’s legitimate, non-discriminatory reasons for terminating
her employment. But the defendant’s success in achieving dismissal
of the plaintiff’s claim is not an adequate justification for
imposing fees and costs on the plaintiff.
judgment

record

plaintiff’s

as

claim

a

was

whole,

the

not

lacking

so

Considering the summary

evidentiary
that

it

basis
can

for
be

the

fairly

characterized as frivolous, unreasonable or without foundation.
To

obtain

attorney’s

fees

based

on

dismissal

of

the

plaintiff’s ADEA claim, the defendant must satisfy the bad faith
exception to the American Rule.

Defendant argued that certain

conduct of the plaintiff during the litigation demonstrates bad

7

Record document number 77-1, Memorandum in Support
Defendant’s Motion for Award of Attorney’s Fees, pp. 6-7.
6

of

faith: (1) the plaintiff maintained overly broad allegations and
pursued irrelevant written and deposition discovery that caused the
defendant to spend needless time and expense to defend against; (2)
a motion for protective order had to be filed because the plaintiff
kept confidential school and student records and attempted to use
this irrelevant information to support her claims, which violated
her teaching contract as well as state and federal law; and, (3) a
lengthy motion in limine had to be filed because the plaintiff’s
pretrial order identified and relied on so many irrelevant and
inadmissible exhibits.
Review of the record shows that the court’s September 18, 2014
ruling on the Motion to Compel Discovery filed by the plaintiff,
provided the defendant relief from the plaintiff’s attempts to
pursue and obtain overly broad, irrelevant discovery. Furthermore,
the ruling on the defendant’s Motion for Protective Order gave
protection in this litigation to the school and student records the
defendant claimed were confidential.8 Defendant did not contend at
the time of the rulings or in this motion, that these rulings were
insufficient

to

alleviate

the

detrimental

effects

of

the

plaintiff’s overly broad discovery requests and her attempted use
of confidential school records.9

8

Record document numbers 37 and 41.

9

Defendant also complained that the plaintiff’s listing of
exhibits in the pretrial order caused it to have to file a Motion
in Limine, because many of the exhibits were either irrelevant,
could not be authenticated, or constituted or contained hearsay.
(continued...)
7

Considering the entire record, the plaintiff’s conduct in
discovery can reasonably be characterized as ineffectual and the
litigation as a whole can be reasonably characterized as illadvised.

But the specific conduct the defendant cites as a basis

of its motion does not support a finding of bad faith, improper
motive, or abuse of the litigation process.
Accordingly, the Motion for Award of Attorneys’ Fees filed by
the defendant Parkview Baptist School, Inc. is denied.
Baton Rouge, Louisiana, November 2, 2015.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

9

(...continued)
Defendant failed to persuasively explain how this conduct
constituted bad faith rather than just a misguided litigation
strategy. Record document number 77-1, Memorandum in Support of
Defendant’s Motion for Award of Attorney’s Fees, p. 9.
8