Denning v. Washoe County

Filing 70

ORDER that Defendant Washoe County's motion for attorney's fees (ECF No. 63 ) is denied. Signed by Judge Miranda M. Du on 8/30/2019. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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KATHLEEN DENNING,

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Case No. 3:17-cv-00463-MMD-WGC
Plaintiff,

ORDER

v.
WASHOE COUNTY,
Defendant.

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Plaintiff Kathleen Denning, an employee of Washoe County Regional Animal

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Services who suffers from epilepsy, sued Defendant Washoe County for allegedly

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violating her rights under the Americans With Disabilities Act, 42 U.S.C. § 12101, et seq.,

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as amended (the “ADA”), and the Rehabilitation Act, 29 U.S.C. § 701, et seq., for

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discrimination/failure to accommodate, retaliation, and hostile work environment. (ECF

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No. 60 at 2.) The Court granted summary judgment to Defendant on all of Plaintiff’s

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claims. (Id. at 12.) Before the Court is Defendant’s motion seeking its attorney’s fees

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expended defending against Plaintiff’s failure to accommodate claim (the “Motion”).1 (ECF

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No. 63.) Because the Court is unpersuaded Plaintiff’s failure to accommodate claim was

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frivolous when she filed it, and as further explained below, the Court will deny the Motion.

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Defendant moves to partially recover its fees—those expended in defending

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against Plaintiff’s failure to accommodate claim—under the ADA. (Id. at 5.) As Defendant

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lays out in its Motion (id. at 5-6), while a prevailing party in an ADA case may recover its

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fees, fees are normally only awarded to prevailing plaintiffs because the policy

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considerations supporting the award of fees to prevailing plaintiffs in ADA cases do not

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apply to prevailing defendants. See Kohler v. Bed Bath & Beyond of Calif., LLC, 780 F.3d

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The Court has reviewed Plaintiff’s response (ECF No. 64) and Defendant’s reply
(ECF No. 65).
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1260, 1266 (9th Cir. 2015). Prevailing defendants in ADA cases may therefore only be

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awarded fees “upon a finding that the plaintiff’s action was frivolous, unreasonable, or

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without foundation.” See id. (citation omitted). The Ninth Circuit has further “repeatedly

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cautioned that district courts should not ‘engage in post hoc reasoning,’ awarding fees

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simply ‘because a plaintiff did not ultimately prevail.’” Id. (citation omitted).

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Defendant argues Plaintiff’s failure to accommodate claim was frivolous because

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Defendant accommodated Plaintiff’s request for an adjusted work schedule to allow her

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to adapt to a new medication, and Plaintiff knew she had been accommodated when she

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filed her failure to accommodate claim based on that request. (ECF No. 63 at 6-8.) Plaintiff

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counters that her claim was not frivolous when it was filed because it was also based on

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other requests that Defendant did not accommodate, but which the Court later decided

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were time barred, leaving Plaintiff’s claim supported by only one request for an

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accommodation that Defendant granted—leading the Court to grant summary judgment

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to Defendant on Plaintiff’s reasonable accommodation claim. (ECF No. 64 at 2, 4-6.) The

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Court is persuaded by Plaintiff’s argument.

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The Court declines to award Defendant its partial fees here because it does not

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find Plaintiff’s failure to accommodate claim was frivolous at the time it was filed. While

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Plaintiff ultimately lost on that claim, the Court is mindful that it should not engage in post

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hoc reasoning. See Kohler, 780 F.3d at 1266. Further, it is unusual and inconsistent with

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the purpose of the ADA to award fees to Defendant, who prevailed in this case. See id.

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In addition, as counsel is well aware, “the general rule in the United States” is that “litigants

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must pay their own attorney’s fees.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412,

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415 (1978) (citation omitted). The Court is unpersuaded it should depart from these

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general principles in this case.

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The Court notes that the parties made several arguments and cited to several

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cases not discussed above. The Court has reviewed these arguments and cases and

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determines that they do not warrant discussion as they do not affect the outcome of the

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Motion.

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It is therefore ordered that Defendant Washoe County’s motion for attorney’s fees
(ECF No. 63) is denied.
DATED THIS 30th day of August 2019.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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