Russell v. Rapid City Area Schools et al

Filing 132

ORDER denying 116 Motion for Attorney Fees. Signed by U.S. District Judge Jeffrey L. Viken on 1/11/22. (SB)

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UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CIV. 18-5015-JLV

STARLA F. RUSSELL,
Plaintiff,

ORDER

vs.
RAPID CITY AREA SCHOOLS;
RAPID CITY AREA SCHOOL BOARD OF
EDUCTION; KATHARINE THOMAS,
RCAS BOARD OF EDUCATION
PRESIDENT in her official capacity;
WESTERN DAKOTA TECHNICAL
INSTITUTE; and ANN BOLMAN, WDT
PRESIDENT in her official capacity,
Defendants.
INTRODUCTION

On September 21, 2021, the court entered an order adopting a report and
recommendation of a magistrate judge. 1 (Docket 113) (referencing Docket 110).
The order granted defendants’ motion for summary judgment and dismissed
plaintiff’s complaint with prejudice. Id. at p. 16.
On October 19, 2021, defendants filed a motion, a legal memorandum, an
affidavit and one exhibit seeking an award of attorneys’ fees of $30,716 and costs
of $8,574.17. (Dockets 116-118 & 118-1). Two days later, defendants filed an
amended bill of costs together with an exhibit. (Dockets 120 & 120-1). Plaintiff
filed a response, an affidavit and four exhibits in resistance to defendants’
motion for payment of costs. (Dockets 121, 122, 122-1 through 122-4).
1Pursuant

to Fed. R. Civ. P. 25(d), Katharine Thomas is automatically
substituted as the President of the Rapid City Area Schools Board of Education
as of her election to this position on July 1, 2021.

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On November 9, the Clerk of Court filed an amended taxation of costs.
(Docket 125). The Clerk assessed costs in favor of the defendants and against
the plaintiff in the sum of $5,472.21. Id. The same day, plaintiff filed her legal
memorandum together with an affidavit in opposition to defendants’ motion for
assessment of attorneys’ fees. (Dockets 126 & 127).
On November 15, 2021, defendants filed a “no objection” response to the
Clerk’s amended taxation of costs. (Docket 128). The same day, plaintiff filed
an objection and affidavit in response to the Clerk’s amended taxation of costs.
(Dockets 129 & 130).
For the reasons stated below, defendants’ motion seeking an award of
attorneys’ fees is denied and plaintiff’s objections to the amended taxation of
costs is overruled.
ANALYSIS
On February 20, 2018, Plaintiff Starla Russell, appearing pro se, filed a
complaint against the defendants asserting claims for discrimination resulting in
a hostile work environment and retaliation under Title VII, 42 U.S.C. §§ 2000e to
2000e-17; claims of age discrimination, hostile work environment and failure to
hire under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C.
§§ 621 to 634; and supplemental claims under South Dakota state law for failure
to provide a written 60-day notice prior to termination in violation of SDCL
§ 13-39-65 (as in effect in 2016) and for defamation. (Docket 1). Defendants
filed a joint answer to plaintiff’s complaint. (Docket 7). Over the course of the
next two years, the parties engaged in protracted discovery, depositions and
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motions practice before United States Magistrate Judge Daneta Wollmann.
On March 6, 2020, defendants filed a motion for summary judgment together
with a legal memorandum, a statement of undisputed material facts, three
affidavits and 31 exhibits. (Dockets 74 through 77, 77-1 through 77-23, 78, 78-1
through 78-5, 79 & 79-1 through 79-3). Plaintiff filed a legal memorandum in
opposition to defendants’ motion for summary judgment together with an
affidavit, 51 exhibits and an amended response to defendants’ statement of
undisputed material facts. (Dockets 99, 101, 101-1 through 101-5 & 106).
Defendants filed a reply brief, an affidavit and four exhibits. (Dockets 103, 105 &
105-1 through 105-4). Plaintiff filed a sur-reply brief together with an affidavit
and six exhibits. (Dockets 107, 108, 108-1 through 108-6). Defendants filed
an objection to plaintiff’s response to defendants’ statement of undisputed
material facts. (Docket 109).
The magistrate judge issued a R&R which made several
recommendations: (1) that the Title VII and ADEA claims against Matt Stephens
and Dr. Bolman be dismissed; (2) that the Rapid City Area Schools, Rapid City
Area Board of Education and Western Dakota Technical Institute be dismissed
as not being proper parties; and (3) that defendants’ motion for summary
judgment be granted as to all of plaintiff’s claims. (Docket 110 at pp. 11 & 31).
Ms. Russell timely filed objections to the R&R. (Docket 112).
On September 21, 2021, after completing a de novo review of the portions
of the R&R to which objections were made, the court overruled plaintiff’s
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objections, adopted the R&R, granted defendants’ motion for summary judgment
and dismissed plaintiff’s complaint with prejudice. (Docket 113 at p. 16).
As prevailing parties and pursuant to Fed. R. Civ. P. 54, D.S.D. Civ. LR
54.1 and 42 U.S.C. § 2000e-5K, defendants now move for attorneys’ fees of
$30,716 and costs of $8,574.17. 2 (Docket 116). Defendants submit they
incurred attorneys’ fees and costs of $165,030.27 in this case but seek only
attorneys’ fees of $30,716 and costs. (Docket 117 at p. 1). Defendants claim
20 percent of their total attorneys’ fees of $153,579.50 was based on an estimate
of the time spent dealing with plaintiff’s “state-based claims,” plaintiff’s “motion
to disqualify and the baseless allegations” against a number of the named
defendants. Id. at p. 5.
Defendants acknowledge “that a prevailing employer may only recover
attorney fees under the ADEA under the bad faith exception to the American
Rule.” Id. at p. 2 n.1 (referencing Cova v. Coca-Cola Bottling Co., 574 F.2d
958 (8th Cir. 1978); Hoover v. Armco, Inc., 915 F.2d 355 (8th Cir. 1990)).
Defendants argue they are entitled to recover attorneys’ fees for successfully
defending against a Title VII claim
if it is determined that the action “was frivolous, unreasonable, or
groundless, or that the plaintiff continued to litigate after it clearly
became so, and if a plaintiff is found to have brought or continued
such a claim in bad faith, there will be an even stronger basis for
charging him with the attorney’s fees incurred by the defense.”

2Because

of defendants’ acquiescence to the amended taxation of costs of
$5,472.21, any reference in this order to costs will address this figure. See
Dockets 125 and 128.
4

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Id. at p. 4 (citing Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978)).
Even where a plaintiff brings both non-frivolous and frivolous claims, defendants
assert they are entitled to an award of attorneys’ fees for the costs incurred on
the frivolous claims. Id. (referencing Fox v. Vice, 563 U.S. 826, 829 (2011)).
Defendants contend 20 percent of the total attorneys’ fees incurred were the
result of plaintiff’s frivolous claims. Id. at p. 5.
Ms. Russell submits her pro se filing may not have been “the model of
clarity” but “at no time did [she] file frivolous, spiteful or bad faith motions, and
this Court has not ruled or used language that such filings were frivolous,
spiteful or in bad faith.” (Docket 127 ¶ 5). Plaintiff contends that even under
the Cova “standard it [is] within the discretion of the District Court to deny an
attorneys’ fee award.” (Docket 126 at pp. 2-3) (citing Cova, 574 F.3d at 961).
“Although the ADEA does not provide for the payment of attorney's fees to
a prevailing defendant . . . a prevailing defendant may recover fees upon a
showing that the plaintiff litigated the action in ‘bad faith, vexatiously, wantonly,
or for oppressive reasons.’ ” E.E.O.C. v. Hendrix College, 53 F.3d 209, 211 (8th
Cir. 1995) (citing Hoover, 915 F.2d at 357). “[T]his standard is more stringent
than the standard for awarding court costs[.]” Whitson v. Marriott Pavillon
Hotel, 49 Fed. Appx. 655, 656 (8th Cir. 2002) (referencing Hendrix College,
53 F.3d at 211).
Based on defendants’ current motion, the court took a detailed second
look at its September 21, 2021, order. Both this court and the magistrate judge
found Ms. Russell met the first and second elements of a prima facia case for
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retaliation. (Docket 113 at pp. 4 & 5) (referencing Docket 110 at pp. 16-17).
Concerning the third element, the court adopted the magistrate judge’s
conclusion that plaintiff “failed to present ‘stronger alternative evidence of
causation’ to overcome the [6-month or 11-month] delay and the resulting
weakened inference of retaliation.” Id. at p. 6 (referencing Docket 110 at
pp. 18-19; internal citation omitted). While this deficiency in plaintiff’s case was
an impediment to her retaliation claim, the court found there is no suggestion
that the retaliation claim was brought in “bad faith, vexatiously, wantonly, or for
oppressive reasons.” Hendrix College, 53 F.3d at 211.
The same conclusion is reached with plaintiff’s pretextual claim in
opposition to defendants’ justification for termination.
[P]laintiff misses the point. Her positive evaluations and her belief
WDT shifted its explanation about her termination fail to recognize
that her employer was entitled to accept the recommendation of
ATTAIN to invoke a reduction in force and eliminate plaintiff’s
position. The court does not accept plaintiff’s assertion that WDT’s
reduction in force decision was a shifting explanation for what
occurred. While Ms. Russell may see it differently, the record is
void of any evidence of pretext.
(Docket 113 at p. 9). While Ms. Russell missed the point, her argument was
made in good faith based upon her reasonably held view of the evidence.
While plaintiff’s ADEA claim is a closer issue, the court finds that while Ms.
Russell believed “she had a contractual right to apply for other positions,” the law
requires that a plaintiff do more than simply wait for a hiring invitation. Ms.
Russell was required to show “she made every reasonable attempt to convey her
interest in the job to the employer.” Id. at p. 11 (citing Watson v. McDonough,
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996 F.3d 850, 855 (8th Cir. 2021; internal citation and brackets omitted). Even
though plaintiff’s interpretation of the law was misplaced, the court finds she did
not assert this claim in “bad faith, vexatiously, wantonly, or for oppressive
reasons.” Hendrix College, 53 F.3d at 211.
Finally, the court found Ms. Russell’s failures to comply with the South
Dakota laws’ administrative requirements and notices were fatal to her state law
claims. (Docket 113 at pp. 13-16). While Ms. Russell’s election of remedies
argument missed the mark, she made good faith arguments to support her
position. The fact plaintiff misconstrued South Dakota law on the mandatory
exhaustion of administrative remedies and the notice requirements prior to
proceeding to court does not mean that she asserted these claims in “bad faith,
vexatiously, wantonly, or for oppressive reasons.” Hendrix College, 53 F.3d at
211.
If defendants believed some of plaintiff’s claims were “frivolous,
unreasonable, or groundless, or that the plaintiff continued to litigate after it
clearly became so,” defendants should have advanced a Fed. R. Civ. P. 12(b)(6)
motion earlier in this litigation. See Docket 117 at p. 4 (citing Christiansburg
Garment Co., 434 U.S. at 412). They chose not to do so. In conclusion, the
court finds defendants’ motion for an assessment of any part of their attorneys’
fees against plaintiff must be denied.
Ms. Russell’s claim that an award of costs is inequitable under the
circumstances is without merit. See Docket 129 at pp. 8-9. While Ms.
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Russell’s income may have suffered by the loss of her former employment at
Western Dakota Technology, her claim that she must cover the costs of “three
[children] in college simultaneously in 2020” fails to ring true. Id. at p. 8. The
court takes notice that Ms. Russell’s spouse is an attorney practicing law in
South Dakota. Between the two parents, they can devise ways to support their
adult children and permit Ms. Russell to pay the costs assessed against her in
this litigation. Plaintiff’s objection to the amended taxation of costs is overruled.
ORDER
Based on the above analysis, it is
ORDERED that defendants’ motion for attorneys’ fees (Docket 116) is
denied.
IT IS FURTHER ORDERED that plaintiff’s objections to the amended
taxation of costs (Dockets 126, 129 & 130) are overruled.
Dated January 11, 2022.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
UNITED STATES DISTRICT JUDGE

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