Equal Employment Opportunity Commission v. HP Pelzer Automotive Systems, Inc. (TV2)
Filing
224
ORDER: Defendants objections 222 will, consequently, be OVERRULED.The Court will ACCEPT in whole the Report and Recommendation 221 and incorporate it into this Memorandum Opinion. Accordingly, for the reasons stated herein, defendants motion for attorney fees 213 is DENIED. Signed by District Judge Thomas A Varlan on 3/2/20. (ABF)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff,
and
ESTELA BLACK,
Intervening Plaintiff,
v.
HP PELZER AUTOMOTIVE
SYSTEMS, INC.,
Defendant.
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No.:
1:17-CV-31-TAV-CHS
MEMORANDUM OPINION AND ORDER
Defendant has litigated and defeated plaintiffs’ retaliation suit under Title VII of the
Civil Rights Act of 1964. Now, by pursuing attorney fees and costs, it seeks to punish
plaintiff Equal Employment Opportunity Commission (“EEOC”) for a suit defendant
believes was frivolously brought, unreasonably continued, and litigated in bad faith.
Unfortunately for defendant, while the jury returned a verdict in its favor, this Court has
already ruled three (3) times that this suit was not frivolous, unreasonable, or groundless—
twice before the trial and once after hearing all the evidence. The Court will therefore
ADOPT IN WHOLE the magistrate judge’s report and recommendation (“R&R”) [Doc.
221] and incorporate it into this memorandum opinion denying defendant’s motion for
attorney fees and costs [Doc. 213].
I.
Background
The EEOC brought—and plaintiff Estela Black intervened in—a Title VII suit
alleging defendant HP Pelzer Automotive Systems, Inc. (“defendant”) fired Black, one of
its employees, for complaining of sexual harassment [Doc. 1; see also Doc. 106 p. 1–3].
Prior to trial, the Court denied defendant’s motion for summary judgment and motion for
Rule 11 sanctions [Doc. 92] and later denied defendant’s motion to alter or amend the order
denying summary judgment [Doc. 106]. At the close of the evidence, the Court orally
denied defendant’s renewed motion for a directed verdict. After the jury returned a verdict
in defendant’s favor [Doc. 204], defendant moved [Doc. 213] for attorney fees and costs
from plaintiff EEOC pursuant to Federal Rule of Civil Procedure 54(d) and 42 U.S.C. §
2000e-5(k). The Court referred the motion to Magistrate Judge Christopher H. Steger
[Doc. 217], who filed a report and recommendation recommending denial of defendant’s
motion [Doc. 221].
Judge Steger describes defendant’s motion as an attempt to “relitigate the summary
judgment motion in its motion for attorney fees in order to show that [p]laintiff’s retaliation
was frivolous; that summary judgment was ‘improperly denied’; and that HP Pelzer is,
therefore, entitled to attorney fees from the EEOC” [Doc. 221 p. 4]. Noting that a motion
for attorney fees is not the proper vehicle to challenge a prior decision denying summary
judgment, Judge Steger reasons that “[a] case substantive enough to submit to a jury is not
frivolous, unreasonable, or without foundation,” and he declines to engage in “post hoc
reasoning to conclude that Black’s claim lacked all merit” [Id.]. This case, Judge Steger
2
finds, does not represent the “extreme, egregious situation contemplated by the Supreme
Court in Christiansburg[, 434 U.S. 412 (1978)]” that would justify the award of attorney
fees to a defendant in a civil rights action [Doc. 221 p. 4–5]. Accordingly, he recommends
this Court deny defendant’s motion for attorney fees [Id. at 5].
Defendant filed an objection to the R&R [Doc. 222], and the EEOC responded [Doc.
223]. Defendant raised four objections: (1) the R&R is contrary to law because it
recommends denial of defendant’s motion because defendant did not prevail in its
summary judgment motion; (2) the R&R is clearly erroneous because it “fails to include
the fact that the EEOC dismissed the plaintiff’s charge of sex discrimination and then
brought this frivolous lawsuit with no evidence of bad faith on the part of defendant”; (3)
the R&R is contrary to law because it “fail[s] to address the EEOC’s reprehensible behavior
throughout the litigation”; and (4) the R&R “fails to follow the law where it fails to award
defendant its attorneys’ fees and costs [when] the EEOC filed and pursued a frivolous
retaliation case” [Doc. 222 p. v–vi]. The EEOC contends that the R&R rests on wellsettled case law, that plaintiffs’ claim was not contingent on the actionability of Black’s
alleged sexual harassment, and that the EEOC did not litigate in bad faith or act
unreasonably [Doc. 223 p. 2–3].
II.
Standard of Review
This Court reviews de novo those portions of a magistrate judge’s report and
recommendation to which a party objects, unless the objections are frivolous, conclusive,
or general. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Smith v. Detroit Fed’n of
3
Teachers, Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987); Mira v. Marshall, 806 F.2d 636,
637 (6th Cir. 1986).1 “The parties have ‘the duty to pinpoint those portions of the
magistrate’s report that the district court must specially consider.’” Mira, 806 F.2d at 637
(quoting Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir. 1982)). “[A]bsent compelling
reasons,” parties may not “raise at the district court stage new arguments or issues that
were not presented to the magistrate.” Murr v. United States, 200 F.3d 895, 902 n.1 (6th
Cir. 2000) (citing United States v. Waters, 158 F.3d 933, 936 (6th Cir. 1998)); see also
Marshall v. Chater, 75 F.3d 1421, 1426–27 (10th Cir. 1996) (“[I]ssues raised for the first
time in objections to the magistrate judge’s recommendation are deemed waived.”). The
Court “may accept, reject, or modify, in whole or in part, the findings or recommendations”
of the magistrate judge. 28 U.S.C. § 636(b)(1).
III.
Analysis
Defendant’s fourth objection is conclusory and general and thus does not require de
novo review, but its first three objections do merit de novo review.
Finding that
defendant’s second objection overlaps with its first objection, the Court will discuss them
together before turning to the third objection. The Court finds that the relevant statutory
1
The Court notes that defendant appears to misunderstand the standard of review that
applies in this case, asking for “fresh look” review, rather than review under a “clearly erroneous
or contrary to law” standard [Doc. 222 p. 2–3 (citing Carter v. Hickory Healthcare, Inc., 905 F.3d
963, 967 (6th Cir. 2018)], even though the latter standard would not apply to review of proper
objections to a report and recommendation. Fed. R. Civ. P. 72(b)(3). But, defendant’s objections
to the R&R lead the Court to consider the substance of its motion for attorney’s fees, so defendant’s
requested standard of review, i.e. fresh look, is not meaningfully different than the review the rules
require the Court to give.
4
language and case law support the magistrate judge’s denial of defendant’s motion for
attorney fees and costs.
Generally, the “American Rule” governs disputes over attorney fees, providing that
each party, including the prevailing party, bears his or her own attorney fees. Riddle v.
Egensperger, 266 F.3d 542, 547 (6th Cir. 2001). However, certain statutes provide for the
award of attorney fees to the winner. Id. Defendant in this case moves for attorney fees
under Federal Rule of Civil Procedure 54(d) and 42 U.S.C. § 2000e-5(k), which enables a
court to award the prevailing party in a Title VII action “a reasonable attorney’s fee
(including expert fees)” and states that the EEOC “shall be liable for costs the same as a
private person.”
“An award of attorney fees against a losing plaintiff in a civil rights action ‘is an
extreme sanction, and must be limited to truly egregious cases of misconduct.’” Riddle,
266 F.3d at 547 (quoting Jones v. Continental Corp., 789 F.2d 1225, 1232 (6th Cir. 1986)).
“[A] prevailing defendant should only recover upon a finding by the district court that ‘the
plaintiff’s action was frivolous, unreasonable, or without foundation, even though not
brought in subjective bad faith.’” Wayne v. Village of Sebring, 36 F.3d 517, 530 (6th Cir.
1994) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978)).
However, “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 fees incurred by the
defense.” Christiansburg, 434 U.S. at 422.
5
“The Supreme Court has instructed district courts considering prevailing
defendants’ applications for attorney fees to ‘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.’” Wayne, 36 F.3d at 530
(quoting Christiansburg, 434 U.S. at 421–22). The Sixth Circuit has clarified that “a
plaintiff may have an entirely reasonable ground for bringing suit even when the law or
facts appear questionable or unfavorable at the outset” and that a court should not award
fees unless the court finds that the claim was “groundless at the outset or ‘that the plaintiff
continued to litigate after it clearly became so.’” Smith v. Smythe-Cramer Co., 754 F.2d
180, 183 (6th Cir. 1985) (quoting Christiansburg, 434 U.S. at 422).
A.
Objection One: The R&R Improperly Denies Defendant’s Motion Based
on This Court’s Denial of Summary Judgment
The R&R recommends denial of defendant’s motion for attorney fees because this
Court denied summary judgment and “[a] case substantive enough to submit to a jury is
not frivolous, unreasonable, or without foundation” [Doc. 221 p. 4]; defendant argues this
conclusion is contrary to law. While the R&R’s statement of the law may arguably be
viewed as too unequivocal, it is nonetheless true that it is unusual for a court to find that a
case was “frivolous, unreasonable, or without foundation” where it survived a summary
judgment motion. Against that backdrop, and as the ensuing discussion demonstrates, the
magistrate judge’s conclusions are certainly not, despite defendant’s assertions, contrary
to law.
6
In support of its contention that a court may award fees and costs, even after denying
summary judgment, defendant principally cites decisions rendered outside the Sixth Circuit
[Doc. 222 p. 4–7]. Only two of these appear to have involved courts granting motions for
attorney fees under the Christiansburg standard after deciding the case had sufficient
substance to survive a summary judgment motion [Id. (citing Greenberg v. Hilton Int’l Co.,
870 F.2d 926, 940 (2d Cir. 1989), on reh’g, 875 F.2d 39 (2d Cir. 1989), and Steinberg v.
St. Regis/Sheraton Hotel, 583 F. Supp. 421, 424 (S.D.N.Y. 1984))].
The dearth of case law supporting defendant’s position should not surprise
considering the distinction between cases where the court was presented with a motion for
summary judgment and those where it was not. Summary judgment permits the court to
“pierce any boilerplate in the pleadings and assess the parties’ substantive proof.” 2
Moore’s Federal Practice and Procedure § 17.02. When ruling on a summary judgment
motion, a court typically has before it a record formed by “discovery, investigation, and
affidavits.” Id. § 17.03. While it must view all facts and inferences in the light most
favorable to the non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986), and while the trial process produces a more substantive record, a
court that has entertained a summary judgment motion has generally examined the record
more seriously than a court that has not. It follows that a court not presented with a motion
for summary judgment would be more likely to find a case frivolous after it went to trial
7
than a court that had previously reviewed the record and the law before denying summary
judgment.2
Thus, defendant’s citation of opinions awarding fees after proceeding to trial, where
the court was not previously presented with a motion for summary judgment, is not very
persuasive. Although the three district court opinions cited from within the Sixth Circuit
did award attorney fees after trials, the courts therein did not try the suits after denying
well-supported summary judgment motions.
For example, in Piljan v. Michigan
Department of Social Services, the court stated that defendants were entitled to an award
of attorney fees despite their failure earlier in the trial to move for summary judgment
because “there was ample material in the record to support such a motion.” 585 F. Supp.
1579, 1582–83 (E.D. Mich. 1984). In EEOC v. Union Camp Corp., the parties stipulated
that plaintiff could make out a prima facie case and that defendant could meet its burden
of offering a non-discriminatory explanation for the discharge, so the case was “tried solely
2
As one might expect, and as plaintiff notes in its response to the motion for attorney fees
[Doc. 216 p. 8–9], the cases cited in support of defendant’s motion for attorney fees all awarded
fees in cases resolved in the pretrial stage, whether by summary judgment, by voluntary dismissal,
or otherwise [Doc. 214 p. 8–9 (citing EEOC v. Bellemar Parts Indus., Inc., 868 F.2d 199 (6th Cir.
1989) (clarifying order awarding attorney fees in opinion holding that district court erred in
enforcing subpoena duces tecum), EEOC v. Detroit-Macomb Hosp. Corp., 952 F.2d 403, 1992
WL 6099 (table) (6th Cir. 1992) (affirming order of summary judgment and award of attorney
fees), EEOC v. E.J. Sacco, Inc., 102 F. Supp. 2d 413 (E.D. Mich. 2000) (granting motion for
attorney fees after granting motion for summary judgment), EEOC v. Argo Distrib., LLC, 555 F.3d
462, 472–73 (5th Cir. 2009) (affirming grant of summary judgment and award of attorney fees),
EEOC v. Hendrix Coll., 53 F.3d 209, 211 (8th Cir. 1995) (awarding attorney fees under 28 U.S.C.
§ 2412(b) after granting summary judgment), EEOC v. Propak Logistics, Inc., 746 F.3d 145, 152
(4th Cir. 2014) (affirming award of attorney fees where court awarded fees after granting summary
judgment), and EEOC v. Peoplemark, Inc., 732 F.3d 584, 593 (6th Cir. 2013) (affirming award of
attorney fees where EEOC dismissed claim through joint motion of parties)].
8
on the issue of pretext,” and defendant did not test the sufficiency of plaintiff’s pretext
proof by summary judgment motion. 536 F. Supp. 64, 66 (W.D. Mich. 1982).3
Indeed, the Sixth Circuit has recognized that “[e]ven though the claims after
discovery are found to be without merit by a court,” i.e. on summary judgment, “such a
finding does not equate with a determination that the claims were without foundation when
the complaint was initially filed.” Riddle, 266 F.3d at 551 (emphasis added). “Decisive
facts may not emerge until discovery or trial. The law may change or clarify in the midst
of litigation.” Id. (quoting Christiansburg, 434 U.S. at 423). The Sixth Circuit has warned
that “[a] potential plaintiff’s fear of an increased risk of being assessed attorney fees after
extensive discovery has taken place and who continues to proceed to a ruling on a summary
judgment motion, would create a disincentive to the enforcement of civil rights laws and
would have a chilling effect on a plaintiff who seeks to enforce his/her civil rights.” Id.
(citing Dean v. Riser, 240 F.3d 505, 510 (5th Cir. 2001)).
District courts in the Sixth Circuit have frequently denied motions for attorney fees
in cases where they granted summary judgment or even motions to dismiss. In Green v.
City of Southfield, for example, the Sixth Circuit upheld a district court’s finding that
claims were not frivolous and its resulting decision not to award attorney fees, even though
3
Hill v. BASF Wyandotte Corp. is similarly distinguishable from this case. There, the
court concluded that plaintiff produced “no proof at trial to substantiate her claims of sex
harassment” or to demonstrate an “impermissible racial motivation for her probation and
discharge,” 547 F. Supp. 348, 354 (E.D. Mich. 1982); yet, neither that opinion, nor the court’s
judgment, No. 9-74125, 1981 WL 26987 (E.D. Mich. Sept. 28, 1981), mentions denying an earlier
motion for summary judgment or even a motion to dismiss.
9
the district court granted defendant’s motion to dismiss. 764 F. App’x 548, 549 (6th Cir.
2019) (citing Christiansburg, 434 U.S. at 422 (“a plaintiff may have an entirely reasonable
ground for bringing suit even when the law or facts appear questionable or unfavorable at
the outset”)). Similarly, a district court denied defendant’s motion for legal fees where “a
plaintiff had well founded beliefs of being wronged, but was unable to sustain the burden
required at law to sustain his position and avoid an adverse result on a motion for summary
judgment.” Patterson v. United Steel Workers of Am., 381 F. Supp. 2d 718, 721 (N.D.
Ohio 2005).4
Moreover, the kinds of cases where the Sixth Circuit upholds awards of attorney
fees are generally those where the “defects in the suit [were] of such magnitude that the
plaintiff’s ultimate failure [wa]s clear[] from the beginning or at some significant point in
the proceedings after which the plaintiff continue[d] to litigate.” Tech. Recycling Corp. v.
City of Taylor, 186 F. App’x 624, 638 (6th Cir. 2006); see, e.g., id. (upholding fee award
where plaintiffs “merely state[d], in conclusory fashion, that ‘[p]laintiffs’ [sic] have
4
See also Canning v. Poole, Civil No. 10-16-GFVT, 2013 WL 5217646, at *4 (E.D. Ky.
Sept. 13, 2013) (finding suit not frivolously brought and denying attorney fees after granting
summary judgment where plaintiff’s “methods of litigating . . . left a good deal to be desired, [but]
she ha[d] clearly articulated the basis under which she filed her claims,” and defendant affidavits
represented “nothing more than conflicting witness testimony”); Wayne, 36 F.3d at 530 (upholding
district court’s denial of attorney fees where defendants won summary judgment on the basis of
qualified immunity, but plaintiffs also sued for injunctive relief, which was not barred by
immunity); Beard v. Schneider, No. 14-13465, 2018 WL 2296472, at *3–4 (E.D. Mich. May 21,
2018) (noting that although “[i]n hindsight all of Plaintiff’s above complaints were doomed,
particularly given no excessive force was ever established, . . . this is just the type of post hoc
reasoning or rationalization the Supreme Court cautioned against in Christiansburg . . ., and [n]one
of the above claims were based on a set of untrue facts, only unknown ones.”).
10
identified in their second amended complaint and their discovery responses numerous
witnesses, documents and other evidence that support their claims’” and where “plaintiffs’
egregious failure to comply with discovery orders support[ed] a powerful adverse inference
about the strength of plaintiffs’ case”); Wolfe v. Perry, 412 F.3d 707, 721 (6th Cir. 2005)
(upholding fee award where “Junior” alleged in the complaint that his rights were violated
by an illegal search performed at “the Fisher Road residence,” and where deposition
testimony revealed that Junior “did not own or reside at the residence, nor did he own any
of the property seized from it”).5
As the magistrate judge correctly found, this is not the exceptional case justifying
an award of attorney fees. See Riddle, 266 F.3d at 547 (quoting Jones, 789 F.2d at 1232)
(“An award of attorney fees against a losing plaintiff in a civil rights action ‘is an extreme
sanction, and must be limited to truly egregious cases of misconduct.’”). Instead, the Court
has ruled implicitly and explicitly that this case was not frivolous, unreasonable, or without
foundation not once, but three times—in ruling on the motion for summary judgment [Doc.
92], in denying the motion to alter or amend the order denying summary judgment [Doc.
106], and finally in denying the renewed motion for directed verdict.
5
See also EEOC v. Peoplemark, 732 F.3d at 591–92 (affirming assessment of attorney
fees against EEOC where discovery revealed that the EEOC’s “claim was based on a companywide
policy that did not exist”); Wilson-Simmons v. Lake Cty. Sheriff’s Dep’t, 207 F.3d 818, 823–24
(6th Cir. 2000) (upholding fee award in racial discrimination and retaliation case where plaintiff
alleged failure to investigate report by a co-worker that another co-worker had sent a racist email
about plaintiff to a third co-worker but where plaintiff refused to identify the co-worker who had
given her the information, could produce no evidence of the email’s existence, and her supervisor
responded to report by immediately posting a notice to all employees prohibiting racial statements
in emails).
11
The Court’s ruling on directed verdict is particularly relevant because the Court
made its ruling after hearing all the evidence, i.e. when the alleged weakness of plaintiffs’
case would have been most glaring. Yet, even at that late stage, viewing the evidence in
the light most favorable to plaintiffs, the Court found that the jury could “reasonably find
that the defendant did not reasonably rely on particularized facts in making the decision to
terminate Ms. Black. Thus, the jury could reasonably find that defendant did not have an
honest belief that Ms. Black purposely falsified her complaint.” Transcript of Record, Mar.
15, 2019. In other words, the Court found that a reasonable juror could find for plaintiffs
on the issue of pretext, even though defendant argued—and continues to argue [Doc. 222
p. 8]—plaintiffs could produce no evidence in support of their burden on this issue. The
Court’s ruling continued:
In reviewing the evidence submitted, again, in a light most favorable
to plaintiffs, questions have arisen regarding whether and/or in what manner
defendant’s employees documented their conversations with Ms. Black and,
if so, what became of those documentations.
Questions have also been raised and evidence presented on aspects of
the interviews of witnesses, including Mr. Strange and Ms. Kennedy, and the
informational flow pertaining to the results of the investigation.
Also, as to the matter of particularized facts, included in the evidence
in this case is defendant’s admission, “other than his handwritten notes, Eric
Weiss . . . had no documentation of particularized facts [on] which he
reasonably relied when he gave his opinion to Lynn Schnepp . . . that Estela
Black made a false claim of sexual harassment.”
Although defendant maintains that it determined that Ms. Black
falsified her report, plaintiffs have argued the evidence shows there is no
affirmative fact to indicate that Ms. Black lied, that Mr. Weiss did not reinterview Ms. Black before informing her that she could resign or she would
be fired, and that Mr. Weiss did not provide her the opportunity to offer more
facts or evidence prior to presenting her the option to resign.
12
Instead, Mr. Weiss appears to have relied—again, looking at the facts
in a light most favorable to the plaintiffs—on the fact that apparent witnesses
cannot corroborate Ms. Black’s story, at least one of whom was employed at
an agency where, according to plaintiff’s version of the facts, she was in a
position to have a continuing professional relationship with Mr. Strange and
the defendant.
As a result, plaintiffs contend this raises an inference as to that
witness’s credibility concerning her lack of corroboration, and, as noted in
viewing this evidence in a light most favorable to plaintiffs, the Court must
similarly grant all reasonable inferences in plaintiff’s favor.
As such, this case continues to be most similar, the Court believes, to
the facts in Gilooly v. Missouri Dept. of Health and Senior Services, 421 F.3d
734, 741 (8th Cir. 2005). There, the employer’s belief that the plaintiff was
lying “was founded solely on the statements of other employees and
witnesses,” despite there being “no independently verifiable evidence” that
the plaintiff had lied. id. Under those circumstances, where the defendant’s
decision was inevitably based on credibility determinations, the court
determined that a jury should decide the question of the defendant’s honest
belief, and the Court makes that same conclusion herein.
...
For these reasons, and for the reasons stated in the court’s prior orders
on this issue, defendant’s motion for judgment as a matter of law is denied.
Transcript of Record, Mar. 15, 2019.
In evaluating a motion for attorney fees, it is “important to consider the evidence
that the plaintiffs had going into trial, and what happened during litigation, including
whether the plaintiff’s case survived a motion for a directed verdict.” Miami Valley Fair
Hous. Ctr., Inc. v. Connor Grp., 725 F.3d 571, 581 (6th Cir. 2013) (citing Brooks v. Ctr.
Park Assocs., 33 F.3d 585, 587 (6th Cir. 1994), and Lowery v. Jefferson Cty. Bd. of Educ.,
586 F.3d 427, 438 (6th Cir. 2009)) (upholding denial of attorney fees where case survived
a motion for a directed verdict after plaintiff presented its case at trial).
13
Here, the Court denied summary judgment because plaintiffs “successfully
established a prima facie case” [Doc. 92 p. 13, 18], and because as the Court stated in its
denial of the motion to alter or amend the summary judgment order, the Court found that
there was a “genuine dispute of material fact in this case regarding pretext” [Doc. 106 p. 6
n.2]. Even after hearing all the evidence, the Court ruled that the record contained enough
evidence to support a jury finding for plaintiffs on the issue of pretext. In light of these
previous findings, the Court cannot hold that the claim was “groundless at the outset or
‘that the plaintiff[s] continued to litigate after it clearly became so.’” Smith v. SmytheCramer Co., 754 F.2d 180, 183 (6th Cir. 1985) (quoting Christiansburg, 434 U.S. at 422).
Defendant argues that plaintiff EEOC’s election not to bring Ms. Black’s sexual
harassment claim and only a retaliation claim exposes the baselessness of its suit from the
beginning [Doc. 222 p. 1], but plaintiff has provided a reasonable explanation for this
decision. The EEOC states that it investigated Ms. Black’s charge of discrimination and
chose not to issue a reasonable cause finding on Ms. Black’s sexual harassment allegations
because “the allegations were not severe or pervasive under Sixth Circuit and Supreme
Court law” [Doc. 216 p. 2]. Pursuing a retaliation claim the EEOC believed it could prove
under a different legal standard than the standard for a sexual harassment claim represents
a reasonable strategic litigation decision, and defendants have not demonstrated that it was
a manifestation of bad faith.
Accordingly, Judge Steger properly recommended denial of defendant’s motion for
attorney fees under 42 U.S.C. § 2000e-5(k) because plaintiffs’ claim was not “frivolous,
14
unreasonable, or without foundation,” nor did plaintiffs continue to litigate after it clearly
became so. Wayne v. Village of Sebring, 36 F.3d 517, 530 (6th Cir. 1994) (quoting
Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978)).
B.
Objection Three: The R&R Fails to Address Plaintiff’s Litigation
Conduct
Defendant also contends that the R&R is contrary to law because it does not
“address the EEOC’s reprehensible behavior throughout the litigation” [Doc. 222 p. v].
Defendant argues in its motion for attorney fees that “an award of attorneys’ fees and costs
is appropriate under § 706(k) of Title VII and Rule 11” because the “EEOC’s conduct in
this litigation was unreasonable and groundless, vexatious and in bad faith” [Doc. 214 p.
13]. Defendant is not entitled to attorney fees under either § 706(k), now codified at 42
U.S.C. § 2000e-5(k), or Federal Rule of Civil Procedure 11.
Turning first to § 2000e-5(k), the bad faith pursuit of a non-frivolous claim does not
provide an independent basis for awarding attorney fees under the Christiansburg standard.
434 U.S. at 422; see also Hill v. BASF Wyandotte Corp., 547 F. Supp. 348, 354 (E.D. Mich.
1982) (“Christian[s]burg makes it clear that an award of attorney fees to a prevailing
defendant depends on whether plaintiff had a colorable claim and not whether she pursued
that claim in good faith.”). In rejecting the EEOC’s position in Christiansburg that §
706(k) only permitted the award of attorney fees where the plaintiff brought suit in bad
faith, the Supreme Court noted that “if that had been the intent of Congress, no statutory
provision would have been necessary, for it has long been established that even under the
15
American common-law rule attorney fees may be awarded against a party who has
proceeded in bad faith.” 434 U.S. at 419. Instead, the Court held that a plaintiff “should
not be assessed” his opponent’s attorney fees “unless a court finds that his claim was
frivolous, unreasonable, or groundless,” and it stated that evidence the plaintiff brought or
continued the claim in bad faith provides “an even stronger basis” for assessing fees. Thus,
the Court made clear that the central inquiry under § 2000e-5(k) is the claim’s substance,
although a bad faith finding may support the assessment of fees.6
Accordingly, once Magistrate Judge Steger determined that plaintiffs’ claim was
not “frivolous, unreasonable, or groundless” or pursued “after it clearly became so,” 434
U.S. at 422, he did not need to address whether the EEOC’s litigation conduct demonstrated
the level of bad faith that would support an award of attorney fees under § 2000e-5(k).
Defendant also maintains that the EEOC’s litigation conduct makes an award of
attorney fees appropriate under Rule 11 [Doc. 214 p. 13], and it objects that the R&R “did
not analyze [d]efendant’s [m]otion under Rule 11 whatsoever” [Doc. 222 p. 10]. In its
original motion and supporting memorandum, defendant does not develop its argument for
awarding attorney fees under this rule, failing to mention Rule 11 at all in its motion for
6
See Roadway Exp., Inc. v. Piper, 447 U.S. 752, 762 (1980) (citing Christiansburg for the
proposition that “a prevailing defendant” in a civil rights case “may be awarded counsel fees only
when the plaintiff’s underlying claim is ‘frivolous, unreasonable, or groundless’”); EEOC v.
Peoplemark, 732 F.3d at 592 (“We are not focused on the Commission’s theory of the case, but
rather, whether the claim was frivolous, unreasonable, or groundless, or whether the Commission
continued to litigate after it clearly became so”); cf. Brooks v. Center Park Assocs., 33 F.3d 585,
587 (6th Cir. 1994) (stating that “[a] fee award to a prevailing defendant is also appropriate if the
plaintiff brought the case in subjective bad faith” but applying a different statutory provision).
16
attorney fees and only referencing it twice in its supporting memorandum, without
discussing the rule’s specific application in its motion, memorandum, or objection to the
R&R. Indeed, underlining the subtlety with which defendant raises its Rule 11 argument,
plaintiff does not address this argument in its response to the motion for attorney fees [Doc.
216].
Although Judge Steger does not analyze defendant’s entitlement to attorney fees
under Rule 11 in the R&R, the failure to do so is harmless for several reasons. First, Rule
11 does not provide only for the award of attorney fees; rather it enables a court to “impose
an appropriate sanction,” which may include “nonmonetary directives; an order to pay a
penalty into court; or, if imposed on motion and warranted for effective deterrence, an order
directing payment to the movant of part or all of the reasonable attorney fees and other
expenses directly resulting from the violation.” Fed. R. Civ. P. 11(c)(1), (4). Defendant
does not explain why the sanction of an order to pay attorney fees is “warranted for
effective deterrence.” Second, defendant has not complied with Rule 11’s procedural
requirements, failing to file its Rule 11 motion “separately from any other motion” and
presumably failing to serve the motion on plaintiff before filing it, as well as failing to give
plaintiff twenty-one (21) days after service to “withdraw[] or appropriately correct[]” the
specified conduct. Fed. R. Civ. P. 11(c)(2). Finally, the Court has already considered and
denied a motion by defendant under Rule 11—and has already chided defendant for failing
to file the earlier Rule 11 motion separately from other motions [Doc. 92 p. 18–19]. And,
while defendant describes new litigation conduct by plaintiff in its motion for attorney fees,
17
it does not specify how this conduct violates Rule 11(b).7 Nor, does defendant explain why
it would be appropriate for the Court to sanction plaintiff now when the Court’s earlier
holding made clear that “[r]egardless of [defendant’s failure to comply with Rule 11(c)’s
procedural requirements], the Court f[ound] that it [was] inappropriate to grant sanctions .
. . because plaintiffs’ claim is not frivolous” [Doc. 92 p. 19].
Thus, to the extent that defendant intends to move for Rule 11 sanctions in its motion
for attorney fees, its motion is procedurally defective and will be denied. But, as at the
time of its earlier denial, the Court notes that regardless of defendant’s failure to move for
Rule 11 sanctions separately from other motions, it would be inappropriate to grant Rule
11 sanctions in this case because the court has determined that the case is not frivolous.
Fed. R. Civ. P. 11(b).
IV.
Conclusion
Upon careful and de novo review of the record and the law pursuant to 28 U.S.C. §
636(b)(1), the Court finds that the recommendation contained in Judge Steger’s report and
7
Rule 11(b) provides:
By presenting to the court a pleading, written motion, or other paper—
whether by signing, filing, submitting, or later advocating it—an attorney or
unrepresented party certifies that to the best of the person’s knowledge,
information, and belief, formed after an inquiry reasonable under the
circumstances: (1) it is not being presented for any improper purpose, such as to
harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the
claims, defenses, and other legal contentions are warranted by existing law or by a
nonfrivolous argument for extending, modifying, or reversing existing law or for
establishing new law; (3) the factual contentions have evidentiary support or, if
specifically so identified, will likely have evidentiary support after a reasonable
opportunity for further investigation or discovery; and (4) the denials of factual
contentions are warranted on the evidence or, if specifically so identified, are
reasonably based on belief or a lack of information.
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recommendation [Doc. 221] is correct.
Defendant’s objections [Doc. 222] will,
consequently, be OVERRULED.
The Court will ACCEPT in whole the Report and Recommendation [Doc. 221] and
incorporate it into this Memorandum Opinion. Accordingly, for the reasons stated herein,
defendant’s motion for attorney fees [Doc. 213] is DENIED.
IT IS SO ORDERED.
s/ Thomas A. Varlan
UNITED STATES DISTRICT JUDGE
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