Santos v. Wincor Nixdorf, Inc. et al

Filing 88

ORDER GRANTING IN PART AND DENYING IN PART Wincor's 82 Motion for Attorney's Fees, Expenses, and Costs. Signed by Judge Robert Pitman. (lt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
MICHELLE SANTOS,
Plaintiff,
v.
WINCOR NIXDORF, INC.,
Defendant.

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1:16-CV-440-RP

ORDER
The Court entered Final Judgment in this case in favor of Defendant Wincor Nixdorf, Inc.
(“Wincor”) on January 2, 2019. (Dkt. 78). Now before the Court is Wincor’s Motion for Attorney’s
Fees, Expenses, and Costs, (Dkt. 82), Plaintiff Michelle Santos’s (“Santos”) Response, (Dkt. 84), and
Wincor’s Reply, (Dkt. 87). Having reviewed the parties’ submissions, the declaration in support, the
record, and the applicable law, the Court issues the following order.
I. Attorney’s Fees
Wincor requests attorney’s fees of $210,147.54, discounted to $105,073.77, under Section
706(k) of Title VII of the Civil Rights Act of 1964.1 As a general rule, litigants must pay their own
attorney’s fees. Stover v. Hattiesburg Pub. Sch. Dist., 549 F.3d 985, 997 (5th Cir. 2008) (citing Alyeska
Pipeline Co. v. Wilderness Soc’y, 421 U.S. 240, 247 (1975)). In a Title VII case, a district court “may in its
discretion award attorney’s fees to a prevailing defendant . . . upon a finding that the plaintiff’s
action was frivolous, unreasonable, or without foundation, even though not brought in subjective
bad faith.” Id. (quoting Christianburg Garment Co. v. EEOC, 434 U.S. 412, 421–22 (1978)). Having
won summary judgment, Wincor is the prevailing party.

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Wincor is not seeking fees related to Santos’s FLSA claim. (Mot., Dkt. 82, at 1 n.1).
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The Court thus considers whether the Santos’s Title VII action was frivolous, unreasonable,
or without foundation. A court should “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.” Id. (citing Christiansburg, 434 U.S. at 421–22). An action is
not frivolous if, for example, “there was sufficient evidence in the record to survive summary
judgment on the race and gender discrimination claims under Title VII.” Id. at 998. However, the
Fifth Circuit has affirmed an award of fees to a prevailing defendant-employer where “there was no
direct evidence of any intentional racial discrimination against [the plaintiff] and no statistical
showing of disparate treatment or effect,” and “[a]ll of the other evidence . . . was to the contrary.”
Jackson v. Color Tile, Inc., 803 F.2d 201 (5th Cir. 1986) (citing Christiansburg, 434 U.S. at 420).
In this case, Santos’s claims did not survive summary judgment. (Summ. J., Dkt. 69).
Regarding her Title VII pregnancy discrimination claim, the Court found that Santos had proffered
no direct evidence of pregnancy discrimination that would enable a juror to find discrimination
without inference or presumption, (id. at 12–13), and no evidence of a comparator to consider under
the McDonnell-Douglas framework, (id. at 15). The Court concluded that Santos had failed to establish
a prima facie case of pregnancy discrimination. (Id. at 16). Accordingly, the Court granted summary
judgment in favor of Wincor.
Wincor argues that Santos’s claims were “entirely lacking in evidentiary support,” and
“premised on a fatally flawed understanding of the governing law.” (Mot., Dkt. 78, at 3, 5 (citing
Jackson, 803 F.2d at 202)). Wincor also notes that Santos made an incorrect statement of law in her
motion for reconsideration. (Id. at 4). Specifically, Santos argued that the Fifth Circuit had “removed
the ‘similarly situated’ requirement for cases under Title VII,’” (Santos Reply, Dkt. 75, at 1–2), when
in fact the Fifth Circuit had reaffirmed the requirements for a prima facie claim in a published
decision just three months earlier, (see Order Denying Mot. Reconsid., Dkt. 77, at 6 (citing Roberson2

King v. La. Workforce Comm’n, 904 F.3d 377, 380–81 (5th Cir. 2018)). Wincor submits no evidence
that Santos brought her claims in subjective bad faith.
Santos responds that she had a reasonable belief that her termination constituted pregnancy
discrimination under Title VII. (See Resp., Dkt. 84). For example, Wincor dismissed Santos three
days before she was scheduled to give birth. (See Summ. J., Dkt. 69, at 6). Santos also contends that
she did present non-frivolous evidence of an appropriate comparator, even if the Court ultimately
did not agree with her reasoning. (Resp., Dkt. 84, at 5–6).
The Court agrees with Santos that this case is different from Jackson v. Color Tile, Inc., 803
F.2d 201 (5th Cir. 1986), supra, which Wincor contends is analogous. (Mot., Dkt. 78, at 3; Resp.,
Dkt. 84, at 8). In Jackson, the Fifth Circuit affirmed an award of defendants fees in a Title VII case
where “Ms. Jackson produced little, if anything, in support of her claim of a racially-motivated
discharge except her own assertions.” 803 F.2d at 202. Here, although the Court found that Santos
did not provide direct evidence that would enable a juror to find discrimination without inference or
presumption, she did proffer evidence from which a juror might have drawn an inference of
discrimination. (Summ. J., Dkt. 69, at 12). Santos is also correct that she did offer a theory of an
appropriate comparator, although she did not submit any evidence in support. (Id. at 15). Santos did
not prevail, but Santos offered more than “her own assertions” in support of her claim. See Jackson,
803 F.2d at 202.
The “stringent standard” for Title VII defendants seeking attorney fees “is intended to
ensure that plaintiffs with uncertain but arguably meritorious claims are not altogether deterred from
initiating litigation by the threat of incurring onerous legal fees should their claims fail.” Anderson v.
Harrison Cty., Miss., 639 F. App’x 1010, 1017 (5th Cir. 2016) (citing Myers v. City of West Monroe, 211
F.3d 289, 292 n. 1 (5th Cir. 2000)). The Supreme Court has cautioned that “the term ‘meritless’ is to
be understood as meaning groundless or without foundation, rather than simply that the plaintiff has
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ultimately lost [the] case.” Christiansburg, 434 U.S. at 421. Although Santos was not meritorious, the
Court finds nothing in the record demonstrating that her claims were “without foundation” or
“completely unfounded.” See Anderson v. Harrison Cty., Miss., 639 F. App’x 1010, 1017 (5th Cir.
2016). The Court concludes that her claims were not frivolous, unreasonable, or without foundation.
Wincor is therefore not entitled to attorney’s fees under Title VII.
II. Costs
Wincor also seeks costs of $5,142.04 as the prevailing party, as set forth in the previously
filed application for costs. (Mot., Dkt. 78, at 5; Bill of Costs, Dkt. 73). Santos “does not contest the
Court’s discretionary authority to award or not award court costs to a prevailing party, and does not
contest the substance of the Bill of Costs submitted by Wincor.” (Resp., Dkt. 84, at 11–12).
A district court generally has wide discretion in awarding expenses or costs. See Fed. R. Civ.
P. 54(d)(1). However, this discretion is not unfettered. See Crawford Fitting Co. v. J.T. Gibbons, Inc., 482
U.S. 437, 441–42 (1987). The Court’s discretion in taxing costs against an unsuccessful litigant is
limited to the following recoverable costs:
(1)

Fees of the clerk and marshal;

(2)

Fees of the court reporter for all or any part of the stenographic
transcript necessarily obtained for use in the case;

(3)

Fees and disbursements for printing and witnesses;

(4)

Fees for exemplification and copies of papers necessarily obtained
for use in the case;

(5)

Docket fees under section 1923 of this title; and

(6)

Compensation of court appointed experts, compensation of
interpreters, and salaries, fees, expenses, and costs of special
interpretation services under section 1828 of this title.

28 U.S.C. § 1920. Although a district court may decline to award costs listed in the statute, it may
not award costs omitted from the statute. See Crawford, 482 U.S. at 441–42; Coats v. Penrod Drilling
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Corp., 5 F.3d 877, 891 (5th Cir. 1993). In addition, in any action under Title VII, “the court, in its
discretion, may allow the prevailing party . . . costs.” Christiansburg, 434 U.S. at 414 n.1 (quoting 42
U.S.C. § 2000e-5(k)).
Wincor seeks an award for the following costs: (1) fees for printed or electronically recorded
transcripts necessarily obtained for use in this case in the amount of $4,832.06; (2) fees and
disbursements for printing of $265; (3) fees for exemplification and the costs of making copies of
$39.30; and (4) docket fees under 28 U.S.C. 1923 of $5.00. (Bill of Costs, Dkt. 73, at 1). “Unless a
federal statute, these rules, or a court order provides otherwise, costs—other than attorney’s fees—
should be allowed to the prevailing party.” Fed. R. Civ. P. 54(d)(1). Santos does not dispute any of
the requested costs, and the Court finds no reason to deny the costs detailed in Wincor’s bill of
costs. Therefore, the Court awards Wincor all costs requested.
III. Conclusion
IT IS ORDERED that Wincor’s Motion for Attorney’s Fees, Expenses, and Costs, (Dkt.
82), is GRANTED IN PART AND DENIED IN PART.
Wincor’s request for attorney’s fees is DENIED. Wincor’s application for costs as detailed
in the Bill of Costs, (Dkt. 73), is GRANTED.
Wincor shall recover costs from Santos in the amount of $5,142.04. Payment is payable to
Wincor or to James Ivan Hughes or Mario Alberto Barrera, attorneys of record for Wincor.
SIGNED on March 25, 2019.

_____________________________________
ROBERT PITMAN
UNITED STATES DISTRICT JUDGE

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