The opinion of the court was delivered by: MCCUNE
Defendants, Local 60-471 of the American Federation of Musicians, AFL-CIO (Local 60-471) and the American Federation of Musicians, AFL-CIO (AFM) have moved for the assessment of attorney's fees against plaintiffs, the Black Musicians of Pittsburgh (Black Musicians), additional named individual plaintiffs and intervenor-plaintiff, the Equal Employment Opportunity Commission (EEOC), pursuant to Title VII, Section 706(k) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k). Local 60-471 and the AFM have been successful in their defense against plaintiffs' claims in this court, on appeal to the Third Circuit Court of Appeals, and finally, in the Supreme Court, by denial of the Black Musicians' Petition for Certiorari. They now seek attorney's fees alleging that plaintiffs' assertion of their claims was with "vexatiousness, bad faith, abusive conduct, or an attempt to harass or embarrass." We find that these extraordinary circumstances are present here on the part of the EEOC which sought to intervene and was permitted to intervene as a plaintiff. We do not find that the plaintiffs started out in bad faith although they were not well advised. But the EEOC, instead of advising plaintiffs that their evidence was weak or lacking, appeared to vex the defendants and continue an aggressive pursuit of the claims of the plaintiffs even after the evidence of discrimination was found to be deficient. The duty of the EEOC, in our view, was to guide the plaintiffs after the intervention was permitted and guidance should have been in the direction of moderation.
The rule controlling this motion is clear. In United States Steel Corp. v. United States, 519 F.2d 359, 10 FEP Cases 1106 (3d Cir. 1975), the Third Circuit held that for a successful defendant to recover attorney's fees under § 706(k), he must show "vexatiousness, bad faith, abusive conduct, or an attempt to harass or embarrass" on the part of the unsuccessful plaintiff. It should be noted that this standard is much higher than that governing motions for attorney's fees by successful plaintiffs under the same section. The more stringent standard takes into account the chilling effect that awards of attorney's fees to defendants can have upon Title VII litigation. Keeping in mind this policy of the Circuit regarding fees, we conclude that only cases which clearly should not have been brought may result in an award of attorney's fees to a successful defendant under the United States Steel standard.
Our conclusion is buttressed by subsequent interpretations of United States Steel. In Kutska v. California State College Department of Education, 564 F.2d 108, 15 FEP Cases 1779 (3d Cir. 1977), an award of attorney's fees was affirmed by the Circuit in favor of a successful state agency defendant. No evidence of discrimination was introduced at the trial in Kutska, even though a necessary part of the plaintiff's claim. The discharge complained of was made solely as the result of the plaintiff's failure to acquire adequate qualifications for the position he held. Because the plaintiff was aware of the inadequacy of his claim, fees were awarded against him, even though he had, from the commencement of his action, proceeded pro se. In Copeland v. Martinez, 435 F. Supp. 1178, 15 FEP Cases 453 (D. D.C. 1977), attorney's fees were awarded under the United States Steel standard because the Title VII litigation upon which the motion arose was without merit and was brought to enhance plaintiff's employment circumstances. The District Judge found that none of the contentions raised by the plaintiff in Copeland were supported by credible evidence, and that the plaintiff had in the past obtained advancement through filing sex discrimination grievances. As a result, attorney's fees were awarded.
Based on these cases, the United States Steel standard can be seen to require an award of attorney's fees when the action obviously should not have been brought, and bringing it suggests an abuse of the judicial process. All plaintiffs and plaintiff-intervenor agree that this standard should be applied to this action.
Application of the United States Steel standard to this action requires reference to our earlier decision on the merits. Because that decision was not published, making as it did no contribution to the development of Title VII precedent, review of our earlier findings is necessary at this juncture, as follows:
Local 60-471 is a merged local, being the progeny of the earlier segregated Locals 60 (Black) and 471 (White). The merger of these locals came about as an attempt to comply with the Civil Rights Act of 1964. In 1965, merger was facilitated by an agreement which, among other matters, designated six positions on the Executive Board of the resulting Local as positions to be filled from the membership of earlier Local 471 and three as positions to be filled from the membership of earlier Local 60. This agreement remained effective until 1971, after which the entire Executive Board was to be elected at large.
After the merger, the function of the Local remained the same as the function of the Locals was before the merger. The main function of the Local was to fix wage rates. Members of the Local were loosely governed, due to the type of work they did. Most hiring was done by individual orchestra leaders. The Local operated no hiring hall, and, in fact, contended that it almost never received inquiries leading to employment. Plaintiffs, however, contended that calls were received and referrals were not made to blacks due to the absence of blacks on the Executive Board.
There is no question that discrimination was practiced prior to the merger. Evidence of subsequent discrimination was lacking, however, as demonstrated by extensive testimony.
Statistical evidence was developed by plaintiff-intervenor's expert statistician. That evidence was, if anything, supportive of the defendants. The statistics show a higher income subsequent to the merger on the part of black members than on the part of white members.
Plaintiffs admitted at trial that the President of the Local (Osgood) had been doing the best he could to integrate membership. Various events were sponsored by the President of the Local to foster friendship among the members of the merged Local. Plaintiffs admitted, however, a lack of interest on their part in trying to make the merger work. At times, blacks had refused to participate in elections, meetings and social events. The cause of their refusal might have been frustration; regardless, it was clear that future progress toward full integration of the two prior locals rested on the renewal of interest in the merged Local.