The opinion of the court was delivered by: Anita B. Brody, District Judge.
On February 16, 2000, plaintiff Cheryl Solomen ("Solomen"),
filed suit against defendant Redwood Advisory Company
("Redwood"), alleging that Redwood had terminated her employment
due to her 1997 pregnancy. Solomen brought her claims for
pregnancy discrimination under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e-2(a)(1) (1994), and the Pennsylvania
Human Rights Act, 43 P.S. § 951 et seq. On January 31, 2002, I
granted defendant's motion for summary judgment on both the
state and federal claims. Defendant then moved for costs and
Defendant's Motion for Fees
Redwood's motion seeks taxable costs of $3496.95 pursuant to
28 U.S.C. § 1920 and non-taxable costs and attorney's fees of
$98,338.45 pursuant to Fed.R.Civ.P. 54(d)(2) and
42 U.S.C. § 2000e-5(k). Plaintiff filed a response opposing the granting of
any costs or attorney's fees. Defendant's motion raises the
issue of when a claim dismissed upon a motion for summary
judgment becomes frivolous.
A prevailing party in a Title VII case may recover attorney's
fees under § 706(k) of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e-5(k).*fn1 See
EEOC v, L.B. Foster Co., 123 F.3d 746, 750 (3d Cir. 1997) This
section of the statute provides that:
In any action or proceeding under this subchapter the
court, in its discretion, may allow the prevailing
party, other than the Commission or the United
States, a reasonable attorney's fee (including expert
fees) as part of the costs, and the Commission and
the United States shall be liable for costs the same
as a private person.
The fee-shifting provisions of statutes like Title VII are an
exception within our judicial system. Generally, "federal courts
must apply the American rule requiring each party to pay from
his own pocket for the services of his attorney." Skehan v. Bd.
of Tr. of Bloomsburg State College, 538 F.2d 53, 56 (3d Cir.
1976) (citing Alyeska Pipeline Co. v. Wilderness Soc'y,
421 U.S. 240, 260, 95 S.Ct. 1612, 44 L.Ed.2d 141). Consequently,
"[u]nlike the British system, in American courts the general
rule is that attorneys' fees are not recoverable." Merola v.
Atlantic Richfield Co., 493 F.2d 292, 297 (3d Cir. 1974).
Congress deliberately departed from this presumption when it
enacted the fee-shifting civil rights statutes. This decision
both facilitated the filing of civil rights claims by awarding
attorney's fees to a prevailing plaintiff and deterred frivolous
suits by allowing a prevailing defendant to collect fees as
well. Christiansburg Garment Co. v. EEOC, 434 U.S. 412,
419-20, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). Thus, the
"prevailing party" under § 2000e-5(k) may be either the
plaintiff or the defendant. Id. at 421, 98 S.Ct. 694; Barnes
Found, v. Township of Lower Merion, 242 F.3d 151, 157-58 (3d
The standard for awarding attorney's fees to prevailing
defendants is substantially more stringent than that for
awarding fees to prevailing plaintiffs. Christiansburg, 434
U.S. at 421, 98 S.Ct. 694; Barnes, 242 F.3d at 157-58. The
Supreme Court held in Christiansburg that "under § 706(k) of
Title VII a prevailing plaintiff ordinarily is to be awarded
attorney's fees in all but special circumstances."
Christiansburg, 434 U.S. at 417, 98 S.Ct. 694 (emphasis
original). In contrast, "attorney's fees [to a prevailing Title
VII defendant] are not routine, but are to be only sparingly
awarded." EEOC v. L.B. Foster Co., 123 F.3d 746, 751 (3d Cir.
1997) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 503 (3d
Relying on Christiansburg, the Third Circuit has cited two
reasons for this asymmetrical standard. See e.g., Dorn's
Transp., Inc. v. Teamsters Pension Trust Fund, 799 F.2d 45, 48
(3d Cir. 1986), L.B. Foster, 123 F.3d at 750. First, the
"routine availability of fees to prevailing plaintiffs in civil
rights actions reflects a congressional desire to encourage the
bringing of such suits." Dorn's, 799 F.2d at 48 (citing S.Rep.
No. 1011, 94th Cong., 2d Sess. 1, reprinted in 1976 U.S.Code
Cong. & Ad. News 5908). Second, a fee award to prevailing civil
rights plaintiffs penalizes violators of federal law. Id.
(citing Christiansburg, 434 U.S. at 418, 98 S.Ct. 694).
Although this standard for fee awards favors plaintiffs in
civil rights suits over defendants, it does not insulate
plaintiffs from paying a prevailing defendant's attorney's fees.
Rather, "a district court may in its discretion award attorney's
fees to a prevailing defendant in a Title VII case upon a
finding that the plaintiffs action was frivolous, unreasonable,
or without foundation, even though not brought in subjective bad
faith." Christiansburg, 434 U.S. at 421, 98 S.Ct. 694. The
Third Circuit has adopted the Christiansburg standard and
awards attorney's fees to a prevailing defendant when the
plaintiffs civil rights case is deemed "frivolous, unreasonable,
or without foundation." See e.g., L.B. Foster, 123 F.3d at
751; Quiroga, 934 F.2d at 502.
The Christiansburg standard has failed to generate a
bright-line test.*fn3 Consequently, the Third Circuit has
noted several factors that a district court should consider in
determining whether an award of attorney's fees to a Title VII
defendant is appropriate. In Barnes, the court noted that
affirmative findings of the following five factors could
diminish a prevailing defendant's likelihood of obtaining
attorney's fees: (1) plaintiff established a prima facie case;
(2) defendant offered to settle; (3) the trial court held a full
trial on the merits; (4) the issue in question was one of first
impression requiring judicial resolution; and (5) the
controversy was based sufficiently upon a real threat of injury
to the plaintiff. Barnes, 242 F.3d at 158; see also ...