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SOLOMEN v. REDWOOD ADVISORY CO.

September 24, 2002

CHERYL SOLOMEN, PLAINTIFF,
V.
REDWOOD ADVISORY COMPANY, DEFENDANT.



The opinion of the court was delivered by: Anita B. Brody, District Judge.

MEMORANDUM AND ORDER

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 attorney's fees.

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.

Legal Authority

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.

42 U.S.C. § 2000e-5(k).

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 Cir. 2001).*fn2

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 Cir. 1991)).

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 ...


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