United States District Court, E.D. Pennsylvania
July 6, 2004.
EVA G. ROMPOLA, Plaintiff,
LEHIGH VALLEY HOSPITAL, Defendant.
The opinion of the court was delivered by: BERLE M. SCHILLER, District Judge
MEMORANDUM AND ORDER
Plaintiff Eva Rompola brought suit against her former employer,
Defendant Lehigh Valley Hospital, for sex, national origin, and
age discrimination and retaliatory discharge in violation of
Title VII of the 1964 Civil Rights Act ("Title VII"),
42 U.S.C. § 2000e, and the Age Discrimination in Employment Act ("ADEA"),
29 U.S.C. § 629. Defendant moved for summary judgment on all of the
claims in Plaintiff's complaint. Subsequently, Plaintiff
voluntarily withdrew all claims in her complaint except for her
retaliatory discharge claims under Title VII and the ADEA.
Thereafter, this Court granted summary judgment on the
retaliation claims in favor of Defendant. Presently before the
Court is Defendant's petition for costs and fees pursuant to
Title VII, 42 U.S.C. § 2000e-5(k), and the ADEA,
29 U.S.C. § 626(b). For the reasons set forth below, I deny Defendant's
Plaintiff is a Hungarian-born registered alien who was
fifty-one years of age when the events at issue
occurred.*fn1 After Defendant hired her as an emergency room
nurse, Plaintiff's employment record was littered with
disciplinary actions and complaints regarding her performance and
treatment of patients. Perceiving these disciplinary actions to be
discrimination based on sex, national origin, and age, Plaintiff
retained an attorney who wrote a letter to Defendant on her
behalf and filed an EEOC complaint. After several months and
other patient-related incidents, Defendant conducted an
investigation into the most recent incidents on Plaintiff's
employment record and ultimately terminated her. Plaintiff
brought suit in this Court alleging sex, national origin, and age
discrimination as well as retaliatory discharge.
Copious discovery was taken and Defendants thereafter filed a
summary judgment motion, which contained volumes of records on
Plaintiff's employment history. After Defendant filed its summary
judgment motion on all counts, Plaintiff withdrew her
discrimination claims and pursued only the retaliatory discharge
claim. This Court granted summary judgment in favor of Defendant
after determining that Plaintiff could not prove the causal link
between her termination and her protected activity. Defendant, as
the prevailing party, now moves the Court to award attorneys'
fees and costs under Title VII and the ADEA.
II. STANDARD FOR AWARD OF ATTORNEYS' FEES AND OTHER COSTS
A. Award of Attorneys' Fees and Other Costs to Prevailing
Defendants under Title VII
Under Title VII, 42 U.S.C. § 2000e-5(k), reasonable attorneys'
fees and other costs may be granted in the district court's
discretion 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."
Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978);
see also EEOC v. L.B. Foster, 123 F.3d 746, 751 (3d Cir. 1997).
Similarly, a district court may award fees when, after it becomes clear that the claims are frivolous, unreasonable, or
without foundation, plaintiff continues to litigate. Id. at
422. "`Frivolous, unreasonable, or without foundation,' in this
context, implies `groundless . . . rather than simply that the
plaintiff has ultimately lost his case." L.B. Foster, 123 F.3d
at 751 (quoting Christiansburg Garment Co., 434 U.S. at 412).
While a plaintiff's subjective bad faith is not a prerequisite
for an award of fees under Title VII, implicit in the
determination is "that plaintiff knew or should have known the
legal or evidentiary deficiencies of his claim." Brown v.
Borough of Chambersburg, 903 F.2d 274, 277 (3d Cir. 1990); cf.
Barnes Found. v. Township of Lower Merion, 242 F.3d 151, 156 (3d
Cir. 2001) (stating that "relevant standard is objective").
Because fees under Title VII are assessed only against the losing
party and not the losing party's attorney, Quiroga v. Hasbro,
Inc., 934 F.2d 497, 504 (3d Cir. 1991), many courts will not
award fees where plaintiff cannot be said to be personally
accountable for the frivolous nature of her case. Solomen v.
Redwood Advisory Co., 223 F. Supp.2d 681, 688 (E.D. Pa. 2002);
Hutter v. Southeastern Pa. Transit Auth., Civ. A. No. 99-4879,
2000 U.S. Dist. LEXIS 9041, at *10, 2000 WL 873319, at *4 (E.D.
Pa. June 23, 2000); Murray v. Southeastern Pa. Transit Auth.,
Civ. A. No. 96-7971, 1998 U.S. Dist. LEXIS 18039, at *5-6, 1998
WL 778325, at *2 (E.D. Pa. Nov. 9, 1998); see also Hicks v.
Arthur, 891 F. Supp. 213, 215 (E.D. Pa. 1995), aff'd,
91 F.3d 123 (3d Cir. 1996). "Typically, a discharged plaintiff genuinely
believes he has been wronged but must depend on his attorney to
assess whether there is a legally cognizable or supportable
claim." Murray, 1998 U.S. Dist. LEXIS 18039, at *5.
Moreover, the Third Circuit has cautioned that awards of
"attorney's fees [to a prevailing Title VII defendants] are not
routine, but are to be only sparingly awarded." L.B. Foster,
123 F.3d at 751 (citing Quiroga, 934 F.2d at 503). In order to
determine whether to award a prevailing Title VII defendant attorneys' fees, a court must look at "several
factors including `(1) whether the plaintiff established a prima
facie case; (2) whether the defendant offered to settle; . . .
(3) whether the trial court dismissed the case prior to trial or
held a full-blown trial on the merits'"; (4) "whether the issue
was one of first impression;" and (5) "whether there was a real
threat of injury to the plaintiff." Id. (discussing first three
factors (citations omitted)); see also Barnes Found., 242 F.3d
at 158 (discussing additional factors). These factors are not
exclusive; rather, they are guideposts to aid in determining on a
case-by-case basis whether fees should be awarded. L.B. Foster,
123 F.3d at 751.
The Supreme Court has cautioned that "it is important that a
. . . court 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." Christiansburg, 434 U.S. at 421-22.
Furthermore, several courts have specifically held that in cases,
such as this one, where the defendant prevails on its summary
judgment motion, "the grant of summary judgment in defendant's
favor does not necessarily mean the action was frivolous for
awarding attorney's fees" and that "the standard for finding
frivolity or a lack of foundation therefore must require
something beyond that which is required for granting . . . a
motion for summary judgment." Solomen, 223 F. Supp.2d at 684
(citations omitted); see also Whiteland Woods v. Township of
West Whiteland, Civ. A. No. 96-8086, 2001 U.S. Dist. LEXIS
12210, at *17, 2001 WL 936490, at *5 (E.D. Pa. Aug. 14, 2001);
Tuthill v. Consol. Rail Corp., Civ. A. No. 96-6868, 1998 U.S.
Dist. LEXIS 8863, at *11-12, 1998 WL 321245, at *4 (E.D. Pa. June
18, 1998); Izquierdo v. Sills, Civ. A. No. 97-495, 1999 U.S.
Dist. LEXIS 20820, at *8, 1999 WL 142735, at *2-3 (D. Del. Dec.
21, 1999); cf. Khan v. Gallitano, 180 F.3d 829, 837 (7th Cir.
1999) ("There is a significant difference between making a weak
argument with little chance of success. . . . and making a
frivolous argument with no chance of success. . . . It is only the latter
that permits defendants to recover attorney's fees."). In order
to determine whether fees should be awarded after the grant of a
summary judgment motion, courts consider whether careful and
detailed consideration was needed in order to grant summary
judgment and whether there was at least some basis in law for
plaintiff's claims. Tuthill, 1998 U.S. Dist. LEXIS 8863, at
*11-12 (E.D. Pa. June 18, 1998) ("When claims have been disposed
of by a motion for summary judgment after `careful consideration'
by the court, the action most likely was not frivolous or
vexatious." (quoting Hughes v. Rowe, 449 U.S. 5, 16 (1980)));
Whiteland Woods, 2001 U.S. Dist. LEXIS 12210, at *17 (quoting
Tuthill); Izquierdo, 1999 U.S. Dist. LEXIS 20820, at *8, 10
(citing Tuthill and holding plaintiff's claims were not
frivolous as "[d]etailed fact, specific inquiries into the
various claims was needed")).
B. Award of Attorneys' Fees and Other Costs to Prevailing
Defendants under ADEA
The standard for an award of attorneys' fees and other costs to
prevailing defendants under the ADEA is not as well established
as the standard under Title VII. However, "each circuit which has
addressed this issue has found that a district court may award
attorney's fees to a prevailing defendant if the defendant
establishes that the plaintiff litigated in bad faith." Cesaro
v. Thompson Publ'g Group, 20 F. Supp.2d 725, 726 (D.N.J. 1998)
(citing Turlington v. Atlanta Gas Light Co., 135 F.3d 1428,
1437 (11th Cir. 1998) and discussing several circuit courts'
decisions on point). Recently, in a footnote to a published
opinion, the Third Circuit noted that it would be similarly
inclined to find that a showing of bad faith is required to award
prevailing defendants attorneys' fees under the ADEA. Wastak v.
Lehigh Valley Health Network, 333 F.3d 120, 133 n. 7 (3d Cir.
2003) (citing Cesaro and Turlington for proposition that
employer-defendant in ADEA suit is permitted to recover attorneys' fees under common law exception for claims
brought in bad faith).
Defendant contends that an award of attorneys' fees and costs
is warranted in this case because: (1) Plaintiff did not
establish a prima facie case of discrimination or retaliation and
summary judgment was granted in Defendant's favor; (2) Defendant
never offered to settle; (3) Plaintiff withdrew her claims of
discrimination and none of Plaintiff's claims went to trial; and
(4) Plaintiff knew or should have known that her claims were
baseless prior to the time at which she filed this lawsuit.
Despite these contentions, I heed the Third Circuit's
admonishment that fees and other costs to a prevailing defendant
should "only sparingly awarded" and conclude that an award in
this case is not warranted. L.B. Foster, 123 F.3d 750 (quoting
Quiroga 934 F.2d at 503).
While this Court ultimately found that Plaintiff did not
establish her prima facie case, a detailed analysis was conducted
before doing so. Tuthill, 1998 U.S. Dist. LEXIS 8863, at *8;
Izquierdo, 1999 U.S. Dist. LEXIS 20820, at * 10. This Court's
ultimate conclusion that Plaintiff could not prove the casual
link between her termination and protected activity was based
upon close review of the copious records provided by Defendant of
Plaintiff's employment history. After this review, the Court held
that "Plaintiff's employment problems that occurred after
notifying Defendant of her intention to file an EEOC charge were
consistent with the problems she had before this notification."
(Memo. and Order dated Mar. 11, 2004, at 12.) In making this
determination, this Court relied on the Third Circuit's
While it is possible that a manager might make a poor
evaluation to retaliate against an employee for
making an EEOC charge, still it is important that an
employer not be dissuaded from making what he believes is an appropriate evaluation by a reason of
a fear that the evaluated employee will charge that
the evaluation was retaliatory. In this regard, we
are well aware that some employees do not recognize
their deficiencies and thus erroneously may attribute
negative evaluations to an employer's prejudice.
Accordingly, in a case like this in which the
circumstances simply cannot support an inference that
the evaluations were related to the EEOC charges, a
court should not hesitate to say so.
Shaner v. Synthes, 204 F.3d 494
, 505 (3d Cir. 2000). Although
this Court did not hesitate to find that Plaintiff did not
demonstrate a causal link, this Court arrived at that conclusion
after careful consideration of the record and cannot now conclude
that Plaintiff's claims had no basis whatsoever.
Christiansburg, 434 U.S. at 421 (cautioning courts to avoid
engaging in post hoc reasoning in awarding fees where plaintiff
does not prevail on his case); see also Hughes, 449 U.S. at
15-16 (holding that "[a]llegations that, upon careful
examination, prove legally insufficient to require a trial are
not, for that reason alone, `groundless' or `without foundation'
as required by Christiansburg"); L.B. Foster, 123 F.3d at 752
(noting reversal of fee award is warranted where district court
found that there was "some basis" for plaintiff's claims);
Tuthill, 1998 U.S. Dist. LEXIS 8863, at *12 (E.D. Pa. 1998)
(holding that fees are not necessarily appropriate even if the
plaintiff had only "a shadow of evidence" to support his claims);
Izquierdo, 1999 U.S. Dist. LEXIS 20820, at *7, 11 (holding that
detailed treatment of plaintiff's claims indicates that his
claims were not frivolous).
Moreover, the Court's detailed analysis of Plaintiff's claims
also cuts against Defendant's argument that Plaintiff knew or
should have know that her claim was without foundation at the
outset of the case. From the institution of this action,
Plaintiff's counsel sought production of Plaintiff's employment
record, and, once discovery was conducted, Plaintiff and her
counsel withdrew her discrimination claims, undoubtedly
concluding that it would not be prudent to continue to litigate these claims. Such conduct demonstrates the reasonableness of
Plaintiff and her counsel, rather than suggesting that she
pursued this case in bad faith or without foundation. See
Christiansburg, 434 U.S. at 422 ("[P]laintiff should not be
assessed his opponent's attorney's fees unless a court finds that
his claim was frivolous, unreasonable, or groundless, or that the
plaintiff continued to litigate after it clearly became so."). An
award to Defendant is not warranted where Plaintiff and her
counsel chose to pursue her retaliation claim when Plaintiff
genuinely believed, as the record demonstrated, that she had been
wrongfully terminated, (Memo. and Order dated Mar. 11, 2004 at
11). Murray, 1998 U.S. Dist. LEXIS 18039, at *4-5. This Court
ultimately concluded that although Plaintiff may have felt her
termination was wrongful, it was not because of her protected
activity. (Memo. and Order dated Mar. 11, 2004 at 10-12 (quoting
Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108-09 (3d
Cir. 1997)). Accordingly, although Plaintiff's belief that her
termination was retaliatory was ultimately mistaken, this Court
will not award attorneys' fees and costs to Defendant as the
record does not demonstrate that Plaintiff pursued her case
without foundation or in bad faith. Therefore, Defendant's
petition for attorneys' fees and costs is denied. An appropriate
Order follows. ORDER
AND NOW, this 6th day of July, 2004, upon
consideration Defendant's Petition for Attorneys' Fees and Costs,
Plaintiff's response thereto, and for the foregoing reasons, it
is hereby ORDERED that:
1. Defendant's Petition for Attorneys' Fees and Costs
(Document No. 44) is DENIED.