[PUBLISH]
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________ ELEVENTH CIRCUIT
APR 04, 2001
THOMAS K. KAHN
No. 00-12495 CLERK
________________
D.C. Docket No. 97-01192-CV-BH-S
MOLLIE BONNER,
SARA J. DOUGLAS,
Plaintiffs-Appellants,
versus
MOBILE ENERGY SERVICES COMPANY,
L.L.C., an affiliate of the Southern Company,
SOUTHERN ENERGY, INC. - MOBILE ENERGY
SERVICES COMPANY, SOUTHERN ENERGY
RESOURCES, INC.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Alabama
(April 4, 2001)
Before TJOFLAT, BARKETT and POLITZ*, Circuit Judges.
*
Honorable Henry A. Politz, U. S. Circuit Judge for the Fifth Circuit, sitting by
designation.
PER CURIAM:
Mollie Bonner and Sara J. Douglas appeal the adverse award of attorney’s
fees in their failed Title VII discrimination action. Our review of the record
persuades that a reversal is in order.
Bonner and Douglas originally sued alleging claims under Title VII of the
Civil Rights Act of 1964,1 the Age Discrimination in Employment Act,2 and the
Employee Retirement Income Security Act.3 The facts of this litigation are set
forth in great detail in the trial court’s March 31, 1999, opinion granting summary
judgment on all claims to the defendants. They need not be here repeated. After
entry of said judgment the appellees petitioned for attorney’s fees and expenses.
The trial court granted same but only with respect to the Title VII claims.4 Bonner
and Douglas timely appealed. We review for abuse of discretion.5
A district court may award attorney’s fees to the prevailing Title VII
1
42 U.S.C. § 2000e et seq.
2
29 U.S.C. § 621 et seq.
3
29 U.S.C. § 1001 et seq.
4
Appellees claimed attorney’s fees and expenses totaling $72,602.54 for the defense of
all three federal claims. The trial court denied the motion as to the failed ADEA and ERISA
claims, but subsequently awarded Appellees $71,833.04, nearly 99% of the total amount
claimed, as reasonable fees and expenses for the Title VII claims. Our ruling obviates the
necessity to address that anomaly.
5
Turner v. Sungard Business Systems, Inc.,
91 F.3d 1418 (11th Cir. 1996).
2
defendant when it determines that “the plaintiff’s action was frivolous,
unreasonable, or without foundation, even though not brought in subjective bad
faith,”6 a standard the Supreme Court has described as “stringent.”7 In deciding
whether an action is so lacking in merit as to justify awarding attorney’s fees to the
prevailing defendant, the trial court is to consider the denominated Sullivan factors,
i.e., whether (1) the plaintiff established a prima facie case; (2) the defendant
offered to settle; and (3) the trial court dismissed the case prior to trial.8
In its opinion granting fees on the Title VII claim the trial court noted the
prescribed Sullivan analysis, but apparently then unduly relied upon our comment
therein that “[c]ases where findings of ‘frivolity’ have been sustained typically
have been decided in the defendant’s favor on a motion for summary judgment . . .
[where] the plaintiffs did not introduce any evidence to support their claims.”9 The
trial court found that Bonner and Douglas had abandoned their claim of racial
6
Christiansburg Garment Co. v. EEOC,
434 U.S. 412 (1978).
7
Hughes v. Rowe,
449 U.S. 5 (1980)(adopting the same “stringent standard” used in
Title VII cases to determine when an award of attorney’s fees is appropriate in cases brought
under
42 U.S.C. § 1983).
8
Sullivan v. School Bd. of Pinellas County,
773 F.2d 1182 (11th Cir. 1985).
9
Sullivan,
773 F.2d at 1189. We previously have determined that deciding when
attorney’s fees are appropriate must be done on a case-by-case basis, and the Sullivan factors are
only general factors to guide the inquiry. See Walker v. Nationsbank of Florida, N.A.,
53 F.3d
1548, 1559 (11th Cir. 1995); see also Sullivan,
773 F.2d at 1189 (“these . . . are general
guidelines only, not hard and fast rules.”). Sullivan does not create a bright line checklist nor
does it permit of a mechanical application.
3
discrimination when opposing summary judgment, and had adduced no admissible
evidence in support of their claim of gender discrimination. The court reasoned
that this lack of admissible evidence should have been apparent to Bonner and
Douglas, but nonetheless they apparently wrongfully continued to maintain their
gender discrimination claim.
The record fully supports the trial court’s grant of summary judgment to the
defendants. We are not convinced, however, that the action was so “patently
devoid of merit as to be frivolous.”10 The evidence adduced by Bonner and
Douglas was markedly weak, but the district court assumed that they had
established their prima facie case.11 Of particular note, Bonner and Douglas
submitted as evidence a neutral arbitrator’s report on their termination concluding
that Mobile Energy Services Company did not act with just cause when it
discharged them. This report does not suggest that Douglas and Bonner were
discharged based upon their gender, but it does establish at least the foundation of
a claim that MESC acted out of ulterior motives. We must also note that prior to
declaring bankruptcy MESC offered Bonner and Douglas $125,000 to settle their
10
Sullivan,
773 F.2d at 1189.
11
The district court assumed, without deciding, that the plaintiffs established a prima
facie case on each of their claims, choosing to focus its decision on their failure to show the
asserted reasons for their termination were pretextual.
4
claims, including those arising from the arbitrator’s decision. Taken together, we
cannot say that Bonner and Douglas were actionably frivolous or unreasonable in
maintaining their gender discrimination claim through the summary judgment
stage. Care must be taken to remain sensitive to the policy considerations
militating against imposing fees on unsuccessful plaintiffs in discrimination claims
which might “discourage all but the most airtight claims” and “undercut the efforts
of Congress to promote the vigorous enforcement provisions of Title VII.”12
Accordingly, we must conclude that awarding the defendants attorney’s fees herein
was an abuse of discretion, and the action of the court in doing so is REVERSED.
12
Christiansburg,
434 U.S. at 421-22.
5
