Melissa Wigfall v. Saint Leo University, Incorporated , 539 F. App'x 942 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-14768
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D.C. Docket No. 8:10-cv-02232-SCB-TGW
MELISSA WIGFALL,
CONNIE DANIELS,
GENETHEL DANIELLE PYE,
ANTHONY MILLS,
MALISA BUTLER,
VIRGINIA LARRY,
MELISSA WORLEY,
Plaintiffs - Appellants,
MARK FLANDERS, et al.,
Plaintiffs,
versus
SODEXO, INC., et al.,
Defendants,
SAINT LEO UNIVERSITY, INCORPORATED,
Defendant - Appellee.
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________________________
Appeal from the United States District Court
for the Middle District of Florida
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(September 23, 2013)
Before BARKETT, MARCUS and HILL, Circuit Judges.
PER CURIAM:
Melissa Wigfall, Connie Daniels, Genethel Danielle Pye, Anthony Mills,
Virginia Larry, Melissa Worley, and Malisa Butler (collectively “Plaintiffs”)
appeal the district court’s award to defendant, Saint Leo University (“St. Leo”), of
attorneys’ fees in the amount of $181,216.50, pursuant to Title VII of the Civil
Rights Act of 1964. 1 St. Leo’s claim for attorneys’ fees arises out of an
employment discrimination lawsuit brought by the Plaintiffs, through legal
counsel, under the Florida Whistleblower Act, the Florida Civil Rights Act, the
Fair Labor Standards Act, 42 U.S.C. § 1981, and Title VII, against St. Leo for race
discrimination and retaliation. The Plaintiffs, all former food-services workers
located at St. Leo’s campus, alleged that St. Leo cancelled its contract with
Sodexo, the company with which St. Leo previously contracted to provide all of its
campus food-services and which employed the Plaintiffs, in retaliation for the
Plaintiffs’ participation in an earlier employment discrimination lawsuit against
1
The district court also awarded St. Leo’s its costs in the amount of $10,314.27, which
the Plaintiffs have not appealed.
2
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Sodexo (“Sodexo Lawsuit”). As a result of St. Leo’s termination of its food-
services contract with Sodexo, the Plaintiffs lost their food-services jobs at St. Leo.
The district court, on St. Leo’s motion for judgment on the pleadings,
dismissed the Plaintiffs’ race discrimination claims, concluding that the Plaintiffs
had previously asserted in the Sodexo Lawsuit and settled, with prejudice, the
same discrimination claims as were now being asserted in their suit against Saint
Leo. The district court reasoned that under the Plaintiffs’ theory that St. Leo and
Sodexo were their joint employers they could have included St. Leo as a defendant
in the Sodexo Lawsuit, they had a full and fair opportunity to litigate all of the
issues of race discrimination in the Sodexo Lawsuit, and moreover, the Sodexo
Settlement precluded future litigation against St. Leo on these settled claims. The
district court, however, permitted the Plaintiffs to proceed against St. Leo on one
claim only—the retaliatory termination claim, noting that it was unclear, at the
time of its dismissal order, whether St. Leo was the Plaintiffs’ joint employer for
the purposes of a valid retaliation claim.
Following discovery, St. Leo moved for summary judgment on the
retaliatory termination claim, which the district court granted. On review, another
panel of this Court, assuming, without deciding, that St. Leo was the Plaintiffs’
joint employer and that the Plaintiffs could establish a prima facie case of
retaliation, affirmed summary judgment because St. Leo offered legitimate reasons
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for its termination of the contract with Sodexo, which the Plaintiffs failed to show
were pretextual. Wigfall v. Saint Leo Univ., Inc., 517 F. App’x 910 (11th Cir.
2013) (“Wigfall I”).
St. Leo, as the prevailing defendant, also moved for attorneys’ fees pursuant
to the standard set forth by the Supreme Court in Christiansburg Garment Co. v.
EEOC, 434 U.S. 412 (1978), which the district court granted in the amount of
$181,216.50. Although it is the general rule that parties are responsible for their
own attorneys’ fees, Congress has provided exceptions through select statutory
provisions, which in some instances permit only a prevailing plaintiff to recover
fees and in other instances, including under Title VII, permit either the prevailing
plaintiff or defendant to recover such fees. Christiansburg, 434 U.S. at 415–16.
Under the Christiansburg standard, a prevailing defendant in a Title VII case may
be granted attorneys’ fees in the discretion of the district court “upon a finding that
the plaintiff’s action was frivolous, unreasonable, or without foundation, even
though not brought in subjective bad faith.” 434 U.S. at 421. The Court, however,
cautioned that
it is important that a district 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. This kind of hindsight logic could discourage all
but the most airtight claims, for seldom can a prospective plaintiff be
sure of ultimate success.
Id. at 421–22.
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In applying the Christiansburg standard, we have explained that the focus in
awarding a prevailing defendant attorneys’ fees is whether a plaintiff’s claim “is so
lacking in arguable merit as to be groundless or without foundation rather than
whether the claim was ultimately successful.” Sullivan v. Sch. Bd. of Pinellas
Cnty., 773 F.2d 1182, 1189 (11th Cir. 1985) (quoting Jones v. Texas Tech Univ.,
656 F.2d 1137, 1145 (5th Cir. 1981)). Factors to consider include whether the
plaintiff established a prima facie case, whether the defendant offered to settle, and
whether the case went through a full-blown trial. Id. at 1189. In the analysis, these
factors, however, are “general guidelines only, not hard and fast rules[,]” and
courts must evaluate a request for prevailing defendant attorneys’ fees on a case-
by-case basis. Id.Here, the district court held the individual Plaintiffs jointly and severally
liable for St. Leo’s attorneys’ fees for the entirety of the litigation, including all of
the discrimination claims that were dismissed on St. Leo’s motion for judgment on
the pleadings and the sole retaliatory termination claim for which St. Leo was
granted summary judgment. Although we agree that the district court exercised
appropriate discretion in awarding attorneys’ fees for the discrimination claims that
were dismissed on St. Leo’s motion for judgment on the pleadings, we cannot say
that the Plaintiffs’ retaliatory termination claim was “so lacking in arguable merit
as to be groundless or without foundation.” Sullivan, 773 F.2d at 1189. See also
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Quintana v. Jenne, 414 F.3d 1306, 1311–12 (11th Cir. 2005) (holding that
attorneys’ fees may be apportioned and awarded for a frivolous claim while not
being awarded for a separate non-frivolous claim, although both part of the same
lawsuit).
The Plaintiffs’ retaliatory termination claim was premised on its theory that
Sodexo and St. Leo were joint employers of the food services workers and that St.
Leo cancelled its contract with Sodexo, which resulted in the Plaintiffs’
terminations, to retaliate against the Plaintiffs who participated in the Sodexo
Lawsuit.2 It is undisputed that Plaintiffs’ participation in the Sodexo Lawsuit was
protected activity, and that Plaintiffs’ termination was a materially adverse action.
Thus, whether that materially adverse action was an action by Plaintiffs’ employer
depended on the Plaintiff’s ability to establish that St. Leo was their joint employer
with Sodexo. Although the district court, at the summary judgment stage,
determined that St. Leo was not a joint employer of the Plaintiffs, we cannot say
that the Plaintiffs’ belief otherwise was so weak as to make it frivolous for them to
argue that this presented a triable issue of fact. See, e.g., Cordoba v. Dillard’s,
Inc., 419 F.3d 1169, 1181 (11th Cir. 2005) (concluding that a claim that “was
2
The Plaintiffs also alleged that St. Leo was unhappy with Sodexo, which did not inform
St. Leo that it had been sued for employment discrimination, and also with the terms of the
Sodexo Lawsuit Settlement, which called for the replacement of Sodexo’s Manager, Rich Vogel,
who was highly regarded by the students at St. Leo. St. Leo ultimately hired Vogel to work for
the university as its in-house Director of Dining Services when it cancelled the Sodexo food-
services contract.
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exceedingly weak,” involved “pure conjecture,” and “speculation” was not “so
unreasonable that it [could have been] termed frivolous”). As we noted, supra, at
the time the district court dismissed all of the Plaintiffs’ other discrimination
claims and allowed their retaliatory discrimination claim to proceed, the district
court noted that it was unclear whether St. Leo was the Plaintiffs’ joint employer
for the purposes of a valid retaliation claim.
Although not sufficient to eventually preclude the grant of summary
judgment, there is some evidence in this record that makes the Plaintiffs’ claim that
St. Leo was its joint employer not so unreasonable as to render it frivolous. 3 First,
the Plaintiffs worked solely on-site at St. Leo’s campus, some of them having
worked for St. Leo long before Sodexo had been awarded the food-services
contract. Second, certain provisions of the Management Agreement between St.
Leo and Sodexo indicate that St. Leo had the authority to control some of the
decisions pertaining to the employment of the food-services workers. In particular,
the Agreement provides that Sodexo was Saint Leo’s agent
in the management of the Food Service operation. [Sodexo] shall
purchase food and supplies in [Sodexo’s] name and shall pay the
3
Factors which this Court has considered in determining an employer-employee
relationship include: “(1) whether or not the employment took place on the premises of the
alleged employer; (2) how much control the alleged employer exerted on the employees; and (3)
whether or not the alleged employer had the power to fire, hire, or modify the employment
condition of the employees.” Morrison v. Magic Carpet Aviation, 383 F.3d 1253, 1255 (11th
Cir. 2004); see also Wirtz v. Lone Star Steel Co., 405 F.2d 668, 669 (5th Cir. 1968) (explaining
that each case must be considered in light of the total situation).
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invoices. As principal, [Saint Leo] may supervise [Sodexo’s] daily
operation of the Food Service operations, including dining formats
and programs, working conditions for Food Services employees and
safety, sanitation and maintenance of the Premises. (Management
Agreement ¶ 1.2) (Emphasis added).
The Agreement elsewhere provides that
All non-management Food Service Employees shall be [Sodexo]
employees. . . . [Sodexo] shall not, without [Saint Leo’s] prior
approval, make any substantial change in wages, fringe benefits or
working conditions of non-management Food Service employees. . .
(Id. ¶ 4.2) (Emphasis added).
Under both of these provisions, St. Leo retained ultimate authority to control basic
employment decisions, such as working conditions, wages and benefits of the
food-services workers.
Third, even though Rich Vogel was Sodexo’s on-site manager for the St.
Leo food-services contract, the students at St. Leo apparently believed him to be an
employee of St. Leo as they voted him Employee of the Year at St. Leo for two of
the three years prior to this suit. Fourth, all of the food services workers were
required to wear uniforms and identification badges that indicated they were an
employee of St. Leo, were required to attend Saint Leo’s employee orientations,
and received some instructions directly from Saint Leo officials concerning Dining
Services and catering events on campus.
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Given this evidence,4 we cannot say that the Plaintiffs’ retaliatory
termination claim, which was dependent on the theory that St. Leo was a joint
employer with Sodexo, was “frivolous, unreasonable, or without foundation” under
the Christiansburg standard, and thus, it was an abuse of discretion for the district
court to award attorneys’ fees on the retaliatory termination claim.
Accordingly, we vacate the attorneys’ fees award of $181,216.50, and upon
remand, direct the district court to determine the portion of the attorneys’ fees to
attribute to St. Leo’s defense against the Plaintiffs’ discrimination claims which
were dismissed on St. Leo’s motion for judgment on the pleadings.
AFFIRMED, in part, REVERSED and VACATED, in part, and
REMANDED.
4
We also note as persuasive to our decision that the Plaintiffs’ theory of St. Leo as its
joint employer is not so unreasonable as to make it frivolous, a prior panel of this Court in
Wigfall I affirmed the summary judgment on the merits of the Plaintiffs’ retaliatory termination
claim not on the question of St. Leo’s status as a joint employer, but instead assumed, without
deciding, this fact to be established for the Plaintiffs’ prima facie case.
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