Gettings v. Bldg & Laborers

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Gettings v. Building Nos. 02-3454/3535
ELECTRONIC CITATION: 2003 FED App. 0402P (6th Cir.) Laborers Local 310
File Name: 03a0402p.06
Before: DAUGHTREY and GILMAN, Circuit Judges;
HAYNES, District Judge.*
UNITED STATES COURT OF APPEALS
_________________
FOR THE SIXTH CIRCUIT
_________________ COUNSEL
JUDY GETTINGS, X ARGUED: William W. Taylor, Steubenville, Ohio, for
Plaintiff-Appellant - Plaintiff. Richard L. Stoper, Jr., ROTATORI, BENDER,
GRAGEL, STOPER & ALEXANDER, Cleveland, Ohio, for
(02-3454), - Defendant. ON BRIEF: William W. Taylor, Steubenville,
- Nos. 02-3454/3535
Plaintiff-Appellee, - Ohio, for Plaintiff. Richard L. Stoper, Jr., Susan L. Gragel,
> ROTATORI, BENDER, GRAGEL, STOPER &
,
v. ALEXANDER, Cleveland, Ohio, for Defendant.
-
- _________________
BUILDING LABORERS LOCAL -
310 FRINGE BENEFITS FUND , - OPINION
Defendant-Appellee, - _________________
Defendant-Appellant -
- RONALD LEE GILMAN, Circuit Judge. Judy Gettings
(02-3535). -
filed a complaint alleging that her employer, the Building
- Laborers Local 310 Fringe Benefits Fund (the Fund), violated
- Title VII, ERISA, and the National Labor Relations Act by
N discriminating against her on the basis of her gender. For the
Appeal from the United States District Court reasons set forth below, we AFFIRM the district court’s
for the Northern District of Ohio at Cleveland. grant of summary judgment for the Fund as to all claims. In
No. 01-01223—Donald C. Nugent, District Judge. addition, we VACATE the district court’s denial of attorney
fees to the Fund and REMAND with instructions that the
Argued: October 24, 2003 court reconsider the request and provide a reasoned
explanation for its decision.
Decided and Filed: November 13, 2003
*
The Honorable William J. Haynes, Jr., United States District Judge
for the Middle District of Tennessee, sitting by designation.
1
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I. BACKGROUND the Fund was discriminating against her because of her
gender. Gettings claims that Mickshaw received a
A. Factual background substantially more lucrative compensation package for
performing essentially the same work that she did.
Gettings was hired by the Fund as a secretary/clerk in 1978.
The Fund administers health, welfare, pension, and other On October 1, 1998, the OCRC issued Gettings a probable-
benefit plans for the members of the Building and cause letter, making a preliminary determination that the
Construction Laborers Local Union 310 (the Union). A Fund had probably engaged in unlawful discriminatory
Board of Trustees, comprised of equal numbers of Union and practices. Depositions of Gettings, the fund administrator,
employer representatives, governs the Fund. In addition to and the OPEIU union steward were subsequently taken by an
Gettings, five other people were employed in the Fund’s assistant state attorney general on behalf of the OCRC. In her
office: three clerks, a field auditor, and the fund administrator. deposition, Gettings admitted that there were significant
Gettings and the three other clerks were members of the differences between the duties of a field auditor and the duties
Office and Professional Employees International Union of a clerk, and that Mickshaw was performing some field
(OPEIU), which negotiated their wages and benefits in a auditor tasks, although, in Gettings’s opinion, not very well.
collective bargaining agreement with the Fund. Gettings also conceded that she did not perform any field
Compensation for the field auditor and the fund administrator auditor duties. She further acknowledged that Mickshaw’s
was set by the Fund’s Board of Trustees. duties required that he have access to a Fund-provided car,
while her duties did not. Finally, Gettings admitted that her
In 1989, the Fund hired Robert Mickshaw, the son-in-law union, OPEIU, had attempted to negotiate retirement benefits
of the Union’s business manager, to be the field auditor. similar to those received by Mickshaw, but was unsuccessful.
Gettings claims that Mickshaw was incompetent and According to Gettings, she withdrew her complaint before the
unqualified for this position. Because Mickshaw was OCRC made any final determination on the merits so that she
purportedly unable to fulfill his duties as the field auditor, could proceed in federal court.
Gettings alleges that she and the other clerks trained him to
perform their clerical duties. As a consequence, Gettings The EEOC, meanwhile, had declined to investigate
complains that she and Mickshaw were doing the same kind Gettings’s charge because the Fund employed less than 15
of work, but that Mickshaw was being paid $35,000 more per employees, which is the minimum number for an entity to be
year than she was by virtue of his formally holding the considered an “employer” under Title VII. 42 U.S.C.
position of field auditor. Mickshaw also enjoyed more § 2000e(b). On August 24, 2000, the EEOC sent Gettings a
favorable retirement benefits than Gettings and had access to letter confirming that her charge of employment
a Fund-provided car. discrimination had been withdrawn in accordance with her
request. The EEOC letter did not, however, indicate that she
B. Procedural background had only 90 days within which to bring a civil action pursuant
to 42 U.S.C. 2000e-5(f)(1). Gettings filed a complaint in
In November of 1997, Gettings filed charges with the Ohio federal district court over eight months later, alleging (1) sex
Civil Rights Commission (OCRC) and the Equal discrimination, in violation of Title VII of the Civil Rights
Employment Opportunity Commission (EEOC), alleging that Act of 1964, 42 U.S.C. §§ 2000e-2000e(17), and Ohio
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Revised Code § 4112.02, (2) discrimination under the II. ANALYSIS
Employee Retirement Income Security Act (ERISA),
29 U.S.C. § 1001-1461, and (3) discrimination based on A. The district court’s stay of discovery
union membership, in violation of the National Labor
Relations Act (NLRA), 29 U.S.C. § 141-187. The Fund filed a motion to stay discovery pending the
district court’s ruling on the Fund’s motion for summary
At the initial case management conference called by the judgment. Discovery was stayed by the district court without
district court, the Fund indicated that it would soon be filing opinion. Gettings claims that the denial of discovery was
a motion for summary judgment. The parties also agreed to manifestly unjust and violated her right to the due process of
limit discovery in light of the prior proceedings before the law. We review a district court’s decision to limit discovery
OCRC. After the Fund filed its motion for summary under an “abuse of discretion” standard. Hahn v. Star Bank,
judgment, Gettings requested an additional 60 days in order 190 F.3d 708, 719 (6th Cir. 1999).
to conduct discovery before submitting her response. The
Fund opposed Gettings’s motion because she had failed to “Trial courts have broad discretion and inherent power to
comply with the requirement of Rule 56(f) of the Federal stay discovery until preliminary questions that may dispose of
Rules of Civil Procedure that such a motion include an the case are determined.” Id. Limitations on pretrial
affidavit containing a specification of facts to be discovered discovery are appropriate where claims may be dismissed
and an explanation of how the discovered facts would rebut “based on legal determinations that could not have been
the Fund’s motion for summary judgment. Gettings’s counsel altered by any further discovery.” Musquiz v. W. A. Foote
confirmed at oral argument that he did not file a Rule 56(f) Memorial Hospital, Inc., 70 F.3d 422, 430 (6th Cir. 1995). In
affidavit. At the second pretrial conference, the district court the present case, the Fund’s motion for summary judgment
granted Gettings’s request for additional time to respond, but contained the following issues that could be decided as a
stayed discovery pending its ruling on the Fund’s motion for matter of law: whether the Fund, as a single entity, was an
summary judgment. employer as defined under Title VII, whether Gettings stated
a claim under ERISA, and whether the NLRB had exclusive
In response, Gettings not only opposed the Fund’s jurisdiction over Gettings’s unfair-labor-practice claim. We
summary judgment motion, but also sought leave to amend conclude that the district court did not abuse its discretion in
her complaint to add the Union as a defendant, arguing that making these legal determinations without discovery.
the Fund and the Union were in fact a single entity. The
district court subsequently granted summary judgment in There are, however, two fact-based issues that could have
favor of the Fund and denied Gettings’s motion to amend her been fleshed out in more detail if discovery had gone forward.
complaint. Following this ruling, the Fund filed a motion for First, Gettings might have obtained evidence to support her
attorney fees and costs, which the district court denied by a theory that the Fund and the Union were acting as a single
marginal entry without any explanation. Gettings appeals the employer. Second, Gettings might have unearthed facts to
former decision, and the Fund appeals the latter. prop up her claim that Mickshaw’s position as the field
auditor was a sham. The problem is that Gettings did not
comply with Rule 56(f) of the Federal Rules of Civil
Procedure, which provides as follows:
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Should it appear from the affidavits of a party opposing B. The Fund’s motion for summary judgment
the [summary judgment] motion that the party cannot for
reasons stated present by affidavit facts essential to 1. Standard of review
justify the party’s opposition, the court may refuse the
application for judgment or may order a continuance to We review a district court’s grant of summary judgment
permit affidavits to be obtained or depositions to be taken de novo. Logan v. Denny’s, Inc., 259 F.3d 558, 566 (6th Cir.
or discovery to be had or may make such other order as 2001). Summary judgment is proper where there exists no
is just. genuine issue of material fact and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(c). In
This court has interpreted Rule 56(f) as requiring a party considering a motion for summary judgment, the district court
opposing a summary judgment motion to file an affidavit that must construe all reasonable inferences in favor of the
“indicate[s] to the district court its need for discovery, what nonmoving party. Matsushita Elec. Indus. Co. v. Zenith
material facts it hopes to uncover, and why it has not Radio Corp., 475 U.S. 574, 587 (1986). The central issue is
previously discovered the information.” Cacevic v. City of “whether the evidence presents a sufficient disagreement to
Hazel Park, 226 F.3d 483, 488 (6th Cir. 2000); see also, require submission to a jury or whether it is so one-sided that
Wallin v. Norman, 317 F.3d 558, 564 (6th Cir. 2003) one party must prevail as a matter of law.” Anderson v.
(summarizing Sixth Circuit precedent that the nonmoving Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
party must (1) file an affidavit that details the discovery
needed, and (2) explain how it will help rebut the movant’s 2. Prima facie case of gender discrimination under Title
showing of the absence of a genuine issue of material fact). VII and Ohio state law
Gettings filed no such affidavit.
In order to establish a prima facie case of gender
This court has pointed out that “[t]he importance of discrimination under Title VII, Gettings must show that
complying with Rule 56(f) cannot be overemphasized.” (1) she was a member of a protected class; (2) she suffered an
Cacevic, 226 F.3d at 488. “Where a party opposing summary adverse employment action; (3) she was qualified for the
judgment and seeking a continuance pending completion of position; and (4) that she was treated differently from
discovery fails to take advantage of the shelter provided by similarly situated members of the unprotected class.
Rule 56(f) by filing an affidavit, there is no abuse of Alexander v. Local 496, Laborers’ Int’l Union, 177 F.3d 394,
discretion in granting summary judgment if it is otherwise 402-03 (6th Cir. 1999). Because the prima facie case
appropriate.” Id. (internal citation omitted). Because requirements are essentially the same under Ohio Revised
Gettings failed to file such an affidavit, the district court did Code § 4112.02, see Ohio Civil Rights Comm’n v. Ingram,
not abuse its discretion in staying discovery pending 630 N.E.2d 669, 672 (Ohio 1994), Gettings’s federal and
resolution of the Fund’s motion for summary judgment. state-law claims of gender discrimination may be disposed of
together.
The district court properly determined that Gettings failed
to establish a prima facie case for several reasons. First,
Gettings did not specifically allege that she suffered an
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adverse employment action. She was not terminated, present, the Fund has never had 15 or more employees. Only
disciplined, or demoted. Nor was she rejected for the field 6 persons are employed by the Fund. Accordingly, as a
auditor position, since she never applied for it. Second, matter of law, the Fund was entitled to summary judgment on
Gettings does not allege that she was qualified to be a field Gettings’s Title VII claim.
auditor. Third, Gettings and Mickshaw were not similarly
situated. Under Title VII, “the plaintiff and the employee Gettings attempted to overcome Title VII’s definition of an
with whom the plaintiff seeks to compare . . . herself must be employer by filing a motion to amend her complaint to add
similar in all of the relevant aspects.” Ercegovich v. the Union as a defendant. She argued that the Union and the
Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. Fund were acting as a single employer. Because the Union
1998) (emphasis in original) (internal citation omitted). has 13 employees and the Fund has 6 employees, their
combined workforce would clear the 15-employee statutory
The district court correctly observed that Gettings was hurdle if they were considered a single employer. The district
comparing apples to oranges. Gettings and Mickshaw each court found that Gettings’s motion was moot because, even if
held different jobs, with different qualification requirements the Union and the Fund were indeed a single employer for the
and duties, and thus had different compensation packages. purposes of Title VII, Gettings nonetheless failed to establish
Gettings admitted as much in her deposition. She a prima facie case of gender discrimination. Because we
acknowledged that she and Mickshaw had different jobs and agree with the district court’s adjudication on the merits of
responsibilities and conceded that Mickshaw did perform Gettings’s gender discrimination claim, we conclude that the
some of his field auditor tasks. Gettings’s opinion that district court properly dismissed as moot Gettings’s motion to
Mickshaw performed poorly—but was handsomely paid—as add the Union as a defendant.
the field auditor does not mean that Gettings was being
discriminated against with regard to her own employment as We also note that there is nothing in the record before us to
a clerk. In sum, she and Mickshaw did not hold positions that indicate that the Fund and the Union were acting as a single
were similar in all relevant aspects. We thus find no error in employer. The OCRC examined the operations and
the district court’s conclusion that Gettings failed to establish management of the Fund and the Union and concluded that
a prima facie case of discrimination under either federal or the entities were “completely separate” and could not be
state law. “merged” to satisfy the EEOC’s jurisdictional prerequisites.
After considering the appropriate test in this circuit, the
3. Gettings’s employer for the purposes of the Title VII district court also concluded that Fund and the Union were
separate entities. See Distillery, Wine & Allied Workers Int’l
The district court also properly granted summary judgment Union v. National Distillers & Chem. Corp., 894 F.2d 850on Gettings’s Title VII claim because the Fund does not (6th Cir. 1990) (examining the interrelation of operations,
satisfy the statutory definition of an employer. An employer, common management, centralized control of labor relations,
for purposes of Title VII, is “a person engaged in an industry and common ownership as the key factors in a single-
affecting commerce who has fifteen or more employees for employer analysis).
each working day in each of twenty or more calendar weeks
in the current or preceding calendar year . . . .” 42 U.S.C. Because Gettings’s failure to file an affidavit under Rule
§ 2000e(b). The district court found that, from 1995 to the 56(f) ended further development of the record on this point,
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we decline to hold that the district court was clearly erroneous 5. The ERISA claim
in deciding that the Fund and the Union were separate
entities. See Michigan Bell Tel. Co. v. Engler, 257 F.3d 587, Gettings’s complaint also failed to articulate a claim under
592 (6th Cir. 2001) (stating that this court does not disturb ERISA. The district court assumed that Gettings was
findings of fact unless the district court was clearly erroneous attempting to argue that she was being discriminated against
in reaching its conclusion). Gettings’s motion to amend her because she received less favorable retirement benefits or
complaint was therefore not only moot, but meritless. contributions than Mickshaw. But ERISA does not provide
a remedy for gender discrimination. ERISA prohibits
4. The district court’s alternative basis for dismissing discrimination in the exercise of rights under an employee
the Title VII claim benefit plan covered by ERISA. 29 U.S.C. § 1140.
Gettings’s complaint, however, did not allege that she was
An alternative basis for dismissing Gettings’s Title VII being discriminated against in the exercise of her rights under
claim, the district court held, was her failure to meet certain her employee benefit plan, the terms of which were
procedural requirements for filing suit in federal court. negotiated by her union. Nor did Gettings allege that she had
Usually a person who files a charge with the EEOC that is requested and was denied any specific benefit that she is due
subsequently dismissed receives notice that she has a right to under her employee benefit plan. Because Gettings failed to
pursue her claim in federal court. 42 U.S.C. § 2000e-5(f)(1). state a claim for discrimination under ERISA, the district
This typically takes the form of a “right-to-sue” letter, stating court properly granted the Fund’s motion for summary
that the individual has 90 days from the date of the letter to judgment on this issue. Gettings does not contest this aspect
file a civil complaint in court. Gettings argues that her letter of the district court’s holding.
from the EEOC failed to explain this procedural requirement
and was not captioned as a “right-to-sue” letter. She thus Instead, Gettings has apparently seized on the Fund’s
contends that she should not be penalized for filing her interpretation of her ERISA claim as the basis for her appeal.
lawsuit over eight months after receiving the EEOC’s letter. In interpreting Gettings’s complaint at the summary judgment
stage, the Fund assumed that Gettings was arguing that the
The district court pointed out that Gettings was in a no-win Fund’s plan did not qualify as a trust entitled to certain tax
situation. If the EEOC letter confirming Gettings’s advantages because it was paying higher benefits to the more
withdrawal of her charge met the statute’s requirement that highly compensated employees, potentially in violation of
she be given notice of her rights, then she filed her complaint 26 U.S.C. § 401(a)(4). The district court disagreed. After a
too late. On the other hand, if the EEOC letter was not a careful review of Gettings’s complaint, the district court
“right-to-sue” letter, then Gettings filed her case without determined that Gettings was not alleging any cause of action
receiving clearance to do so. In either case, the district court based upon the Fund’s purported violation of the Internal
held that Gettings failed to meet the procedural prerequisites Revenue Code.
of Title VII. Because the district court’s other reasons for
granting the Fund summary judgment are sound, we decline For the sake of argument, however, the district court
to address this alternative basis for disposing of Gettings’s assumed that Gettings had standing to assert the ERISA claim
Title VII claim. as framed by the Fund. It nonetheless concluded that the
Fund’s plan was a qualified trust under the tax laws. The
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court pointed out that in evaluating whether a trust is See 29 U.S.C. § 160(a) (empowering the NLRB to prevent
providing highly compensated employees with more any person from engaging in unfair labor practices).
favorable benefits than are being received by other plan
members, the tax code instructs that employees covered by Gettings attempts to circumvent the NLRB’s exclusive
collective bargaining agreements are not considered in this jurisdiction over this claim by arguing that “OPEIU is not a
comparative analysis. See 26 U.S.C. § 410(b)(3)(A). legitimate collective bargaining unit” and that her
membership in OPEIU is a “sham.” Even if Gettings is
Gettings now frames her ERISA claim as a dispute over correct, which is not supported by the record, the NLRB still
standing. She appeals the district court’s supposed ruling that has exclusive jurisdiction over the allegations of unfair labor
she did not have standing to bring a claim against the Fund’s practices. See Carpenters District Council v. United
pension plan for violating the tax code. As discussed above, Contractors Ass’n of Ohio, Inc., 484 F.2d 119, 121-23 (6th
however, the district court did not hold that Gettings lacked Cir. 1973) (holding that even where the collective bargaining
standing. To the contrary, the court assumed that Gettings did agreement is a sham, the NLRB has exclusive jurisdiction
have standing, but concluded that her claim was without over allegations of unfair labor practices). The district court
merit. Gettings’s unconvincing comeback to the district was therefore correct to dismiss this claim for lack of subject
court’s determination on the merits is that her collective matter jurisdiction.
bargaining agreement is “of no consequence.” Regardless of
how Gettings’s ERISA claim is framed—as a discrimination C. The Fund’s motion for attorney fees
issue, a tax violation issue, or a standing issue—the district
court properly determined that the Fund was entitled to 1. Standard of review
summary judgment.
We now turn to the Fund’s cross-appeal, which relates to its
6. Discrimination based upon union membership request for an award of attorney fees against Gettings. The
grant or denial of attorney fees by a district court is reviewed
The district court properly determined that it did not have under an “abuse of discretion” standard. Berger v. City of
jurisdiction over Gettings’s claim that the Fund had engaged Mayfield Heights, 265 F.3d 399, 402 (6th Cir. 2001). “Abuse
in an unfair labor practice by paying her less in wages and of discretion is defined as a definite and firm conviction that
benefits than it paid Mickshaw, in alleged violation of 29 the trial court committed a clear error of judgment.” Id.U.S.C. § 158. Under the latter provision, an employer (internal citation omitted). Because the district court denied
engages in an unfair labor practice by discriminating “in the Fund’s motion for attorney fees by a marginal order
regard to . . . any term or condition of employment to without any explanation, it is impossible for us to determine
encourage or discourage membership in any labor whether the district court committed a clear error of
organization.” The National Labor Relations Board (NLRB), judgment. This court has previously expressed its
however, “has been designated by Congress as the exclusive “disapproval of marginal entry orders” that are contested and
forum of original jurisdiction for adjudicating questions of . . . dispositive of a substantive issue. Inland Bulk Transfer Co.
unfair labor practices . . . and . . . United States District v. Cummins Engine Co., 332 F.3d 1007, 1015 n. 7 (6th Cir.
Courts have no such jurisdiction.” Lexington Cartage v. Int’l 2003) (criticizing marginal orders because they frustrate
Brotherhood of Teamsters, 713 F.2d 194, 195 (6th Cir. 1983). appellate review); see also Bank One v. Abbe, 916 F.2d 1067,
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1082 (6th Cir. 1990) (stating that marginal orders are quotation marks omitted). But a “plaintiff should not be
disfavored because they create difficulties in properly assessed his opponent’s attorney fees unless the court finds
reviewing such dispositions); United States v. Woods, 885 the claim was groundless at the outset or that the plaintiff
F.2d 352, 353-54 (6th Cir. 1989) (complaining that the continued to litigate after it clearly became so.” Id. (internal
district court’s use of a marginal order complicated and citation and quotation marks omitted) This determination,
potentially prejudiced appellate review). “requires inquiry into the plaintiff’s basis for filing suit.” Id.(internal citation omitted). Because the district court in the
A trial judge’s exercise of discretion in fee-award cases, present case used a marginal order, the record does not reveal
although “entitled to substantial deference . . . is not whether the court engaged in any inquiry concerning the
absolute.” Adcock-Ladd v. Sec’y of Treasury, 227 F.3d 343, merits of Gettings’s claim.
349 (6th Cir. 2000) (reversing the district court’s award of
attorney fees because of improper calculation methods). In “This court has noted that attorneys’ fees should be
awarding attorney fees, a “district court must provide a clear awarded to defense counsel in Title VII actions only in the
and concise explanation of its reasons.” Id. (internal citation most egregious circumstances.” Noyes v. Channel Products,
omitted). By the same token, where there is significant Inc., 935 F.2d 806, 810 (6th Cir. 1991). Such circumstances
evidence in the record to support an award of attorney fees, may well be present here. The district court’s opinion
the district court should provide some explanation for its indicates that Gettings knew that the EEOC had declined to
denial of the award rather than simply entering a marginal investigate her Title VII claim on the basis that the Fund was
order. See Easley v. Value City Stores, Nos. 91-5288, 91- not an “employer” as defined by that statute. In fact, the
5317, 1992 WL 3714, at *5 (6th Cir. Jan. 10, 1992) district court found that that is why she withdrew her charge
(unpublished opinion) (remanding the employment from the EEOC. The OCRC’s report further informed
discrimination action to the district court to provide a Gettings that she could not merge the workforces of the
statement of reasons explaining why the employer was not Union and the Fund in order to meet Title VII’s jurisdictional
entitled to attorney fees when it prevailed on summary requirements. Gettings thus had every reason to believe that
judgment); see also Ellenburg v. Brockway, Inc., 763 F.2d her Title VII claim was barred, yet she pursued it anyway.
1091, 1097 (9th Cir. 1985) (remanding the case to the district
court with instructions that the court state its reasons for She also failed to articulate any cognizable ERISA claim,
denying the appellants’ motion for attorney fees); Gordon v. as is evident from the conflicting interpretations by the
U.S. Steel Corp., 724 F.2d 106, 108 (10th Cir. 1983) (same). district court and the Fund regarding the exact nature of
Gettings’s ERISA allegations. Under ERISA, a district court
2. Evidence supporting an award of attorney fees to the “may allow a reasonable attorney’s fee and costs of action to
Fund either party.” 29 U.S.C. § 1132(g)(1). This court has held
that when a district court exercises its discretion in awarding
“[A] district court may in its discretion award attorney fees attorney fees under ERISA, it should consider five factors:
to a prevailing defendant upon a finding that the plaintiff’s
action was frivolous, unreasonable, or without (1) the degree of the opposing party’s culpability or bad
foundation. . . .” Wilson-Simmons v. Lake County Sheriff’s faith; (2) the opposing party’s ability to satisfy an award
Dep’t, 207 F.3d 818, 823 (6th Cir. 2000) (internal citation and of attorney’s fees; (3) the deterrent effect of an award on
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other persons under similar circumstances; (4) whether
the party requesting fees sought to confer a common
benefit on all participants and beneficiaries of an ERISA
plan or resolve significant legal questions regarding
ERISA; and (5) the relative merits of the parties’
positions.
Foltice v. Guardsman Products, Inc., 98 F.3d 933, 936-37
(6th Cir. 1996) (internal citation omitted). The district court
should explicitly consider all of these factors on remand.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the
decision of the district court granting summary judgment for
the Fund. In addition, we VACATE the district court’s
denial of attorney fees to the Fund and REMAND with
instructions that the court reconsider the request and provide
a reasoned explanation for its decision.