By: Thomas Paschos
Thomas Paschos & Associates, P.C.
In Green v. Port of Authority of New York and New Jersey, 2010 WL 2989990 (D.N.J. July 26, 2010), defendant Port Authority of New York and New Jersey (Port Authority) filed a motion for attorneys fees after it was granted summary judgment on all counts of a complaint filed by plaintiff Frank Green alleging violations of Title VII. The Port Authority sought attorney’s fees and costs arguing that Green’s Title VII claims were frivolous, unreasonable, and without foundation.
The court began its analysis by citing the U.S. Supreme Court case Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), which held that a district court may in its discretion award attorney’s fees to a prevailing defendant … upon a finding that the plaintiff’s action was frivolous, unreasonable or without foundation. The court noted that the Third Circuit in E.E.O.C v. L.B. Foster Co. 123 F.3d 746, 751 (3d Cir.1997) refined the Christiansburg standard, stating that when determining whether an award of counsel fees to a Title VII defendant is appropriate, courts should consider several factors, including whether plaintiff established a prima facie case, whether defendant offered to settle, and whether the trial court dismissed the case prior to trial or held a full-blown trial on the merits. Additional factors a court must consider when evaluating whether a plaintiff’s action was frivolous, unreasonable or without foundation are whether the question was one of first impression; whether the plaintiff risked a real threat of injury; and whether the trial court has made a finding that the suit was frivolous under the guidelines set forth in Christiansburg. Barnes Found. v. Twp. of Lower Merion, 242 F.3d 151, 158 (3d Cir.2001)
Port Authority argued that Green’s claims were frivolous and unreasonable because he did not establish a prima facie case. Port Authority specifically pointed to the Court’s summary judgment opinion stating that the evidence simply [did] not approach actionable conduct on the part of [his supervisor] or others. Port Authority claimed that any reasonable person viewing the facts of this case would have found the allegations to be frivolous, and therefore it maintained that it was unreasonable for Green to bring his claims. It further argued that Green’s sexual harassment, hostile work environment, and retaliation claims satisfy each of the Christiansburg elements even though a finding of just one would be sufficient to award attorney’s fees. Defendant also argued that it is irrelevant that Green did not act in bad faith, because in Christiansburg the U.S. Supreme Court concluded that the standard for determining whether to award attorney’s fees to a prevailing party is objective; and quoting the courts summary judgment opinion argued that here, objectively, Green’s supervisor’s actions were not misconduct at all.
The court rejected these arguments noting that although it determined that the comments and actions of Green’s supervisor were at most intersexual flirting and that courts require more severe or pervasive misconduct than this to sustain plaintiff’s claims, this observation did not equate with a characterization of the claims as entirely frivolous.
The Court similarly rejected Port Authority’s argument that because this case was decided on summary judgment, the court must have found Green’s claims to be frivolous and unreasonable. Defendants argue that by granting summary judgment this Court recognized the inherit weakness of Plaintiff’s case.
The court provided that the defendant failed to consider that [t]here is a significant difference between making a weak argument with little chance of success … and making a frivolous argument with no chance of success…. [I]t is only the latter that permits defendants to recover attorney’s fees. Port Authority’s position would subject every plaintiff who lost on summary judgment to a probable fee award against him or her, exactly the menace that legal authority and the statutory scheme provide against.
Port Authority’s second argument was that Green’s claims against the individual defendants were without foundation under Title VII noting that in granting summary judgment, this court recognized that individual employees may not be held liable under Title VII. Port Authority argued that Green and his lawyer should have been aware that they could not name individual defendants in the case and that Port Authority put Green on notice of this fact in a letter to the plaintiff’s attorney. The court held that under an objective standard, this misstep by Green’s attorney did not necessarily entitle Port Authority to attorney’s fees, especially because the misstep only applied to one of Green’s many claims. The court provided [t]he consequence for counsel’s mistake is that Port Authority prevailed on the point, not that Port Authority gets to inflict punishment.