United States District Court, D. Delaware
DR. NANCY MONDERO, JUDY L. HOWETT NP, MARGARET M. SAWYER, TANIKKA R. MILLER, and MARIAN L. LONG, Plaintiffs;
LEWES SURGICAL & MEDICAL ASSOCIATES P.A., a Delaware Professional Association, SEMAAN M. ABBOUD M.D., BETH E. BITTNER, Defendants.
me is Defendants' Semaan N. Abboud, M.D., and Lewes
Surgical & Medical Associates, P.A.'s
("Defendants") Motion for Attorney's Fees.
(D.I. 73). I have considered Defendants' opening brief
and Plaintiffs' response. (Id; D.I. 87).
Defendants did not file a reply. Familiarity with the summary
judgment decision (D.I. 71; D.I. 72) and reargument decision
(D.I. 84) is presumed.
seek recovery of attorney's fees under 42 U.S.C. §
2000e-5(k). (D.I. 73 at 3).
In any action or proceeding under this subchapter the court,
in its discretion, may allow the prevailing party, other than
the Commission or the United States, a reasonable
attorney's fee (including expert fees) as part of the
costs, and the Commission and the United States shall be
liable for costs the same as a private person.
42 U.S.C. § 2000e-5(k). "[A] district court may in
its discretion award attorney's fees to a prevailing
defendant in a Title VII case upon a finding that the
plaintiffs action was frivolous, unreasonable, or without
foundation, even though not brought in subjective bad
faith." Christiansburg Garment Co. v. Equal
Employment Opportunity Comm 'n, 434 U.S. 412, 421
unreasonable, or without foundation, ' in this context,
implies 'groundless . .. rather than simply that the
plaintiff has ultimately lost his case.'"
E.E.O.C. v. L.B. Foster Co., 123 F.3d 746, 751 (3d
Cir. 1997). "[I]t 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." Id.
"It is clear from Christiansburg that
attorney's fees [to a prevailing Title VII defendant] are
not routine, but are to be only sparingly awarded."
determining if an award of counsel fees to a Title VII
defendant is appropriate, courts should consider several
factors including '(1) whether the plaintiff established
a prima facie case; (2) whether the defendant offered to
settle; and (3) whether the trial court dismissed the case
prior to trial or held a full-blown trial on the
merits."' Id. "These factors are,
however, guideposts, not hard and fast rules."
Id. "Determinations regarding frivolity are to
be made on a case-by-case basis." Id.
argue that Plaintiffs failed to make a prima facie case for
both Counts I and II. (D.I. 73 at 4). While it is true that I
ultimately found that Plaintiffs did not establish a prima
facie case, Plaintiffs did put forward some evidence as to
the existence of a causal connection, such as timing evidence
and Bittner's affidavit. (D.I. 71 at 6; D.I. 84 at 3-4).
Although I found that the evidence fell short, I cannot say
that Plaintiffs causation case was completely without
foundation. See E.E.O.C, 123 F.3d at 751 ("[I]t
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."). For example, Plaintiffs' timing
evidence would have been comparable to that in Fasold v.
Justice, 409 F.3d 178 (3d Cir. 2005), had Plaintiffs
provided stronger evidence of retaliatory animus. (D.I. 71 at
6). Plaintiffs were not pursuing a frivolous case.
argue that they offered to settle with Plaintiffs at
mediation and made a significant offer to do so. (D.I. 73 at
4). Plaintiffs contend that they also made numerous offers of
settlement and that Defendants' offers were at best
nominal. Plaintiffs allege that Defendants were unreasonable
in negotiating. (D.I. 87 at 5-6). Without actual numerical
information about the negotiation, I cannot say whether
Defendants made a reasonable offer or whether Plaintiffs
argue that Counts I and II were decided prior to trial. (D.I.
73 at 4). While it is true that these counts were decided at
summary judgment, it is also true that I allowed
Plaintiffs' retaliation theory to proceed after a motion
to dismiss. (D.I. 21; D.I. 22).
all of this in mind, Defendants fall short of establishing
that Plaintiffs' actions with respect to Counts I and II
were frivolous, unreasonable, or without foundation.
THEREFORE, at Wilmington this 18th day of May, 2017, it is
HEREBY ORDERED that Defendant's motion for attorney's
fees (D.I. 73) is DENIED.