GALLINI v. MEDIA GENERAL, INC. (E.D.Va. 2001)

Dennis W. Dohnal

This matter is before the court on referral from the district court pursuant to Title 28 U.S.C. § 636 for resolution of the Defendant's post-judgment motion for attorney's fees and costs. For the reasons set forth herein, the motion is DENIED.

Facts

Plaintiff was employed as a computer software specialist (PeopleSoft developer) within the financial division of Defendant Media General beginning February 22, 1999. In May of 1999, Plaintiff was formally diagnosed with Fibromyalgia, a disease which causes chronic and sometimes debilitating muscle pain and fatigue. Initially, Plaintiff and Defendant were able to implement a mutually-agreeable "reasonable accommodation" for Plaintiff to work at home for part of each workday with frequent breaks while she needed to be in the office. In November of 1999, Plaintiff was transferred in the same capacity to a different division within Media General (human resources). Despite the agreed work-at-home arrangement while she was in the human resources division, Plaintiff began to miss whole days even on a work-at-home basis which Plaintiff admits caused legitimate work-related problems for the Defendant. Not only did the duties of her job in the human resources division require her to be at the office for greater periods of time to interact with other staff members which, in turn, decreased the amount of time in which she could work from home, but also her illness worsened, causing her to miss 64% of the available work days from the date of her transfer to the human resources division to the date of her termination in March of 2000. Defendant declined to approve a 100% work-at-home arrangement for the Plaintiff because of what it asserted to be the special attendance requirements of the position necessitating significant on-site presence and the Plaintiff was terminated upon her refusal to comply.

Plaintiff timely filed an EEOC charge of discrimination on March 30, 2000, and later received a right-to-sue letter within the statutory period. Plaintiff thereafter filed a timely complaint in this court alleging five counts: (1) failure to provide reasonable accommodation in violation of the Americans with Disabilities Act (ADA); (2) wrongful termination in violation of the ADA; (3) violation of Title VII of the Civil Rights Act of 1964; (4) violation of the Fair Labor Standards Act (FLSA); and (5) violation of the Rehabilitation Act of 1973.

Counts III and V were abandoned by Plaintiff after commencement of the litigation and dismissed by order of the court on November 28, 2000. Count IV, the FLSA claim, was subsequently dismissed by joint stipulation on February 2, 2001, following certain deposition testimony by Plaintiff which indicated that she had not, in fact, worked any overtime for Defendant, thereby rendering her ineligible for the relief she had requested. The court entered summary judgment in favor of Defendant on March 5, 2001, on the remaining ADA claims (Counts I and II).

Defendant now moves the court for an award of attorneys fees and costs based on its assertion that Plaintiff's attorney prosecuted a case which was "frivolous, unreasonable, or without foundation" in its entirety and that counsel otherwise unreasonably and vexatiously multiplied proceedings while knowing there was no basis for the case so as to constitute bad faith in the prosecution of the case.

Defendant originally sought over $157,000 in attorneys fees and costs. By order of the court, Defendant filed an amended, redacted itemized bill pertaining only to the costs associated with defending the FLSA, Title VII and Rehabilitation Act claims because of the court's finding at oral argument that the Plaintiff's efforts to assert a claim under the ADA was a reasonable effort to extend existing principles and/or standards to her situation in which she had been previously provided (at least in part) with the accommodation that was subsequently withdrawn. The amended figure reflects a total of $12,985.90 in legal costs, a distinct difference from the original amount claimed given that the main focus of the case was on the ADA claims.

Questions Presented

Did Plaintiff's attorney act in bad faith by filing and pursuing the FLSA, Title VII and/or Rehabilitation Act claims when there were no set of facts which would support such claims? If so, is the Defendant's claim for fees nonetheless barred by failing to raise it in its original motion?

Analysis

The latter issue is appropriate to consider initially as it could render consideration of the former moot. Plaintiff argues that the Defendant's motion for fees relating to the FLSA, the Rehabilitation Act, and Title VII claims should be dismissed for failure to timely raise these claims in its original motion for fees and costs. Because Plaintiff has not cited any persuasive authority to support its position and because Plaintiff has had full opportunity to brief and argue the issue without being prejudiced by undue surprise or other disadvantage, the court finds in the interest of justice that the motion for fees with respect to the challenged claims is properly before it and should be decided.

The FLSA requires a district court to award attorneys fees and costs to a prevailing plaintff, but the statute has no provision to award fees and costs to prevailing defendants. 29 U.S.C. § 2 16(b). At the same time, both Title VII and the Rehabilitation Act appear to permit a district court to allow fees and costs in its discretion to prevailing parties, whether plaintiff or defendant. See Christiansburg Garment Co., v. Equal Employment Opportunity Comm'n, 434 U.S. 412, 415-416 (1978) (describing general rules governing attorneys fees awards in federal cases); 29 U.S.C. § 794a; 42 U.S.C. § 2000 (e)-5(k). Additionally, a Plaintiff's attorney may be personally liable for fees and costs to defend a suit where the action was frivolous, groundless or brought in bad faith. See 28 U.S.C. § 1927; Brubaker v. City of Richmond, 943 F.2d 1363, 1382 n. 25 (4^th Cir. 1991) (citing Blair v. Shenandoah Women's Center, Inc., 757 F.2d 1435 (4^th Cir. 1985) for the proposition that a finding of subjective bad faith is necessary to impose attorneys fees on an attorney under § 1927).

The case law is teeming with the congressional and public policy analysis supporting the award of attorneys fees to plaintiff's attorneys who act as private attorneys general in civil rights cases and other actions.

With respect to the FLSA claim, Defendant argues the Plaintiff's attorney should have been aware from the outset of the litigation that the claim was unfounded or, at the very least, counsel should have recognized the problem when Plaintiff responded to certain interrogatories and requests for admission. (Def.'s Reply Mem. in Supp. of Mot. for Fees at 3). Defendant claims, correctly, that during Plaintiff's deposition, she "admitted that she never worked an hour of overtime during her entire tenure with Media General." Id.

The FLSA contains special definitions for what constitutes overtime, a work week, and exempt status. Plaintiff's attorney could have ascertained at various stages in the initial phase of the case that Plaintiff's understanding of the work week, overtime and exempt status was different from, and thereby not encompassed within, the statutory definitions. However, as troubling as such, let us say, inattentiveness of counsel is to the court as expressed at oral argument, there is insufficient reason on this record to conclude that the prosecution of this claim was made in violation of § 1927 because "[e]ven when the law or the facts appear questionable or unfavorable at the outset, a party may have an entirely reasonable ground for bringing suit." Christiansburg Garment, Co. v. Equal Employment Opportunity Comm'n, 434 U.S. at 701. Simply put, even if an attorney's conduct is substandard or negligent, it is not sufficient to justify' relief under § 1927. Indeed, an attorney may be equally liable to a client where he or she has failed to raise a cognizable claim presented on the facts, and because Plaintiff agreed to abandon the FLSA claim shortly after giving her deposition without there being anymore substantive effort required on the part of the Defendant (as confirmed during oral argument), there was no "vexatious continuation or multiplication of proceedings" in this case. Therefore the court finds that Defendant's arguments regarding the cost of defending the FLSA claim fails even if counsel's conduct is viewed in severe light and even if the statute is interpreted as allowing for recovery of defense fees and costs.

Plaintiff's claims under the Rehabilitation Act and Title VII were conceded and dismissed even earlier than the FLSA claim. The only argument that Defendant presents to support its motion for fees on those claims is that "a good faith review of the relevant law under Title VII and the Rehabilitation Act would have saved Media General from expending attorney's fees to have these claims researched and briefed." (Def.'s Reply Mem. in Supp. of Mot. for Fees at 2). Defendant's reason is simply insufficient for this court to find frivolity, groundlessness, unreasonableness or the requisite bad faith as required under § 1927. The Defendant's plea for fees with respect to the Title VII and Rehabilitation Act claims must therefore fail as well.

Conclusion

Although Defendant was successful on all claims against it, the court cannot conclude that Plaintiff or counsel are liable for any defense fees or costs pursuant to § 1927 or any related authority. The Defendant's motion for fees is accordingly DENIED.

Let the Clerk of the Court send a copy of this Memorandum Opinion and Order to all counsel of record.

It is so ORDERED.