EEOC v. Pet Inc., Funsten Nut Div., Civ. A. No. 78-377-N.

• Decision Date: 16 July 1982
• Docket Number: Civ. A. No. 78-377-N.
• Citation: 543 F. Supp. 911
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Etc., Plaintiffs, v. PET INCORPORATED, FUNSTEN NUT DIVISION, Defendant.
• Court: U.S. District Court — Middle District of Alabama

543 F. Supp. 911

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Etc., Plaintiffs, v. PET INCORPORATED, FUNSTEN NUT DIVISION, Defendant.

Civ. A. No. 78-377-N.

United States District Court, M. D. Alabama, N. D.

July 16, 1982.

Laverne S. Tisdale, Norman M. McGuffog, E. E. O. C., Atlanta, Ga., Leroy D. Clark and James N. Finney, E. E. O. C., Washington, D. C., Synthia Glover, Atty., E. E. O. C., Birmingham, Ala., for plaintiffs.

J. Doyle Fuller, Montgomery, Ala., Charles Kelso, Monica Malys and Fisher & Phillips, Ann Margaret Pointer, Atlanta, Ga., Thomas H. Langenberg, St. Louis, Mo., for defendant.

OPINION

VARNER, Chief Judge.

This cause is before the Court on motion for award of attorneys' fees as part of costs and on a petition for award of costs, filed herein April 28 and 8, 1982, by Defendant Pet. Upon consideration of the motion for award of attorneys' fees, this Court reluctantly declines to award attorneys' fees to Pet. This Court will also deny the petition.

STANDARD. The standard which must be utilized to determine whether attorneys' fees should be awarded Pet is provided by the Supreme Court's interpretation of congressional intent in passing 42 U.S.C. § 2000e-5(k). That section reads as follows:

"In any action or proceeding under this subchapter the Court in its discretion, may allow the prevailing party¹, other than the Commission or the United States, a reasonable attorney's fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person."

In Christiansburg Garment Co. v. E. E. O. C., 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1977), the United States Supreme Court interpreted that section to mean that a dual standard is to be applied in awarding attorneys' fees to a prevailing party. One standard applies to a prevailing plaintiff and another standard applies to a prevailing defendant.² In determining whether attorneys' fees should be awarded to a prevailing defendant, the inquiry prescribed by the Supreme Court requires the Court to find whether a plaintiff's claim "was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so." Christiansburg, supra, at 422, 98 S.Ct. at 701.

The manner in which this standard should be applied was further qualified in Christiansburg. The Court cautioned a district court to:

"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. No matter how honest one's belief that he has been the victim of discrimination, no matter how meritorious one's claim may appear at the outset, the course of litigation is rarely predictable. Decisive facts may not emerge until discovery or trial. The law may change or clarify in the midst of litigation. Even when the law or the facts appear questionable or unfavorable at the outset, a party may have an entirely reasonable ground for bringing suit."

In order for this Court to objectively apply the foregoing standard after a case such as this has been voluntarily dismissed in part and involuntarily dismissed in part and when the evidence upon which the case was based appears so flimsy, this Court feels it must view the available evidence and the applicable law in a manner most favorable to Plaintiff. Such an approach appears to inhere in the Supreme Court's caveat concerning post hoc reasoning. Furthermore, as required by the Supreme Court standard, this Court must view the available evidence and applicable law as it existed at the time of the institution of the suit and as it developed as the case proceeded. With the foregoing standards of analysis in mind, the Court now proceeds to apply those standards to the instant case.

PLAINTIFF'S CONTENTIONS. Pet's motion for an award of attorneys' fees, the response to the motion for attorneys' fees, and the original complaint make it clear that Plaintiff's case has all along rested on three primary contentions: first, that Pet discriminated against black employees on the basis of their race with respect to segregated department and job classifications; second, that Pet discriminated against black employees on the basis of their race by maintaining segregated facilities; and, third, that Pet discriminated against black employees on the basis of their race in its disciplinary policy relating to discharge.

PERDUE DISCHARGE. Elbert Perdue, a black employee, filed a charge, which was subsequently amended, with the Plaintiff, Equal Employment Opportunity Commission (EEOC), in which he alleged that he had been discriminatorily discharged because of race and that Pet maintained segregated facilities and departments. See, E. E. O. C. v. Pet, Inc., 612 F.2d 1001 (5th Cir. 1980). Based on these charges by Perdue, the EEOC filed this suit as a class action. Although the case was filed as a class action, EEOC sought relief for Perdue on an individual basis. 612 F.2d at 1001. In addition, the evidence concerning Perdue's discharge was apparently intended to support EEOC's contention that Pet discriminated against blacks in its disciplinary discharge policy.

One question which must be addressed by this Court is whether the suit, insofar as it alleges discriminatory discharge of Perdue and discriminatory disciplinary discharge policies, was at its inception "frivolous" or otherwise unwarranted. EEOC's memorandum in opposition to Pet's earlier motion for summary judgment and award of attorneys' fees, filed herein July 13, 1981, cites evidence it alleges supported the suit insofar as it dealt with Perdue's discharge and with the allegation of class-wide discrimination in discharge policies. It is apparent that EEOC sought to establish a case of discriminatory treatment of Perdue in part by demonstrating that Pet's reason for discharging Perdue was pretextual.³

This Court eventually rejected EEOC's attempt to create a prima facie case of employment discrimination by attempting to demonstrate that the reason for the discharge was pretextual. The Court held that EEOC had failed to meet the fourth element of the Marks v. Prattco, 607 F.2d 1153 (5th Cir. 1979), test, i.e., replacement by a nonminority,⁴ and granted summary judgment for Pet.

The fact that this Court rejected EEOC's attempt to establish a prima facie case by seeking to demonstrate pretextual discharge does not mean that the case was, at its inception, or became at a later date, "frivolous, unreasonable, or groundless". First of all, "the burden of establishing a prima facie case of disparate treatment is not onerous." Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1980). Secondly, anticipating the articulated reason proffered for the discharge and attempting to demonstrate its pretextual nature may not appear to a plaintiff to be an unreasonable way in which to proceed to establish a case of discrimination. Jones v. Western Geophysical Co., 669 F.2d 280, 284 (5th Cir. 1982). Such circumstances may in some cases, though not this one, give rise to an inference of unlawful discrimination. 450 U.S. at 253, 101 S.Ct. at 1093. Accordingly, it cannot be said that EEOC's suit, insofar as it dealt with Perdue's discharge or with class-wide discriminatory discharge policies, was "frivolous, etc." at its inception or that it became so at a later date prior to the Court's entry of summary judgment on the question of Perdue's discharge.

SEGREGATED DEPARTMENT AND JOB CLASSIFICATIONS. A second contention of EEOC was that Pet discriminated against blacks on the basis of their race by maintaining segregated department and job classifications. The employee roster of Pet's Andalusia facility (attached as Exhibit...