AFSCME v. County of Nassau

• Decision Date: 24 June 1993
• Docket Number: No. CV-84-1730.,CV-84-1730.
• Parties: AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO (AFSCME), et al., Plaintiffs, v. COUNTY OF NASSAU, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

825 F. Supp. 468

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO (AFSCME), et al., Plaintiffs, v. COUNTY OF NASSAU, et al., Defendants.

No. CV-84-1730.

United States District Court, E.D. New York.

June 24, 1993.

Joel I. Klein, Klein, Farr, Smith & Taranto, Washington, DC, for plaintiffs.

William H. Pauley III, Snitow & Pauley, New York City, for defendants.

MEMORANDUM AND ORDER

GLASSER, United States District Judge:

The plaintiffs commenced this class action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and pursuant to the Equal Pay Act of 1963, 29 U.S.C. § 206(d), alleging that the County of Nassau "discriminates in compensation on the basis of sex by paying historically female job classifications which require an equivalent or lesser composite of skill, effort, responsibility and working conditions" less than historically male job classifications. Also alleged were specific violations of the Equal Pay Act. The plaintiffs sought injunctive relief, back pay, liquidated damages, costs and attorney's fees.

Pre-trial motions resulted in the dismissal of the Equal Pay Act claims of specifically named plaintiffs; the dismissal of the Title VII claims of all plaintiffs predicated upon a disparate impact theory; and the dismissal of the Title VII claims of all male plaintiffs. Subsequently, the court certified a class and designated the class representatives. See A.F.S.C.M.E. v. Nassau County, 609 F.Supp. 695 (E.D.N.Y.1985) and 664 F.Supp. 64 (E.D.N.Y.1987). A stipulation was then entered into bifurcating the liability aspect of the action. The trial of that segment began on November 27, 1989 and ended on May 11, 1990. In an opinion reported in 799 F.Supp. 1370 (E.D.N.Y.1992), the court held that the plaintiffs failed to prove violations of Title VII or of the Equal Pay Act by a preponderance of the evidence as to all claims, except for the Title VII claims of the class members employed as police detention aides.

Thereafter, the defendants moved this court for an order pursuant to 42 U.S.C. § 1988 awarding them reasonable attorney's fees in the amount of $982,407.23 and expert witness fees in the amount of $550,974.66 as the prevailing party in the action. More precisely, the statutory authorization for the recovery of attorney's fees in this case is 42 U.S.C. § 2000e-5(k) which provides:

In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, ... a reasonable attorney's fee (including expert fees) as part of the costs....

The provision for expert fees was added by the Civil Rights Act of 1991 by which Congress overruled the Supreme Court's decision in West Virginia Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 111 S.Ct. 1138, 113 L.Ed.2d 68 (1991). The issue of expert fees will be addressed after the court determines whether an allowance of reasonable attorney's fees to the defendants may be made.

Although the statute as it emerged from Congress provides for the discretionary award of a reasonable attorney's fee to "the prevailing party" without distinguishing between the plaintiff and the defendant as the prevailing party, the Court engrafted such a distinction upon it in Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). The question in that case was "what standard should inform a district court's discretion in deciding whether to award attorney's fees to a successful defendant in a Title VII action." Id. at 417, 98 S.Ct. at 698. The Court acknowledged that the legislative history of § 2000e-5(k) was sparse. Brief references to the remarks of three Senators in the legislative debates led to the observation that:

If anything can be gleaned from these fragments of legislative history, it is that while Congress wanted to clear the way for suits to be brought under the Act it also wanted to protect defendants from burdensome litigation having no legal or factual basis.

Id. at 420, 98 S.Ct. at 700. The Court noted that:

The Court of Appeals for the District of Columbia Circuit seems to have drawn the maximum significance from the Senate debates when it concluded:

From these debates two purposes for § 706(k) emerge. First, Congress desired to "make it easier for a plaintiff of limited means to bring a meritorious suit".... But second, and equally important, Congress intended to "deter the bringing of lawsuits without foundation" by providing that the "prevailing party" — be it plaintiff or defendant — could obtain legal fees. Grubbs v. Butz, 179 U.S.App.D.C. 18, 20, 548 F.2d 973, 975.

Christiansburg, 434 U.S. at 420, 98 S.Ct. at 700.

The federal appellate courts which had previously considered the question had decided that a fee award could not be made to a prevailing defendant if the action had not been "unfounded, meritless, frivolous or vexatiously brought." See United States Steel Corp. v. United States, 519 F.2d 359, 363-64 (3rd Cir.1975); see also, Bolton v. Murray Envelope Corp., 553 F.2d 881, 884 n. 2 (5th Cir.), reh'g denied, 557 F.2d 823 (5th Cir. 1977); Carrion v. Yeshiva Univ., 535 F.2d 722, 727 (2d Cir.1976). The formulation adopted by the Supreme Court was that:

A plaintiff should not be assessed his opponent's attorney's fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so. And, needless to say, if a plaintiff is found to have brought or continued such a claim in bad faith, there will be an even stronger basis for charging him with the attorney's fees incurred by the defense.

Christiansburg, 434 U.S. at 422, 98 S.Ct. at 701. The Court cautioned that:

In applying these criteria, it 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. This kind of hindsight logic could discourage all but the most airtight claims, for seldom can a prospective plaintiff be sure of ultimate success.

Id. at 421-22, 98 S.Ct. at 700.

Given the sparse legislative history, perhaps the correct path for the Court to have followed would have been the one marked by the plain meaning of the statute derived from the unambiguous words "prevailing party." If Congress did not intend that the prevailing party — whether it be plaintiff or defendant — could recover attorney's fees, it would have authorized fees only for one or the other. It is too late in the day, however, to gainsay the holding of Christiansburg. A consideration of the meaning of "frivolous," "unreasonable" or "groundless" and the extent to which those "abstract words can deal with concrete cases," Christiansburg, 434 U.S. at 421, 98 S.Ct. at 700, is, however, timely.

The application of those abstract words to this case can be made only with a familiarity of the findings of fact and conclusions of law which are reflected in the court's earlier opinion, reported at 799 F.Supp. 1370 (E.D.N.Y.1992). Although that familiarity is assumed, selected portions of that opinion, believed to be particularly relevant to the issue at hand, will be recalled. The plaintiffs' primary claim of a Title VII violation was that the defendants were guilty of intentional discrimination by systematically giving lower salary grades to predominantly female job titles than they would have given if they were not female-dominated. They also claimed that there were sex-related salary disparities between male-dominated job titles and female-dominated job titles which were the result of intentional discrimination. Unable to present any direct evidence of intentional discrimination by the defendants, the plaintiffs sought to prove their allegations indirectly, through the testimony of two expert witnesses.

One of those experts, a sociologist from the University of California at Los Angeles was retained to study and report as to whether Nassau County applied its own job evaluation system which was based on a management consultant study ("the Cresap study"), in a consistent way. The court's assessment of the testimony of that expert was as follows:

The court is unable to credit the testimony and the report of Dr. Treiman as to the conclusions of this study. First, the court found Dr. Treiman himself to be extremely evasive and not entirely credible throughout much of his testimony.... Second, Dr. Treiman, in a subsequent report, recanted part of his conclusions from this "unambiguous" evidence.... Further, the court found his methodology in the conduct of this graduate student exercise to be so flawed as to render it unreliable and of no probative value in this case.

799 F.Supp. at 1380.

The plaintiffs also sought to prove intentional discrimination by the defendants by yet another study by Dr. Treiman which they urged established that Nassau County could not have applied the Cresap evaluation procedures in good faith. The court's findings regarding this study are set out in 799 F.Supp. at 1381-83, one portion of which is particularly significant. The court found that Dr. Treiman had no data which he compiled in each of his studies, but used, instead, data prepared for him by the plaintiffs' attorneys or their paralegals.

Another study was conducted by this expert with a view towards proving intentional discrimination in the job and salary evaluation process conducted on behalf of Nassau County by a management consulting firm (the Cresap study). The conclusions he reached in this study were also found to be unreliable for the reasons that:

The questionable — and poorly verified — assumptions on which that study is based as well as the flawed methods with which it was executed erode completely what little confidence this court might have had in Dr. Treiman's conclusions after observing his testimony. This court credits neither Dr. Treiman's testimony nor the

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