96 F.3d 644 (2nd Cir. 1996), 1140, American Federation of State, County and Mun. Employees, AFL-CIO (AFSCME) v. County of Nassau

Docket Nº:1140, 1610, Dockets 95-9022 (L), 95-9024(XAP).
Citation:96 F.3d 644
Party Name:AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO (AFSCME); Civil Service Employees Association, Inc., Region I/Local 1000, (CSEA); Rita Wallace; Rachel Braver; Dorothy Garage; Linda Kelly; Lois Whitely, on behalf of themselves and all others similarly situated, Plaintiffs-Counter-Defendants-Appellants-Cross-Appellees, Odessa Co
Case Date:September 26, 1996
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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96 F.3d 644 (2nd Cir. 1996)


EMPLOYEES, AFL-CIO (AFSCME); Civil Service Employees

Association, Inc., Region I/Local 1000, (CSEA); Rita

Wallace; Rachel Braver; Dorothy Garage; Linda Kelly;

Lois Whitely, on behalf of themselves and all others

similarly situated,


Odessa Colvin; Erna Fluhr; Laurie Gillibertie; Stephen

Goldberg; Fred Jordan, Plaintiffs-Counter-Defendants,


COUNTY OF NASSAU; Nassau County Executive; Nassau County

Comptroller; Nassau County Board of Supervisors; Nassau

County Civil Service Commission,


Nos. 1140, 1610, Dockets 95-9022 (L), 95-9024(XAP).

United States Court of Appeals, Second Circuit

September 26, 1996

Argued April 3, 1996.

Paul M. Smith, Washington, DC (Susan R. Podolsky, Sean H. Donohue, Jenner & Block, Washington, DC, on the brief), for Plaintiffs-Counter-Defendants-Appellants-Cross-Appellees.

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William H. Pauley, III, New York City (Charles D. Cunningham, Stewart J. Epstein, Edward J. Phillips, Snitow & Pauley, New York City, on the brief), for Defendants-Counter-Claimants-Appellees-Cross-Appellants.

C. Gregory Stewart, General Counsel, Gwendolyn Young Reams, Associate General Counsel, Vincent J. Blackwood, Assistant General Counsel, Samuel A. Marcosson, Attorney, Equal Employment Opportunity Commission, Washington, DC, for amicus curiae Equal Employment Opportunity Commission.

Elaine R. Jones, Theodore M. Shaw, Norman J. Chachkin, Charles Stephen Ralston, David T. Goldberg, Paul K. Sonn, NAACP Legal Defense and Educational Fund, Inc., Donna Lenhoff, Women's Legal Defense Fund, Leon Friedman, New York Civil Liberties Union, Herbert Eisenberg, National Employment Lawyers Association, for amici curiae NAACP Legal Defense and Educational Fund, Inc., Women's Legal Defense Fund, New York Civil Liberties Union and National Employment Lawyers Association (New York Chapter).

Before: WINTER, JACOBS and CALABRESI, Circuit Judges.

JACOBS, Circuit Judge:

In this appeal, we consider the circumstances in which defendants may recover attorney's fees from plaintiffs in actions under Title VII.

In 1984, the American Federation of State, County and Municipal Employees, one of its affiliates and several individual employees (collectively referred to as "AFSCME") commenced this civil rights action against Nassau County and several of its officers (variously, the "County" and the "defendants"). AFSCME alleged that the County's job classification system assigned lower salary grades to jobs that were predominantly held by women than to jobs that were predominantly held by men, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Equal Pay Act of 1963, 29 U.S.C. § 206(d). In 1985, the United States District Court for the Eastern District of New York (Glasser, J.) dismissed AFSCME's disparate impact claim, but declined to dismiss AFSCME's disparate treatment claim. AFSCME v. County of Nassau, 609 F.Supp. 695, 708-12 (E.D.N.Y.1985). Under the remaining disparate treatment theory, AFSCME was required to establish that the County intended to discriminate against women in implementing the job classification system. See International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854-55 n. 15, 52 L.Ed.2d 396 (1977).

On August 24, 1992, following a 16-day bench trial, Judge Glasser issued a memorandum and order holding, among other things, (i) that AFSCME failed to establish discriminatory intent with respect to its claim that the County's implementation of its pay system discriminated against all women who worked in female-dominated jobs; but (ii) that AFSCME did succeed in establishing that the County intentionally discriminated in paying police detention aides (a position predominantly held by women) less than turnkeys (a better-paid position predominantly held by males), in violation of Title VII. AFSCME v. County of Nassau, 799 F.Supp. 1370, 1414, 1416 (E.D.N.Y.1992). The district court ordered the County to pay the female police detention aides a total of $1.6 million in back pay for a fourteen-year period. No appeal was taken from that decision.

The County moved for an award of attorney's fees and expert witness fees pursuant to 42 U.S.C. § 2000e-5(k), which provides for recovery of such fees by prevailing parties. In 1993, the district court held that AFSCME's claims were frivolous under Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978), and awarded the defendants $982,407.23 in attorney's fees. AFSCME v. County of Nassau, 825 F.Supp. 468, 473-74 (E.D.N.Y.1993). The Court deferred decision on the defendants' motion for expert witness fees pending the outcome of a case that was then before the Supreme Court concerning the retroactivity of a 1991 amendment to 42 U.S.C. § 2000e-5(k) that expressly made expert witness fees available to prevailing parties. Id.

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at 474. In an unpublished memorandum and order dated May 31, 1995, the district court held that the 1991 amendment applied retroactively under Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), and therefore awarded the County $550,974.66 in expert witness fees. AFSCME appeals both of those decisions.

Attorney's fees and expert witness fees may not be awarded to a prevailing defendant in a Title VII case unless the plaintiff's claim is "frivolous, unreasonable, or groundless, or ... the plaintiff continued to litigate after it clearly became so." Christiansburg, 434 U.S. at 422, 98 S.Ct. at 701; see also Rounseville v. Zahl, 13 F.3d 625, 632 (2d Cir.1994). AFSCME established a prima facie case of a violation of Title VII; introduced extensive statistical evidence through the testimony of two expert witnesses which, if credited, could have supported a judgment in its favor; and won $1.6 million on its claim that the County intentionally discriminated in paying police detention aides (predominantly women) less than turnkeys (predominantly men). AFSCME, 799 F.Supp. at 1416. Under these circumstances, we conclude that AFSCME's claims were not "frivolous, unreasonable or groundless." We therefore hold that the district court abused its discretion in awarding attorney's and expert witness fees to the County, and reverse the judgments.


Nassau County, New York, employs more than 19,000 people in more than 1,500 jobs. Their salaries are determined by the salary grade assigned to their job title and their seniority. Id. at 1373-74. The present compensation system was implemented after a comprehensive job and salary evaluation was conducted between 1964 and 1967. The details of the job evaluation process (called the "Cresap" process after the management consulting firm that assisted the County) are lucidly explained in the district court's 1992 opinion, see id. at 1374-77, and will only be summarized briefly herein.

First, a team of management consultants and County managers surveyed several thousand employees. After assessing the skills required and tasks performed in each occupation, they created a taxonomy of 650 job titles. Id. at 1375. The team then composed job specifications that described the characteristics of each job in terms of certain prescribed criteria (i.e., the typical duties, the complexity of the duties, and the required qualifications). The County assigned a numerical salary grade to four factors for each job title: (i) the skills and knowledge required by the job; (ii) the variety and complexity of the job duties; (iii) any responsibility for independent action; and (iv) any supervisory responsibility. Id. The numerical values for the four factors for each job title were then weighted and totaled. Other information gathered during the classification process was used to revise the totals. Id. at 1376. Finally, the scores were organized into twenty-seven ranges to correspond with salary grades ranging from one to twenty-seven. Id. (It appears that no consideration was given to the wage that any job would command in the labor market.) The County passed an ordinance enacting the final job titles and salary grades in May 1967. Id. at 1377.

As of the time of trial, three-quarters of the County's employees held job titles established by the Cresap process, and were paid in accordance with the salary grades adopted in 1967.

Between 1967 and 1991, the job classification system was altered by the County in three ways: (i) several new job titles were created by the County's Civil Service Commission; (ii) the pay grades of several job titles were raised by the Civil Service Commission; and (iii) higher pay grades and salary levels were assigned to several job titles as a result of collective bargaining. Id. at 1377-78.

AFSCME is the collective bargaining representative for the employees of Nassau County. AFSCME's amended complaint alleged that the County "discriminates in compensation on the basis of sex by paying historically female job classifications less than historically male classifications which require an equivalent or lesser composite of skill,

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effort, responsibility and working conditions," in violation of Title VII and the Equal Pay Act. Id. at 1372 (quoting amended complaint, p 3(D)). The amended complaint asserted rights on behalf of all employees of the County, and defined "historically female" and "historically male" job classifications as those in which more than 70% of the positions have always been held by persons of that sex. Id. The individual plaintiffs alleged specific violations of Title VII and the Equal Pay Act with respect to their particular job titles.

Prior to discovery, the County moved to dismiss all of AFSCME's claims. On May 17, 1985, the...

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