Durrett v. Jenkins Brickyard, Inc.

• Decision Date: 14 June 1982
• Docket Number: No. 81-7018,81-7018
• Parties: 29 Fair Empl.Prac.Cas. 58, 29 Empl. Prac. Dec. P 32,834 Alvin DURRETT, Plaintiff-Appellee, v. JENKINS BRICKYARD, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 911

678 F.2d 911

29 Fair Empl.Prac.Cas. 58, 29 Empl. Prac.

Dec. P 32,834

Alvin DURRETT, Plaintiff-Appellee, v. JENKINS BRICKYARD, INC., Defendant-Appellant.

No. 81-7018.

United States Court of Appeals, Eleventh Circuit.

June 14, 1982.

Samuel D. Hewlett, III, Atlanta, Ga., for defendant-appellant.

David S. Beale, Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before GODBOLD, Chief Judge, and TJOFLAT and VANCE, Circuit Judges.

TJOFLAT, Circuit Judge:

Jenkins Brickyard, Inc., the defendant below, appeals the district court's denial of an assessment of attorney's fees against Alvin Durrett, the plaintiff below, and against Durrett's counsel, David S. Beale. The district court erred by declining to assess fees against Durrett, and by testing Beale's liability for fees by the wrong legal standard. We therefore remand the case for a determination of an appropriate assessment against Durrett, and for a hearing on Beale's liability for attorney's fees.

I.

On December 4, 1979, Alvin Durrett filed a complaint in the district court alleging that Jenkins Brickyard, Inc. (Jenkins Brick) had violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) (1976), by discharging him because of his race; that he had filed a discrimination charge against Jenkins Brick with the Equal Employment Opportunity Commission (EEOC); that Jenkins Brick was notified of the charge; and that the EEOC had issued a right-to-sue letter to Durrett. ¹ David S. Beale, whom the court had appointed to represent Durrett upon Durrett's application to proceed in forma pauperis, signed the complaint as the plaintiff's attorney.

On December 19, 1979, Jenkins Brick's attorney, Hewlett, telephoned Beale to inform him that Durrett had sued the wrong party. Hewlett told Beale that he had discussed the case with the management of Jenkins Brick, with the Atlanta office of the EEOC, and with counsel for Pullman Swindell, a company completely unrelated to Jenkins Brick which engaged in the construction of brick kilns. These sources disclosed that Jenkins Brick had never employed Durrett and that Durrett had never filed a discrimination charge against Jenkins Brick. Rather, Durrett had worked for Pullman Swindell, which had constructed a kiln at Jenkins Brick's Atlanta facility. It was against Pullman Swindell, Hewlett told Beale, that Durrett had filed a discrimination charge with the EEOC.

Beale's and Hewlett's accounts of the ensuing course of their conversations differ. ² According to Beale, he replied that he had no way to know whether Hewlett's representations were true, but that if they were, action would need to be taken. Beale maintains that he stated that he could ascertain the truth only through discovery, and asked whether Hewlett would provide informal discovery of pertinent information. When Hewlett replied that he would not, Beale indicated that he would pursue formal discovery.

Beale maintains further that in a second telephone conversation, on December 21, 1979, he told Hewlett that his own investigation indicated that amendment of the complaint to substitute Pullman Swindell as the party defendant might be proper, but that he would have to pursue discovery in order to be certain. Hewlett suggested that Beale dismiss the suit, and Beale replied that a dismissal without further discovery would not be in Durrett's interests. Hewlett again refused to provide informal discovery.

According to Hewlett, Beale's response to his advice that Durrett had sued the wrong party was that if Hewlett's representations were true, and he had no reason to doubt them, then indeed Jenkins Brick was the wrong defendant, and that he would take appropriate action. In the December 21 conversation, Hewlett maintains, Beale stated that he was going to amend the complaint the next week to substitute Pullman Swindell for Jenkins Brick. Hewlett replied that such an amendment might pose procedural problems, and recommended that Beale instead voluntarily dismiss the suit. He told Beale that if Jenkins Brick was forced to file an answer, it would seek attorney's fees for bad faith litigation. Beale replied that he could not dismiss the suit, because the time for filing a complaint against Pullman Swindell after the right-to-sue letter had expired. Beale agreed to call Hewlett the next week to notify him of his intentions, but he did not call and the two did not communicate further. Hewlett emphatically denies that Beale ever asked him to participate in informal discovery or told him it would not be in Durrett's best interests to dismiss the suit without pursuing discovery. He also insists that he fully cooperated with Beale in identifying the correct defendant by directing him to the evidence, including Durrett's EEOC charge, that clearly showed that Pullman Swindell was Durrett's former employer.

On January 3, 1980, Jenkins Brick filed its answer. The essence of the defense was that Durrett had never been employed by the defendant and had never filed a discrimination charge against it with the EEOC. In what it denominated a counterclaim, Jenkins Brick asserted its entitlement to attorney's fees from both Durrett and Beale on the basis that Durrett had declined to dismiss his groundless claim even after Hewlett had notified him through Beale that Jenkins Brick had never employed him.

During the succeeding months, neither party pursued discovery. On May 1, 1980, Jenkins Brick moved for summary judgment on both the employment discrimination claim and the counterclaim for attorney's fees. On the strength of unchallenged affidavits by a vice president of Jenkins Brick, Jenkins Brick's bookkeeper, and an officer of Pullman Swindell, which together established that Durrett had worked for and filed an EEOC charge against Pullman Swindell rather than Jenkins Brick, the district court entered judgment for the defendant on the employment discrimination charge.

As to its counterclaim, Jenkins Brick argued that it was entitled to attorney's fees from Durrett because his claim had been frivolous, unreasonable, and without foundation, ³ and from Beale because he had pursued and prolonged the litigation in bad faith. In support of its motion for summary judgment on its claim for attorney's fees, Jenkins Brick offered the affidavit of Hewlett, which we have summarized above.

The plaintiff argued in opposition that the lawsuit had been filed in the good faith belief that Jenkins Brick had been his employer, and that Durrett's claim was not frivolous, groundless, or pursued in bad faith. In support of his argument, the plaintiff offered the affidavit of David S. Beale. In addition to the account of his conversations with Hewlett which we have summarized above, Beale averred that other pressing business had prevented him from timely pursuing discovery, and that he would be filing a motion to extend the discovery deadline and to amend the complaint to name the correct defendant. No such motion was ever filed.

The district court found that Jenkins Brick had been "dragged through more than six months of unnecessary litigation because of an error that would have been avoided by mere perusal of the EEOC documents and that could have been corrected by modest factual investigation once the action had commenced." It found further that the facts met the standards of Christiansburg Garment Co. v. EEOC, 434 U.S 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978), defining the proper circumstances for an assessment of attorney's fees against a losing plaintiff in a Title VII action. The court nonetheless declined to assess attorney's fees against Durrett for two reasons: first, that Durrett bore less responsibility than Beale for the unnecessary prolongation of the litigation; and second, that to assess fees would impose a "harsh and heavy burden" on Durrett, who had proceeded in forma pauperis.

Nor did the district court assess attorney's fees against Beale. The court correctly observed that there was no statutory authority for an assessment of fees against counsel in a Title VII case. It then declined to exercise its inherent power to assess attorney's fees against counsel who has willfully abused the judicial process, because Beale had not engaged in such misconduct and had disobeyed no court order.

Jenkins Brick filed a motion urging the district court to amend its judgment to assess attorney's fees against Beale, or at least to hold a hearing on the issue, and to assess fees against Durrett. It is from the denial of this motion that Jenkins Brick appeals.

II.

Section 706(k) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k) (1976) provides:

In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee....

Section 706(k) contemplates assessments of attorney's fees against losing parties, not against counsel. Roadway Express, Inc. v. Piper, 447 U.S. 752, 761, 100 S.Ct. 2455, 2461, 65 L.Ed.2d 488 (1980).

In Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978), the Supreme Court identified the circumstances under which a prevailing defendant in a Title VII action should be awarded attorney's fees: "(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 plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith," or "that the plaintiff continued to litigate after it clearly became so." Id. at 421, 422, 98 S.Ct. at 700, 701. Such a standard would suffice to deter the bringing of groundless lawsuits and to protect defendants from burdensome litigation having no legal or factual basis. See id. at 420, 98 S.Ct. at 700.

In this case, the district court correctly concluded that the Christiansburg standard had been met. Durrett's...