Smith v. Josten's American Yearbook Co.
| Decision Date | 13 June 1980 |
| Docket Number | No. 78-1454,78-1454 |
| Citation | 624 F.2d 125 |
| Parties | 22 Fair Empl.Prac.Cas. 1801, 23 Empl. Prac. Dec. P 31,003 Pamela Sue SMITH, Individually and on behalf of all others similarly situated, Plaintiff-Appellee, v. JOSTEN'S AMERICAN YEARBOOK COMPANY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Thomas P. Kane of Oppenheimer, Wolff, Foster, Shepard & Donnelly, St. Paul, Minn. (Michael J. Bleck of Oppenheimer, Wolff, Foster, Shepard & Donnelly, St. Paul, Minn., and Stewart L. Entz of Colmery, McClure, Funk, Letourneau & Entz, Topeka, Kan., with him, on brief), for defendant-appellant.
Gordon Gelfond of Adler, Barish, Daniels, Levin & Creskoff, Philadelphia, Pa., and Fred W. Phelps, Jr. of Fred W. Phelps-Chartered, Topeka, Kan. (Arnold Levin of Adler, Barish, Daniels, Levin & Creskoff, Philadelphia, Pa., with him, on brief), for plaintiff-appellee.
Before SETH, Chief Judge, and HOLLOWAY and LOGAN, Circuit Judges.
This is an appeal from the trial court's denial of attorney's fees to appellant which was the defendant in the trial court and the prevailing party. Appellee Smith instituted an individual and class action against appellant, alleging sex discrimination under Title VII. After discovery was completed the trial court granted appellant's motion to dismiss the suit. Appellant then moved for an award of attorney's fees pursuant to 42 U.S.C. § 2000e-5(k). After a hearing the trial court denied the motion. The issue on appeal is whether the lower court abused its discretion in denying appellant an award of attorney's fees.
The standard governing the award of section 2000e-5(k) attorney's fees to prevailing defendants is clear. In construing section 2000e-5(k) the Supreme Court held: "(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." Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422, 98 S.Ct. 694, 700, 54 L.Ed.2d 648. The provision in section 2000e-5(k) for an award of attorney's fees to the prevailing party discourages filing frivolous or unreasonable suits by making the unreasonable plaintiff liable for the defendant's fees. At the same time it encourages plaintiffs who have a bona fide cause of action to proceed by providing for an award of reasonable attorney's fees to a plaintiff should he prevail.
We recently applied the Christiansburg standard in EEOC v. Fruehauf Corp., 609 F.2d 434 (10th Cir.), cert. denied, --- U.S. ----, 100 S.Ct. 2944, 65 L.Ed.2d ---- (1980). There we held the lower court's finding that the EEOC had instituted a frivolous suit was unsupported by the record, and vacated the award of attorney's fees to the prevailing defendant.
In this case the trial judge was well aware of Christiansburg and applied it to the facts. As to the institution of the suit an investigation by plaintiff's counsel, according to his affidavit, revealed that Josten's laid off female employees before similarly situated male employees; that female employees were not allowed to smoke on the job while the men were; that the women could use a telephone at work only with permission of their supervisor while men had no such rule; and various other alleged discriminations. As a result of this investigation a complaint was filed which alleged sex discrimination in employment. After the suit was filed the plaintiff disappeared. Plaintiff's counsel said nothing about the disappearance to the court or defendant for five months, and then when faced with an order to show cause why the suit should not be dismissed. The trial court had misgivings about the attorney's handling and investigation of the case. Nevertheless, the court was "unable to say...
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...action to proceed by providing for an award of reasonable attorney's fees to a plaintiff should he prevail. Smith v. Josten's American Yearbook, 624 F.2d 125, 126 (10th Cir.1980). Plaintiff here presented a prima facie case. Therefore, Plaintiff's claim was neither frivolous, unreasonable, ......
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