Torres v. City of Orlando

• Decision Date: 07 April 2003
• Docket Number: Case No. 6:01-cv-737-Orl-31DAB.
• Citation: 264 F.Supp.2d 1046
• Parties: Nicole TORRES, Plaintiff, v. CITY OF ORLANDO, Defendant.
• Court: U.S. District Court — Middle District of Florida

264 F.Supp.2d 1046

Nicole TORRES, Plaintiff, v. CITY OF ORLANDO, Defendant.

Case No. 6:01-cv-737-Orl-31DAB.

United States District Court, M.D. Florida, Orlando Division.

April 7, 2003.

COPYRIGHT MATERIAL OMITTED

John Vernon Head, P.A., Orlando, FL, for plaintiff.

Teresa Adamson Herrmann, Akerman, Senterfitt & Eidson, P.A., Benton N. Wood, Muller Mintz, P.A., Orlando, FL, for defendant.

ORDER

PRESNELL, District Judge.

This cause comes before the Court upon consideration of:

1) Defendant's Motion for Reimbursement of Costs and Attorneys' Fees (Doc. 44), and Memorandum of Law in Support (Doc. 45); as well as

2) Plaintiffs Response thereto (Doc. 47); Plaintiffs Counsel's Response thereto (Doc. 48) and Memorandum in Support (Doc. 49).

1. Background

On June 9, 2000, the Orlando Police Department ("OPD") terminated Plaintiff from her position as a police officer upon finding that Plaintiff violated the OPD's truthfulness policy. Plaintiff was still on probationary status at the time of her termination and therefore was not entitled to any formal grievance procedure. Nonetheless, a representative of Plaintiffs union—Samuel Hoffman—represented Plaintiff in an abbreviated grievance process to which she was entitled.¹ Shortly thereafter, Mr. Hoffman directed Plaintiff to seek assistance from then union counsel, John Vernon Head.² Mr. Head filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), alleging discriminatory firing based on national origin (Plaintiff is Hispanic) and sex (Plaintiff is female). The EEOC complaint did not include a charge of racial discrimination. The EEOC provided Plaintiff with a right-to-sue letter, and thereafter, Mr. Head, as Plaintiffs undersigned counsel herein, filed a Complaint before this Court on June 19, 2001. The Complaint alleged that Plaintiffs termination from the OPD was based on national origin, race, and sex discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII").

Thereafter, Defendant answered the Complaint, and both parties engaged in discovery. On January 14, 2003, Defendant filed a Motion for Summary Judgment and a supporting Memorandum of Law. Plaintiff filed a reply, and the Court heard oral argument on February 26, 2003. At the hearing's conclusion, the Court granted Defendant's Motion and ruled from the bench that: 1) Plaintiff failed to produce any direct or circumstantial evidence of discrimination; 2) even if Plaintiff had made out a prima facie case of discrimination, Defendant had articulated a legitimate, non-discriminatory reason for terminating Plaintiff as a police officer; and 3) Plaintiff had offered no evidence of pretext. (Tr.³ at 25-28). Determining that Plaintiffs lawsuit was "lacking in merit" and "frivolous," (id. at 26), the Court announced it would entertain from Defendant a motion for fees and costs against Plaintiff pursuant to 42 U.S.C. § 1988 and a motion for sanctions against Plaintiffs counsel pursuant to 28 U.S.C. § 1927. (Tr. at 28). Defendant filed said motions on March 14, 2003, together with two supporting affidavits and other exhibits. Plaintiff and Plaintiffs counsel filed reply briefs in opposition.

In its motions, Defendant seeks the following from Plaintiff: 1) court reporter fees, costs of stenographic transcripts, and copying fees pursuant to 28 U.S.C. § 1920(2) and (4); as well as 2) reasonable attorneys' fees pursuant to 42 U.S.C. § 2000e-5(k) and 42 U.S.C. § 1988(b). In addition, Defendant seeks from Plaintiffs counsel excess costs and attorneys' fees reasonably incurred in the matter pursuant to 28 U.S.C. § 1927. All told, Defendant requests that Plaintiff and Plaintiffs counsel jointly and severally reimburse Defendant an aggregate amount of $33,761.28 in costs and fees. The Court will address each request in turn.

II. Analysis

A. Costs Pursuant to 28 U.S.C. § 1920

Federal Rule of Civil Procedure 54(d) allows a prevailing party to be reimbursed for costs, and § 1920 sets forth which costs are reimbursable. Defendant requests⁴ reimbursement of court reporter and stenographic transcript costs under § 1920(2) and reimbursement of copies under § 1920(4). As the prevailing party herein, Defendant is entitled to these costs.

B. Attorneys' Fees Pursuant to 42 U.S.C. § 1988

Defendant argues that the Court should, in its discretion, award to Defendant reasonable attorneys' fees because Plaintiffs Title VII action was frivolous and groundless. Specifically, Defendant claims that Plaintiff failed to establish a prima facie case of discrimination by presenting no evidence of disparate treatment. Defendant also asserts that even if Plaintiff did establish a prima facie case of discrimination, Defendant has articulated a legitimate, non-discriminatory reason for terminating her employment and Plaintiff offered no rebuttal evidence of pretext. Defendant finally argues that Plaintiffs deposition testimony and other factors demonstrate her bad faith pursuit of this action.

Section 1988(b) states: "In any action or proceeding to enforce a provision of ... the Civil Rights Act of 1964 ... the court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee as part of the costs." 42 U.S.C. § 1988(b). Although fees under § 1988 are discretionary, the Supreme Court in Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978), held that before awarding attorneys' fees, a prevailing Title VII defendant must show the Court that the plaintiffs claim 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 421-22, 98 S.Ct. 694.⁵ In making this determination, a court must avoid the post hoc temptation of finding the plaintiffs litigation meritless simply because she did not prevail at trial. Id. at 421-22, 98 S.Ct. 694; Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (per curiam). Indeed, this "hindsight logic could discourage all but the most airtight claims...." Sullivan v. Sch. Bd. of Pinellas County, 773 F.2d 1182, 1188-89 (11th Cir.1985) (quoting Christiansburg, 434 U.S. at 421-22, 98 S.Ct. 694).

Determinations of frivolity are to be made on a case-by-case basis, but the Eleventh Circuit has identified three general guidelines: 1) whether the plaintiff established a prima facie case; 2) whether the defendant offered to settle; 3) whether the court held a full trial on the merits. Sullivan, 773 F.2d at 1189. Notably, a finding of bad faith—even if not subjective bad faith—constitutes a basis for attorneys' fees regardless of Sullivan's three factors. Turner v. Sungard Bus. Sys., Inc., 91 F.3d 1418, 1422 n. 6 (11th Cir. 1996).

Without addressing Christiansburg or Sullivan and without citing any case law of her own, Plaintiff argues that she acted in good faith in pursuing this litigation. Plaintiff puts forth three items in support of her contention. First, she claims that upon reviewing the OPD's investigatory history and upon speaking with union representatives, she discovered arbitration decisions⁶ pertaining to other officers— specifically Officers J.D. Ray and A.J. Sanderson—in which the OPD's course of discipline (termination) was found to be too harsh. Second, Plaintiff asserts that she "was aware" that Hispanic females were not represented in the OPD to the same extent as other minorities and that a white male officer⁷ was only mildly reprimanded under "the same circumstances." (Doc. 47 at ¶ 8). Third, Plaintiff contends that she "sought relief in the only forum available to her" and "the belief that a fair and impartial investigation would have cleared her." (Id, at ¶ 9).

The Court finds that rather than demonstrating Plaintiffs good faith, these factors demonstrate that Plaintiff pursued her claims in bad faith. First, the written arbitration decisions⁸ of Officers Ray and Sanderson in no way bear on whether the OPD discriminated against Plaintiff in violation of Title VII. It does not require a lawyer's training and ability to recognize that arbitrators' findings regarding excessive discipline of other officers on other charges do not suggest any basis to allege that the OPD discriminated against Plaintiff based on sex, national origin, or race.⁹ Making such an inferential leap is absurd.

Second, it does not require an attorney's know-how to recognize that a low number of Hispanic female employees (which, in theory, might implicate improper hiring procedures) does not merit filing a lawsuit alleging discriminatory firing.¹⁰ Moreover, the supposed evidence regarding the "white male officer" does not form a basis to allege that Plaintiff was improperly treated less favorably.¹¹ In fact, Plaintiff knew as a matter of fact that Salvatoriello's circumstances were not "similar" to her own; Plaintiff does not dispute that Salvatoriello was not found to be untruthful whereas Plaintiff was.

Third, despite her counsel's disagreement with the Court at the February 26 hearing, (Tr. at 21-23), it is evident that Plaintiff in fact seeks a de novo review of the OPD's internal investigation against her. She confirms this by stating that she seeks relief "in the only forum available to her" based merely on a "belief that a fair and impartial investigation would have cleared her [of being untruthful]." (Doc. 47 at 119). This Court ruled at the hearing: "The essence of the Plaintiffs case ... is she was fired and she's Hispanic, therefore, they must have discriminated against her, and that's preposterous." (Tr. at 26-27). See Finley v. Publix Super Markets, Inc., 1998 WL 1056998 at *2 (S.D.Fla.1998) ("Simply because a person who is of a protected class loses a job ... does not automatically create a cause of action under the civil rights laws."); Witzsche v. Jaeger & Haines, Inc., 707 F.Supp. 407, 408 (W.D.Ark.1989).¹² As Beard v. Annis, 730 F.2d 741, 744 (11th Cir.1984), stated: "...