Court: Court of Appeals for the Second Circuit; September 26, 1996; Federal Appellate Court
Defendants in a Title VII action may recover attorney’s fees from plaintiffs under specific circumstances. In 1984, the American Federation of State, County and Municipal Employees (AFSCME) filed a civil rights lawsuit against Nassau County, claiming that its job classification system discriminated against women by assigning lower salary grades to female-dominated jobs compared to male-dominated ones. Initially, the U.S. District Court dismissed AFSCME’s disparate impact claim but allowed the disparate treatment claim to proceed, requiring AFSCME to prove the County's intent to discriminate.
After a 16-day bench trial in 1992, the court found that while AFSCME did not prove discriminatory intent regarding all female-dominated jobs, it did establish that the County intentionally discriminated against female police detention aides by paying them less than male turnkeys. The court ordered the County to pay $1.6 million in back pay, a decision not appealed by the County.
Subsequently, the County sought attorney’s fees under 42 U.S.C. 2000e-5(k), which permits recovery for prevailing parties. In 1993, the district court deemed AFSCME’s claims frivolous and awarded the County $982,407.23 in attorney’s fees. The court postponed a decision on expert witness fees pending the outcome of a Supreme Court case regarding the retroactivity of a 1991 amendment that allowed such fees. In 1995, the court determined the amendment applied retroactively and awarded the County $550,974.66 in expert witness fees. AFSCME has appealed both fee awards.
Attorney’s fees and expert witness fees cannot be awarded to a prevailing defendant in a Title VII case unless the plaintiff's claim is deemed "frivolous, unreasonable, or groundless," or if the plaintiff continued litigation after it became clear that these conditions applied, as established by the Supreme Court in Christiansburg. The AFSCME demonstrated a prima facie case of Title VII violation, supported by extensive statistical evidence from two expert witnesses, ultimately winning $1.6 million for intentional discrimination against police detention aides (predominantly women) in comparison to turnkeys (predominantly men). The court found that AFSCME’s claims did not meet the criteria of being "frivolous, unreasonable, or groundless." Consequently, it was determined that the district court abused its discretion in awarding attorney’s fees and expert witness fees to the County, leading to a reversal of those judgments.
Nassau County employs over 19,000 individuals across more than 1,500 job titles, with salary grades based on job title and seniority. The compensation system was developed following a thorough job and salary evaluation from 1964 to 1967, known as the "Cresap" process, which involved a survey of thousands of employees and the creation of a taxonomy of 650 job titles. Job specifications were established based on prescribed criteria, and each job title was assigned a numerical salary grade based on four factors: required skills and knowledge, job complexity, independent action responsibility, and supervisory responsibility. These factors were weighted and totaled to produce salary grades, organized into twenty-seven ranges, without consideration of market wage rates for the positions.
The County enacted an ordinance in May 1967 establishing job titles and salary grades, which three-quarters of its employees still followed at the time of trial. Between 1967 and 1991, the job classification system was modified through the creation of new job titles, adjustments in pay grades, and collective bargaining efforts. The American Federation of State, County and Municipal Employees (AFSCME) claimed that the County discriminated in compensation based on sex, paying historically female job classifications less than their male counterparts requiring similar skills and responsibilities, in violation of Title VII and the Equal Pay Act. AFSCME defined "historically female" and "historically male" classifications based on the sex of over 70% of employees in those roles.
Prior to discovery, the County sought to dismiss AFSCME’s claims; the court dismissed some claims but allowed AFSCME to amend its complaint, which it did not do. In 1987, the court dismissed Title VII claims from male employees and certified a class of female employees who worked in predominantly female roles since 1982. AFSCME's trial arguments included claims of intentional discrimination against women in historically female positions and specific job groups, alleging that the County selectively favored male-dominated titles and set lower salaries for predominantly female job groups like police communication operators and clerical workers compared to male counterparts. AFSCME's failure to amend its complaint required it to prove intentional discrimination to support its disparate treatment claim.
AFSCME lacked direct evidence of intentional discrimination by the County in pay setting, relying instead on statistical data indicating lower pay for jobs predominantly held by women compared to those held by men. The union presented two expert witnesses: Dr. Stephan Michelson, a labor economist, and Dr. Donald J. Treiman, a sociologist. Dr. Michelson's testimony highlighted ongoing pay disparities, revealing a $3000 gap between equivalent male and female jobs even after accounting for over 30 gender-neutral variables, which he attributed solely to the sex of employees. Dr. Treiman argued that the County intentionally discriminated during the 1967 Cresap job classification process, conducting two studies that suggested the County did not apply job evaluation criteria in good faith and systematically discriminated against female-dominated jobs based on training, experience, and supervisory responsibilities.
In defense, the County presented Dr. David Jones, an industrial psychologist, and Dr. Joan Haworth, a labor economist. Dr. Jones attempted to replicate the Cresap process results, claiming any salary disparities could be statistically explained by regional market wages. Dr. Haworth conducted a similar analysis, concluding that market forces, rather than sex discrimination, accounted for salary differentials. Both experts asserted that the salary grade differences were attempts to align with market salaries rather than a result of discriminatory practices.
On August 24, 1992, the district court partially ruled in favor of the County, determining that AFSCME did not prove intentional discrimination against women regarding the pay scale established in 1967 or in subsequent actions. The court dismissed AFSCME's studies as fundamentally flawed, specifically criticizing Dr. Treiman’s reconstruction of the Cresap process for lack of guidance and completeness, and Dr. Michelson’s analysis for serious methodological flaws and omissions. In contrast, Dr. Haworth’s testimony, which attributed pay differences to market forces, was deemed credible and reliable.
AFSCME's claims regarding intentional discrimination in specific positions were also largely rejected. The court found insufficient comparability between the roles of police communications operators and fire communications technicians, and between clerical workers and correction officers, failing to establish violations under Title VII or the Equal Pay Act. However, the court identified intentional discrimination in the pay disparity between predominantly female police detention aides and predominantly male turnkeys, concluding that this disparity warranted a total of $1.6 million in back-pay for the affected female employees.
Following the trial, the County sought attorney's fees, which the court granted, awarding $982,407.23 based on the finding that AFSCME's claims were unreasonable and lacked foundation. The court noted that AFSCME's sole evidence was unreliable expert testimony and that no additional proof of discriminatory intent was provided. Additionally, the court recognized AFSCME as a significant union, indicating it was not disadvantaged economically.
Expert witness fees became available to prevailing parties through a 1991 amendment to 42 U.S.C. 2000e-5(k). Since the case was tried before this amendment, determining its retroactive application was crucial. While the County's motion for expert witness fees was pending in 1993, the Supreme Court was considering the retroactivity issue in Landgraf v. USI Film Prods., leading the district court to defer its ruling. In 1994, the Supreme Court ruled in Landgraf and Rivers v. Roadway Express, concluding that retroactive application of procedural rules is permissible. The district court later found the expert witness fee provision analogous to procedural limitations and ruled the 1991 amendment applicable retroactively, awarding the County $550,974.66 in fees.
AFSCME appealed on two grounds: it argued that its claims were not "frivolous, unreasonable, or groundless" as per Christiansburg, thus challenging the district court's fee award, and contended that the 1991 amendment does not retroactively apply. The court decided that AFSCME's claims were not frivolous, negating the need to address the retroactivity of the amendment. The award of fees under Title VII is discretionary, and while the statute does not differentiate between plaintiffs and defendants regarding fee awards, the Supreme Court has established that defendants can only receive fees if a plaintiff's case is found to be frivolous or unreasonable. The Court emphasized that the mere fact of losing does not imply a case was without foundation.
The Christiansburg standard is utilized for awarding fees to prevailing defendants in civil rights cases under 42 U.S.C. § 1983, as well as other statutes that permit fee awards. Key cases illustrate its application:
1. **Hensley v. Eckerhart** and **Hughes v. Rowe** establish the context for fee awards in actions under § 1983.
2. In **Rounseville**, it was determined that fee awards depend on whether the plaintiff's claim is "clearly meritless."
3. In **Gerena-Valentin v. Koch**, a fee award was approved for defendants where the plaintiff failed to present any evidence supporting his claims after having litigated unsuccessfully in state court.
4. **Eastway Constr. Corp. v. City of New York** resulted in a fee award to the defendant because the plaintiff could not demonstrate any violation of federal rights after a failed state court challenge.
5. **Faraci v. Hickey-Freeman Co.** saw a fee award against a Title VII plaintiff when evidence showed non-discrimination was uncontradicted.
6. **Harbulak v. County of Suffolk** and **Prate v. Freedman** similarly upheld fee awards against Title VII plaintiffs based on the lack of substantial claims or the failure to challenge prior judgments effectively.
In contrast, the case involving AFSCME was not deemed frivolous or without foundation, as the union presented actionable claims under Title VII that had not been previously litigated, and thus a fee award was not justified.
Plaintiffs, represented by AFSCME, successfully established a prima facie case of gender-based pay discrimination by presenting statistical evidence indicating a significant wage disparity between men and women that was not explained by job-related factors. Expert testimonies confirmed the existence of this unexplained pay gap, which was acknowledged by one of the County’s experts. The district court, however, dismissed the prima facie case as "meaningless," failing to consider its evidential weight. Despite the minimal requirements for a prima facie case, AFSCME's evidence included comprehensive statistical analyses demonstrating that the salary difference could not be justified by legitimate variables. The County's acknowledgment of the wage disparity created a factual question regarding its cause, potentially inferring intentional discrimination. Had the County not addressed AFSCME's evidence, the court could have ruled in AFSCME's favor. The district court's disregard for the substantial prima facie evidence was deemed erroneous, as established case law supports that a failure to rebut such evidence could lead to directed judgments against the employer.
AFSCME was required to prove intentional discrimination by the County in pay setting after the dismissal of its disparate impact claim. Establishing intent is challenging, particularly after two decades since the relevant events. AFSCME presented statistical evidence suggesting that salary disparities between male- and female-dominated jobs could not be fully explained by job characteristics, indicating potential intentional discrimination. However, the district court found the statistical studies flawed after a thorough analysis, questioning the credibility and methodology of AFSCME's expert, Dr. Treiman, who was deemed evasive and unreliable.
The County argued that AFSCME's pursuit of the claim was unreasonable given the weak evidence, but the court maintained that AFSCME could not have anticipated the adverse outcomes before trial. The County is only entitled to fees if it can show that AFSCME continued litigation after its claims were clearly frivolous, which it failed to do. A claim isn't deemed frivolous simply because a witness is disbelieved or evidence is discounted at trial. The assessment of evidence is the responsibility of the trier of fact, and if there is any evidence that could support a judgment, fees are typically unwarranted. Previous cases illustrate that flaws in evidence do not automatically render claims frivolous, and the possibility of a different outcome if evidence were credited further supports this notion.
AFSCME presented evidence supporting each element of its discrimination claim, indicating that the case was not frivolous. The district court acknowledged that AFSCME could have succeeded based on the statistical evidence provided, despite the defense's effective rebuttal. The court noted the ability of the defense counsel to expose flaws in the plaintiffs' arguments, suggesting that a potential victory was thwarted by this skill rather than a lack of merit in AFSCME's claims. AFSCME was awarded over $1.6 million for proving that salary disparities between police detention aides and turnkeys were due to intentional discrimination, despite failing to prove broader discriminatory practices in the County's pay scale. This significant judgment indicated that the lawsuit had merit and did not warrant a fee award to the County under the Christiansburg standard. The district court's decisions to deny the County's motions to dismiss and for a directed verdict also reflected the non-frivolous nature of AFSCME's claims. Consequently, the district court's award of attorney's fees to the County was reversed.
