Opinion
No. 1:00 CV 2497
May 2, 2002
Order
Introduction
This matter is before the Court upon the Motion for Attorneys' Fees filed by Defendant the ESAB Group, Inc. dba ESAB Welding and Cutting Products (hereafter "ESAB") (Doc. 42) in which ESAB asserts that it is a prevailing party in an action brought by Plaintiff Equal Employment Opportunity Commission (hereafter "EEOC") and that it is entitled to recovery of $52,677.50 in attorneys' fees and $7,211.08 in "disbursements" arising from the defense of this action. For the following reasons, the Motion is DENIED.
Facts
EEOC filed this action against ESAB on behalf of Ivan Stowers, Jr. EEOC alleged that ESAB violated Title I of the Americans with Disabilities Act, 42 U.S.C. § 12112(a) (hereafter "ADA") because it failed to maintain the confidentiality of medical records and made unauthorized disclosures of Stowers' s medical information. EEOC maintained that ESAB disclosed the fact that Stowers had a disability by informing the union officials that Stowers had received an ADA accommodation and publishing and posting a "manning schedule" with notations after Stowers's name which revealed that he had an ADA accommodation. EEOC asserted that this conduct constituted unauthorized disclosures of medical information in violation of § 12112(d)(4)(C) of the ADA. (Memorandum of Opinion and Order at 15 and EEOC compl. ¶¶ 9-12). Stowers was granted leave to intervene in this action as a plaintiff. The Intervening Complaint restated the alleged violations regarding the confidentiality of medical records contained in the EEOC's complaint and added that ESAB "failed to allow Plaintiff the opportunity to work overtime based upon his disability and in violation of the bargaining agreement." Finally, the Intervening Complaint alleged that ESAB violated Ohio's anti-discrimination statute by "discriminat[ing] against Plaintiff based upon his disability and fail[ing] to provide him with the opportunity to work overtime in a manner in accord with the prevailing collective bargaining agreement. . . ." (Stowers's compl. ¶¶ 9-15).
This Court subsequently determined that ESAB had not violated § 12112 because the confidentiality requirements set forth in this statute are limited to information obtained in three situations that were not applicable to this matter: (1) medical information regarding a job applicant obtained through a permissibly required pre-employment medical exam, (2) medical information obtained through a voluntary exam that is part of an employee health program, or (3) information obtained through inquiries by the employer into an employee's ability to perform job-related functions. (Memorandum of Opinion and Order at 16). Accordingly, this Court awarded summary judgment to ESAB on EEOC's breach of confidentiality claim. This Court additionally found that the claims asserted by Stowers as an Intervening Plaintiff were without merit and awarded summary judgment to ESAB on the claims raised in his Intervening Complaint.
Standard of Review
The "American Rule" with regard to attorneys' fees is that each party' including the prevailing party, must bear his or her own attorneys' fees. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975); Bunning v. Kentucky, 42 F.3d 1008, 1013 (6th Cir. 1994). The ADA sets forth an exception to this rule and provides that "the court . . . in its discretion, may allow the prevailing party . . . a reasonable attorney's fee, including litigation expenses, and costs and the United States shall be liable for the foregoing the same as a private individual." 42 U.S.C. § 12205.
With respect to attorneys' fees awarded to defendants in civil rights actions, the Supreme Court of the United States has determined that attorneys' fees may be awarded to prevailing defendants only when the plaintiffs suit "was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." Christianburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978).
The Court stated:
In applying these criteria, it is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation. This kind of hindsight logic could discourage all but the most airtight claims, for seldom can a prospective plaintiff be sure of ultimate success. No matter how honest one's belief that he has been the victim of discrimination, no matter how meritorious one's claim may appear at the outset, the course of litigation is rarely predictable. Decisive facts may not emerge until discovery or trial. The law may change or clarify in the midst of litigation. Even when the law or the facts appear questionable or unfavorable at the outset, a party may have an entirely reasonable ground for bringing suit.Id., at 421-422.
The United States Court of Appeals for the Sixth Circuit has likewise observed that "[a]n award of attorney's fees against a losing plaintiff in a civil rights action is an extreme sanction, and must be limited to truly egregious cases of misconduct." Jones v. Continental Corp., 789 F.2d 1225, 1232 (6th Cir. 1986).
With regard to the issue of recovery of ESAB's "disbursements," Fed.R.Civ.P. 54(d)(2) recognizes that prevailing parties may also be awarded their "related non-taxable expenses" where such award is authorized by law. Abrams v. Lightolier Inc., 50 F.3d 1204 (3rd Cir. 1995). The United States Court of Appeals for the Sixth Circuit has determined that statutory authority for the award of "reasonable attorney's fees," vests district courts with discretion to also award as "related non-taxable expenses" those "reasonable out-of-pocket expenses incurred by the attorney which are normally charged to a fee-paying client, in the course of providing legal services," such as "reasonable photocopying, paralegal expenses, and travel and telephone costs." See Northcross v. Bd. of Edn. of Memphis City Schools, 611 F.2d 624 (6th Cir. 1979).
Finally, the Supreme Court of the United Slates has noted that Title VII "explicitly provides that "the [Equal Employment Opportunity] Commission and the United States shall be liable for costs the same as a private person." Christianburg Garment Co., 434 U.S. at 421.
Discussion
ESAB argues herein that it is entitled to attorneys' fees and disbursements because the EEOC's allegation that it violated 42 U.S.C. § 12112(d)(4) was untenable under the clear language of the statute and that it so informed EEOC in a letter prior to the commencement of this lawsuit. ESAB further maintains that this Court determined within its Memorandum of Opinion and Order that the ADA confidentiality provisions were "clearly not applicable to this matter." In opposition, EEOC argues that ESAB is not entitled to its requested fees because this action was neither frivolous, unreasonable, nor without foundation. EEOC further notes that ESAB has failed to itemize its fees. In its reply, ESAB asserts that the Advisory Committee Notes (1993) to Fed.R.Civ.P. 54(d)(2)(B) specifically provide that the motion for attorneys' fees need not be "supported at the time of filing with the evidentiary material bearing on the fees."
As an initial matter, it must be noted that the EEOC need not have an "airtight" claim in order to bring suit and "[e]ven when the law or facts appear questionable or unfavorable at the outset, a party may have an entirely reasonable ground for bringing suit." E.E.O.C. v. Bruno's Restaurant, 13 F.3d 285 (9th Cir. 1993), quoting Christianburg Garment Co., 434 U.S. at 422, 98 S.Ct. at 701.
With regard to the claims raised herein, this Court notes that other courts have observed that § 12112(d)(4) is "not a model of legislative clarity." See Tice v. Centre Area Transp. Authority, 247 F.3d 506 (3rd Cir. 2001). See, also, Yin v. California, 95 F.3d 864, 868 (9th Cir. 1996) ("Although the terms of the statute and the interpretive regulations are far from clear, we do not believe that Congress intended as sweeping a ban on employee medical examinations as appellant suggests."). Accord Yoder v. Ingersoll-Rand Co., No. 97-3710, 1998 WL 939885 (6th Cir. 1998) (noting that the lower court misinterpreted § 12112).
In this instance, the Court declines to find that EEOC advanced this litigation based an anything more than such a misunderstanding. Moreover, EEOC aserted its position in reliance upon, inter alia, EEOC Enforcement Guidelines, legislative history and other authority. Accordingly, the facts of this matter do not rise to the level of frivolity required to support an award of attorneys' fees.
In accordance with the foregoing, an award of attorneys' fees is not justified herein and the attendant request for recovery of non-taxable costs likewise fails.
Conclusion
For the foregoing reasons, Defendant ESAB's Motion for Attorneys' Fees is DENTED.
IT IS SO ORDERED.