Stover v. Hattiesburg Public schools, No. 07-60419 (5th Cir. Oct. 18, 2008); Saunders v. Wal-Mart Stores, Inc., No. 08-10761 (11th Cir. Oct. 18, 2008)

By Paul Mollica

Two juries returned employment discrimination verdicts for the employer, and in one case the judge even awarded fees to the defendant under Title VII. The verdicts are affirmed by the Fifth and Eleventh Circuits over various claims of error. But, in the realm of tiny blessings, at least the fees are tossed.

Stover v. Hattiesburg Public schools, No. 07-60419 (5th Cir. Oct. 18, 2008): The district court, after dismissing a constructive discharge claim on summary judgment, allowed plaintiff’s Title VII and Equal Pay Act pay discrimination and retaliation case to proceed to trial.  The jury came back with a defense verdict on all counts.  The Fifth Circuit turned back a variety of challenges to evidentiary rulings and the jury charge.

It then came to the district court’s decision to visit upon the unfortunate plaintiff $10,570.06 in costs and $144,058.50 in fees. 

The panel had no trouble working through the cost issue — the lower court had accidently doubled the employer’s demand ($5,285.03), and the panel on appeal vacated the higher amount and rendered costs in the correct, lower amount.

The fees were awarded post-trial under Title VII for an allegedly frivolous case, under the standards of Christianberg Garment Company v. EEOC, 434 U.S. 412 (1978), which allow fees for a prevailing defendant where the case is found to be “frivolous, unreasonable, or without foundation.”  But as the Fifth Circuit observed, the district court had previously declined to grant summary judgment (and denied a directed verdict) on the virtually the same record, making it improbable that it could have reasonably determined after the fact that the employee’s case met the Christianberg Garment standard:  “In this case, the district court found that ‘the latest time that the plaintiff should have realized that her suit was frivolous and baseless was by the conclusion of discovery.’ Subsequent to the close of discovery, the school District filed a motion for summary judgment. The court referenced numerous examples of evidence supporting Stover’s claims and found that there was sufficient evidence in the record to survive summary judgment on the race and gender discrimination claims under Title VII, the retaliation claim under Title VII, and the EPA claim. Stover proceeded to trial on those claims.”  The fee award was thus reversed.

Saunders v. Wal-Mart Stores, Inc., No. 08-10761 (11th Cir. Oct. 18, 2008) (unpub.):  Affirming a defense verdict in a case tried under the Florida Civil Rights Act, the plaintiff raises two admissibility issues and a Batson claim.  All are overruled summarily by the panel, but I found notable the issue of whether the plaintiff’s application for Social Security benefits was admissible.  Holds the Court, “Wal-Mart’s [Social Security] evidence was relevant to the issue of mitigation of damages and to impeachment of Saunders’s claim that he still would be working at Wal-Mart but for his termination.” So you’ve got to think hard plaintiffs’ lawyers, when you represent someone who might qualify for SSA benefits, how to counsel a client before he or she applies.