In Estevez, Mancini, and Mekuli v. Berkeley College et al, No. 18-CV-10350 (CS), 2022 WL 1963659 (S.D.N.Y. June 6, 2022), an employment discrimination case, the court considered defendants’ motion for attorney fees following the court’s prior summary judgment dismissal of plaintiff’s claims.
Many of the anti-discrimination laws – including Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, and the New York City Human Rights Law – provide for an award of attorney fees to the prevailing party. In certain cases, they may be awarded to a prevailing defendant.
The court provides the following standard governing when such fees are warranted:
Defendants argue that they are entitled to an award of fees as the prevailing party under Title VII. Section 706(k) of Title VII provides that “[i]n any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party … a reasonable attorney’s fee … as part of the costs.” 42 U.S.C. § 2000e-5(k). While a prevailing plaintiff will typically be awarded attorneys’ fees as a matter of course under this provision, a prevailing defendant must show that the plaintiff’s “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, 417, 422 (1978).
A claim may be “frivolous, unreasonable, or groundless” even if not brought in “subjective bad faith.” Id. at 421-22. But a “defendants’ burden of establishing that a claim was ‘frivolous, unreasonable, or groundless’ or ‘clearly meritless’ is a heavy one, and ‘it is very rare that victorious defendants in civil rights cases will recover attorneys’ fees.’ ” Fleming v. MaxMara USA, Inc., No. 06-CV-6357, 2010 WL 1629705, at *8 (E.D.N.Y. Apr. 21, 2010) (quoting Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 178 (2d Cir. 2004)); see Hughes v. Rowe, 449 U.S. 5, 14 (1980) (“[T]he plaintiff’s action must be meritless in the sense that it is groundless or without foundation.”). As such, the mere assertion of a losing argument does not satisfy the Christiansburg standard.
Applying the law, the court held that this standard was not met; it was a “close call” in that while plaintiff’s retaliation theory was “extremely thin” and plaintiffs “stretched the record to the point of misrepresenting testimony, and have continued to do so on this motion,” the retaliation claim was not “so frivolous” to warrant an award of attorney fees.
It bears noting that the court included a lengthy footnote (fn. 8) in which it noted, inter alia, that it had “warned Plaintiffs’ counsel against misrepresenting and mischaracterizing the record.”