Opinion
No. 4:01CV149
April 11, 2002
MEMORANDUM AND ORDER ON DEFENDANT'S APPLICATION FOR ATTORNEY FEES
This case isnow before me on the Defendant's Application for Attorney Fees, filing 44. In his Amended Complaint, the plaintiff Nicholas K. Johnson alleged "discriminatory demotion and forced resignation" in violation of the Age Discrimination in Employment Act (hereinafter ADEA), 29 U.S.C. § 621 et seq. See filing 14 ¶ 15. More specifically, the plaintiff claimed that the defendant Endicott Clay Products Company hired Ryan Parker, who was "approximately 30 years old," to replace the plaintiff, who was 61 years old at the time he resigned. See id. ¶¶ 6, 10, 16, 18, 19. The defendant moved for summary judgment, raising several grounds for relief. See filing 33. I granted the defendant's motion and entered judgment against the plaintiff. See filings 42, 43. The defendantnow seeks attorney's fees incurred in defending the plaintiffs claim. The onlynew evidence submitted in connection with the defendant's motion is the plaintiffs charge of discrimination filed with the Nebraska Equal Opportunity Commission (hereinafter NEOC), and the NEOC Determination findingno reasonable cause. See filings 45, 48. After reviewing the arguments of both parties, I find that the defendant's motion will be granted.
In its brief, the defendant "requests additional time to submit an itemization of its fees after the Court rules on the present motion." Def's Br. in Supp. of Application for Attorney Fees at 1n. 1; see FED. R. Civ. P. 54(d)(2)(C) ("The court may determine issues of liability for fees before receiving submissions bearing on issues of evaluation of services for which liability is imposed by the court.").
In addition, the defendant offers (1) its Index of Evidence in Support of Motion for Summary Judgment, filing 34; and (2) Plaintiffs Index of Evidence in Opposition to Endicott's Motion for Summary Judgment, filing 36. See filing 45. The plaintiff also offers the latter index. See filing 48.
Analysis
According to the well-settled "American rule" regarding attorney's fees in federal litigation, parties are responsible for their own fees in the absence of a statute or an enforceable contract. Actors' Equity Ass'n v. American Dinner Theatre Inst., 802 F.2d 1038, 1041 (8th Cir. 1986). Over the years, however, courts have recognized limited exceptions to this rule, including that which permits an award of fees to the prevailing party "`when the losing party has "acted in bad faith, vexatiously, wantonly, or for oppressive reasons.'"" Id. (quoting Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 258-59 (1975); F.D. Rich Co. v. United States ex rel. Indus. Lumber Co., 417 U.S. 116, 129 (1974)) (additional citations omitted). Thus, although the ADEA doesnot provide for the payment of attorney's fees to a prevailing defendant, the defendant Endicott Clay Products Company may obtain such fees if it can show that the plaintiff Johnson litigated this action in bad faith. See EEOC v. Hendrix College, 53 F.3d 209, 211 (8th Cir. 1995).
Because the purpose of the "bad-faith" exception is to punish the wrongdoer rather than to compensate the victim, the standard for evaluating the plaintiff's position is a stringent one. Actors' Equity Ass'n., 802 F.2d at 1042. Fee-shifting is warranted "`only when extraordinary circumstances or dominating reasons of fairness so demand.'" Id. (quoting Nepera Chem., Inc. v. Sea-Land Serv., Inc., 794 F.2d 688, 702, nn. 109-110 (D.C. Cir. 1986)). The Eighth Circuit has suggested that bad faith may be evidenced "by a showing that [a party] intentionally advanced a frivolous contention for an ulterior purpose, such as harassment or delay." Id. at 1043 (citation omitted). The Eighth Circuit has also directed courts to "`balance the equities between the parties'" before awarding fees. Id. (quoting Ford v. Temple Hosp., 790 F.2d 342, 347 (3d Cir. 1986)).
According to the defendant, the facts in this case demonstrate that "Johnson didnot file the suit to redress any legitimate belief that he was the victim of age discrimination, but to avenge his bruised ego." Def's Br. in Supp. of Application for Attorney Fees [hereinafter Defendant's Brief] at 3. In addition, the defendant contends that the plaintiffs NEOC filing is indicative of bad faith, as "[t]he NEOC quickly rejected Johnson's claim, finding that there was no evidence to support his case, but Johnson filed suit anyway, even though he hadno more evidence than that which the NEOC found inadequate." Id. at 4. Finally, the defendantnotes that "Johnson offered erroneous and contradictory assertions in opposition to summary judgment and presentedno evidence of adverse action (age based or otherwise), or pretext." Id. For these reasons, the defendant concludes, a finding of bad faith is justified.
As an initial matter, Inote the lack of evidence supporting the plaintiffs claim. In granting the defendant's motion for summary judgment, I concluded that the plaintiff "failed to set forth evidence that he experienced an adverse employment action." Filing 42 at 9. I also suggested that the plaintiff's evidence was lacking with respect to two other elements of his prima facie case. See Johnson v. Runyon, 137 F.3d 1081, 1082 (8th Cir. 1998), cert. denied, 525 U.S. 916 (1998) ("A prima facie showing of age discrimination requires a demonstration that (1) plaintiff is within the protected age group, (2) plaintiff met applicable job qualifications and legitimate expectations of the employer, (3) despite these qualifications, plaintiff suffered a discharge or other adverse employment action, and (4) plaintiff was replaced by a younger worker, . . . or in the reduction in force context, the plaintiff must produce some additional evidence that age was a motivating factor in the termination . . . ." (citations omitted)); filing 42 at 9 ("[T]he undisputed evidence shows that Parker was hired to replace [Dick] Sharpnack, not the plaintiff, and that the plaintiff wasnot qualified to perform the work done by Sharpnack and Parker."). Finally, I indicated that even if the plaintiff could establish a prima facie case, the defendant had articulated a legitimate, nondiscriminatory reason for hiring Parker, and there was "no evidence indicating that Parker's hiring was a pretext for age discrimination." Filing 42 at 9; see Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1332 (8th Cir. 1996) (outlining the McDonnell Douglas three-stage burden-shifting analysis).
In opposing the defendant's summary judgment motion, the plaintiff argued that he was forced to resign "because he was replaced by a youthfulnew hire," Ryan Parker. Pl.'s Br. in Opp'n to Def's Mot. for Attorney Fees [hereinafter Plaintiffs Brief] at 2; see also id. at 3 ("More at issue was simply whether Parker replaced the job responsibilities of the Plaintiff."). More specifically, the plaintiff asserted that "Parker subsumed all of [his] responsibilities" while the plaintiff was still employed by the defendant. Pl's Br. in Opp'n to Def's Mot. for Summary J. at 3, ¶ 13. For factual support, the plaintiff directed me to his affidavit and an excerpt from the deposition of Roger Judd. See id. As I explained in my memorandum, however, neither of these sources substantiated the plaintiffs assertion. See filing 42 at 3. In his deposition, Roger Judd stated only that since the plaintiff's departure, Parker began handling accounting, accounts receivable, short-term investments, cash flow, and insurance in cooperation with other Endicott employees. See Dep. of Roger D. Judd at 165:6-170:5 (filing 36 at Ex. 3). With respect to the plaintiffs affidavit, I determined that the portion referred to by the plaintiff contradicted his deposition testimony and couldnot be used to forestall summary judgment. See filing 42 at 3 (citing Aff. of Nicholas K. Johnson ¶ 4 (filing 36 at Ex. 1) ("By January of 2000, it became clear that Ryan Parker wasnot hired to assist me. He had taken over responsibility of all my financial tasks.")). Thus, I concluded, "[t]he plaintiffs [`replacement'] argument isnot only wholly unsupported, but it runs contrary to his own deposition testimony." Filing 42 at 9; see also id. at 3 (concluding that the plaintiffs claim that Parker "subsumed" all of his job responsibilities was not "well taken" in light of the plaintiffs deposition testimony).
In responding to the defendant's motion for fees, the plaintiff suggests that his affidavit wasnot, in fact, contrary to his deposition testimony. See Plaintiffs Brief at 3. My review of the record, however, doesnot alter my initial conclusion regarding the plaintiffs claim that while he was still employed, Parker "subsumed" all of his job responsibilities. The plaintiffs response also focuses on comments that were allegedly made by the defendant's president, Roger Judd. During his deposition, the plaintiff testified that Judd advised him on several occasions of the need for a "youth movement" within the company. See Dep. of Nicholas K. Johnson at 191:2-9 (filing 36 at Ex. 4) ("[T]hroughout . . . my employment there, Roger had discussed a youth movement, in getting younger people in management, and one of the things that we'd agreed upon was that I would, if at all possible, not leave the company without having an adequate replacement."); id. at 193:25-194:19 (indicating that Roger Judd used the phrase "youth movement" "[a] lot of times"). According to the plaintiff, such comments gave him reason to suspect age discrimination. I donot agree.
First, Inote the context in which these comments were apparently made. During his deposition, the plaintiff acknowledged that Judd used the phrase "youth movement" only when discussing his concern that there be people in place to assume responsibility for employees who would be retiring. See Dep. of Nicholas K. Johnson at 197:19-24, 200:14-21 (filing 34 at Ex. 3). There isno suggestion that the phrase was used to encourage or force ADEA-protected employees into resigning. I also note that it was Judd who, at the age of 68, hired the plaintiff when the plaintiff was 59 years old. See, e.g., Rothmeier, 85 F.3d at 1337 ("Moreover, when hired by Rahn (who was himself age fifty at the time), [the plaintiff] was already forty-three years of age; when fired by Rahn, [the plaintiff] was forty-six. These facts run counter to any reasonable inference of discrimination based on age." (citations omitted)); Lowe v. J.B. Hunt Transp., Inc., 963 F.2d 173, 175 (8th Cir. 1992) ("It is simply incredible, in light of the weakness of plaintiffs evidence otherwise, that the company officials who hired him at age fifty-one had suddenly developed an aversion to older people less than two years later."). In light of such circumstances, I fail to see how the alleged "youth movement" comments could be reasonably construed as evidence of age animus.
Finally, I am inclined to agree with the defendant that the most telling evidence undermining the plaintiffs constructive discharge claim "was Johnson's admission that even if Endicott had hired Sharpnack, age 77, as the Vice President of Finance instead of Parker and if all other facts had remained the same, he still would have resigned." Defendant's Brief at 4; see Dep. of Nicholas K. Johnson at 235:16-25 (filing 34 at Ex. 3); see also Johnson, 137 F.3d at 1083 ("`A constructive discharge occurs when an employer renders the employee's working conditions intolerable, forcing the employee to quit.' . . . "The conduct complained of must have been `severe or pervasive enough to create an objectively hostile or abusive work environment,'" and additionally the plaintiff must `subjectively perceive the environment to be abusive.'" (quotations omitted)). This comment suggests that the plaintiff resignednot because "[he] believed that he was pushed out for a more youthful Parker," but because he believed that there wasnoneed for two persons with managerial responsibility in the finance department. See Plaintiffs Brief at 3; see also Dep. of Nicholas K. Johnson at 208:6-10, 211:5-14, 230:25-231:7 (filing 34 at Ex. 3). That, however, wasnot the plaintiffs decision to make, and an age discrimination claim wasnot the proper recourse to address his concern. Slathar v. Sather Trucking Corp., 78 F.3d 415, 418 (8th Cir. 1996), cert. denied, 519 U.S. 867 (1996) ("`The ADEA isnot intended to be used as a means of reviewing the propriety of a business decision.'" (quoting Gaworski v. ITT Commercial Fin. Corp., 17 F.3d 1104, 1110 (8th Cir. 1994), cert. denied, 513 U.S. 946 (1994); Jorgensen v. Modern Woodmen of Am., 761 F.2d 502, 505 (8th Cir. 1985))).
The defendant has persuaded me that "it wasnot age, but rather the hiring's impact on Johnson's ego and self-manufactured role of CFO that caused him to quit." Def's Reply Br. in Supp. of Mot. for Summ. J. at 6; see also Defendant's Brief at 3 ("Johnson didnot file the suit to redress any legitimate belief that he was the victim of age discrimination, but to avenge his bruised ego."); Def's Br. in Supp. of Mot. for Summ. J. at 31 ("If reporting to Sharpnack would have also made Johnson quit, then it is undeniable that the reason he quit was something other than age. Indeed, the evidence all points to the fact that it was Johnson's ego as self-appointed CFO that led him to quit. When his fantasy was over, he couldnot handle working at Endicott anymore."). I haveno difficulty finding that the plaintiffs ADEA claim was meritless. See filing 42 at 9; Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978) (explaining that, in the context of a prevailing defendant in a Title VII case, "the term `meritless' is to be understood as meaning groundless or without foundation, rather than simply that the plaintiff has ultimately lost his case . . ."); Actors' Equity Ass'n, 802 F.2d at 1042 ("Courts have indicated that bad faith may exist where a party's claim is deemed to be totally without merit." (citing Christianburg Garment Co., 434 U.S. at 421-22)); see also EEOC v. Kenneth Balk Assocs., Inc., 813 F.2d 197, 198 (8th Cir. 1987) ("So long as the plaintiff has `some basis' for the [Title VII] discrimination claim, a prevailing defendant maynot recover attorneys' fees." (citation omitted)); Burgess v. Hampton, 73 F.R.D. 540, 544 (D.D.C. 1977) (denying fees to a prevailing defendant in a Title VII action where "[the] plaintiffs suspicion of discrimination wasnot unreasonable"). Indeed, this appears to be "the type of case which `shouldnever have been filed.'" Hoover v. Armco, Inc., 691 F. Supp. 184, 188 (W.D. Mo. 1988), aff'd, 915 F.2d 355 (8th Cir. 1990), cert. denied, 499 U.S. 961 (1991) (quoting Fisher v. CPC Int'l, Inc., 591 F. Supp. 228, 237 (W.D.Mo. 1984)); see Hoover, 915 F.2d at 357 (agreeing with the district court). Nor do I have any difficulty in finding that the plaintiff attempted to manufacture a factual issue and forestall summary judgment by submitting an affidavit that contradicted his deposition testimony. See filing 42 at 3-4, 9; see also Dotson v. Della Consol. Indus., Inc., 251 F.3d 780, 781 (8th Cir. 2001) ("[W]e have held many times that a party maynot create a question of material fact, and thus forestall summary judgment, by submitting an affidavit contradicting his own sworn statements in a deposition." (citations omitted)). Finally, as discussed above, the plaintiff suggested during his deposition that age discrimination wasnot, in fact, the cause of his resignation. See Dep. of Nicholas K. Johnson at 235:16-25 (filing 34 at Ex. 3). These factors, in toto, tend to support the defendant's assertion that the plaintiff brought his claim in an "effort to retaliate against Roger Judd and Endicott . . ." Defendant's Brief at 4. I agree with the defendant that this is bad faith. See Hoover, 915 F.2d at 357 ("After [the defendant] fifed him, [the plaintiff] brought and doggedly pursued a baseless retaliatory discharge claim out of spite. This is bad faith." (citation omitted)).
Asnoted above, I mustnow "balance the equities between the parties" to determine whether a fee award is appropriate. Actors' Equity Ass'n, 802 F.2d at 1043. Although this balancing may include an examination of the prevailing party's conduct, the plaintiff hasnot identified any improper tactics on the defendant's part. See id. at 1045. Instead, the plaintiff focuses on his own conduct, noting that he "never sought continuances, never delayed process, did provide a good faith summary judgment evidence index, and allowed the Court to do what it needed to do — resolve a genuine dispute." Plaintiff's Brief at 4-5. I, however, amnot convinced that the plaintiffs lack of dilatory behavior renders a fee award inequitable, given the factors leading to the finding of bad faith. Thus, while recognizing that I "should be cautious in exercising [my] discretion," it seems to me that the equities lie in favor of a fee award. See Actors' Equity Ass'n, 802 F.2d at 1043. The defendant's motion will therefore be granted.
IT IS ORDERED that the Defendant's Application for Attorney Fees, filing 44, is granted. The defendant shall have until April 17, 2002, to submit its itemization of fees.