Opinion
CASE NO. 6:01-CV-1132-ORL-19KRS
June 12, 2003
ORDER
This case was considered by the Court on the following:
1. Defendant Dillard's, Inc.'s Motion for Attorneys Fees, Expert Fees, and Other Expenses. Doc. No. 109.
2. Defendant Dillard's, Inc.'s Memorandum in Support of its Motion for Attorney's Fees, Expert Fees, and Other Expenses. Doc. No. 110.
3. Plaintiffs Memorandum of Law in Opposition to Defendant's Motion for Attorney's Fees, Expert Fees, and Other Expenses and Memorandum of Law. Doc. No. 115.
Specifically, Defendant, which prevailed on summary judgment in February (Doc. No. 104), seeks attorney's and other fees on the ground that Plaintiff and her counsel vexatiously continued to litigate her Americans With Disabilities Act ("ADA") claim long after it should have been obvious to them that this claim was untenable. Defendant seeks attorney's fees from Plaintiff pursuant to 42 U.S.C. § 12205 and Fla. Stat. Ann. § 760.11(5) (2002), and from Plaintiffs counsel pursuant to 28 U.S.C. § 1927 and the inherent powers of the Court.
The facts of the instant case can be found in the Court's summary judgment order. Doc. No. 104.
The Florida state version of the fee-shifting provision of the ADA is redundant in the instant case. The relevant state anti-discrimination statute, Fla. Stat. Ann. § 760.10(2002), tracks its federal counterpart. See Chanda v. Engelhard/ICC, 234 F.3d 1219, 1221 (11th Cir. 2000). The state attorney's fees statute does not afford any measure of relief not already provided for in 42 U.S.C. § 12205.
Analysis
1. When are attorney's fees for defendants from plaintiffs appropriate under 42 U.S.C. § 12205?The traditional rule in the United States is that each party to a lawsuit bears the cost of his or her own attorneys. See Alyeska Pipeline Service, Co. v. Wilderness Society, 421 U.S. 240, 247 (1975). When the policy imperatives of certain enumerated remedial statutes so demand, however, Congress has departed from this rule and authorized district courts to award attorney's fees to prevailing parties. See, e.g., 42 U.S.C. § 1988(b) ("the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the cost."); see also Williams v. City of Fairburn, Georgia, 702 F.2d 973 (11th Cir. 1983) (stating that § 1988 is remedial in nature and should be liberally construed so as to effectuate its purpose of enabling competent counsel to explore every aspect of a case); 42 U.S.C. § 12205 (stating that in "any action or administrative proceeding commenced [under the ADA], the court . . . in its discretion may allow the prevailing party . . . a reasonable attorney's fee . . .").
An analysis of the ADA's fee-shifting provision, 42 U.S.C. § 12205, is the same as that for Title VII. See Bruce v. City of Gainesville, 177 F.3d 949, 952 (11th Cir. 1999).
The authority to grant attorney's fees is not exercised symmetrically, however. Whereas attorney's fees are presumptively appropriate in the case of a prevailing plaintiff, they are presumptively inappropriate when a defendant prevails. This differential treatment is justified in two ways. First, the rule ensures that civil rights plaintiffs, who typically have far fewer financial resources than civil rights defendants, have reasonable access to the courts. Bruce, 111 F.3d at 952. Second, contrary to a prevailing defendant, a prevailing plaintiff has actually vindicated a substantive statutory or constitutional right, and thus deserves full compensation from the tortfeasor. Christianburg Garment Co. v. E.E.O.C., 434 U.S. 412, 421 (1978).
A prevailing defendant, on the other hand, is entitled to attorney's fees only upon a determination as a matter of law that the underlying cause of action was "frivolous, unreasonable, or without foundation." Hughes v. Rowe, 449 U.S. 5, 14-15 (1980); Christianburg, 434 U.S. at 421. This standard is as demanding as it seems. The Supreme Court specifically admonished the lower courts to "resist the 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." Id. at 421-22. This does not mean, however, that there must be a finding of willful bad faith or malice, merely that the claim was bereft of genuine merit and a conscientious litigant would have conceded this. Id. The Eleventh Circuit has adopted a series of general guidelines delineating the circumstances under which statutory attorney's fees for defendants are appropriate: (1) did the plaintiff establish a prima facie case; (2) did the defendant offer to settle; and (3) did the trial court dismiss the case prior to trial. Sullivan v. School Bd. of Pinellas County, 773 F.2d 1182, 1189 (11th Cir. 1985) (citations omitted). These are not "hard and fast rules," however, and "[d]eterminations regarding frivolity are to be made on a case-by-case basis" Id. The Court, therefore, will grant attorney's fees to Defendant from Plaintiff only if two conditions are satisfied. First, in keeping with Christianburg and Sullivan, it must be plainly apparent that Plaintiffs claim was groundless. Second, it must also be apparent that an award of attorney's fees will not undermine or otherwise thwart the remedial purpose of the ADA.
The third of these guidelines is clearly in Defendant's favor, but much less important than the first two, which will comprise the substance of the Court's analysis.
a. Did Plaintiff establish her prima facie case?
Plaintiff did not establish her prima facie case. To establish a prima facie case under the ADA for pretextual termination, Plaintiff had to adduce evidence that: (1) she had a disability; (2) she was a qualified individual; and (3) she was discriminated against "because of" her disability. See Morisky v. Broward County, 80 F.3d 445, 447 (11th Cir. 1996) (citing Tyndall v. National Educ. Ctrs., 31 F.3d 209, 212 (4th Cir. 1994)); see also Pritchard v. Southern Co. Servs., 92 F.3d 1130, 1132 (11th Cir. 1996). There was no dispute concerning her qualifications, and the Court never reached the question of whether Plaintiff was statutorily disabled because it expressly found that she did not make even a prima facie showing that she was terminated because of her alleged disability. The relevant question, therefore, asks why Plaintiff was unable to set forth the because of element of her prima facie case. Was her claim reasonable, though unsuccessful, or just fundamentally groundless?
In its summary judgment order (Doc. No. 104, pp. 15-16), the Court rejected Plaintiffs claim that her request to know her available vacation and sick leave was in fact a request for a statutory reasonable accommodation. As the Court noted, this was a groundless claim, seemingly tacked on as an afterthought, for which there was no compelling evidence at all. Indeed, the reasonable accommodation claim was not mentioned in the complaint, nor was it part of a formal EEOC charge. Plaintiffs attempt in her memorandum in opposition to summary judgment to characterize Ms. Stossel's innocuous oversight as a failure to furnish a reasonable accommodation was reckless as well as unfair to Ms. Stossel personally. No further analysis is required to conclude that Plaintiffs reasonable accommodation claim was frivolous.
The Court has only cursorily reviewed the medical evidence concerning whether Plaintiff was disabled. Whether this evidence was sufficient to satisfy the first element of Plaintiff s prima facie case is irrelevant for the purposes of an attorney's fees analysis because the standard is not whether Plaintiff set forth most of her prima facie case, but whether she reasonably set forth all of its elements. In light of the fact that Plaintiff did not make even a prima facie showing that she was fired "because of" her alleged disability, it is unnecessary for the Court to consider the strength of her medical evidence.
i. The actual knowledge requirement
Precedent in this circuit and elsewhere have established that knowledge of an employee's disability or other protected status is a precondition for the possibility of firing that employee because of his or her membership in a protected category. See Morisky, 80 F.3d at 448-49; Silvera v. Orange County Sch. Ed., 244 F.3d 1253, 1262 (11th Cir. 2001) (stating that discrimination "is about actual knowledge and real intent, not constructive knowledge and assumed intent."); Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 800 (11th Cir. 2000) (stating that for purposes of a Family and Medical Leave Act retaliation claim, knowledge of employee's protected conduct could not be imputed to decision-maker from other corporate officials or supervisors who had knowledge of it); Hedberg v. Indiana Bell Telephone Co., 47 F.3d 928, 932-933 (7th Cir. 1995) (stating that "as a matter of both law and logic, it is impossible for an employer to take action `because of a disability the employer knew nothing about."); Pressley v. Haeger, 977 F.2d 295, 297 (7th Cir. 1992). In other words, it is implicit in the very concept of pretextual termination because of a cognizable disability that the corporate decision-maker: (1) actually knows about the employee's disability; (2) knows about the illegality of firing the employee because of her disability; and (3) concocts a pretextual justification for the termination in order to conceal a knowingly illegal motive. For Plaintiffs pretextual termination claim not to be frivolous, therefore, it must be clear to the Court that the structure of her claim contains these three logically interrelated elements.
There were two distinct dimensions to Plaintiffs effort to demonstrate that Defendant knew of her alleged disability. First, she tried to show that Defendant's corporate decision-maker, Kathy Groo, knew of Plaintiff s alleged disability and exploited Plaintiffs altercation with a supervisor to fire her because of it. Doc. No. 82, pp. 11-13. Second, Plaintiff argued in the alternative that what Ms. Groo actually knew was unimportant because Defendant fired Plaintiff on the basis of its constructive knowledge of her alleged disability. Id at 13-14. The Court will address each of these theories in turn.
ii. Did Ms. Groo have actual knowledge of Plaintiffs alleged disability?
To begin with, the Court expressed serious doubt in its summary judgment order that even Plaintiff, much less Ms. Groo, thought of herself as disabled. Doc. No. 104, pp. 18-19. It was undisputed, for example, that Plaintiff never told anyone during her tenure at Dillard's that she considered herself to be statutorily disabled. Nor did Plaintiff characterize herself as disabled on subsequent job applications. There are, in other words, compelling reasons to believe that Plaintiff herself had no actual knowledge of her own alleged disability.
It is vital for Plaintiff and her counsel to understand that when the Court questions whether Plaintiff herself knew she was disabled, the Court is making a very specific assertion. What the Court means throughout this order by terms such as "actual knowledge of an alleged disability" is that the person in question had actual knowledge that Plaintiff met or was reasonably likely to meet the statutory definition of a disabled person. Thus, when the Court contends that Plaintiff was not aware of her own alleged disability, the Court is not saying that Plaintiff did not realize she was ill or did not feel sick sometimes. Instead it means merely that Plaintiff had no idea that she met the legal test for a cognizable disability. After all, not every ill person is disabled, and employers like Defendant cannot treat every ill employee as a statutorily disabled person.
This raises a troubling question. How could Plaintiff, knowing that she never thought of herself as disabled, have claimed in good faith that Ms. Groo had actual knowledge of any alleged disability? Where would Ms. Groo or any other person at Dillard's have learned of Plaintiffs alleged disability except from Plaintiff herself? The fact that Plaintiff did not consider herself to be disabled, much less someone who met the statutory definition of a person with a protected disability, forecloses the possibility that anyone else at Dillard's did, and therefore correctively forecloses the possibility that she was fired because of her alleged disability. This is elementary logic, and how Plaintiff had the temerity to accuse Ms. Groo and Defendant of unlawful discrimination is inexplicable.
The Court notes, as it did in its summary judgment order (Doc. No. 104, p. 19), that Plaintiff stipulated that she was not alleging that Defendant merely "perceived" her to be disabled.
Furthermore, Plaintiffs contention that Ms. Groo had actual knowledge of her alleged disability, something Ms. Groo adamantly denied, was predicated entirely on Plaintiffs raw and unsubstantiated conjecture. In its order granting summary judgment (Doc. No. 104, pp. 22-24), the Court expressly found that Plaintiff had adduced neither third-party testimony nor documentary evidence to corroborate her assertion that Ms. Groo knew of Plaintiff's heart problems. It is telling that Plaintiff's memorandum in opposition to Defendant's motion for summary judgment devoted exactly one paragraph, spanning half a page (one-fortieth of her brief), to the question of what Ms. Groo actually knew, and this single paragraph cited no one other than Plaintiff herself. Doc. No. 82, pp. 11-12. In fact, Plaintiffs sole evidence, cited in her memorandum, for the proposition that Ms. Groo had actual knowledge of her alleged disability consisted of a vaguely recalled conversation with Ms. Groo in early 1999, more than a year before the termination, during which Plaintiff explained that her pattern of absenteeism was due to doctor's visits and illness. In the interest of perfect clarity, it is worth reproducing Plaintiff's testimony in its entirety:
The Court realizes that Plaintiffs section on actual knowledge contained citations to the testimony of Ms. Groo and Ms. Stossel, but none of these citations bore directly on the question of what Ms. Groo or any other corporate decision-maker knew.
In addition, not only was there a dearth of evidence concerning Ms. Groo' s actual knowledge, the Court remains concerned about the implications of an affidavit by Plaintiff that she filed along with her memorandum in opposition to summary judgment. Though it was unnecessary to address this issue in the summary judgment order because it did not affect the outcome, there were unsettling inconsistencies between Plaintiffs deposition testimony, which Defendant cited extensively in its memorandum in support of summary judgment, and Plaintiffs affidavit. While the Court is not prepared to find outright perjury, this effort to reformulate or recast deposition testimony, at the last moment, when Plaintiff was in obvious jeopardy of summary judgment, raises troubling questions.
. . . I informed [Ms. Groo] that I was obviously going to the doctor a lot because I wasn't feeling well. I was having testing done is why I had to go to the doctor so often. They were running a lot of tests. They weren't sure what was wrong." Doc. No. 58, Cordoba Depo. p. 72,11. 5-8.
This is it. Plaintiffs complete evidence concerning Ms. Groo's actual knowledge amounts to four ambiguous lines, upon which Plaintiff predicated the following inference: Ms. Groo maliciously construed Plaintiffs remarks as conclusive evidence of a statutory disability, and, harboring a hatred of the disabled, spent the next year and a half waiting for her moment to strike. Needless to say, this is not a reasonable inference, and Plaintiffs waif-like four lines of putative "evidence" do not come remotely close to showing that Ms. Groo had actual knowledge of any statutory disability. Morisky, 80 F.3d at 448 ("Vague or conclusory statements regarding an unspecified capacity are not sufficient to put an employer on notice of its obligations under the ADA.").
To be sure, Plaintiff also cites in her brief that she mentioned to Ms. Groo during the termination meeting that she was having heart surgery and could not afford to be fired. Even by Plaintiffs own account, however, she mentioned this after Ms. Groo had clearly told her that she (Plaintiff) was going to be terminated.
Not to mention completely inconsistent with Plaintiffs stipulation that she was not bringing a claim based on mere perception of disability.
The Court notes that this quote constitutes additional evidence that Plaintiff herself had no idea she was disabled. After all, her statement to Ms. Groo — that Plaintiff was undergoing medical tests for an unspecified illness — included the admission that the doctors were not sure what was wrong. In other words, at the moment Plaintiff revealed to Ms. Groo information that was supposed to make it clear to Ms. Groo that Plaintiff was statutorily disabled, Plaintiff herself remarked that the doctors had no idea what was wrong. If the doctors had no idea what was going on, how could Plaintiff have known? And if Plaintiff did not understand her illness or its implications, why would she expect Ms. Groo to have understood these things, much less have been put on notice of a statutory disability?
The Court concedes, of course, that many disabilities are obvious and do not require a specialized diagnosis to be apparent to a layperson. Plaintiffs heart disorder, however, is not one of those obvious disabilities.
As illustrated earlier, the logical structure of a pretextual termination claim requires as its bedrock that the corporate decision-maker have had actual knowledge of the fired employee's membership in a statutorily protected category. This was simply absent in the instant case, which means that Ms. Groo could never have had an illegal motive, and without an illegal motive there was nothing to conceal, and without something to conceal there was never any pretext. The because of element of Plaintiffs prima facie case was not simply unsuccessful, it was absent.
iii. Did Defendant have constructive knowledge of Plaintiff's alleged disability?
Apparently cognizant that Ms. Groo's conspicuous lack of actual knowledge was problematic, Plaintiff also contended that even if Ms. Groo had no actual knowledge of Plaintiffs alleged disability, Defendant somehow had constructive knowledge of it through what low-level employees may have known about Plaintiffs health. Doc. No. 82, pp. 13-14. This theory, however, is incoherent as a matter of law and epistemology.
To begin with, Plaintiffs contention that constructive knowledge can be substituted for actual knowledge is tantamount to simply jettisoning the knowledge requirement altogether. After all, the use of the word "knowledge" in the locution "constructive knowledge" is really a misnomer. Constructive knowledge is not knowledge at all. It is a convenient legal fiction to which courts resort when it is necessary to give people an incentive to acquire actual knowledge. For example, as the Court pointed out in its summary judgment order (Doc. No. 104, pp. 19-20), the doctrine of constructive knowledge is used to force department stores to keep their aisles clean by treating them as though they know about every spill or obstruction. There is no plausible application of this doctrine to the issue of pretextual termination. What possible reason could there be to apply this legal fiction to find that Ms. Groo had a heart and mind filled with discrimination when she decided to fire Plaintiff for being insubordinate? How, in other words, would imputing illegal and dishonorable motives to Ms. Groo do justice in the instant case and make American workplaces more accessible to the disabled?
Plaintiffs theory of constructive knowledge is like the rabbit hole of Alice in Wonderland, a portal into a realm in which down is up and up is down. As the Court elucidated earlier, the structure of a pretextual termination claim consists of three logically interrelated elements: (1) actual knowledge of the disability; (2) knowledge of the illegality of firing someone on the basis of the disability; and (3) a scheme to conceal the illegal motive by citing a legitimate reason for the firing. The constructive knowledge theory, on the other hand, rests on the absurd premise that knowledge does not matter at all; that one can be a bigot without being a bigot. This evinces no fidelity to the simplest principles of logic and commonsense. Once Plaintiff conceded that Ms. Groo had no actual knowledge of Plaintiff s alleged disability (element one), how could Ms. Groo have had an illegal motive (element two) or fabricated a scheme to hide that motive (element three)? The logical interrelation of the three elements of a pretextual termination claim means that the absence of any one element is fatal to the entire claim. Thus, it was patently frivolous as a matter of law and logic for Plaintiff to concede that Ms. Groo had no actual knowledge of her alleged disability, but argue nevertheless on the strength of some fatuous imputation of constructive knowledge that she was fired because of her alleged disability. Indeed, the Court can scarcely imagine a more compelling example of frivolity than a theory of recovery that does not meet even the most basic standard of logical cogency.
Not to mention precedent as well. The Court is baffled that Plaintiff was willing to commit her spurious theory of constructive knowledge to paper in light of Silvera, which emphatically rejected such nonsense.
b. What is the significance of Defendant's offer to settle for $10,000?
The second guideline asks whether Defendant offered to settle. A non-nominal settlement offer strongly implies that Plaintiff had a legitimate, rather than frivolous, claim. Conversely, attorney's fees seem especially warranted if Plaintiff rejected a nominal settlement offer and instead continued to litigate frivolous claims. It is undisputed that during mediation Defendant offered Plaintiff $10,000 to settle, though the parties disagree about what this offer means. See Doc. No. 110, p. 7; Doc. No. 115, p. 8; see also Doc. No. 93, p. 2. Defendant contends that its one-time $10,000 settlement offer, made in the face of a $900,000 demand, cannot be construed as anything but a nominal amount Plaintiff, on the other hand, argues that the $10,000 offer was not nominal because Plaintiff only earns $11,000 per year and $10,000 is a lot of money to her. Doc. No. 115, p. 8. Plaintiff, in other words, believes that whether a settlement offer is nominal depends on the ratio of the offer to the offeree's annual income.
This argument is patently meritless and its lack of merit is easy to demonstrate with a simple example. Suppose a five year-old child, through her representative, filed a personal injury claim against Dillard's for $1,000,000. Suppose further that Dillard's offered to settle for $500, was rejected, but then prevailed on summary judgment. For the purposes of an attorney's fees analysis, was the $500 a non-nominal settlement offer simply because $500 is an outrageous fortune to a five year-old? Of course not This example can be turned around. Suppose a billionaire entrepreneur also filed a claim for $1,000,000. Suppose further that Dillard's offered to settle for $850,000, was rejected, but then prevailed on summary judgment. Was the settlement offer nominal because it represents only a fraction of this billionaire's annual income? Of course not.
The lesson is obvious. Whether a settlement offer is deemed nominal or otherwise depends on the relationship between three factors: (1) what the plaintiff demanded; (2) what the defendant offered as a settlement; and (3) what the defendant expected to save in legal expenses by settling rather than continuing to litigate. The relationship between a plaintiffs income and the settlement offer is of no consequence. In fact, Plaintiffs cynical argument is worse than irrelevant because it implies that the Court should make an important legal determination by doing nothing more than comparing the wealth of the parties. To do so, however, is almost the very definition of injustice. See Cherry v. Champion Int'l Corp., 186 F.3d 442, 448 (4th Cir. 1999) (stating that ". . . the foundation of the legal system is that justice [is] administered to all equally, regardless of wealth or status.").
In the instant case, Plaintiff sued Defendant under the ADA for every possible form of monetary relief. Doc. No. 1. When Defendant offered to settle for $10,000, Plaintiff maintained her demand for $900,000 without a counter-offer. It is abundantly clear to the Court that Defendant's $10,000 settlement offer was for a nominal amount only, and it in no way suggests that Defendant regarded Plaintiffs claims as legitimate. The $10,000 was a scant 1.1% of what Plaintiff demanded and clearly an effort by Defendant to save its client the enormous legal expense of further litigation. Given that the Court has already found Plaintiffs claims unreasonable, the fact that she blindly pushed past a generous, though still nominal, settlement offer strongly militates in favor of attorney's fees.
Plaintiff construes the fact that Defendant's representative, Ms. Groo, was authorized to settle for nothing more than $10,000 as evidence of Defendant's bad faith. Doc. No. 93, p. 2. This inference does not follow, however. Defendant's firm offer is equally consistent with the conclusion that Defendant was determined not to be "shaken down" by someone with no legitimate claims.
c. Arc attorney's fees warranted?
It is clear that Plaintiffs failure to set forth her prima facie case cannot be attributed simply to a reasonable but ultimately unsuccessful effort to prosecute a legitimate claim. Instead, she carried things all the way to the summary judgment stage even though she had no evidence that Ms. Groo or any other corporate decision-maker knew that she was allegedly disabled. Indeed, there was no evidence that even she believed herself to be disabled while at Dillard's. To the extent that Plaintiff even considered this absence of essential evidence, she tried to create the illusion that Ms. Groo knew of her alleged disability by invoking the doctrine of constructive knowledge, which was not only inapplicable but illogical as well. In light of these infelicities, the Court has no choice but to conclude that this is one of those rare cases in which a plaintiff has pursued a truly groundless claim.
To make matters worse, Plaintiff elected to reject a generous offer to settle for $10,000. The Court is convinced that this offer was for a nominal amount and only made to avoid the accumulation of further expenses. Plaintiffs decision to walk away from this offer forced Defendant, as well as the Court, to incur substantial additional costs.
The salient question then asks whether this is truly the sort of case for which an award of attorney's fees is appropriate? In exercising its discretion in this respect, the Court must be attentive not just to the fairness of compensation in the instant case, but also to how the instant case will affect the incentives of other potential litigants. It is imperative that the Court neither undermine the remedial purpose of the ADA by improvidently punishing Plaintiff, nor ignore the serious social costs of frivolous litigation to entities like Defendant, which are then forced to pass on these costs to shareholders and consumers alike.
An award of attorney's fees to Defendant is proper. Defendant simply should not be expected to bear the cost of defending a patently frivolous claim, the expense of which was multiplied by Plaintiffs reckless decision to spurn a reasonable settlement offer. See Roper v. Edwards, 815 F.2d 1474, 1478 (11th Cir. 1987) (stating that attorney's fees are justified when the plaintiff has failed to bring forth any credible evidence to support an essential element of her claim). This is a matter of simple fairness. Furthermore, contrary to frustrating it, the Court believes that awarding attorney's fees to Defendant will help effectuate the ADA's remedial purpose. The intent of the ADA was to ensure that public spaces and workplaces are accessible to the disabled. If trial courts do not impose reasonable discipline on ADA plaintiffs, hiring an ADA-protected employee becomes an exercise in Russian roulette in which employers never know if their policies and practices expose them to crippling liability. Allowing frivolous ADA lawsuits to go unchallenged will lead to a world in which employers will be forced by the prospect of unfair litigation to do whatever they can to keep the disabled out of their workplaces. This is hardly the future that the ADA envisions. The Court, therefore, finds that Defendant is entitled to reasonable attorney's fees from Plaintiff.
2. Is Defendant entitled to attorney's fees from Plaintiff's counsel under 28 U.S.C. § 1927 and the Court's inherent powers?
The proper standard in the Eleventh Circuit for an award of attorney's fees from opposing counsel is conduct tantamount to bad faith. Barnes v. Dalton, 158 F.3d 1212, 1214 (11th Cir. 1998) (stating that an award of attorney's fees pursuant to the Court's inherent powers is appropriate when there is an egregious example of pursuing "a claim without reasonable inquiry into [its] underlying facts . . ."); Avirgan v. Hull, 932 F.2d 1572, 1582 (11th Cir. 1991) (stating that it is tantamount to bad faith under 28 U.S.C § 1927 to pursue a claim when it has become apparent that the evidence will not bear out the claim) (quoting Collins v. Walden, 834 F.2d 961, 965 (11th Cir. 1987)). In other words, in contradistinction to several of its sister circuits, the Eleventh Circuit does not require an express factual finding by the Court that Plaintiffs counsel acted in deliberate bad faith, merely that counsel's conduct sunk so far beneath a reasonable standard of competence, much deeper than mere negligence, that it became essentially indistinguishable from bad faith.
While the Court accepts the representations of Mr. Dempsey and Ms. Chaves that they are not in the business of litigating frivolous claims (See Doc. Nos. 117 and 118, affidavits of Dempsey and Chaves, respectively), the Court cannot ignore what can only be described as their reckless disregard for the serious defects of Plaintiff's case. Counsel clearly breached their duty to abandon the instant case when it became, or should have become, apparent that there was no evidentiary support for the contention that Ms. Groo had actual knowledge of Plaintiff's alleged disability. This absence of evidentiary support should have been unmistakably clear to counsel in a number of ways. First, Plaintiff herself had no idea that she was statutorily disabled. How could counsel possibly have concluded that Ms. Groo knew about Plaintiffs alleged disability when the source of this information had no such knowledge herself? Second, Plaintiffs own deposition, running thousands of lines long, produced, by counsel's own account, exactly four lines of testimony purporting to show that Ms. Groo had actual knowledge of Plaintiffs alleged disability. Yet, as quoted earlier, supra, p. 9, Plaintiff simply recalled making non-specific remarks about an unspecified illness more than a year before her termination. This was plainly insufficient as a matter of law to have put Defendant on notice that Plaintiff was statutorily disabled. Morisky, 80 F.3d at 448 ("Vague or conclusory statements regarding an unspecified capacity are not sufficient to put an employer on notice of its obligations under the ADA."). Worse yet, what counsel concluded were the best four lines of Plaintiffs testimony were actually the four worst because they dispositively showed that Plaintiff herself had no idea whatsoever that she was statutorily disabled. Finally, neither Ms. Groo's nor any other person's deposition suggested that Ms. Groo had any actual knowledge of Plaintiff's alleged disability.
There is no excuse for counsel having overlooked what was not simply a hole in Plaintiffs case, but a veritable Grand Canyon.
At some point during this case, counsel obviously grasped the problems posed by Ms. Groo's lack of actual knowledge concerning Plaintiffs alleged disability. Yet instead of retreating from the brink, either through a quick settlement or voluntary dismissal, counsel led Plaintiff on a full charge over the edge, arguing preposterously that actual knowledge did not matter, only constructive knowledge. As the Court has already discussed at length, however, counsel's constructive knowledge theory not only ran into a solid wall of precedent, see supra, pp. 5-6, which their memorandum artfully ignored, it was illogical as well. Frankly, the Court is dismayed that any attorney could be so obtuse as to argue in essence that a discrimination lawsuit does not require that the alleged bigot (Ms. Groo) have had any trace of bigotry. Counsel's effort to "spin" Ms. Groo's lack of actual knowledge by invoking the doctrine of constructive knowledge was nothing more than shallow cleverness masquerading as advocacy. See Adkins v. Briggs Stratton Co., 159 F.3d 306, 307 (7th Cir. 1998) (stating that it is frivolous by definition to pursue an ADA claim in which the employer indisputably had no knowledge of any disability).
Instead of coming to terms with the significance of what it meant for neither Plaintiff herself nor Ms. Groo to have had any knowledge of Plaintiffs alleged disability, counsel pressed forward with laborious and costly medical discovery, as though a surfeit of evidence on this score could compensate for a glaring lack of evidence elsewhere. Furthermore, not only did counsel ignore the insufficiency of their evidence, they ignored the law. Counsel cited four cases in the section on actual and constructive knowledge in their memorandum in opposition to summary judgment. Doc. No. 82, pp. 11-14. The first was Morisky, which was directly relevant and devastating to Plaintiffs case. It was mentioned perfunctorily in the first sentence of their knowledge section, and then forgotten. No other relevant cases like Morisky, see supra, pp. 5-6, were even mentioned, much less distinguished.
The next two cases were inapposite. Kimbro v. Atlantic Richfield Co., 889 F.2d 869 (9th Cir. 1989), was about reasonable accommodations, not pretextual termination. Breda v. Wolf Camera and Video, 222 F.3d 886 (11th Cir 2000), was about sexual harassment, not pretextual termination.
Finally, they cited Hillburn v. Murata Elecs. N. Am., Inc., 181 F.3d 1220 (11th Cir. 1999), which was about what constitutes a disability under the ADA, not the because of element of a pretextual termination claim. As part of their citation to Hillburn, counsel included a pinpoint citation to page 1226 of the opinion as well as a parenthetical summary of the legal principle for which this page of Hillburn purportedly stands. Here is the parenthetical reference in its entirety: "Plaintiff must establish that employer had actual or constructive knowledge of the disability." This is a willful misrepresentation of Hillburn. Hillburn simply recited the elements of an ADA claim, citing Morisky, before embarking on an analysis of what constitutes a statutory disability under the ADA. The Hillburn court expressly stated that there was no need to address either of the two remaining elements of an ADA claim, including the because a/element. Hillburn certainly did not say that constructive knowledge is all that is required for a pretextual termination claim.
Counsel's abject failure to reconcile Plaintiffs ADA claim with Morisky and other directly relevant precedent, coupled with their effort to finesse their case with inapposite law, was such a professional dereliction that it can only be characterized as an oversight tantamount to bad faith. Defendant should not have to bear the expense of its medical discovery and preparation of the summary judgment motion because all of these costs emanated from counsel's stubborn refusal to relent despite having no case.
To the extent the Court was unconvinced that frivolity was counsel's modus operandi in this case, those doubts were erased by their argument in their memorandum in opposition to attorney's fees that settlement offers are non-nominal if they seem like a lot of money to the plaintiff. As with the spurious constructive knowledge theory, Plaintiffs counsel again advanced an argument that went well beyond being wrong. Advocacy in federal court is not a 1L classroom exercise. There are no bonus points merely for making any argument at all. Arguments are required to cross some minimal threshold of reasonableness because arguments have consequences. They impose real costs on real people. When counsel propound meritless arguments that fall grossly short of this line, and with deliberate blindness ignore caselaw directly contrary to the position argued, they have engaged in conduct tantamount to bad faith. Primus Automotive Fin. Servs. v. Batarse, 115 F.3d 644, 649 (9th Cir. 1997) ("A finding of bad faith is warranted where an attorney knowingly or recklessly raises a frivolous argument . . .") (internal quotation and citation omitted).
With the complicity and approval of Plaintiff, counsel spearheaded a futile ADA claim, an essential element of which lacked any "arguable basis either in law or in fact." Nietzke v. Williams, 490 U.S. 319, 325 (1989). As such, the Court finds that an award of attorney's fees to Defendant from Plaintiffs counsel is appropriate pursuant to 28 U.S.C. § 1927 and the Court's inherent powers.
3. What is the scope of the fee award and how is responsibility for it to be divided between Plaintiff and her counsel?
First, Plaintiff and her counsel are responsible for all reasonable fees — legal, expert, paralegal, and otherwise — that Defendant incurred during any discovery related to the question of Plaintiffs alleged disability. Defendant also deserves all reasonable fees for its summary judgment motion, attorney's fees motion, and any other motion it had to address because of Plaintiffs decision not to concede once it became, or should have become, apparent that Ms. Groo had no knowledge of any alleged disability. Defendant, however, is not entitled to fees for any expenses incurred during the early phases of the case, including discovery on what Ms. Groo actually knew.
Second, the Court's order establishes an entitlement to, but not the amount of, attorney's fees. Within fourteen (14) days of the date of this order, Defendant shall file with the Court a detailed memorandum, supported by affidavits and other evidence, explaining the amount of reasonable fees to which it is entitled. Within ten (10) days of this filing, Plaintiff and her counsel shall file a memorandum objecting to any aspect of Defendant's proposed fee award. The case is referred to the presiding Magistrate Judge for a report and recommendation concerning what the fee award should be. Pursuant to Local Rule 6.02, the parties will then have an opportunity to file objections.
Finally, Magistrate Judge Spaulding shall divide the fee award between Plaintiff and her counsel in the following manner. She shall first determine, taking into account Plaintiffs financial circumstances, what sort of fee award from Plaintiff will accomplish the following: (1) convey to Plaintiff the Court's dissatisfaction with the conduct of her counsel and the merit of her claim; (2) place similarly situated plaintiffs on notice that they have an affirmative duty to participate actively in their cases and exercise control over their lawyers; and (3) create disincentives for the blind pursuit of claims that have been exposed through discovery as frivolous. See Chapman v. Al Transp., 229 F.3d 1012, 1039 (11th Cir. 2000) (stating that the financial situation of a non-prevailing party is irrelevant for the purposes of determining whether attorney's fees are warranted, though it may be a consideration in determining the amount of the award) (citing Durrett v. Jenkins Brickyard, Inc., 678 F.2d 911, 917 (11th Cir. 1982)). In addition, concerns that Plaintiff was merely the victim of her attorney's bad advice shall play no part in this determination. The premise of agency law is that principals are responsible for the conduct of their agents, and this is as true of the client-lawyer relationship as, for example, the contractor-subcontractor relationship. Durrett 915-916 (quoting Prate v. Freedman, 583 F.2d 42, 48 (2d Cir. 1978)). Indeed, the rules of professional ethics explicitly recognize that Plaintiff bears ultimate responsibility for the strategy and goals of her case. Id.
The remainder of the fee award, if any, shall then be levied in its entirety against Plaintiff's counsel, to be divided equally between Mr. Dempsey and Ms. Chaves, the two attorneys who signed Plaintiffs memorandum in opposition to summary judgment.
CONCLUSION
For the foregoing reasons, Defendant's motion for reasonable attorney's fees under 42 U.S.C. § 12205, 28 U.S.C. § 1927 and the Court's inherent powers is GRANTED. To the extent that Defendant sought attorney's fees under Fla. Stat. Ann. § 760.11(5), such fees are DENIED on the ground that they would be duplicative.