Free Order on Motion for Attorney Fees - District Court of Arizona - Arizona

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

THOMAS W. SOFFEL, JR., Plaintiff, vs.

PROCTOR & GAMBLE MANUFACTURING CO., et al., Defendants. )

) ) ) ) ) ) ) ) ) ) )

CIV 03-1683 PHX JWS ORDER FROM CHAMBERS [Re: Motion at Docket 47]

I. MOTION PRESENTED At docket 47, defendant Procter & Gamble Manufacturing Company ("P&G") moves the court moves for an award of attorney's fees and costs pursuant to Federal Rule of Civil Procedure 54(d)(2) and District of Arizona Local Rule 54.2(b)(1). At docket 49, plaintiff Thomas W. Soffel, Jr., opposes the motion. Defendant's reply is filed at docket 50. Oral argument was not requested and would not assist the court. II. BACKGROUND This action arises from an employment dispute. Plaintiff Soffel began his employment as a production technician with defendant P&G in September 1998. On April 8, 2003, Soffel told his supervisor that he did not feel well enough to drive a forklift

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because he had experienced a seizure that morning. Soffel had not disclosed that he had a seizure disorder on his employment application or subsequent medical evaluation forms. On April 25, 2003, P&G terminated Soffel's employment for allegedly falsifying company records. Soffel filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), which issued a right-to-sue letter in May 2003. Soffel subsequently applied for and was denied unemployment benefits on the grounds that he was discharged for misconduct. Soffel appealed. In a decision dated June 13, 2003, an administrative law judge with the Arizona Department of Economic Security found that P&G presented insufficient evidence to substantiate its claim that Soffel was discharged for misconduct and concluded that Soffel's discharge "was for reasons other than wilful or negligent misconduct in connection with employment."1 Soffel commenced this action on August 28, 2003.2 Soffel's second amended complaint alleges claims of discrimination and retaliation under the Americans with Disabilities Act ("ADA") and the Rehabilitation Act. On December 29, 2004, P&G moved for summary judgment.3 Soffel requested and received an enlargement of time in which to oppose the motion, but did not file an opposition. After the extended due date for the opposition had passed, Soffel filed another motion for an enlargement of time. The court denied Soffel's motion to enlarge time and reviewed the merits of the summary judgment motion. The court granted P&G's summary judgment motion by

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Decision of Appeal Tribunal at 4, Exh. 1, Doc. 49. Doc. 1. Doc. 30.

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minute order dated March 24, 2005,4 and entered judgment the same day.5 Defendant P&G now requests an award of attorney's fees and costs in the approximate amount of $26,219.6 III. STATEMENT OF LAW/APPLICABLE LEGAL STANDARD "As a general proposition, prevailing parties are not entitled to an award of attorneys' fees, absent an enforceable contract or statutory authority."7 The attorney's fee provision of the ADA, 42 U.S.C. § 12205 gives the court discretion to award a prevailing party, other than the United States, "a reasonable attorney's fee, including litigation expenses, and costs."8 Attorney's fees should be granted to a prevailing defendant in a civil rights action only "upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation."9 This standard also applies to awarding costs to a prevailing defendant under the ADA.10 IV. DISCUSSION Defendant argues that it is entitled to recover attorney's fees and expenses under 42 U.S.C. § 12205 because it is the prevailing party, and plaintiff's action was

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Doc. 40. Doc. 41. Doc. 47 at 2. United States v. Stone Container Corp., 196 F.3d 1066, 1068 (9th Cir. 1999). 42 U.S.C. § 12205.

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Summers v. Teichert & Son, Inc., 127 F.3d 1150, 1154 (9th Cir. 1997) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978)).
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Brown v. Lucky Stores, Inc., 246 F.3d 1182, 1190 (9th Cir. 2001).

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frivolous, unreasonable, and without foundation.11 Defendant alleges that plaintiff's allegations of discrimination and retaliation under the ADA "were completely unfounded."12 Plaintiff does not dispute that defendant is the prevailing party, but argues that his action was not frivolous, unreasonable or without foundation. Plaintiff alleges that he commenced this action "based on the fact that when [he] disclosed his medical condition to company personnel, he was discharged for alleged falsification of company records and poor work performance, non[e] of which was proven by Defendant P&G at an administrative review conducted by the Arizona Department of Economic Security."13 Soffel also alleges that he received a right-to-sue letter from the EEOC prior to filing this action.14 "A plaintiff receiving such a letter would reasonably believe that there was an adequate basis in law and facts to pursue his claim."15 Based on the circumstances known to plaintiff at the time he filed his complaint, plaintiff's claims were not frivolous, unreasonable or without foundation.16 Furthermore, while defendant suggests that plaintiff's failure to respond to defendant's motion for summary judgment is grounds for an award of fees, it is well established that a plaintiff's

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Motion for Attorney's Fees, Doc. 47 at 2. Defendant's Memorandum, Doc. 48 at 4. Plaintiff's Response, Doc. 49 at 1-2. Second Amended Complaint, Doc. 3 at 2.. Mitchell v. Los Angeles County Superintendent of Schools, 805 F.2d 844, 847 (9th Cir. Karam v. City of Burbank, 352 F.3d 1188, 1196 (9th Cir. 2003).

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1986).
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failure to present evidence to defeat summary judgment does not mean his claims were groundless at the outset.17 Based upon the court's finding that plaintiff's action was not frivolous, unreasonable, or without foundation, defendant is not entitled to an award of attorney's fees and costs. V. CONCLUSION For the reasons stated above, defendant's motion for attorney's fees and costs at docket 47 is DENIED. DATED at Anchorage, Alaska, this 12th day of August, 2005.

/s/ JOHN W. SEDWICK UNITED STATES DISTRICT JUDGE

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Id.

HAZ.03-1683.47.wpd

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