Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 79 C 2122 -- Milton I. Shadur, Judge.
Before CUMMINGS, Chief Judge, ESCHBACH, Circuit Judge, and CAMPBELL, Senior District Judge.*fn*
CAMPBELL, Senior District Judge. Defendant Central Steel & Wire Company (Central) appeals from the denial of its motion for attorneys' fees and costs in a Title VII action in which it prevailed. Central argues that Badillo's suit was so patently frivolous that the district court abused its discretion in failing to award fees and costs. We disagree and affirm the decision of the district court.
The plaintiff, George Badillo, a Mexican, was employed by Central from 1973 until his termination in 1977 for allegedly cursing at a foreman. Shortly after his termination Badillo filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). Following investigation, the EEOC found reasonable cause to believe that the charge was true.
Based on this finding, Badillo, on May 23, 1979, filed a pro se action under Title VII and 42 U.S.C. § 1981. On September 25, 1979, counsel appeared for plaintiff, and on October 9, 1979 filed an amended complaint under Title VII and 42 U.S.C. § 1981 seeking class-wide relief on behalf of hispanics, blacks, and women, alleging discriminations in terms of hiring, training, placement, assignments, promotion, transfer, termination, layoff, and discipline. The complaint further alleged that Badillo and other class members had been intimidated, threatened and verbally abused.
On August 25, 1980, the district court struck Badillo's asserted class claims on behalf of women and blacks, and his claims relating to hiring practices, for lack of standing. The court also held that Badillo lacked standing to assert any claim that did not directly affect Badillo or his class. A second amended complaint was filed on October 8, 1980 which did not assert any claims to hiring or women, but instead alleged class claims based on "national origin and/or race." On February 3, 1981, the district court struck class claims relating to training, placement, assignments, promotion, and transfer, holding that Badillo was a suitable class representative for claims regarding termination, layoff, and discharge.
On March 24-25, 1981, Central, with the aid of a translator, took Badillo's deposition. At that deposition Badillo contradicted all of his individual claims of discrimination except for the charge relating to his termination and could only offer hearsay testimony concerning threats and intimidation of other minority employees.
On July 24, 1983, the district court granted summary judgment on all individual claims except for the claim regarding Badillo's termination. The court also granted summary judgment with respect to all § 1981 class claims except those relating to discriminatory termination, discipline, and layoffs. On November 23, 1983, Badillo's counsel withdrew all remaining class claims leaving Badillo's termination as the only issue of the case.
Further discovery was then taken by both sides. During this period Badillo's counsel once failed to inspect documents gathered by Central pursuant to a production request. In another incident, there was no response to interrogatories served by Central.
On March 2, 1982, Central filed a motion for summary judgment. Badillo opposed the motion with only a four-page legal memorandum and no counter-affidavits. On May 26, 1982 the district court granted the motion and dismissed the case. Central appeals from the subsequent denial of its motions for attorneys' fees and costs.
Central argues that it is entitled to attorneys' fees and costs under five separate theories. Central contends that fees and costs should be assessed against Badillo through (a) the provisions of 42 U.S.C. § 2000e-5(k) and 42 U.S.C. § 1988; (b) the inherent equitable powers of the court to assess fees against a non-prevailing party for bad faith conduct; and (c) the provisions of Rule 54(d) of the Federal Rules of Civil Procedure. Central also contends that fees and costs should be ...