Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
EEOC v. CONSOLIDATED SERV. SYS.
November 23, 1993
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
CONSOLIDATED SERVICE SYSTEMS, Defendant.
The opinion of the court was delivered by: JAMES F. HOLDERMAN
JAMES F. HOLDERMAN, District Judge:
Defendant Consolidated Service Systems ("defendant") brings this application for fees under the Equal Access to Justice Act ("EAJA") against plaintiff Equal Employment Opportunity Commission ("EEOC"). Defendant's application is denied.
The EEOC brought an action pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., against defendant. The EEOC claimed that defendant had engaged in a pattern and practice of illegal discrimination against non-Koreans in the recruitment and hiring of employees. After a bench trial, this court found in favor of the defendant, and the case was dismissed in its entirety. See Opinion of September 4, 1991 ("Opinion #1") (reported at 777 F. Supp. 599). Defendant then requested the award of attorney's fees as a prevailing party under Section 706(k) of the Civil Rights Act of 1964. This court denied defendant's request in a written order issued on March 17, 1992, finding that the EEOC's action was not frivolous ("Opinion #2"). This court's rulings as to both the merits and attorney's fees were affirmed by the Seventh Circuit. EEOC v. Consolidated Service Systems, 989 F.2d 233 (7th Cir. 1993).
Several statements made by the Seventh Circuit in their opinion clearly encouraged the defendant to file this second application for fees.
The first comment came after a summary regarding defendant's lack of success in seeking fees under Section 706(k):
We do not know why the defendant did not request attorney's fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d), under which its burden which would have been lighter. McDonald v. Schweiker, 726 F.2d 311, 316 (7th Cir. 1983).
The more substantial discussion occurred at the end of the opinion:
Although Consolidated has been dragged through seven years of federal litigation at outrageous expense for a firm of its size, we agree with the Commission that this suit was not frivolous. The statistical disparity gave the Commission a leg up, and it might conceivably have succeeded in its disparate-impact claim but for our intervening decision in EEOC v. Chicago Miniature Lamp Works, supra. Had the judge believed the Commissions's witnesses, the outcome even of the disparate-treatment claim might have been different. The Equal Access to Justice Act was intended, one might have thought, for just such a case as this, where a groundless but not frivolous suit is brought by the mighty federal government against a tiny firm; but Consolidated concedes its inapplicability. We do not know on what the concession is based--possibly on cases like Escobar Ruiz v. INS, 787 F.2d 1294, 1296 (9th Cir. 1986), on rehearing, 838 F.2d 1020, 1027-28 (9th Cir. 1988) (en banc), holding the Act inapplicable to statutes that have their own fee-shifting statutes--but other cases, such as Gavette v. Office of Personnel Management, 808 F.2d 1456, 1463-65 (Fed. Cir. 1986), are contra. It may not be too late for Consolidated to reconsider its concession in light of our holding in McDonald v. Schweiker, supra, 726 F.2d at 314, regarding the deadline for seeking fees under the Act.
Defendant accepted the Seventh Circuit's invitation and filed an application for ...
Buy This Entire Record For