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EEOC v. CONSOLIDATED SERV. SYS.

November 23, 1993

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
CONSOLIDATED SERVICE SYSTEMS, Defendant.


HOLDERMAN


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.

 BACKGROUND

 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).

 989 F.2d at 235.

 The more substantial discussion occurred at the end of the opinion:

 989 F.2d at 238.

 Defendant accepted the Seventh Circuit's invitation and filed an application for ...


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