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VITUG v. MULTISTATE TAX COMMN.

March 24, 1995

JOSELITO VITUG, Plaintiff
v.
MULTISTATE TAX COMMISSION; DAN R. BRUCKS, as Executive Director; LES KOENIG, as Director of Audit; and MEMBER COMMISSIONERS, in their capacity as Commissioners, Defendants.



The opinion of the court was delivered by: MARTIN C. ASHMAN

 On January 21, 1994, plaintiff, Joselito Vitug ("Vitug"), filed a two-count first amended complaint seeking damages from defendants, Multistate Tax Commission ("MTC"); Dan K. Brucks, ("Brucks"), as Executive Director; Les Koenig ("Koenig"), as Director of Audit; and Member Commissioners, in their capacity as Commissioners, for alleged violations of 42 U.S.C. § 1981 and alleged violations of Title VII of the Civil Rights Act (42 U.S.C. § 2000e, et seq.), relating to defendants' employment practices. Judge Aspen on July 27, 1994, granted defendants' motion for summary judgment and issued a written memorandum opinion and order which disposed of each of Vitug's claims.

 Defendants' motion for attorney's fees, related expenses, including expert witness fees, pursuant to Local Rule 46, FED. R. CIV. P. 54(d)(2), 42 U.S.C. § 1988 and 42 U.S.C. § 2000e-5(k), and defendants' bill of costs filed pursuant to Local Rule 45 are presently before the court. Vitug opposes the motion and the bill of costs on procedural and substantive grounds.

 I. Procedural Objections

 Vitug initially contends that defendants' motion for attorney's fees is untimely under FED. R. CIV. P. 54(d)(2)(B). FED. R. CIV. P. 54(d)(2)(B) directs in relevant part:

 
Unless otherwise provided by statute or ordinance of the court, the motion [for attorney's fees] must be filed and served no later than 14 days after entry of judgment . . .

 Vitug asserts that since summary judgment was entered on July 27, 1994, defendants' motion for attorney's fees would be untimely unless it were filed on or before August 10, 1994. This court notes that defendants have supplied a copy of their motion which bears the Clerk's file stamp of August 10, 1994, which date has not been refuted by Vitug. Vitug's timeliness objection is therefore rejected.

 Vitug argues that defendants' bill of costs filed on August 26, 1994, is untimely under FED. R. CIV. P. 54(d)(2)(B). Vitug contends that it would be unfair to allow defendants to file a bill of costs after he has responded to their prior motion for attorney's fees because it would require a response to duplicitous and multiple motions. This court disagrees.

 First, as noted above, FED. R. CIV. P. 54(d)(2)(B) imposes a period of 14 days from judgment to file a motion for fees "unless otherwise provided by . . . order of the court." Local Rule 45 expressly permits the filing of a bill of costs within 30 days of entry of judgment allowing costs. There is no dispute that Local Rule 45 applies to this case and that defendants' bill of costs was filed within 30 days of Judge Aspen's entry of summary judgment for defendants. Vitug has not cited, and this court has not found, any case law to support his argument that the bill of costs must be filed within 14 days of judgment. Therefore, Vitug's timeliness objection to the bill of costs is denied.

 The court will now address the substance of Defendants' motion for attorney's fees and defendants' bill of costs.

 II. Standard for Attorney's Fees

 Defendants rely on two statutory provisions as the basis for their motion: 42 U.S.C. § 1988 and 42 U.S.C. § 2000e-5(k). 42 U.S.C. § 1988 provides in relevant part:

 
In any action or proceeding to enforce a provision of section[ ] 1981 . . . the court, in its discretion may allow the prevailing party, other than the United States, a reasonable attorney's fee as a part of the costs.

 Similarly, 42 U.S.C. § 2000e-5(k) provides:

 
In any action or proceeding under this subchapter [Title VII] the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee (including expert fees) as part of the costs . . .

 These statutes clearly allow prevailing defendants as well as prevailing plaintiffs to recover fees; however, the neutral language belies the different standards actually applied to prevailing plaintiffs and prevailing defendants in evaluating motions for attorney's fees. Whereas a prevailing plaintiff may be awarded attorney's fees if he succeeds "on any significant issue in litigation which achieves some benefit [he] sought in bringing the suit," Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 1939, 76 L. Ed. 2d 40 (1983), and Bisciglia v. Kenosha Unified School Dist. No. 1, 45 F.3d 223 (7th Cir. 1995); a prevailing defendant has the additional burden of demonstrating that the plaintiff either brought his suit in subjective bad faith or that plaintiff's action was "frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 421, 98 S. Ct. 694, 701, 54 L. Ed. 2d 648 (1978); Unity Ventures v. County of Lake, 894 F.2d 250, 253 (7th Cir. 1990). The Supreme Court has held that "the fact that a plaintiff may ultimately lose his case is not in itself a sufficient justification for the assessment of fees." Hughes v. Rowe, 449 U.S. 5, 14, 101 S. Ct. 173, 178, 66 L. Ed. 2d 163 (1980).

 The Christianburg and Hughes courts both emphasized that before assessing attorney's fees against a plaintiff, the district court must find that the plaintiff's action was "frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so." Hughes v. Rowe, supra, 449 U.S. at 15, 101 S. Ct. at 178-79 (quoting Christianburg Garment Co. v. E.E.O.C., supra, 434 U.S. at 422, 98 S. Ct. at 700). The Christianburg court further noted that any finding by the court that plaintiff brought or continued a claim in bad faith provides an even stronger basis for assessing the defendant's attorney's fees. Id., 434 U.S. at 422, 98 S. Ct. at 701. *fn1" These guidelines are tempered by the Supreme Court's overarching caution that district courts should avoid "the understandable temptation to engage in post hoc reasoning by concluding that, because the plaintiff did not prevail, his action must have been unreasonable or without foundation. This kind of hindsight logic could discourage all but the most airtight claims, for seldom can a prospective plaintiff be sure of ultimate success." Christianburg Garment Co. v. E.E.O.C., supra, 434 U.S. at 422, 98 S. Ct. at 700.

 III. Background

 Vitug is a male Filipino who was employed as an auditor with MTC, at the Chicago, Illinois office, from April, 1985 until January 1, 1993. In June, 1991, Vitug was one of six applicants interviewing for the position of Field Audit Supervisor with MTC. The interviews were conducted by three MTC employees including Koenig, a white male who was Vitug's manager. Each interviewee was asked the same ten questions and they were given scores based on independent evaluations of the three interviewers. Each of the interviewers gave Vitug the lowest score of all the candidates. The applicant who ...


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