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KEE v. NEC TECHS.

January 2, 1997

DINAH M. KEE, Plaintiff,
v.
NEC TECHNOLOGIES, INC., Defendant.



The opinion of the court was delivered by: SHADUR

MEMORANDUM OPINION AND ORDER

 On September 26, 1996 this Court issued its memorandum opinion and order (the "Opinion"), in which it granted the summary judgment motion of NEC Technologies, Inc. ("Nectech") in this action brought by its employee Dinah Kee ("Kee") to charge Nectech with employment discrimination and related retaliatory treatment. Since the entry of the judgment of dismissal, Nectech has filed motions for an award of attorneys' fees (Dkt. 38-1) and for the assessment of taxable costs (Dkt. 37-1), and Kee has countered with motions in oppositions to both requests (Dkt. 43-1 as to fees and Dkt. 42-1 as to costs).

 Both sides have briefed the issues posed by the cross-motions, *fn1" including the inquiry posed by this Court as to the propriety of a partial award under all of the circumstances. For the reasons stated in this memorandum opinion and order, each side's motions are granted in part and denied in part.

 Taxable Costs

 Kee does not suggest that she is entitled to relief from the payment of taxable costs on grounds of inability to pay as such (more on this subject later), and no reason is really advanced for her being relieved of the normal Fed. P. Civ. P. 54(d)(1) doctrine that the successful litigant ordinarily recovers taxable costs. Instead Kee's Mem. 1 on the subject of costs "respectfully requests the Court to assess only those costs against plaintiff Kee which were reasonable and necessary expenses based upon the Court's entry of summary judgment in favor of Nectech, pursuant to 28 U.S.C. § 1920," and Kee's Mem. 5 concludes by acknowledging the propriety of the $ 2,830.70 in deposition costs incurred by Nectech.

 All that Nectech seeks in addition to those deposition costs is the reimbursement of photocopying expense. Its December 4 response to Kee's objections explains (1) that the requested $ .12 per page is only 60% of Nectech's law firm's usual $ .20 per page charge to its clients and (2) that the request is being cut back to the number of pages that it copied after February 28, 1996, which it labels as "the latest possible date which confirmed the fact that [Kee's] claims were frivolous" (Response at 2).

 This Court finds that Nectech's modified request is reasonable, and it relatedly rejects Kee's blanket objections to the photocopying costs as assertedly lacking in substantiation. Accordingly taxable costs are awarded in favor of Nectech and against Kee in the sum of $ 3,543.98.

 Attorneys' Fees

 Ever since Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 54 L. Ed. 2d 648, 98 S. Ct. 694 (1978), it has been clear that 42 U.S.C. § 2000e-5(k) is not reciprocal in its operation--that although most prevailing plaintiffs in employment discrimination litigation may expect to receive attorneys' fee awards as a matter of course, prevailing defendants may not. As Christiansburg, id. at 418 explained:

 
And a moment's reflection reveals that there are at least two strong equitable considerations counseling an attorney's fee award to a prevailing Title VII plaintiff that are wholly absent in the case of a prevailing Title VII defendant.
 
In sum, a district court may in its discretion award attorney's fees to a prevailing defendant in a Title VII case upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.
 
* * *
 
Hence, a plaintiff should not be assessed his opponent's attorney's fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.

 As the Opinion makes exceedingly plain, those restrictive standards squarely encompass Kee's situation. Even when the most favorable evidentiary light is cast on her claims (as the Opinion did), it remains true that her failure-to-promote claim was unquestionably frivolous (in the legal sense of that word) in both factual and legal terms, that her hostile work environment claim never got out of the blocks, and that her retaliation claim patently suffered fatal defects as well.

 There is thus no question that Nectech has established its right to an award--instead the question comes down to quantifying its recapture of the attorneys' fees that it has incurred. Nectech's claim in that respect is not out of line: It limits its request to lawyers' time spent after Kee's February 28 deposition, when it became clear both that she was addressing a failure-to-promote claim and that each of her claims was both legally and factually insupportable. Although this Court has no reason to doubt Kee's sincerity in having advanced those claims (that is, her subjective good faith is not in question), the circumstances described in the Opinion demonstrate that her claims were objectively "frivolous" in the legal sense of that term for Christiansburg purposes.

 Like other appellate courts, our Court of Appeals has made it plain that a district court's decision as to such fee awards is equitable in nature, allowing consideration of the litigants' relative wealth and of what--after looking at plaintiff's financial circumstances--may be required to serve the deterrence goals of such awards. Munson v. Friske, 754 F.2d 683, 697 (7th Cir. 1985) exemplifies the relevant principles:

 
The courts have held that fee awards are an equitable matter, thereby permitting the district court to consider the relative wealth of the parties. See e.g., Faraci v. Hickey-Freeman Co., 607 F.2d 1025, 1028 (2d Cir. 1979). When a court determines that a plaintiff can afford to pay the award, the congressional ...

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