United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
W. DARRAH United States District Court Judge
CVS Pharmacy, Inc. filed a Motion for Attorney's Fees
 pursuant to 42 U.S.C. § 2000e-5(k), Federal Rule of
Civil Procedure 54(d), and Local Rule 54.3. For the reasons
stated below, Defendant's Motion for Attorney's Fees
 is granted in part and denied in part.
Equal Employment Opportunity Commission (the
“EEOC”) filed suit against CVS Pharmacy, Inc.,
alleging a pattern or practice of resistance to the full
enjoyment of rights secured by Title VII of the Civil Rights
Act of 1964 in violation of 42 U.S.C. § 2000-e6(a).
Defendant filed a Motion to Dismiss or, in the Alternative,
for Summary Judgment, which was granted on October 7, 2014.
On December 5, 2014, Plaintiff filed a Notice of Appeal. On
December 17, 2015, the Seventh Circuit upheld the grant of
summary judgment in favor of Defendant. Plaintiff's
petition for rehearing en banc was denied on March
attorney's fee provision of Title VII states that
“the court, in its discretion, may allow the prevailing
party . . . a reasonable attorney's fee as part of the
costs, and the [EEOC] . . . shall be liable for costs the
same as a private person.” 42 U.S.C. § 2000e-5(k).
However, in Title VII cases, attorney's fees should be
awarded to a prevailing defendant only “upon a finding
that the plaintiff's action was frivolous, unreasonable,
or without foundation, even though not brought in subjective
bad faith.” Christiansburg Garment Co. v. Equal
Employment Opportunity Comm'n, 434 U.S. 412, 421
(1978). This standard is the same for the EEOC and for
private litigants. Id. at 422 n. 20.
generally have awarded attorneys' fees to prevailing
defendants under 42 U.S.C. § 2000e-5(k) in two
circumstances: (1) when the plaintiff “proceeds in the
face of an unambiguous adverse ruling”; or (2) when the
plaintiff “is aware with some degree of certainty of
the factual or legal infirmity of his claim.”
Badillo v. Central Steel & Wire Co., 717 F.2d
1160, 1163 (7th Cir. 1983). It is not disputed that CVS was
the prevailing party. In determining whether a prevailing
defendant is entitled to fees, the court considers the
following factors: “(1) whether the suit is one of
first impression; (2) whether there is or was a real threat
of injury to the plaintiff; and (3) whether the record
supports a finding that the plaintiff's action was
frivolous.” E.E.O.C. v. Sears, Roebuck &
Co., 114 F.R.D. 615, 627 (N.D. Ill. 1987) (citing
LeBeau v. Libbey-Owens-Ford Co., 799 F.2d 1152, 1156
(7th Cir. 1986); Reichenberger v. Pritchard, 660
F.2d 280, 288 (7th Cir. 1981)). A case is frivolous when it
“has no reasonable basis, whether in fact or
law.” Tarkowski v. County of Lake, 775 F.2d
173, 176 (7th Cir. 1985). The claim that a Title VII
“pattern or practice” case was frivolous must be
carefully scrutinized. Sears, 114 F.R.D. at 629
(citing Hermes v. Hein, 742 F.2d 350, 357 (7th Cir.
1984); Ekanem v. Health and Hospital Corp. of Marion
County, Indiana, 724 F.2d 563, 575 (7th Cir. 1983)).
argues that the lawsuit was frivolous for two reasons: (1)
because the factual premise of Plaintiff's case was
unreasonable and (2) because the lawsuit was filed in
violation of Title VII and the EEOC's regulations.
Plaintiff argues that the lawsuit was not frivolous or, in
the alternative, that Defendant's proposed fees are
is no claim that Plaintiff acted in the face of an
unambiguous, advese ruling. It must therefore be determined
whether or not the claim was factually or legally infirm.
argues that it was unreasonable for the EEOC to claim that
the severance terms were a pattern or practice of resistance
to the rights secured by Title VII. Under Section 707(a),
civil complaints may be brought when there is
“reasonable cause to believe that any person or group
of persons is engaged in a pattern or practice of resistance
to the full enjoyment of any of the rights secured by”
Title VII and “that the pattern or practice is of such
a nature and is intended to deny the full exercise of the
rights herein described.” 42 U.S.C. § 2000e-6(a).
This Court found that the severance agreement contained a
carve-out to the “covenant not to sue” provision,
which enabled former employees to file a complaint with the
EEOC and participate in enforcement of discrimination laws.
The Seventh Circuit agreed. E.E.O.C. v. CVS Pharmacy,
Inc., 809 F.3d 335, 341 n. 4 (7th Cir. 2015) (“. .
. the district court correctly concluded that it is
unreasonable to construe the Agreement as restricting the
signatory from filing a charge or otherwise participating in
“there is a significant difference between making a
weak argument with little chance of success . . . and making
a frivolous argument with no chance of success.”
Khan v. Gallitano, 180 F.3d 829, 837 (7th Cir.
1999). The EEOC argued that a combination of factors would
lead a former employee to believe that they were precluded
from exercising their rights under Title VII. And, as this
Court has previously stated, “[t]he fact that a
plaintiff advocates an inference that the court declines to
adopt does not lead to the conclusion that the plaintiff
acted without foundation.” Sanglap v. LaSalle Bank,
FSB, 194 F.Supp.2d 798, 800 (N.D. Ill. 2002),
aff'd, 345 F.3d 515 (7th Cir. 2003) (citing
EEOC v. Elgin Teachers Ass'n, 27 F.3d 292, 295
(7th Cir. 1994)). It cannot be said that the lawsuit was
based on a frivolous factual premise.