CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT

Pursuant to 11th Circuit Rule 26.1.1-1, I hereby certify that the following persons or entities have an interest in the outcome of this case:

Julie Bean, former EEOC Birmingham trial attorney

Lorraine C. Davis, EEOC Assistant General Counsel

Equal Employment Opportunity Commission, Plaintiff/Appellant

Julie L. Gantz, EEOC Appellate Services attorney

Jennifer S. Goldstein, EEOC Associate General Counsel

Charles J. Kahn, Jr., United States Magistrate Judge

Ylda Marisol Kopka, former EEOC Birmingham trial attorney

P. David Lopez, EEOC General Counsel

Gerald Lee Miller, EEOC Birmingham trial attorney

Steven Lee Murray, former EEOC Birmingham trial attorney

Gwendolyn Young Reams, EEOC Associate General Counsel

Hon. M. Casey Rodgers, United States District Court Judge

Marsha Rucker, EEOC Birmingham trial attorney

C. Emanuel Smith, EEOC Regional Attorney, Birmingham District Office

Julie Ann Springer, attorney for West Customer Management

Daniel E. Traver, former attorney for West Customer Management

Maneesh Varma, EEOC Birmingham trial attorney

Geoffrey D. Weisbart, attorney for West Customer Management

West Customer Management, Defendant/Appellee

Maricia D. Woodham, former EEOC trial attorney

______________________________

Julie L. Gantz

Attorney for Appellant EEOC

Equal Employment

Opportunity Commission

131 M St., NE, 5th Floor

Washington, DC 20507

202-663-4718 (voice)

202-663-7090 (fax)

Julie.gantz@eeoc.gov

STATEMENT REGARDING ORAL ARGUMENT

The Equal Employment Opportunity Commission respectfully requests that the Court hear oral argument in this case. This appeal raises important questions regarding the propriety of an award of attorney’s fees award to a prevailing defendant in a Title VII case even where the Commission survived motions for a directed verdict and a jury decided the case. Because the case involved a jury trial and several decisions by the magistrate judge and the district court, the Commission believes that oral argument will assist the Court in exploring the fact-specific issues involved in this case.

TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT................................................................................................... i

STATEMENT REGARDING ORAL ARGUMENT................................... iii

TABLE OF AUTHORITIES.......................................................................... vi

STATEMENT OF JURISDICTION................................................................ 1

STATEMENT OF THE ISSUES..................................................................... 1

STATEMENT OF THE CASE....................................................................... 2

A. Course of Proceedings.......................................................................... 2

B. Statement of the Facts........................................................................... 5

C. Magistrate Judge’s Reports and Recommendations and District Court Decisions 24

1. July 28, 2014, Magistrate Judge’s Amended Report and Recommendation 24

2. September 8, 2014, District Court Decision on Award of Fees.. 28

3. March 24, 2015, Magistrate Judge’s Decision on Amount of Attorney’s Fees and Supplemental Fees................................................................................. 29

4. June 15, 2015, District Court Decision on Amount of Fees and Awarding Supplemental Fees................................................................................. 31

5. October 23, 2015, Magistrate Judge’s Report and Recommendation on Amount of Supplemental Fees............................................................................. 32

6. May 20, 2016, District Court Decision on Amount of Supplemental Fees 34

STANDARD OF REVIEW........................................................................... 35

SUMMARY OF ARGUMENT..................................................................... 35

ARGUMENT................................................................................................ 39

I. The district court abused its discretion in awarding fees because the Commission’s case, which was decided by a jury, was not frivolous, groundless, or without foundation..................................................................................................... 39

A. The Commission’s Case was Decided by a Jury.............................. 42

B. The Commission Established a Prima Facie Case........................... 48

C. West Made a Settlement Offer........................................................... 56

II. Even if West were entitled to attorney’s fees, the amounts granted by the district court were excessive..................................................................................... 61

A. The district court abused its discretion in failing to further reduce the number of hours claimed to represent West from the pretrial conference though the trial. 64

B. The court’s award of supplemental fees, which reimbursed West for nearly the same number of hours awarded to represent West at trial, was also too high. 69

CONCLUSION............................................................................................. 75

CERTIFICATE OF COMPLIANCE............................................................ 77

CERTIFICATE OF SERVICE....................................................................... 78

TABLE OF AUTHORITIES

Alvarez Perez v. Sanford-Orlando Kennel Club, No. 6:05-cv-269, 2007 WL 842771 (M.D. Fla. Mar. 20, 2007)............................................................................. 69

American Civil Liberties Union of Georgia v. Barnes, 168 F.3d 423 (11th Cir. 1999) 63

Bauer v. Midland Credit Mgmt., No.8:12-cv-614-T-23TGW, 2012 WL 6733649 (M.D. Fla. Dec. 4, 2012)........................................................................................... 73

Busby v. City of Orlando, 931 F.2d 764 (11th Cir. 1991)........................ 40, 56

Bonner v. Mobile Energy Servs. Co., 246 F.3d 1303 (11th Cir. 2001)..... 41, 42

Ceres Envtl. Servs. v. Colonel McCrary Trucking, LLC, 476 F. App’x 198 (11th Cir. 2012)............................................................................................................... 66

*Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978)....... 36, 40, 50, 56

*Cordoba v. Dillard’s, 419 F.3d 1169 (11th Cir. 2005)................ 40, 41, 50, 59

Cullens v. Georgia Dep’t of Transp., 29 F.3d 1489 (11th Cir. 1994).............. 35

*EEOC v. Great Steaks, 667 F.3d 510 (2012)........................................... 44, 48

EEOC v. Pet Inc., 719 F.2d 383 (11th Cir. 1983)......................................... 50

Fragante v. City & Cty. of Honolulu, 888 F.2d 591 (9th Cir. 1989).............. 55

Glymph v. Spartanburg Gen. Hosp., 783 F.2d 476 (4th Cir. 1986).......... 43-44

Hensley v. Eckerhart, 461 U.S. 424 (1983)......................................... 64, 71, 72

Hill v. Metro. Atlanta Rapid Transit Auth., 841 F.2d 1533 (11th Cir. 1988) 51

Johnson v. Univ. Coll. of Univ. of Ala. Birmingham, 706 F.2d 1205 (11th Cir.1983) 73

Jones v. Texas Tech. Univ., 656 F.2d 1137 (11th Cir. 1981).......................... 56

Kearney v. Auto-Owners Ins. Co., 713 F. Supp. 2d 1369 (M.D. Fla. 2010).. 69

Koon v. United States, 518 U.S. 81 (1996)...................................................... 35

La. Power & Light Co. v. Kellstrom, 50 F.3d 319 (5th Cir. 1995).................. 62

Lane v. McKeithen, 423 F. App’x 903 (11th Cir. 2011)................................ 52

Lawver v. Hillcrest Hospice, 300 F. App’x 768 (11th Cir. 2008)................... 41

Lil’ Joe Wein Music v. Jackson, No. 06-20079, 2008 WL 2688117 (S.D. Fla. Jul. 1, 2008)............................................................................................................... 66

Loranger v. Stierheim, 10 F.3d 776 (11th Cir. 1994)............................... 35, 71

Maner v. Linkan LLC, 602 F. App’x 489 (11th Cir. 2015)............................ 64

Martin v. Univ. of South Ala., 911 F.2d 604 (11th Cir. 1990)...................... 70

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).............................. 51

Minshall v. McGraw Hill Broad. Co., 323 F.3d 1273 (10th Cir.2003)........... 45

Norman v. Hous. Auth. of the City of Montgomery, 836 F.2d 1292 (11th Cir. 1998) 73

O’Boyle v. Thrasher, No. 15-13698, 2016 WL 1426013 (11th Cir. Apr. 12, 2016) 35

Ocheltree v. Scollon Prods., 335 F.3d 325 (4th Cir. 2003)............................. 43

O'Neal v. DeKalb Cty., Ga., 850 F.2d 653 (11th Cir. 1988).......................... 40

*Quintana v. Jenne, 414 F.3d 1306 (11th Cir. 2005)............. 35, 40, 42, 48, 58

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993)..................................... 49

Schoenfeld v. Babbitt, 168 F.3d 1257 (11th Cir. 1999)............................ 49, 51

Spegon v. Catholic Bishop of Chicago, 175 F.3d 544 (7th Cir. 1999)............. 71

Sullivan v. Sch. Bd. of Pinellas Cty., 773 F.2d 1182 (11th Cir. 1985) 41, 42, 44, 48, 56

Surti v. G.D. Searle & Co., 935 F. Supp. 980 (N.D. Ill. 1996)....................... 46

Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981).......................... 49

Thompson v. Pharmacy Corp. of Am., 334 F.3d 1242 (11th Cir. 2003)......... 70

U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711 (1983)................. 49

*Walker v. Nationsbank of Fla. N.A., 53 F.3d 1548 (11th Cir. 1995)....... 40, 41

Statutes and Rules

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq............. 1

42 U.S.C. § 2000e-5(k)................................................................... 39-40

28 U.S.C. § 1291.............................................................................................. 1

28 U.S.C. § 1331.............................................................................................. 1

28 U.S.C. § 1343(a)(4)..................................................................................... 1

28 U.S.C. § 1345.............................................................................................. 1

Fed. R. App. P. 4(a)......................................................................................... 1

Fed. R. Civ. P. 50(a)...................................................................................... 43

Other Authority

Kinnard Mediation Center, Mediation in the Eleventh Circuit Court of Appeals, § 12, Confidentiality at 8, available at www.ca11.uscourts.gov/sites/default/files/courtdocs/mediation/KMCMediationProgram.pdf........................................................................................................................ 57

Mari J. Matsuda, Voices of America: Accent, Antidiscrimination Law, and a Jurisprudence for the Last Reconstruction, 100 Yale L.J. 1329 (1991)............. 46

Regional Attorney’s Manual, Settlement Standards and Procedures, available at www.eeoc.gov/eeoc/litigation/manual/3-4-a_settlement_standards.cfm#section2a........................................................................................................................ 59

STATEMENT OF JURISDICTION

The Equal Employment Opportunity Commission brought this action to enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The district court had jurisdiction under 28 U.S.C. § 1331 (federal question), § 1343(a)(4) (civil rights action), and § 1345 (federal agency as plaintiff). This court has appellate jurisdiction under 28 U.S.C. § 1291 because the decisions being appealed, R.362, resolve all claims as to all parties. The appeal is timely under Federal Rule of Appellate Procedure 4(a)(1)(B). On May 20, 2016, the district court awarded West $68,779.50 in supplemental attorney’s fees and $1,873.48 in nontaxable expenses. R.362. The Commission filed a timely notice of appeal on July 18, 2016. R.370.

STATEMENT OF THE ISSUES

1. Did the district court abuse its discretion in awarding attorney’s fees to West because the case was not frivolous, groundless, or without foundation where the court declined to rule on the company’s motions for a directed verdict, allowed the jury to decide the case, and expressed belief that the case had merit.

2. Assuming arguendo that the award of fees was proper, did the district court abuse its discretion when it failed to reduce the attorney’s fees awarded for duplicative work; for travel expenses for West’s out-of-state counsel; and for excessive hours for time to prepare and litigate its fee petition?

STATEMENT OF THE CASE

A. Course of Proceedings

This is an appeal from orders of the U.S. District Court for the Northern District of Florida awarding attorney’s fees and nontaxable expenses to West, R.316, setting the amount of attorney’s fees, R.337, and awarding supplemental fees for preparing and litigating the fee award, and setting the amount of the supplemental fee award. R.362. The EEOC’s complaint filed on September 30, 2010, and amended on October 25, 2010, alleges that West violated Title VII by failing to hire Derrick Roberts for one of its available customer service representative (“CSR”) positions because of his Jamaican accent and national origin. R.1; R.4. West filed a motion for summary judgment on September 26, 2011. R.110. The district court denied the motion on September 26, 2012, R.147, and scheduled the case for trial on March 12, 2013. R.166. The district court granted West’s motion in limine excluding most of the Commission’s proposed comparator evidence on January 21, 2014. R.257.

The trial began on January 27, 2014. R.262. On January 30, 2014, West moved for judgment as a matter of law under Rule 50 after the Commission rested its case. R.355-123. The district court took the motion under advisement. Id. After West put on one witness, it renewed its Rule 50 motion. R.355-146. The district court again took the motion under advisement and sent the case to the jury. R.356-3. The jury returned a verdict for West on January 31, 2014. R. 356-110. The district court denied West’s renewed Rule 50 motion as moot. R.356-114. The district court entered final judgment in favor of West on February 4, 2014. R.274.

West filed a motion for attorney’s fees and nontaxable expenses on February 18, 2014. R.278. The district court referred the case to Magistrate Judge Kahn. R.281. The magistrate judge held a hearing on West’s fee motion on June 4, 2014. R.298. On July 28, 2014, the magistrate judge issued an amended report and recommendation (“R&R”) recommending that West’s motion for attorney’s fees be granted and West be awarded fees and costs from the date it served its last responses to the EEOC’s discovery requests through the conclusion of trial and allowing the parties fourteen days to file objections. R.307.

On September 8, 2014, the district court adopted the magistrate judge’s R&R with modifications. R.316. The court granted West’s motion for attorney’s fees and expenses, but limited reimbursement from the date of the pretrial conference through the conclusion of trial. Id.

The magistrate judge issued an R&R recommending that West be awarded $90,541.50 in attorney’s fees and $7,319.67 in nontaxable expenses on March 24, 2015. R.331. The magistrate judge also recommended that West’s motion for a supplemental award of attorney’s fees and nontaxable expenses be granted. Id. On June 15, 2015, the district court overruled the EEOC’s objections and adopted the R&R. R.337.

On October 23, 2015, the magistrate judge issued an R&R that West be awarded an additional $70,673.50 in attorney’s fees and $1,873.48 in nontaxable expenses incurred litigating the fee issues. R.358. On May 20, 2016, the district court rejected in part the R&R, reducing the supplemental fees by $1,894, adopted the remainder of the R&R and awarded West $68,779.50 in supplemental attorney’s fees plus $1,873.48 in nontaxable expenses incurred litigating the fee issues. R.362.

B. Statement of the Facts

Charging party Derrick Roberts graduated from high school in his native country of Jamaica where English is the official language. R.353-65-66. English is the only language he speaks. R.353-66. Roberts first came to the United States in 1989 and became a U.S. citizen in 1999. R.353-70; R.72. He worked as a mechanic for a car dealership in Milton, Florida, for over a decade. R.353-73. He also worked as a mechanic, food cashier, and manager on a military base in Cuba; as an over-the-road truck driver; and as a laborer and mechanic for Escambia County Area Transit. R.353-67-70; R.353-73-75. An on-the-job back injury in 2006 ended his ability to work as a mechanic. R.353-76-77. At the time, he was 46 years old and had worked primarily as a mechanic for more than twenty years. R.353-78, R.353-113.

Roberts began an accounting operations program at George Stone Technical Center in 2008. R.353-77-78. He completed a class on information technology and learned to use Microsoft Word, Outlook, Excel, and PowerPoint. R.353-78-79, 81. Roberts testified that he had no difficulty communicating during class presentations and was not asked to repeat himself. R.353-83. He reported that he practiced interviewing for jobs and performed well in mock interviews. R.353-81-82. He also testified that no one where he applied for work gave him the impression that he was difficult to understand. R.353-83-84. Using a computer, Roberts earned a Florida Ready to Work certificate, a credentialing program that tests and scores skills and work habits. R.353-80-81. One of his areas of certification was customer service. R.353-81.

At trial, several witnesses testified that Roberts was easily understood despite his accent. John Jerralds, a placement coordinator at George Stone, testified that he and Roberts frequently discussed the job market and Roberts’s plans for gaining employment, and that Jerralds had no problem understanding Roberts. R.354-42-44. George Stone teacher Annie Gilmore testified that she interacted daily with Roberts during the school year and had no trouble understanding him, nor did the students in her class. R.355-79-80, 83. Gilmore opined that Roberts could have performed a job as a CSR over the phone based on her personal experience as a user of customer service hotlines. R.355-80-81. Classmate Lewis Brown testified that he and Roberts sat next to each other in class and spoke daily in person and also by telephone. R.355-88-89, 95-96. Brown reported that he had no trouble understanding Roberts, nor did he notice anyone else having trouble. R.355-88-89. According to Brown, Roberts’s ability to communicate is “no different than anyone else’s.” R.355-94.

Roberts testified that he learned of the CSR job openings with West’s Pensacola facility through George Stone and the newspaper. R.353-84. The ad for the CSR job mentioned “paid training classes.” R.353-101. Job duties included “providing incoming customer care” for a telecommunications and cable provider. R.353-85. West was ramping up the number of CSRs at the Pensacola facility at the time Roberts applied. R.355-129. Because of high turnover, West was consistently hiring for the CSR position. R.354-77, R.354-203-04. Roberts testified he had “quite a bit” of knowledge of a computer keyboard and mouse from messaging with Qualcomm, using diagnostic machines as a car mechanic, and from the George Stone course. R.353-86.

On November 18, 2008, Roberts completed the application for the West CSR position on-line, uploaded his resume and his Ready to Work certification, and completed a questionnaire detailing his sales and customer service experience. R.353-84; R.353-87-88. The same evening, Roberts took the company’s “knowledge, skills, and abilities” assessment, which focused on sales and customer service. R.353-87-88. He passed that test, submitted his application, and received an email inviting him to interview for the position. R.353-89.

Roberts interviewed with West the following day, on November 19, 2008. R.353-89; R.354-207. After passing a data entry test, he met with Employment Specialist Steven Henry. R.353-91. Roberts characterized the interview as unusual, as Henry “didn’t introduce himself to me, and he didn’t extend his arm to shake hands, he didn’t invite me to sit, which I thought was really odd.” R.353-92. Before the interview began, Henry asked a coworker to listen to the interview from her cubicle. R.354-92-93, 101. Henry testified that he did not mention this because he did not want to “influence” Roberts. R.354-103.

Henry knew Roberts was Jamaican because his application contained the name and location of his high school, and Henry testified that he reviews the application prior to the interview. R.353-93-94; R.354-78. Roberts testified that he asked Henry twice if there was training for the job, but Henry did not answer. R.353-100. Henry asked Roberts why he was interested in the CSR position and then read through a list of questions, such as whether Roberts had ever gone above and beyond for a customer; whether he had ever dealt with an irate customer, question 3B; and what he would do if his computer screen froze up. R.353-97-99; R.354-107-08. Henry recorded Roberts’s answers. R.354-110. Roberts’s answer to question 3B regarding how he handled an irate customer was to tell a customer, “let him fix it,” when the customer suggested that her father believed the problem with her car was something other than what Roberts had diagnosed. R.354-22-23. Roberts explained that he meant that if the customer’s “dad was very convinced that he could have it repaired at a lower price, then why wouldn’t she let him do the repair.” R.354-23. Roberts testified that he spoke to the customer in a “calm, polite voice” and that she approved the estimate and left satisfied. Id.

Roberts testified that he had no trouble communicating with Henry and Henry gave no indication that he could not understand Roberts. R.353-99-100. During the interview, Henry left without explanation. R.353-101. Adriana Fowler, Henry’s supervisor, asked Roberts several questions about his computer skills. Id.; R.355-40-45. Roberts testified that he did not repeat himself while talking with Fowler, nor did Fowler say anything to suggest that she was having trouble understanding him. R.353-101-02.

Henry testified that during the interview, he recognized that Roberts’s answer to question 3B—telling a customer “let him fix it”—was likely to disqualify him from the CSR position. R.354-122-24, 128, 130, 193, 195. Henry interpreted the answer as rude, and recalled, “I thought this was a good indication I may not be able to [hire Roberts].” R.354-126.

When Henry returned, he told Roberts that he lacked the computer skills needed for the job and that Roberts’s “thick accent would make matters worse for an angry customer.” R.353-102. Henry wrote “heavy accent” on his interview notes. EEOC Exh.13; R.354-187. Henry testified that he may have told Roberts that his accent was “heavy” or “strong” but would not have said it was “thick” because “‘thick’ sounds derogatory to me.” R.354-209. Henry could not say exactly what made Roberts hard to understand. R.354-104.

Henry did not tell Roberts that his answer to a question about a past customer service interaction was problematic, nor did he tell Roberts that he could reapply in six months despite his eligibility to do so and despite the fact that applicants are normally given such information. R.353-143; R.354-153-54, R.354-186-87. Roberts testified that he was “dumfounded,” “at a loss for words,” and left the interview feeling “overwhelmed,” “really lost,” “no good,” and as if he had been “sucker-punched in my gut.” R.353-102-04.

Fowler testified that computer familiarity was required for a CSR job, but acknowledged that West had hired an individual without computer experience or customer service experience. R.355-35-37. Fowler testified that Roberts’s short written answers about his computer skills were “lacking information,” and his spoken answers were not “coherent.” R.355-41-42. Nonetheless, she agreed that she understood the words he was speaking. R.355-41. When Fowler was asked about the notes taken during another applicant’s interview, which documented that the applicant gave short answers and was not familiar with the programs asked about, Fowler was unable to explain why Roberts was rejected and the other applicant received a job offer. R.355-36-37; R.355-42-43. Fowler agreed that the fact that she participated in Roberts’s interview to evaluate his ability to communicate was unusual. R.355-50. Fowler testified that an applicant’s ability to communicate is evaluated during the interview, interviewers are given no specific training on evaluating communication ability, and the assessment is based on the interviewer’s opinion. R.355-55. She testified that rejected applicants are told, “We have other applicants with skills and abilities that [more] closely meet our business needs.” R.355-49-50. Fowler stated that, “it wouldn’t be my suggestion” that an interviewer tell an applicant that his accent might upset already angry customer. R.355-69; see also R.355-70.

Roberts was self-employed in 2009 and 2010 selling water and air purifiers and performing roadside assistance. R.353-108-09. In 2011, Roberts was hired at Securitas Security, where he worked at the time of trial. R.353-65; R.354-109-10. The job entailed some customer service and daily communications with the public and Securitas clients. R.353-110. He testified he has had no problems communicating in the job and that he has received employee awards. R.353-110-11. Because his back injury ended his ability to work as a mechanic and the vocational program did not lead to gainful employment, Roberts applied for disability benefits from the Social Security Administration in 2010. R.353-111-13.

Roberts filed a charge of discrimination with the Commission on February 17, 2009, and the Commission sued West on September 30, 2010, alleging that West failed to hire Roberts because of his Jamaican accent and national origin in violation of Title VII. EEOC Exh.31; R.353-106; R.1-1; R.4. At the close of discovery, the parties participated in mediation on July 26, 2011. R.95. The parties did not reach an agreement. Id. On September 26, 2012, the district court denied West’s motion for summary judgment. R.147. The parties participated in a second mediation on December 7, 2012, which was again unsuccessful in resolving the case. R.161.

Prior to the trial, West filed a motion in limine seeking to exclude from trial “[a]ny evidence, statement, testimony or argument related to other applicants who applied for the CSR position at West and are not similarly situated, in all material respects, to Derrick Roberts.” R.226-2. West argued that the comparators the Commission identified whom West had hired were not similarly situated to Roberts under Eleventh Circuit precedent because they were not all interviewed by the same decisionmaker and/or because their applications did not contain deficiencies comparable to those of Roberts. Id. at 4-5. The Commission opposed West’s motion, and emphasized that its proposed comparators were hired despite deficiencies in computer skills or lack of customer service experience, both of which were asserted reasons for rejecting Roberts. R.249-3-4. Many of the comparators were interviewed by the same person who interviewed Roberts. Id. at 2.

The district court granted West’s motion in limine with respect to nearly all the comparators the EEOC identified because they “are not similarly situated because none of them had the same ‘trifecta’ of deficiencies that West’s interviewers noted in Roberts; that is, an inability to communicate clearly and also poor computer skills and poor customer services skills.” R.257-7. The court noted that “one possible comparator outside of Roberts’s class is noted as having difficulty communicating clearly,” and stated that this applicant “arguably was treated more favorably than Roberts in that West did not reject the applicant outright.” Id. The court concluded that “because the crux of this case is Roberts’ ability or inability to communicate clearly—which is the only deficit that is related to Roberts’ protected status and raises an inference of discriminatory intent—only the applicant with a noted deficiency in communication skills and who was not rejected outright will be considered sufficiently similar in relevant respects to be a comparator.” R.257-8.

At the pre-trial conference on January 17, 2014, the district court told the parties that Henry’s explanation that Roberts’s thick accent would make things worse for angry customers meant “the evidence is in a unique posture in this case” because “most often you don’t have that kind of evidence of a decision-making involving the protected characteristic of the individual.” R.352-45. “Here,” the court said, “they admit that they didn’t hire him because of his accent, which of course, relates to national origin.” Id.

In response to West’s argument that the EEOC’s plan to put on witnesses to testify that they could easily understand Roberts despite his accent was not probative evidence for a jury, the court responded, “How is it not? . . . . [I]n most cases we have an issue of pretext that involves a reason other than the one given. . . . [A]bsent putting on factual witnesses to testify about Mr. Roberts’s inability to communicate, how else are they to challenge that?” R.352-56. The court noted that an “interviewer could always just say I didn’t understand the person, and deep in the back of the recesses of their mind they’re thinking, I don’t want any Jamaicans, but you know, I didn’t understand the person. . . .I think there has to be some ability to challenge that factually. Otherwise, your examiner or interviewer could make that decision completely immune.” R.353-58. The district court reiterated this point during the trial. R.355-154-55 (“[L]et’s just say hypothetically Mr. Henry was an awful person and he didn’t like Jamaicans and he didn’t like the accent and he didn’t want a Jamaican working at West. If that was what was in his head and his heart when he interviewed this man but he was able to just conveniently say the ability to communicate is an essential part of this position . . . he’s immune from a challenge to that.”).

The Commission tried its case to a jury from January 27-31, 2014. R.262-R.270. The Commission offered Roberts’s testimony about his experiences and his interview with West, R.363-65-114; R.354-14-35, as well as evidence from three witnesses who testified that Roberts’s oral communication was understandable. R.353-R.354-38-51; R.355-74-100. The Commission questioned West’s decisionmakers about their decision to hire individuals with computer skills comparable to or weaker than Roberts’s, given that lack of computer skills was one of the reasons Henry gave Roberts when he asked why he had been rejected. R.354-180-84; R.355-42-43.

West put on one witness, R.355-124, then renewed its Rule 50 motion, again arguing the lack of comparator evidence required the court to grant its motion. R.355-146, 151-52, 155. The court responded that “there is case law that suggests where the circumstances in their totality suggest an inference of discrimination, then that can be enough without having a comparator.” R.355-153. The court added, “there’s a distinction in this case because the decision was based . . . in large part on Mr. Roberts’s accent and his inability to effectively and clearly communicate. I mean, heavy accent is on the disposition form. And so that is so directly or closely tied to the pretext analysis, I’m not sure I’m prepared to say that the jury could not draw an inference of discrimination from that.” R.355-153-54.

The Commission countered that there was sufficient evidence of pretext to reach the jury, including Henry’s comment about Roberts’s thick accent, the odd circumstances in the interview, West’s failure to inform Roberts he could reapply in six months, and the fact that West hired someone with no customer service experience and informed an applicant with a speech impediment that he could reapply. R.355-160-62.

The court stated that “for the posture we’re in here is really a posture of pretext . . . that’s where we are.” R.355-169. The district court again maintained, “comparator is one way and it’s a very common way to prove—or to draw an inference that there was pretext. But it isn’t the only way. And I don’t know of any case law that says it’s the only way, the employee can never show it another way.” R.355-170.

West argued that “this case is all about what was Steve Henry and Adreina Fowler thinking,” and if they “make a decision based on his accent, that’s not illegal.” R.355-171, 173. The district court asked, whether if Roberts had taken the witness stand speaking “perfect English . . . barely a hint of an accent,” “would that not be a jury question?” R.355-172. The court said that the Commission has “to be given an opportunity to challenge that assessment [that Roberts could not clearly communicate]” and queried again whether the subjective nature of evaluating communication gives “every evil HR specialist . . . immunity that really has an evil motive in his heart or head.” R.355-174. The court maintained that, “it’s the subjective assessment of the inability to communicate, right . . . that’s really what’s at issue here.” R.355-174. “[T]here’s no question it was related to heavy accent because that’s what’s on the form.” Id. The court declined to rule on West’s Rule 50 motion except by granting the motion on punitive damages, stating, “I’m going to send the case to the jury.” R.356-3.

In discussing jury instructions with the district court, West maintained that Roberts’s customer service answer to question 3B alone would disqualify him from the CSR job such that “if the jury believes that in isolation, it doesn’t necessarily even have to reach the communication issue.” R.356-10. West maintained that Roberts’s lack of computer skills were not “necessarily in and of itself disqualifying.” R.356-11. The court responded that “if the computer skills alone . . . or the poor customer service skills standing alone would have been enough [to reject Roberts for the CSR job] in this case, then I’m not sure I made the right decision on the comparator evidence.” Id. See also R.354-142-43 (expressing surprise that West’s articulated nondiscriminatory reasons included “other factors” beyond ability to communicate and stating, “I don’t want to revisit my motion in limine ruling right now, but I’m not sure [evidence of comparator with poor customer service answer is] completely irrelevant.”). The court recognized that the qualification prong of the prima facie case collapses into the pretext inquiry, noting that “they’re all tied into your decision and the basis that you’ve given for your decision, which is pretext . . . if the jury believes that or disbelieves that [he’s qualified], that’s what’s going to be shown on the pretext.” R.356-23. The district court stated, “[y]ou’ve given three reasons for why West didn’t hire Mr. Roberts. If the jury disbelieves those reasons, then they’re going to be essentially finding that he was qualified and you should have hired him. If they believe your reasons, then they’re going to be saying he wasn’t qualified.” R.356-27.

The court allowed the Commission to make an offer of proof on comparators who had similar or weaker answers to customer service question 3B that Henry testified disqualified Roberts, and comparators with no or minimal computer skills, another reason West gave for Roberts’s rejection. R.255-176-78. The Commission listed non-Jamaican applicants who were hired during the same time frame by the same people at West who gave poor answers to question 3B and/or had weak or nonexistent computer skills or gave the same answers as Roberts regarding computer experience. R.356-41-45. One proposed comparator, Applicant 8, was hired despite being fired from another call center for nonperformance and despite responding to 3B with: “most customers are irate.” R.356-44. The district court determined that none of the individuals proposed by the EEOC was adequately similarly situated because there was no evidence any failed to communicate in a clear and distinct voice, and the applicant with the speech impediment was not hired. R.356-46.

In the final jury instruction discussions, the court refused to submit a “prima facie prong” to the jury as West requested because “it would be confusing to the jury.” R.356-50. See also R.355-172 (“He got past those standards [requiring comparators]. We’re beyond those standards now.”).

The district court told the parties the following before the jury returned to announce its verdict:

I have no idea what the verdict is. We never do. . . .[W]e do know, however, that it’s not going to be a tie. We don’t have any ties in the jury’s verdict. So my point is, one side is going to prevail and one side is going to lose, and that’s the nature of our system when we get to this point. But I want Mr. Roberts and Ms. Hayes to know that you have both been well represented—or your corporation has been well represented, and Mr. Roberts, you have been well represented. The attorneys in this case, all of you did an excellent job. And regardless of the verdict, it was my pleasure to have you here. I appreciate the professionalism that you showed one another and also the professionalism that you showed the Court and the jury. And it would be my pleasure to have you back anytime.

R.356-108-09.

The jury returned a verdict in favor of West on January 31, 2014, finding that Roberts was not qualified for the CSR position. R.356-110. The court denied the Rule 50 motion as moot. R.356-114.

West filed a motion for attorney’s fees and nontaxable expenses on February 18, 2014. R.278. The district court referred the fees issue to the Magistrate Judge Kahn, who held a hearing on June 4, 2014. R.281; R.298. West filed a motion for supplemental fees for hours incurred preparing and litigating the fee petition on September 22, 2014. R.319.

C. Magistrate Judge’s Reports and Recommendations and District Court Decisions

1. July 28, 2014, Magistrate Judge’s Amended Report and Recommendation

The magistrate judge concluded that “a balancing of the factors weighs in favor of an award of costs to West.” R.307-4. The magistrate judge maintained that the Commission “never established a prima facie case of discrimination and continued to litigate the case long after it was—or at least should have been—apparent it would not be able to do so.” Id. The judge noted that the district court found that Steven Henry’s comment that Roberts’s “thick accent could upset an angry customer” was not direct evidence of discrimination. Id. at 4-5. The magistrate judge stated that, although the district court denied summary judgment and found the Commission had created a prima facie case of discrimination, it did so “based, at least in part, on a finding that the EEOC presented sufficient comparator evidence.” Id. at 5. The magistrate judge pointed out that the Commission was unable to produce a comparator “nearly identical to the plaintiff,” as required by the Eleventh Circuit. Id. at 6-7 & n.7.

The magistrate judge faulted the Commission for its failure to disclose to West or the district court at the summary judgment stage the EEOC Compliance Manual stating that “‘[a]n employment decision based on foreign accent does not violate Title VII if an individual’s accent materially interferes with the ability to perform job duties’” and stating that “‘customer service . . . and telemarketing’” are “positions for which effective oral communication in English may be required.’” Id. at 7. In the magistrate judge’s view, an example given in the Compliance Manual describing “a hotel concierge who assists guests with directions and travel arrangements but speaks with a heavy Ghanaian accent that has resulted in numerous guests complaints based on inability to understand him’” “applies squarely to the facts of this case.” Id. at 7-8. The magistrate judge stated that the “undisputed evidence shows that West made the decision not to hire Roberts based largely on Roberts’ ‘thick accent’ and concern that it would agitate angry customers.” Id. at 8. “That Roberts spoke with a heavy accent was confirmed by the EEOC’s representatives, who acknowledged that they had difficulty understanding him and had to ask him to repeat himself several times. It was also confirmed by a former West employee who testified at trial.” Id. In the magistrate judge’s view, the Commission “should have known that Henry’s comment about Roberts’ ‘thick accent’ was not a sufficient basis to sustain a Title VII claim before it filed this suit.” Id. The magistrate judge opined that had the district court known about the EEOC’s Compliance Manual and that the Commission did not have “proper comparator evidence” at the time it ruled on West’s summary judgment motion, that ruling “very likely would have been different.” Id. at 9. The magistrate judge ruled that the Commission “did not establish a prima facie case of discrimination and that it should have been apparent to the EEOC that it would not be able to do so by the end of discovery.” Id.

The magistrate judge also determined that “to the extent West’s offer to settle the case has any significance in the matter, it, too, weighs in West’s favor.” Id. at 9. The judge maintained that West’s “nominal” settlement offer that failed to address the non-monetary terms sought by the Commission “shows that West viewed the EEOC’s case as weak.” Id. The judge criticized the Commission for refusing to settle the case without a consent decree, characterizing the agency policy as “the EEOC’s need—and policy—to garner trophies.” Id. at 9-10 n.10.

The magistrate judge stated that even though the case proceeded to trial, “this factor is neutral because . . . the district court judge did not have all of the evidence, or an accurate account of the evidence, before her at the summary judgment stage.” Id. at 10. In addition, “considering the scant evidence of discrimination offered at trial, the fact that the district judge held West’s motion for directed verdict in abeyance is of little significance, as most experienced trial judges would do the same in order to avoid creating an issue for appeal.” Id. at 11.

The judge also pointed out that it was aware of the policy reasons for exercising caution when considering a fee award against a plaintiff or against the EEOC, but stated that it was also aware “of the impact baseless lawsuits have on employers and businesses, particularly when they are backed by the full force, and seemingly unlimited purse, of the government.” Id. “In this case, the EEOC could produce no evidence that West rejected Roberts based on his national origin . . . West rejected Roberts based on his accent, which was a legitimate non-discriminatory reason, as recognized in the EEOC manual.” Id. at 11-12. Because “the EEOC was not able to identify a single comparator . . . the EEOC’s entire case rested on West’s alleged shifting explanations for rejecting Roberts, which always included his accent and fell far short of establishing a prima facie case of discrimination.” Id. at 12. “No reasonable jury could have found the evidence in this case sufficient to sustain a Title VII claim, and the EEOC, which is charged with enforcing the nation’s employment laws, should have recognized that fact.” Id. In the magistrate judge’s view, “[d]isallowing attorneys’ fees and expenses under the circumstances of this case would constitute a manifest injustice.” Id.

2. September 8, 2014, District Court Decision on Award of Fees

The district court adopted and incorporated by reference the magistrate judge’s R&R with several exceptions. The court stated that it agreed with the magistrate judge that “the case presented at trial, which did not include a comparator or other circumstantial evidence giving rise to an inference of discrimination based on national origin, was not sufficient to make out a prima facie case and in fact at that point was plainly frivolous for the lack of evidence supporting the claim.” R.316-1. However, the court disagreed that the Commission’s case was “patently frivolous from the outset.” Id. The court noted that “the record at summary judgment suggested the existence of a Puerto Rican comparator, and there were disputed facts regarding the shifting reasons West gave for Roberts’ [rejection] in addition to testimony that Roberts’ accent did not make his speech difficult to understand, all of which the Court was required to construe in Roberts’ favor at that stage.” Id. at 1-2. The court determined that “recognizing that the EEOC prevailed at the summary judgment stage, the Court finds it is appropriate to award attorneys’ fees only from the date of the pretrial conference, by which time the EEOC clearly would have known what evidence it intended to present at trial.” Id. at 2.

3. March 24, 2015, Magistrate Judge’s Decision on Amount of Attorney’s Fees and Supplemental Fees

The magistrate judge recommended that the Commission pay $90,541.50 in attorney’s fees and $7,319.67 in expenses incurred by West from the date of the pretrial conference through the trial. R.331-7. The magistrate judge stated that “[b]ased on the undersigned’s knowledge and experience, having made and reviewed fee awards for twenty-four years, as well as [West’s expert’s] affidavit, the undersigned finds both the hours and rates requested by West to be reasonable.” Id. at 5. The court found the claimed costs to be reasonable as well. Id. The magistrate judge stated that in finding the claimed amounts to be reasonable, “the court notes the contentious nature of this litigation, instituted by the federal government with its unlimited resources in a seeming attempt to punish and make an example of West. The EEOC has conducted itself throughout these proceedings in an unusually aggressive, if not vexatious, manner.” Id. at 5-6. The judge stated that the EEOC’s opposition to West’s fee motion is “yet another example of these tactics.” Id. at 6. The judge noted that the Commission “criticized West for having more than one attorney at trial despite the fact that three attorneys and a paralegal attended the trial on the EEOC’s behalf,” and criticized the EEOC for its opposition to West’s request for travel time expended by its out of state counsel while “the EEOC used counsel from out of state.” Id. at 6.

The magistrate judge recommended that West’s supplemental motion for fees and nontaxable expenses be granted. Id. at 6. The judge rejected the Commission’s argument that West’s supplemental fee petition was untimely, pointing out that the company was not required to file it with the original petition for fees, only within fourteen days from the entry of the district court’s order adopting the R&R. Id. at 3.

4. June 15, 2015, District Court Decision on Amount of Fees and Awarding Supplemental Fees

The district court adopted the magistrate judge’s R&R. The court rejected the Commission’s objection that the number of hours billed was unreasonable and should be reduced by 141.4 hours. Id. at 1-2. The court found the hours claimed to be excessive were “appropriately categorized as trial preparation” and appropriate “in light of the contentious nature of this jury trial.” Id. at 3. The court also rejected the EEOC’s argument that 11.9 hours claimed were duplicative as “employing multiple lawyers in this type of case is not unusual or excessive.” Id. The court determined the paralegal hours to which the EEOC objected were spent performing background reports and exhibit preparation and were reasonable. Id. at 3-4. In rebuffing the EEOC’s objections to claimed travel time, the court noted that West had billed those hours at a reduced rate and “there are no grounds for finding West acted unreasonably in relying on two experienced out-of-state attorneys . . . .” Id. at 4. The court agreed with the magistrate judge that West’s costs and expenses were “reasonable and sufficiently itemized for purposes of determining nontaxable costs.” Id.

5. October 23, 2015, Magistrate Judge’s Report and Recommendation on Amount of Supplemental Fees

The magistrate judge recommended that West be awarded an additional $70,673.50 in attorney’s fees and $1,873.48 in nontaxable expenses incurred in litigating its fee petition. R.358-13. The judge rejected the Commission’s objection to the 205.20 hours West claimed for reimbursement, stating that it was “entirely reasonable that four attorneys—two partners and two associates—would work on the attorneys’ fees issue in this case, particularly given the amount at stake and the unusually contentious nature of the litigation” and reasonable for West “to err on the side of caution.” Id. at 6. Accordingly, the magistrate judge did not reduce the number of hours for those billed by non-lead attorneys Sara Janes and Nicole LeFave. The judge also declined to make any reduction for 3.7 hours spent researching the availability of attorney’s fees for litigating a fee petition, or “fees on fees.” Id. at 7. Nor was the judge willing to reduce the hours spent on clerical tasks because the court found they were “not strictly clerical in nature.” The magistrate judge disallowed 8.8 hours of paralegal time, or $1228.50 because those hours reflect work not traditionally performed by an attorney. Id. at 11. The magistrate judge declined to reduce the fees for travel time for non-local counsel, or for expenses incurred in attending the hearing on the motion for attorney’s fees, and pointed out that West charged half-rates for travel time and the hours were not unreasonable. Id. at 12. The judge found expedited delivery of deposition transcripts used in preparing the fee petition was not required so recommended West be reimbursed for the regular rate per page rather than the expedited rate claimed. Id. at 13.

6. May 20, 2016, District Court Decision on Amount of Supplemental Fees

The district court adopted in part the magistrate judge’s R&R of October 23, 2015, and awarded West $68,779 in supplemental attorney’s fees for 245.3 hours and $1,873.48 in nontaxable expenses incurred litigating the fees. R.362-6. The court rejected the Commission’s argument that many of the claimed hours devoted to litigating the fee issue were inappropriate because attorneys Janes and LeFave billed 110.10 hours for work duplicative of lead attorneys Julie Springer and Geoff Weisbart. Id. at 1-2. In the court’s view, “West carefully limited its billing to avoid duplication among the attorneys” and the additional attorneys “were not unreasonably doing the same work.” Id. at 2. The court reduced the award by $1,474 for time the attorneys spent “attending certain meetings together and reading emails to each other.” Id. at 3. The district court agreed with the magistrate judge’s determination that the hours of clerical work objected to by the Commission were “reasonable and necessary legal tasks.” Id. at 4. The court declined to reduce the number of paralegal hours beyond the 8.8 hour reduction by the magistrate judge. Id. The court agreed with the magistrate judge that West’s claim for travel time and costs incurred by out of state counsel was proper and again pointed out that West billed these expenses at a half rate. Id. at 5.

STANDARD OF REVIEW

A district court’s decision to award attorney’s fees to a prevailing defendant under Title VII is reviewed for abuse of discretion. O’Boyle v. Thrasher, No. 15-13698, 2016 WL 1426013, at *1 (11th Cir. Apr. 12, 2016) (citing Loranger v. Stierheim, 10 F.3d 776, 779 (11th Cir.1994)). “‘A district court by definition abuses its discretion when it makes an error of law.’” Quintana v. Jenne, 414 F.3d 1306, 1309 (11th Cir. 2005) (quoting Koon v. United States, 518 U.S. 81, 100 (1996)). The district court’s decisions on the amount of fees appropriately awarded are also reviewed for abuse of discretion. Cullens v. Georgia Dep’t of Transp., 29 F.3d 1489, 1491 (11th Cir. 1994).

SUMMARY OF ARGUMENT

The district court abused its discretion by awarding attorney’s fees to West because the EEOC’s case did not satisfy the Supreme Court’s and this Court’s rigorous standards for awarding fees to a prevailing defendant under Title VII. Although attorney’s fees are typically awarded to successful Title VII plaintiffs as a matter of course, prevailing defendants may receive attorney’s fees only when the plaintiff’s case is “frivolous, unreasonable, or without foundation.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978). This Court has limited the availability of fees for Title VII defendants to cases where the plaintiffs failed to introduce any evidence to support their claims; cases that were not just weak, but “patently devoid of merit.” This Court has articulated three factors to guide an assessment of whether a case is frivolous: (1) whether the plaintiff established a prima facie case, (2) whether the defendant offered to settle, and (3) whether the trial court dismissed the case before trial or held a trial on the merits.

Here, fees are manifestly inappropriate because the Commission’s case was tried to a jury in full. The Commission’s evidence was sufficient to withstand West’s motion for summary judgment and two Rule 50 motions. Where the jury could have gone either way, as the district court remarked to counsel, the case by definition cannot be frivolous and attorney’s fees must be disallowed.

It was undisputed that Henry rejected Roberts because of his Jamaican accent. Central to this case was the credibility of the witnesses, the inherently subjective nature of evaluating a person’s ability to communicate clearly, and whether Roberts’s accent materially affected his ability to perform the CSR job. The Commission offered evidence that Henry told Roberts he was rejected for the job because his “thick” accent might make it difficult for angry customers, suggesting animus—Henry did not tell Roberts he could not understand him. The Commission offered evidence that Roberts met the qualifications for the job and put on witnesses who testified that they had no trouble understanding Roberts despite his accent.

Additionally, the Commission established a prima facie case of discrimination, as the district court ruled when it denied summary judgment to West. The district court’s exclusion of the Commission’s comparator evidence did not change this. Not only is comparator evidence not required to establish a prima facie case or pretext, but the lack of comparator evidence does not support a fee award under Christiansburg where other evidence of discrimination exists. Finally, that West failed to offer a substantial amount to settle the case in no way supports the district court’s award of fees. There is little information in the record about the confidential mediations that occurred, and it is impossible to infer anything from the fact that settlement discussions were unsuccessful in resolving the case.

Instead of applying the Supreme Court’s and this Court’s well-established standards for awarding fees, the magistrate judge based his recommendation to award fees on factually inaccurate and improper considerations, including what it characterized as the “overly contentious” nature of the litigation and the EEOC’s policy of requiring settlement agreements to be in the form of consent decrees. Despite the district court’s multiple statements and rulings revealing the court’s belief that the evidence was not one-sided, the district court adopted the magistrate judge’s flawed rationale for concluding that fees were appropriate. This constituted an abuse of discretion.

The district court also abused its discretion by awarding fees that were excessive given that the trial was short and the issues litigated were straightforward. The district court improperly allowed fees for duplicative work, hours, and expenses for travel by West’s Texas-based counsel, and again to compensate West for the “contentious” nature of the litigation. The court also improperly awarded West supplemental fees for preparing and litigating the fee petition for nearly the same number of hours that defense counsel received for representing West at the trial. This rewarded West for turning its fee petition into a second full blown litigation and rendered the supplemental fee award patently unreasonable.

ARGUMENT

I. The district court abused its discretion in awarding fees because the Commission’s case, which was decided by a jury, was not frivolous, groundless, or without foundation.

Title VII provides that a district court “in its discretion, may allow the prevailing party, other than the Commission . . . , a reasonable attorney’s fee . . . as part of the costs.” 42 U.S.C. § 2000e-5(k). Prevailing defendants may receive attorney’s fees only if the plaintiff’s case is “frivolous, unreasonable, or without foundation” or the plaintiff continued to litigate after it clearly becomes so.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978); Quintana v. Jenne, 414 F.3d 1306, 1309 (11th Cir. 2005). The Christiansburg standard has been described by this Court as “stringent.” See Walker v. Nationsbank of Fla. N.A., 53 F.3d 1548, 1558 (11th Cir. 1995). This Court has instructed “that a plaintiff’s claim should not be considered groundless or without foundation for the purpose of awarding fees to a prevailing defendant when the claims are meritorious enough to receive careful attention and review.” Walker, 53 F.3d at 1559; see also Busby v. City of Orlando, 931 F.2d 764, 787 (11th Cir. 1991); O’Neal v. DeKalb Cty., Ga., 850 F.2d 653, 658 (11th Cir. 1988). In determining whether a case was frivolous, the court “views the evidence in the light most favorable to the non-prevailing plaintiff.” Cordoba v. Dillard’s, 419 F.3d 1169, 1179 (11th Cir. 2005).

This Court has limited fee awards to civil rights defendants to cases that are truly groundless. “In the cases in which we have sustained findings of frivolity, plaintiffs have typically failed to ‘introduce any evidence to support their claims.’” Cordoba, 419 F.3d at 1176 (quoting Sullivan v. Sch. Bd. of Pinellas Cty., 773 F.2d 1182, 1189 (11th Cir. 1985)); see also Lawver v. Hillcrest Hospice, 300 F. App’x 768, 774 (11th Cir. 2008) (holding that fees were inappropriate despite the plaintiff’s case being weak, and stating that “[a] plaintiff does not proceed frivolously when her case is based solely on speculation, as long as the speculation is reasonable”); Bonner v. Mobile Energy Servs. Co., 246 F.3d 1303, 1305 (11th Cir. 2001) (holding district court’s award of attorney’s fees was an abuse of discretion where plaintiffs’ evidence was “markedly weak” but not frivolous or unreasonable); Walker, 53 F.3d at 1559 (reversing fees for defendant after directed verdict to the defendant where suit was not so “‘patently devoid of merit’ as to support a finding that its continued prosecution was unreasonable”).

This Court has identified three “Sullivan” factors first articulated in Sullivan v. School Board of Pinellas County to help inform the determination of whether a case is frivolous: (1) whether the plaintiff established a prima facie case, (2) whether the defendant offered to settle, and (3) whether the trial court dismissed the case before trial or held a trial on the merits.[1] See Quintana, 414 F.3d at 1309; Sullivan, 773 F.2d at 1189. These factors “are general guidelines only, not hard and fast rules,” and whether a case meets the Christiansburg standard is determined on a case by case basis. Sullivan, 773 F.2d at 1189. “Sullivan does not create a bright line checklist nor does it permit of a mechanical application.” Bonner, 246 F.3d at 1304 n.9.

A. The Commission’s Case was Decided by a Jury.

Although the jury returned a verdict in favor of West, the Commission’s case was not frivolous, groundless, or without merit under Christiansburg or this Court’s precedent because this third Sullivan factor weighs overwhelmingly against an award of fees. The Commission’s evidence in this case was sufficient not only to survive West’s motion for summary judgment under Federal Rule of Civil Procedure 56, but also to survive both West’s Rule 50 motions for directed verdict at trial, raised at the close of the EEOC’s evidence and at the close of all the evidence. What is critical here is not just the procedural fact that the court sent the case to the jury, but what the court’s refusal to grant the motions represents: based on all of the evidence presented at trial, the district court found that “a reasonable jury would [] have a legally sufficient evidentiary basis to find for” the Commission. Fed. R. Civ. P. 50(a). “Judgment as a matter of law is proper only if there can be but one reasonable conclusion as to the verdict.” Ocheltree v. Scollon Prods., 335 F.3d 325, 331 (4th Cir. 2003).

The circumstances of this case are similar to those of Glymph v. Spartanburg General Hospital, in which the Fourth Circuit reversed the district court’s award of attorney’s fees to the defendant as an abuse of discretion where the court of appeals noted that the district court’s “handling of the case” in denying the defendant’s summary judgment and involuntary dismissal motions “undercut” the finding that the plaintiff’s claims were frivolous. See 783 F.2d 476, 479-80 (4th Cir. 1986); see also EEOC v. Great Steaks, 667 F.3d 510, 518 (2012) (“[T]he denial of a motion for judgment as a matter of law made at the close of all evidence is a particularly strong indicator that the plaintiff’s case is not frivolous, unreasonable, or groundless.”). In contrast to this case, “cases where findings of ‘frivolity’ have been sustained typically have been decided in the defendant’s favor on a motion for summary judgment or a Fed. R. Civ. P. 41(b) motion for involuntary dismissal” where “the plaintiffs did not introduce any evidence to support their claims.” Sullivan, 773 F.2d at 1189.

The case the Commission presented at trial did not result in a jury verdict in its favor, but it could have. Roberts testified that Henry expressly commented that Roberts’s “thick” accent would make things worse for angry customers. R.353-102. Henry wrote “heavy accent” on Roberts’s interview form before rejecting him for the job. R.354-187. According to Roberts, neither Henry nor Fowler gave any indication that he was difficult to understand. R.353-99-100; R.353-101-02. Instead, Henry told Roberts that his accent would be a problem for angry customers, from which a jury could infer animus toward Roberts’s accent. Additionally, Roberts testified that he was not invited to reapply at a later date despite his eligibility to do so. R.353-143.

Roberts detailed his education, work history, and skills, which met the basic qualifications for the CSR position. R.353-78-83. Roberts testified that he passed West’s application screening tests before his interview. R.353-87-88, 91. He testified that he had never been told in the past that he was difficult to understand. R.353-83-84. Roberts’s teachers and a fellow student from his vocational school testified that he was able to communicate clearly despite his Jamaican accent. R.354-42-44; R.355-79-80, 83; R.355-88-89. This constituted evidence that Roberts was qualified for the CSR job despite his accent. See Minshall v. McGraw Hill Broad. Co., 323 F.3d 1273, 1280 (10th Cir. 2003) (court does not “sit as a super-personnel department that second-guesses the [defendant’s] business decisions,” but “evidence indicating that an employer misjudged an employee’s performance . . . is, of course, relevant to the question of whether [the employer’s] stated reason [for its actions] is . . . masking prohibited discrimination.”).

As the district court pointed out, this case turned on Roberts’s and Henry’s credibility. See R.356-27 (“If the jury disbelieves those reasons [that West gave for rejecting Roberts], then they’re going to be essentially finding that he was qualified and you should have hired him.”).[2] The necessarily subjective assessment of Roberts’s ability to communicate despite his Jamaican accent was also a critical issue in the case, as the district court recognized. R.355-174 (“[I]t’s the subjective assessment of the inability to communicate . . . that’s really what’s at issue here.”). See also Surti v. G.D. Searle & Co., 935 F. Supp. 980, 986 (N.D. Ill. 1996) (evaluation of a person’s communication skills is an inherently subjective determination); Mari J. Matsuda, Voices of America: Accent, Antidiscrimination Law, and a Jurisprudence for the Last Reconstruction, 100 Yale L.J. 1329, 1352 (1991) (“A major complicating factor in applying Title VII to accent cases is the difficulty in sorting out accents that actually impede job performance from accents that are simply different from some preferred norm imposed, whether consciously or subconsciously, by the employer.”). Thus, that the outcome came down to a core question of credibility and subjective assessment of whether Roberts’s accent materially affected his ability to communicate clearly makes the court’s award of fees particularly inappropriate.

That the district court stated that it did not know how the jury would rule before the jury entered the courtroom with its verdict is further evidence that the EEOC’s case was not frivolous. The district court said, “I have no idea what the verdict is. We never do. . . . [W]e do know, however, that it’s not going to be a tie.” R.356-108.

Inexplicably, the magistrate judge determined that the fact that the Commission’s case was decided by a jury was actually “neutral because . . . the district judge did not have all of the evidence, or an accurate account of the evidence, before her at the summary judgment stage.” R.307-10. This is clearly wrong. The district court oversaw the trial, heard the testimony, and decided there was enough evidence to send to the jury. The court opined that it had “no idea” how the jury would decide just before the jury announced its verdict. In adopting the magistrate judge’s R&R, the court provided no explanation that could reconcile the decision to send the case to a jury with the decision that an award of attorney’s fees was justified in this case. “If the district court denies the [Rule 50] motion, it signals that a jury could reasonably find for the plaintiff. . . . We are hard-pressed to imagine circumstances where the district court could make this determination and nevertheless deem the plaintiff’s case frivolous, unreasonable, or groundless.” EEOC v. Great Steaks, 667 F.3d at 518.

B. The Commission Established a Prima Facie Case.

This Sullivan factor looks at whether the Commission established a prima facie case of discrimination. See Quintana, 414 F.3d at 1309; Sullivan, 773 F.2d at 1189. Its application in this case is at best unclear. Where a case has been tried to a jury, whether the plaintiff established a prima facie case is no longer relevant. While the prima facie case is important in determining whether summary judgment is warranted, once the defendant articulates a legitimate, nondiscriminatory reason for the adverse employment action challenged, “the shifted burden of production became irrelevant,” “’the presumption raised by the prima facie case is rebutted,’” and the plaintiff has “’the full and fair opportunity to demonstrate,’ through presentation of his own case and through cross-examination of the defendant’s witnesses, ‘that the proffered reason was not the true reason for the employment decision.’” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507-08 (1993) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 (1981)); see U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983) (“At this stage, the McDonnell-Burdine presumption ‘drops from the case.’”); Schoenfeld v. Babbitt, 168 F.3d 1257, 1269 (11th Cir. 1999) (“Once a defendant articulates a legitimate nondiscriminatory reasons for its action, the initial inference of discrimination ‘drops’ from the case.”). The district court recognized this when it acknowledged, “the posture we’re in here is really a posture of pretext.” R.355-169; see also R.355-153-54 (observing that the notation “heavy accent” on the disposition form “is so directly or closely tied to the pretext analysis, I’m not sure I’m prepared to say that the jury could not draw an inference of discrimination from that.”).

Furthermore, failure to establish a prima facie case does not lead ineluctably to the conclusion that a claim is groundless or without foundation. As the Christiansburg Court explained, “‘meritless’ is to be understood as meaning groundless or without foundation, rather than simply that the plaintiff has ultimately lost his case.” 434 U.S. at 421. Thus if a plaintiff loses a case because the prima facie case failed, that would not necessarily make the case frivolous under Christiansburg. Courts have precluded fees in cases even where the plaintiff failed to establish a prima facie case. See Cordoba, 419 F.3d at 1180-81 (district court abused its discretion in awarding fees where plaintiff fell “far short of establishing a prima facie case” but case was not so weak so as to make it frivolous); EEOC v. Pet Inc., 719 F.2d 383, 385 (11th Cir. 1983) (declining to award fees to the defendant because fact that the prima facie case was rejected does not mean the case was or became frivolous, unreasonable, or groundless).

In any case, the Commission established a prima facie case here, as the district court recognized when it denied West’s motion for summary judgment. See R.147-17-18. Roberts was objectively qualified given his educational background, success in passing West’s preliminary computer tests, and customer service experience in past jobs. That Roberts was invited to interview for the CSR position after passing an initial on-line screening test also suggests that he possessed the minimum qualifications. After Roberts was rejected for the CSR position, West, which was hiring for many CSR positions, continued to seek applicants. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Schoenfeld, 168 F.3d at 1267; Hill v. Metro. Atlanta Rapid Transit Auth., 841 F.2d 1533, 1540 (11th Cir. 1988).

The district court adopted the magistrate judge’s R&R, which stated erroneously that the EEOC “never established a prima facie case of discrimination and continued to litigate the case long after it was—or should have been—apparent it would not be able to do so.” R.307-4. The magistrate judge devoted most of its R&R to the lack of comparator evidence. See R.307-4-9. The magistrate judge inaccurately asserted that the Commission could not identify a single comparator and its “entire case rested on West’s alleged shifting explanations for rejecting Roberts, which always included his accent and fell far short of establishing a prima facie case of discrimination.” R.307-12.

The magistrate judge conflated the prima facie case showing with the pretext inquiry, where the credibility of West’s stated reasons for rejecting Roberts is evaluated and where the proffer of comparators is often used to show pretext. Therefore, the fact that the Commission’s comparator evidence ultimately was excluded under this Court’s standard for allowing comparator evidence did not prevent the EEOC from establishing a prima facie case. Lane v. McKeithen, 423 F. App’x 903, 906 (11th Cir. 2011) (plaintiff must show he and the comparator are similarly situated in all relevant respects). As the district court recognized in denying summary judgment, “Even if these other applicants are not considered sufficiently similarly situated in all relevant respects . . . the circumstantial evidence as a whole raises a reasonable inference of discriminatory intent in this case.” R.147-18 n.17.

In addition, the district court’s exclusion of the Commission’s proposed comparators when it granted West’s motion in limine did not cause the Commission’s case to be frivolous, groundless, or without merit. That the district court disagreed that the proposed applicants were proper comparators does not mean that the Commission’s assertion of them as comparators was frivolous or unfounded, particularly given the inconsistent evidence of what deficiencies disqualified Roberts from the CSR job, which caused the district court to question its ruling to disallow the EEOC’s comparators. R.356-11 (“[I]f the computer skills alone . . . or the poor customer service skills standing alone would have been enough [to reject Roberts for the CSR job] in this case, then I’m not sure I made the right decision on the comparator evidence.”); R.354-142-43 (“I don’t want to revisit my motion in limine ruling right now, but I’m not sure [evidence of comparator with poor customer service answer is] completely irrelevant.”).

Comparator evidence is not the only possible method of establishing pretext, as the district court recognized during the trial. The court stated, “[T]here’s a concession or an admission, and the record reflects it, that the decision was based in large part on Mr. Roberts’s accent and his inability to effectively and clearly communicate. I mean, heavy accent is on the disposition form. . . . I’m not sure I’m prepared to say that the jury could not draw an inference of discrimination from that.” R.355-153-54; see also R.355-153 (“[There is case law that suggests where the circumstances in their totality suggest an inference of discrimination, then that can be enough without . . . having a comparator.”). The court recognized that Henry’s admission that he rejected Roberts because of his accent and the witnesses who testified that Roberts could be understood without difficulty despite his accent could support a finding of discrimination, particularly given the difficulty of challenging a subjective assessment of a person’s communication ability. R.352-56. The court queried on multiple occasions whether a hiring decision by an evil HR specialist who did not like Jamaicans would be immune from challenge where he contended he could not understand the individual. R.352-58 (stating that an “interviewer could always just say I didn’t understand the person, and deep in the back of the recesses of their mind they’re thinking, I don’t want any Jamaicans”). See also R.355-155 (“[H]ow would someone in Mr. Roberts’s position ever be able to challenge the subjective assessment, which is what was testified here to on the stand by two different witnesses that it is purely subjective?”); R.355-174 (questioning whether the subjective assessment of communication ability gives every evil HR specialist immunity); Fragante v. City & Cty. of Honolulu, 888 F.2d 591, 596 (9th Cir. 1989) (because “[a]ccent and national origin are obviously inextricably intertwined in many cases [, i]t would therefore be an easy refuge in this context for an employer unlawfully discriminating against someone based on national origin to state falsely that it was not the person’s national origin that caused the employment or promotion problem, but the candidate’s inability to measure up to the communications skills demanded by the job.”).

The Commission offered evidence of discriminatory animus at trial, including Henry’s comment that Roberts’s “thick” accent would make things worse for angry customers, Roberts’s and other witnesses’ testimony that his accent did not prevent him from being understood, West’s inconsistency in its position on whether Roberts’s computer and customer service skills were disqualifying, and Roberts’s testimony that he was not invited to reapply at a later date when West typically offered this information. The jury could have found, based on this evidence, that Roberts was not selected because of his Jamaican accent and national origin. The fact that it did not reach this conclusion does not render the Commission’s claim frivolous.

The magistrate judge and district court’s focus on the prima facie case and lack of comparators while essentially ignoring that a jury decided the case suggests that both failed to conduct the proper inquiry required by Christiansburg. See Sullivan, 773 F.2d at 1189 (“’[A] district court must focus on the question whether the case is so lacking in arguable merit . . . .’”) (quoting Jones v. Texas Tech. Univ., 656 F.2d 1137, 1145 (11th Cir. 1981)); Busby, 931 F.2d at 787 (evidence is sufficient to overcome an award of fees if it is “meritorious enough to receive careful attention and review”).

C. West Made a Settlement Offer.

The magistrate judge concluded “to the extent West’s offer to settle the case has any significance in the matter, it, too, weighs in West’s favor.” R. 307-10. To the contrary, this second Sullivan factor—whether the defendant offered to settle—also weighs against an award of attorney’s fees to West, or at least is a neutral factor that does not outweigh the fact that a jury decided the case and the EEOC established a prima facie case early on.

West made a settlement offer during mediation in July 2011, supervised by the magistrate judge, but discussions ended because the Commission requires its settlement agreements to be in the form of a consent decree. R.307-10 n.10. There is virtually nothing in the record regarding settlement discussions because of confidentiality requirements. Cf. Kinnard Mediation Center, Mediation in the Eleventh Circuit Court of Appeals, § 12, Confidentiality at 8, available at www.ca11.uscourts.gov/sites/default/files/courtdocs/mediation/KMCMediationProgram.pdf (“To encourage efficient and frank settlement discussions, the court exercises great care to insure strict confidentiality in the mediation process.”). This factor is therefore of minimal use in determining the appropriateness of fees under Christiansburg and this Court’s progeny. See Quintana, 414 F.3d at 1310 (“In the absence of evidence of an offer of a substantial amount in settlement, this factor does not support either party.”).

The magistrate judge criticized the EEOC’s policy of requiring that any settlement agreement be in the form of a consent decree as a need to “garner trophies.” R.307-9-10 n.10. Because the Commission’s consent decree practice does not go to the Christiansburg factors, it is irrelevant to the question of whether fees were appropriate. The EEOC is a government agency subject to Congressional oversight. The Commission’s policy of requiring settlements to be written in the form of a public consent decree should not have been used against the agency in the fee award determination. Consent decrees are easier to enforce, and that they are made public promotes accountability and provides information about the Commission’s enforcement efforts. “To ensure effective enforcement of Commission resolutions, the agency’s practice is that settlements be in the form of a consent decree. . . . Because of the public policy implications of Commission resolutions, care in drafting is even more important than in most private agreements.” Regional Attorney’s Manual, Settlement Standards and Procedures, available at www.eeoc.gov/eeoc/litigation/manual/3-4-a_settlement_standards.cfm#section2a.

The magistrate judge maintained that West’s “nominal” settlement offer that failed to address the non-monetary terms sought by the Commission “shows that West viewed the EEOC’s case as weak.” R.307-10. This interpretation is not necessarily accurate, nor is it relevant under Christiansburg what West thought of the EEOC’s case. Multiple potential motivations inform the offer of a settlement and the amount and terms of the offer. Instead, Christiansburg, Sullivan, and more recent precedent interpreting these cases prescribe that fees should only be awarded where a case is “so lacking in arguable merit as to be groundless or without foundation rather than whether the claim was ultimately successful.” Cordoba, 419 F.3d at 1176.

Instead of applying the Sullivan factors fairly and objectively and heeding Christiansburg and this Court’s “stringent” standard for awarding fees to a prevailing defendant, the magistrate judge and the district court relied on irrelevant considerations and discounted the facts weighing against a fee award.

That the district court failed to properly analyze this case is apparent from the irreconcilable perspectives of the magistrate judge and the district court. In the magistrate judge’s view, the Commission’s failure to submit its publicly available Compliance Manual on National Origin Discrimination to the court, R.307-7-9; the use of the “seemingly unlimited purse” of the federal government to “punish” West with this enforcement action, R.307-11; R.331-6; the “contentious” and “unusually aggressive” nature of the litigation, R.331-5-6); and the Commission’s policy that settlement agreements be in the form of a consent decree justified an award of fees. R.307-9 n.10.

The district court’s commendation of both parties before the jury announced its verdict exhibits a totally different view. The court congratulated the attorneys on both sides for their “excellent” representation, and declared that “regardless of the verdict, it was my pleasure to have you here. I appreciate the professionalism that you showed one another and also the professionalism you showed the Court and the jury. You are welcome in my courtroom anytime.” R.356-108-09. Clearly, the magistrate judge and district court judge were at odds in their view of the case and how it was handled. But more importantly, neither Christiansburg nor any case authored by this Court has found that fees should be awarded to a prevailing defendant based on such considerations. The district court adopted the R&R with little discussion of the Sullivan factors or mention of Christiansburg. R.316. The decision to award fees was an abuse of discretion and should be reversed.

II. Even if West were entitled to attorney’s fees, the amounts granted by the district court were excessive.

The district court abused its discretion in permitting attorney’s fees for an excessive number of hours. The district court referred the determination of appropriate fee awards to the magistrate judge. R.281. In general, the magistrate judge failed to make a conscientious and detailed inquiry into the reasonableness of the number of hours and costs for which West sought reimbursement. Instead, the magistrate judge concluded that West’s requested rate, hours, and costs were reasonable based on his “knowledge and experience” and West’s expert affidavit. R.331-5. The magistrate judge failed to consider seriously the Commission’s objections or to undertake the required analysis, and instead simply awarded West the fees it sought, based on its extremely negative view of the merits of this case. Merely deferring to West did not meet the required “conscientious and detailed inquiry” required to sustain an award of fees. See, e.g., La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 325 (5th Cir. 1995) (district court’s failure to fully analyze items complained of fell short of the standard required to determine whether the total number of hours claimed was reasonable and whether particular claimed hours were reasonably expended).

Although the district court recited the standard for calculating hours, R.337-1, and conceded that the magistrate judge’s R&R did not address “line-by-line” the hours claimed and the Commission’s objections, the court concluded that it was “evident” that the magistrate judge “considered the evidence presented regarding attorney’s fees incurred, the hours billed, and the rates charged, as well as the expert affidavit, and applied the lodestar method to determine the award.” Id. at 2. In American Civil Liberties Union of Georgia v. Barnes, this Court clearly articulated the duty of a lower court to address the nonmovant’s objections and avoid conclusory statements like those made by the district court. “While the court may rely on affidavits and its own knowledge and expertise, where specific objections are made a court’s order should consist of more than conclusory statements. . . . A district court should be mindful of its obligation to produce an order on attorney’s fees that allows for ‘meaningful review’ by articulating the decisions made and supplying principled reasons for those decisions.” Barnes, 168 F.3d 423, 428 (11th Cir. 1999) (internal citation omitted). Similarly in this case, the magistrate judge and the district court gave only a cursory review of the Commission’s detailed objections.

A. The district court abused its discretion in failing to further reduce the number of hours claimed to represent West from the pretrial conference though the trial.

A reasonable attorney’s fee is “calculated using the ‘lodestar’ method, taking the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. Maner v. Linkan LLC, 602 F. App’x 489, 491 (11th Cir. 2015) (citing Hensley v. Eckerhart, 461 U.S. 424, 433-34 (1983)). In Hensley, the Supreme Court directed district courts to exclude from fee calculations all hours that are “not reasonably expended,” 461 U.S. at 434, and emphasized that “the fee applicant bears the burden of establishing entitlement to an award.” Id. at 437.

The district court’s award of $90,541.50 for 251.1 hours incurred from the date of the pretrial conference through the conclusion of trial, January 17, 2014, through January 31, 2014, included Julie Springer’s 108.1 hours billed at $350 per hour; Geoffrey Weisbart’s 111.1 hours billed at $350 per hour; Bane Phillippi’s 4.5 hours billed at $250 per hour; and Paralegal Salena Yzaguirre’s 35.4 hours billed at $135 per hour. R.337-2.

The district court abused its discretion by failing to reduce the fee award for duplicative and unnecessary hours that were not reasonably expended in this straightforward case involving one claimant and one Title VII claim in a trial where a total of seven witnesses testified. For example, the district court should have disallowed duplicative hours related to reviewing and preparing evidence related to Roberts’s cross-examination, medical history, Social Security Administration documents, and mental anguish claims. Weisbart, who conducted Roberts’s cross-examination, submitted multiple billing entries for this category of work. R.333-9 & n.9 (citing Weisbart billing entries for 1/19/14, 1/20/14, 1/21/14 and 1/24/14). Springer billed approximately 8.4 hours for similar tasks, including time spent reviewing these same records. R.333-9 & n.10 (citing Springer entries for 1/19/14, 1/21/14, 1/22/14, 1/23/14 and 1/25/14). And Springer billed 1.8 hours on 1/23/2014 to “prepare for trial by ensuring we have all necessary client documents, trial materials, exhibit notebooks, deposition transcripts, relevant documents, law files and other materials organized and read to submit to the court and for use at trial of case.” Id. at 9-10. Weisbart billed 3.2 hours on 1/24/2014 for “trial preparation, including working with staff and J. Springer to ensure we have all necessary documents for case.” Id.

Additionally, the district court should not have permitted West to recover fees for block billed hours, which make it difficult to assess whether duplicate hours are being claimed. R.337-3. “Block billing occurs when an attorney lists all the day’s tasks on a case in a single entry, without separately identifying the time spent on each task.” Ceres Envtl. Servs. v. Colonel McCrary Trucking, LLC, 476 F. App’x 198, 203 (11th Cir. 2012). Weisbart block billed 13 hours on January 26, 2014, for trial preparation, including work on Roberts’s cross examination, work on exhibits, review of the court’s evidence rulings, a call with Jerralds, a call with EEOC counsel regarding evidence agreements, and to meet with Henry regarding his testimony. R.333-16. Because “[i]t is impossible to ascertain from the block billing entries whether the amount of time spent on any separate task performed was reasonable,” Lil’ Joe Wein Music v. Jackson, No. 06-20079, 2008 WL 2688117, at *13 (S.D. Fla. Jul. 1, 2008), this amount should have been deducted from West’s fee award.

In response to the Commission’s objection that 28.6 hours billed were excessive, redundant, and/or unnecessary, the district court stated there was “no principled reason” to exclude these hours spent on trial preparation “in light of the contentious nature of this jury trial” and that “[h]ours reasonably attributable to the attorneys being adequately prepared for that trial will not be disallowed.” R.337-3. The district court and the magistrate judge justified the number of hours allowed based on what both characterized as the “unusually contentious” nature of this case. See, e.g., R.331-5-6; R.337-3; R.358-6. Not only was this case no more contentious than any legal dispute where the parties disagree about the basic issue being determined by the jury, the Commission is aware of no authority holding that “contentiousness” is an appropriate criteria for allowing fees that ordinarily would be disallowed. Further, the magistrate judge’s and district court’s characterization of the proceedings as “unusually” contentious and the Commission’s conduct as “overly aggressive” is difficult to square with the district court’s praise of the attorneys for their “professionalism.” R.355-108-09.

West was awarded fees and expenses related to the added expense of Texas-based attorneys Weisbart and Springer traveling to Pensacola, Florida, where the trial took place. This portion of the fee award covered 44.6 hours for travel time billed at $175 per hour totaling $7,805, and $5,976.44 in travel-related expenses including airfare ($1,644), lodging ($3058), and car rentals ($389.17). R.320-2-3; R.333-12. The district court acknowledged that this Court has held that excluding out-of-town counsel’s time is proper if it was unreasonable not to hire qualified local counsel, and recognized that “there were local attorneys qualified to handle this case.” R.337-4. Nonetheless, the court maintained that because West billed at half its normal rate for travel time and did not bill for the full amount related to commuting to Pensacola, “there are no grounds for finding West acted unreasonably in relying on two experienced out-of-state attorneys.” Id.

Local counsel was not only available, but Florida-based attorney Daniel Traver was retained by West for the trial. Moreover, “[a]lthough [West] can opt to hire an out-of-town lawyer, an opposing party should not be required to pay for this choice unless no local counsel can be found.” Kearney v. Auto-Owners Ins. Co., 713 F. Supp. 2d 1369, 1379 (M.D. Fla. 2010). The district court should also have disallowed reimbursement for travel costs. See Alvarez Perez v. Sanford-Orlando Kennel Club, No. 05-cv-269, 2007 WL 842771, at *10 (M.D. Fla. Mar. 20, 2007) (noting that costs incurred during trial, including hotel and travel, are not taxable under 28 U.S.C. § 1920).

The district court should have also reduced the hours reimbursed for clerical work billed at attorney or paralegal rates; disallowed costs incurred for the convenience of counsel as argued to the district court, such as those costs incurred for copying, binding, labeling, tabbing and using Federal Express; and disallowed the 7.5 hours Phillippi and Springer billed to research the EEOC’s investigation, an issue previously excluded by the district court. See R.333-4-5, 10-11, 13-14, 20-24 (citing billing entries).

B. The court’s award of supplemental fees, which reimbursed West for nearly the same number of hours awarded to represent West at trial, was also too high.

West was awarded $68,779.50 in supplemental fees for 245.30 hours spent “on post-trial issues.” R.362-6. West was compensated for 251.1 hours to represent West from the pretrial conference through trial and 245.30 hours to litigate its fee petition, nearly the same number of hours. The amount awarded for litigating the fees award was $21,762 less than the amount of fees awarded for litigating the case at trial. The supplemental award was comprised of Julie Springer’s 69.10 hours compensated at a rate of $350 per hour; Geoffrey Weisbart’s 26.10 at $350 per hour; Sara Janes’s 84.70 hours billed at $275; Nicole LeFave’s 25.40 hours compensated at $240 per hour; and 40.1 hours of paralegal time billed at $135 per hour. R.340-4.

Fees for preparing and litigating a fee petition are generally recoverable to the extent they are reasonable. See Martin v. Univ. of S. Ala., 911 F.2d 604, 610 (11th Cir. 1990). However, West’s compensation for nearly equal hours on the fees issue as was spent on the actual trial is patently unreasonable. “Lawyers should not be compensated for turning the litigation about attorneys’ fees into a ‘second major litigation.’” Thompson v. Pharmacy Corp. of Am., 334 F.3d 1242, 1245 (11th Cir. 2003) (quoting Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)). By requesting reimbursement for nearly the same amount of hours litigating fees as for litigating the merits of the case at trial, West effectively turned the fee issue into another major litigation, precisely what this Court has disallowed.

Courts have applied a test of reasonableness to requests for “fees on fees” based on the relationship between the hours spent on the merits and the hours spent litigating fees. This Court held in Loranger v. Stierheim that the plaintiffs’ 100 hours spent preparing a fee request were “patently excessive” given that trial on the merits only consumed 2 1/2 days. 10 F.3d 776, 782-83 (11th Cir. 1994). In Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 554 (7th Cir. 1999), the district court had reduced Spegon’s lawyer’s time in connection with the preparation of two attorney’s fee motions from 9 hours to 1.6 hours. The Seventh Circuit stated that the “relevant inquiry” is whether time spent on the fee request bears a rational relation to the time spent litigating the merits of the case. Id. The court of appeals compared the hours spent by Spegon’s lawyer on the merits and on the fee petitions and found that he “spent approximately the same number of hours preparing the fee petitions as he requested in pursuing the merits of the case.” Id. The court held that this was “patently unreasonable” and sufficient justification for the district court’s decision to reduce the time requested. Id.

The legal issues involved in this case were neither novel nor difficult, involving settled areas of Title VII law, and many of the hours included in West’s time records appear to be redundant and not reasonably expended. See Hensley, 461 U.S. at 434. The district court allowed reimbursement for four attorneys to prepare and litigate West’s fee petition that covered a pretrial conference and brief trial involving one charging party and one claim of discrimination.

The Commission urged the court to reduce the fee award by 110.10 hours billed by attorneys Janes and LeFave because they were unnecessary given the simplicity of the case. R.343-4-6; R.338. West’s billing entries indicate that Janes, LeFave, Weisbart, and Springer all engaged in similar research and writing tasks related to briefing the attorney’s fees issues. R.343-5. West failed to meet its burden of establishing “the distinct contribution of each lawyer to the case and the customary practice of multiple-lawyer litigation.” Johnson v. Univ. Coll. of Univ. of Ala. Birmingham, 706 F.2d 1205, 1208 (11th Cir.1983); see also Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1301 (11th Cir. 1988) (court is charged with deducting redundant hours where multiple attorneys are doing the same work and there is no distinct contribution from each lawyer). Because Springer and Weisbart were familiar with the case having tried it, and are experienced employment attorneys, there was no justification for using two additional attorneys to prepare a fee petition. See Bauer v. Midland Credit Mgmt., No.12-cv-614-T-23TGW, 2012 WL 6733649, at *4 (M.D. Fla. Dec. 4, 2012) (citing Norman, 836 F.2d at 1300-01) (68-plus hours for work done on a case that “did not involve complex or novel issues” seemed excessive). The Commission should not have to pay for this excess.

Once again, the magistrate judge considered reimbursement for four attorneys’ work on the fee petition justified “particularly given the amount at stake and the unusually contentious nature of the litigation.” R.358-6.[3] The magistrate judge maintained that it was “entirely reasonable for West to err on the side of caution” by using two additional attorneys to prepare a fee petition. Id.

The district court determined that West limited its billing to avoid duplication, characterized such work as collaboration, and determined it was appropriate that West billed research and writing tasks at a lower rate by using Janes and LeFave. R.362-2-3. But West failed to meet its burden of demonstrating that each lawyer made a distinct contribution among all the billable entries and that it is a customary practice to have four attorneys working on a discrete attorney’s fee issue. See Johnson, 706 F.2d at 1208. Wolff v. Royal American Management is illustrative of this point. There the district court stated that “an additional $13,622.50 for preparing the fee motions, representing nearly 60 hours of work, is excessive. Regardless of the number of hours claimed in a fee petition, the preparation of a fee petition may take a great deal of time but ought to be a reasonably straight-forward matter.” No.11-351, 2012 WL 5303665, at *8 (S.D. Ala. Oct. 25, 2012).

Finally, West was awarded 21.8 hours to travel to and from Pensacola for the hearing on fees before the magistrate judge, which was billed at $175 per hour and totaled $3,815. West claimed and was awarded $1,424 for airfare and lodging amounting to $2,745. R.340-4-5; R.362-4-5. For the same reasons stated above, the district court should have disallowed hours billed for travel and related costs because West made no showing that it could not retain local counsel.

CONCLUSION

For the foregoing reasons, the award of attorney’s fees to the defendant should be vacated.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

LORRAINE C. DAVIS

Assistant General Counsel

_____________________________

JULIE L. GANTZ

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4718

julie.gantz@eeoc.gov

CERTIFICATE OF COMPLIANCE

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___________________________

JULIE L. GANTZ

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4718

julie.gantz@eeoc.gov

Dated: September 19, 2016

[1] In Sullivan, the defendant did not move for summary judgment and the case was decided at a bench trial before the district court. See 773 F.2d at 1189.

[2] West argued to the jury in its opening statement, “[T]he evidence will boil down to the credibility of whom you believe.” R.353-51. West also stated, “[T]his case is all about what was Steve Henry and Adreina Fowler thinking.” R.355-171.

[3] The magistrate judge faults the Commission for questioning the number of attorneys for which West sought reimbursement, contending that the Commission had five attorneys assigned to the attorney’s fee issue. R.358-6 n.3. The docket sheet establishes that the Commission used at most two attorneys at any given time during the course of this litigation.