On July 21, 2014, NELA filed a motion for leave and submitted a proposed amicus curiae brief in Turner v. Inzer, Case No. 14-11357, pending in the U.S. Court of Appeals for the Eleventh Circuit. Defendant Inzer refused to consent to the filing of the amicus brief. The major issues on appeal are whether: (1) attorneys' fees were properly awarded to defendant under Christianburg Garment Co. v. EEOC and Sullivan v. Sch. Bd. Of Pinellas Cty.; and (2) attorneys' fees were calculated properly pursuant to Fox v. Vice. Counsel for plaintiff Turner is NELA member Lisa Lambert, Of Counsel, Law Office of Marie A. Mattox, P.A., Tallahassee, FL.
Plaintiff Cynthia Turner brought claims for wrongful termination and retaliation under state and federal whistleblower statutes and Title VII. Summary judgment was granted for defendant on all claims. The court held that plaintiff did not meet the first prong of the whistleblower retaliation claim and failed to make out a prima facie case under Title VII. Plaintiff appealed and the Eleventh Circuit affirmed per curiam. Thereafter, the district court granted defendant's request for attorneys’ fees on the Title VII race discrimination and retaliation claims, but denied the request as to the whistleblower retaliation claims. The Magistrate Judge then awarded fees totaling $29,934.50 to defendant, out of the $85,416.50 requested, which was affirmed by the district court. Defendant filed a notice of appeal regarding the amount of the award and plaintiff cross appealed.
NELA argued in its amicus brief that the district court erred in three important ways in granting defendant’s motion for attorneys’ fees. First, the court relied primarily on the factors in Sullivan v. School Board of Pinellas County, 773 F.2d 1182 (11th Cir. 1985), to the exclusion of the principles articulated by the Supreme Court in Christianburg Garment Co. v. EEOC, 434 U.S. 412 (1978), for evaluating defense attorneys’ fee claims in Civil Right Act cases. The district court incorrectly focused on the narrow Sullivan factors, which the Eleventh Circuit stated were additional points to consider, to decide plaintiff’s claim was frivolous: (1) whether the plaintiff established a prima facie case; (2) whether the defendant offered to settle; and (3) whether the case was dismissed prior to or after a full-blown trial on the merits. The court’s crabbed analysis under Sullivan also ignored binding precedent prohibiting engaging in “hindsight logic” and awarding defense fees where a plaintiff’s case does not entirely lack foundation, although based on speculation or otherwise weak. Second, in finding that the plaintiff’s prima facie case failed because she could not point to a “nearly identical” comparator, the district court ran afoul of Christiansburg’s admonition against engaging in “post hoc reasoning.” The court did just that by concluding after discovery and the submission of comparator evidence at summary judgment that the plaintiff’s claim was frivolous, because it decided that there was not sufficient evidence to support the case. Third, the district court erred by accepting defendant’s unsupported representations regarding a settlement offer, and refusing to allow the plaintiff submit specific information about the offer, which was made at confidential mediation.
NELA excellent amicus brief was drafted by NELA member Peter F. Helwig, Board Certified Labor & Employment Attorney, Harris & Helwig, P.A., Lakeland, FL, www.harrisandhelwig.com.