United States District Court, E.D. Louisiana
DENISE A. BADGEROW
REJ PROPERTIES, INC., ET AL.
ORDER AND REASONS
ZAINEY UNITED STATES DISTRICT JUDGE
following motion is before the Court: Motion to
Recover Attorney's Fees (Rec. Doc. 164) filed by
defendant REJ Properties, Inc. d/b/a Walters, Meyer,
Trosclair & Associates (“WMT” or
“Defendant”). Plaintiff, Denise A. Badgerow,
opposes the motion. The motion, noticed for submission on
July 10, 2019, is before the Court on the briefs without oral
3, 2019, the Court entered a final judgment dismissing
Badgerow's employment-related claims against WMT with
prejudice. (Rec. Doc. 160). The judgment was based on the
Court's determination that WMT's motion for summary
judgment should be granted as to all of Badgerow's claims
against WMT, her former employer. (Rec. Doc. 159). On July
24, 2019, the Court denied Badgerow's motion for
moves the Court for an attorney fee award of $132, 867.50
incurred in defending Badgerow's suit, an action that WMT
characterizes as frivolous.
district court may award attorney's fees to a prevailing
defendant in a Title VII employment discrimination case.
CRST Van Expedited, Inc. v. EEOC, 136 S.Ct. 1642,
1646 (2016) (citing 42 U.S.C. § 2000e-5(k)). When a
defendant is the prevailing party on a civil rights claim,
the district court may award attorney's fees if the
plaintiff's claim was “frivolous, unreasonable, or
groundless, ” or “if the plaintiff continued to
litigate after it clearly became so.” Id.
(quoting Christianburg Garment Co. v. EEOC, 434 U.S.
412, 422 (1978)). On the one hand, attorney's fees are
not to be awarded simply because the plaintiff lost her case.
See Christianburg, 434 U.S. at 421. But on the other
hand, proof of subjective bad faith on the part of the
plaintiff is not required. Id. When considering
whether a suit is frivolous a district court should look to
factors such as whether the plaintiff established a prima
facie case, whether the defendant offered to settle, and
whether the court held a full trial. Myers v. City of
West Monroe, 211 F.3d 289, 292 (5th Cir.
2000) (citing United States v. Mississippi, 921 F.2d
604, 609 (5th Cir. 1991)). Even if only a subset
of the claims was frivolous, the trial court has discretion
to award fees on that subset. Provensal v. Gaspard,
524 Fed.Appx. 974, 977 n.2 (5th Cir. 2013)
(unpublished) (citing Fox v. Vice, 563 U.S. 826
was the prevailing party in this case as to all claims.
Although all of Badgerow's discrimination claims lacked
merit and were ultimately dismissed on summary judgment, the
Court can only characterize a single aspect of the claims as
being frivolous and groundless (although Defendant has made
persuasive arguments as to why Badgerow knew from the start
that she could not prove that the hostility at the office was
gender related), that being the class allegations for Title
VII disparate treatment claim. As the Court explained in its
Order and Reasons, the class claims were grounded on
Badgerow's contention that female employees at WMT were
not given the opportunity to become
“client-facing” AFAs. (Rec. Doc. 159 at 4 n.5).
Discovery revealed that this contention was false because
other females were given the opportunity to become
client-facing AFAs but declined it. A claim is not frivolous
or groundless simply because decisive facts emerge during
discovery. See Christianburg, 434 U.S. at 422. But
Badgerow herself was never a member of the purported class
because she was a client-facing AFA. Even assuming
that Defendant could identify from its billing records how
much time was devoted solely to defending the class aspect of
the Title VII claim (as opposed to the hostile work
environment claim which was not alleged to be class-based),
the Court is not persuaded that an attorney fee award is
said, one factor in determining whether the defense should be
awarded attorney's fees is whether the plaintiff
continued to litigate after the claims clearly became
groundless. Defendant filed its motion for attorney's
fees shortly after Badgerow filed her motion for
reconsideration on the discrimination claims and before the
Court issued its reasons denying that motion. (Rec. Doc.
182). While the Court is not convinced that Badgerow's
Title VII discrimination claims were so frivolous and
groundless so as to support a fee award for Defendant, the
Court is less optimistic regarding the groundless positions
that Badgerow took in the motion for reconsideration,
including production of a grossly untimely expert report that
forced Defendant to incur additional expense in moving to
strike it. The Court notes that Defendant has now moved to
supplement its fee request in order to recover attorney's
fees in conjunction with Badgerow's motion to reconsider.
That motion will be submitted on September 4,
2019. (Rec. Doc. 186).
IS ORDERED that the Motion to Recover
Attorney's Fees (Rec. Doc. 164) filed by
defendant REJ Properties, Inc. d/b/a Walters, Meyer,
Trosclair & Associates is DENIED.
 Throughout this Order and Reasons the
Court will assume the reader's familiarity with the prior
opinions entered in both this case and in the related action,
 The Court finds the rates requested by
counsel to be reasonable ($300 per hour for each partner and
$190 per hour for the associate) but the Court will not