Category Archives: Civil RIghts

For years federal courts have wrestled with how to handle an award of attorneys’ fees when a party is only partially successful. For example, if you file an age discrimination claim under the ADEA and a sex discrimination claim under Title VII, how does the trial court award fees if you prevail on only one of the two claims? Some courts would award all of your attorneys’ fees without discounting for the fact that you did not prevail on a specific claim. Other courts would cut the attorneys’ fees in half because you only prevailed on half of the lawsuit. Still other courts would arbitrarily reduce the attorneys’ fees by an amount fair to the losing party by virtue of the fact that it may have prevailed on some of the claims. (This third approach is completely arbitrary and gives trial judges virtually unlimited discretion to award the amount of fees it deems reasonable. Thankfully, this approach to awarding fees was expressly rejected by the Supreme Court in 2009 in Purdue v. Kenny A).
This week the Supreme Court created a bright line rule that limited attorneys’ fees to fees incurred solely to defending a frivolous claim. In Fox v. Vice, a unanimous court held that a party who is awarded attorneys’ fees because part but not all of a lawsuit is deemed frivolous is entitled only to those fees incurred uniquely to the frivolous claims. For example, if a deposition was taken in support of both frivolous and non-frivolous claims, attorneys’ fees for the deposition cannot be awarded. Only attorneys’ fees uniquely attributable to defending against the frivolous claim are compensable.
This ruling is important for two reasons:
First – it significantly limits the amount of attorneys’ fees that can be awarded to a defendant who successfully files a motion for sanctions under Rule 11 or Section 1927. A large fee award to a defendant would only be justified if an entire lawsuit is deemed frivolous.
Second – it provides guidance, indirectly, to district judges who award prevailing plaintiffs’ their attorneys’ fees when their claims are only partially successful. In the context of a civil rights claim, a prisoner who files a section 1983 claim for excessive force and a section 1983 claim for an illegal search should be entitled to 100% of the lodestar even if he only wins on the excessive force claim. All of the depositions, discovery and motion practice would be identical and indivisible notwithstanding the two claims. This is critical because district court judges routinely order blanket deductions (15%, 50%, 75%) off the prevailing attorneys’ lodestar. As a result of giving district court judges so much discretion, competent plaintiffs’ attorneys are refusing to take meritorious claims out of fear (and it is fear) of not being properly compensated. Civil rights and constitutional claims are treated as private attorney general statutes, and accordingly, plaintiffs’ attorneys who take these extraordinarily difficult cases on a contingency basis should be fully compensated for their work.
The decision is here.

Sam’s Club, the wholesale chain store owned and operated by Walmart, will pay $440,000 and furnish other relief to settle a national origin harassment lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.
The EEOC contends that at least nine employees of Mexican descent at the Sam’s Club in Fresno, along with one who was married to a Mexican, endured ethnic slurs and derogatory remarks by a fellow co-worker who is Mexican-American. Since late 2005, the victims were barraged with near-daily insults about Mexicans such as “f—-n’ wetbacks,” and references to Mexicans only being good for cleaning the harasser’s home, according to the EEOC. The harasser even threatened to report three of the victims to immigration authorities despite their legal status. The victims and harasser – all female – worked in the demonstration department, serving food samples to customers.
The victims complained about the hostile work environment to management as early as April 2006 to no avail. Instead, the complaints only intensified the harassment and led to intimidation, said the EEOC. Another employee also began deriding a victim for her inability to speak English. It was not until after an official EEOC charge of discrimination was filed in October 2006 that Sam’s Club finally discharged the harasser in December 2006.
In May 2009, the EEOC filed its lawsuit in U.S. District Court, Eastern District of California (EEOC v. Walmart Stores, Inc. dba Sam’s Club, et al., Case No. 09-CV-00804), claiming that the harassment, and Walmart’s failure to appropriately address it, were in direct violation of Title VII of the Civil Rights Act of 1964. Aside from the monetary relief, the parties entered into a three-year consent decree which requires Walmart to comply with the following at its Sam’s Club locations in Fresno and/or Bakersfield, Calif.:
review and make available its policies against and complaint procedures for national origin discrimination, harassment and retaliation;
provide training to non-management employees in the Fresno location regarding anti-discrimination laws, including national origin discrimination and harassment;
provide separate training to management employees in the Fresno and Bakersfield locations which will including training on how to receive, investigate, or report to designated officials complaints of national origin discrimination, harassment and retaliation;
set up a record-keeping procedure for the Fresno location that provides for the centralized tracking system for such complaints;
report the handling of such complaints and compliance with the decree to the EEOC; and
provide neutral references for the victims upon inquiry.
“We commend Walmart for taking the issues of national origin harassment seriously and implementing preventative measures,” said Anna Y. Park, regional attorney for the EEOC’s Los Angeles District Office, which includes Fresno in its jurisdiction. “A work environment that is free of harassment ensures a more productive and vibrant workplace for all.”