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Tarbell v. Rocky's Ace Hardware

United States District Court, D. Massachusetts

May 7, 2018



          Judith Gail Dein United States Magistrate Judge


         The plaintiff, Stephen R. Tarbell, brought suit against his former employer, Rocky's Ace Hardware (“Rocky's”), alleging that Rocky's had discriminated against him due to his heart condition by taking various adverse job actions against him and, ultimately, terminating his employment with the company. Mr. Tarbell's suit against Rocky's survived a motion to dismiss. See Docket No. 17.[1] However, after discovery was complete, Rocky's moved for summary judgment and prevailed. Docket No. 77. The parties' dispute continues, however, and the matter is before the court on defendant's Motion for Taxation of Costs and Fees (Docket No. 79), pursuant to which Rocky's is seeking to recover attorney's fees in the amount $45, 252.00 and costs in the amount of $2, 859.24 for a total of $48, 111.24. Docket 80-7. For the reasons detailed herein, the Motion is DENIED. This case was not frivolous, and the case does not meet the criteria for awarding attorney's fees and costs. Moreover, this court declines to award the fees and costs as a matter of discretion.


         Plaintiff commenced this action alleging that Rocky's was liable for disability discrimination pursuant to the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (“ADA”) and its Massachusetts counterpart, Mass. Gen. Laws ch. 151B, § 4. The standard for awarding attorney's fees and costs to a prevailing defendant under the ADA is the same as awarding fees and costs to a prevailing defendant under other civil rights statutes, including 42 U.S.C. § 1988. Bercovitch v. Baldwin Sch., Inc., 191 F.3d 8, 10-11 (1st Cir. 1999). Thus, “attorney's fees may not be awarded to a prevailing defendant under the ADA unless the defendant establishes that the plaintiff's suit was totally unfounded, frivolous, or otherwise unreasonable or that the plaintiff continued the litigation after it clearly became so.” Id. at 11. As another judge of this court comprehensively explained the applicable standard:

“[S]ection 1988 grants courts the discretion to award a ‘reasonable attorney's fee' to the prevailing parties in suits under various civil rights statutes, including 42 U.S.C. § 1983.” Lamboy-Ortiz v. Ortiz-Vélez, 630 F.3d 228, 235 (1st Cir. 2010) (quoting 42 U.S.C. § 1988(b)). “[A]n award of fees in favor of a prevailing plaintiff in a civil rights suit is ‘the rule, whereas fee-shifting in favor of a prevailing defendant is the exception.'” Id. at 236 (quoting Casa Marie Hogar Geriatrico, Inc. v. Rivera-Santos, 38 F.3d 615, 618 (1st Cir. 1994)). Prevailing defendants “may be granted attorneys' fees only ‘upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.'” Rosselló-González v. Acevedo-Vilá, 483 F.3d 1, 6 (1st Cir. 2007) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978)). “In deter-mining whether this standard has been met, the court must assess the claim at the time the complaint was filed, and must avoid the post-hoc reasoning that, because the plaintiff did not ultimately prevail, the claim must have been frivolous, unreasonable or without foundation.” Tang v. State of R.I., Dep't of Elderly Affairs, 163 F.3d 7, 13 (1st Cir. 1998). Considering the case at the time it was filed is important to ensure that a fee award does not deter future plaintiffs from coming forward:
This kind of hindsight logic could discourage all but the most airtight claims, for seldom can a prospective plaintiff be sure of ultimate success. No matter how honest one's belief that he has been the victim of discrimination, no matter how meritorious one's claim may appear at the outset, the course of litigation is rarely predictable. Decisive facts may not emerge until discovery or trial. The law may change or clarify in the midst of litigation. Even when the law or the facts appear questionable or unfavorable at the outset, a party may have an entirely reasonable ground for bringing suit.
Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978). Fee awards to defendants are also permitted “on rare occasions where ‘the plaintiff continued to litigate after [the claims] clearly became [frivolous, unreasonable, or groundless].'” Lamboy-Ortiz, 630 F.3d at 241 (quoting Christiansburg, 434 U.S. at 422). In such a case, the court “must at a minimum find that, following the filing of the claim, circumstances changed to such an extent that a reasonable person could not help but conclude that the claim was no longer viable.” Lamboy-Ortiz, 630 F.3d at 241-42 (citing Christiansburg, 434 U.S. at 421). This type of shift could “include, for example, the receipt of evidence in the course of discovery establishing a complete defense, or a development in the controlling law that foreclosed the claim.” Id. at 422.
“[D]ecisions to grant defendants their fees are, and should be, rare....” Tang, 163 F.3d at 13. The “standard is, by design, a difficult one to meet.” Torres-Santiago v. Municipality of Adjuntas, 693 F.3d 230, 234 (1st Cir. 2012). “Congress granted parties the prospect of a reasonable attorney's fee under 42 U.S.C. § 1988 to encourage the prosecution of legitimate civil rights claims; to award fees to prevailing defendants when the history of a case does not justify it undercuts that goal and chills civil rights litigation.” Id. (quoting Lamboy-Ortiz, 630 F.3d at 236). Furthermore, the district court retains the discretion to deny a defendant's fee request even if it determines that the lawsuit was “groundless when brought or continued, ” Bercovitch v. Baldwin Sch., Inc., 191 F.3d 8, 12 (1st Cir. 1999), or if it concludes that the lawsuit was frivolous, as long as the court “consider[s] all the nuances” of the particular case. Tang, 163 F.3d at 15.

Mondol v. City of Somerville, No. 15-cv-13697-ADB, 2017 WL 6003050, at *1-2 (D. Mass. Dec. 4, 2017). Applying these principles to the instant case compels the conclusion that fees and costs are not appropriately awarded here.

         III. ANALYSIS

         The Merits of the Case

         The parties have always had diametrically opposed views of the events that transpired while Mr. Tarbell was employed by Rocky's - mostly due to the fact that each side attributes improper motives to the other. This court has already spent considerable time parsing through a very detailed record to rule on the motion for summary judgment, and declines any invitation to do so again. Suffice it to say, this court does not find that the complaint was frivolous when filed.

         Rocky's principle argument is that many of the claims asserted by Mr. Tarbell were time-barred. In particular, this court ruled that Mr. Tarbell's claims of discrimination stemming from his transfer from the Walpole store to the Randolph store in May 2012, from Rocky's failure to offer him a different job in May 2012, and relating to his being forced to take FMLA leave, were time-barred. However, this court ruled further that Mr. Tarbell's claims relating to Rocky's failure to hire him for the Assistant Manager position in Canton, Rocky's alleged failure to provide a post-FMLA leave accommodation to him in the form of reduced hours or a leave of absence, and Rocky's termination of Mr. Tarbell's employment, were all ...

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