Court reverses decision to assess
almost $200,000 in attorney's fees against plaintiff's attorney.
Cordoba v. Dillard's, Inc., 419 F.3d
1169
(11th Cir. August 4, 2005) - Lea Cordoba sued Dillard's under the ADA and
the Florida Civil Rights Act alleging that she was terminated because of a
disability. The district court granted summary judgment. This Court affirmed
in an earlier unpublished opinion. While the case was on appeal, the
district court assessed fees and expenses against Cordoba in the amounts of
$10,000 (fees) and $9,579.95 (costs). The district court also assessed fees
and expenses against Cordoba's attorney, Bernard Dempsey, in the amount of
$191,339.95. Cordoba and Dempsey now appeal those awards (with the exception
of the expenses assessed against Cordoba). The authority for these awards was
42 U.S.C. Section 12205, 28 U.S.C. Section 1927, and the court's inherent
power. In order to award fees against a plaintiff, a court has to find
that the claim was frivolous, unreasonable, or groundless or that the
plaintiff continued to litigate after it clearly became so. In order to
award fees against the plaintiff's attorney, the Eleventh Circuit notes that
the case law is unclear whether the attorney must act with subjective bad
faith or whether reckless conduct is tantamount to bad faith. The Court does
not decide which standard applies. The district court's decision to award
fees and expenses is reviewed for an abuse of discretion. This deferential
standard of review encompasses even the threshold determination that a
plaintiff's case was so frivolous, unreasonable, or groundless as to justify
an award of fees. However, when determining whether a claim was or became
frivolous, a court views the evidence in the light most favorable to the
non-prevailing plaintiff. Cordoba's theories of liability were that: (1) the
person who terminated her had actual knowledge of her disability; (2)
Cordoba's immediate supervisor had actual knowledge of her disability and
played a role in the termination decision; or (3) that the decisionmaker had
constructive knowledge. The Court reviews each of these theories and while
there is no question but that each of these claims properly failed to
survive summary judgment, the Court determines that the claims are not
frivolous. Therefore, the awards of fees and expenses are reversed. The
theory of "constructive knowledge" bears further discussion. The Court makes
it clear that a plaintiff cannot establish that he or she was subjected to
an adverse employment action "because of a disability" where the plaintiff can
only show constructive knowledge of the disability by the decisionmaker.
However, the reason that this claim is not frivolous for purposes of this
opinion is that the Court notes that it has issued three ADA decisions which
(in dicta) refer to actual or constructive knowledge of the disability.
