If you file a frivolous lawsuit, you might have to pay the other side’s fees.

Judith Basinger v. Hancock, Daniel, Johnson & Nagle, P.C. Civil Action No. 1:10cv666 (E.D. Va. Dec. 23, 2010). In this Memorandum Opinion the Court considered the defendant’s motion for award of attorney’s fees and costs, after it had already dismissed all of the Plaintiff’s claims on summary judgment. The award sought was substantial—$25,650.00 in fees and $2,586.84 in costs—and the court granted the defendant’s motion in full.

Basinger, the plaintiff in this case, was a 50-year-old woman who worked as a paralegal at the offices of HDJN, the defendant. One of the attorneys whom Basinger supported was Paul Walkinshaw, a 31-year-old associate. According to the defendant, Basinger began engaging in inappropriate behavior directed at Walkinshaw. Several times Basinger invited Walkinshaw to meet for drinks or other meetings after work, or asked to come into his office to get a hug. Walkinshaw was unreceptive to Basinger’s advances, and after Basinger called Walkinshaw at home on February 17, 2009, he emailed HDJN’s human resources director with his concerns.

The defendant investigated Walkinshaw’s complaint by interviewing both Walkinshaw and Basinger. Though Basinger claimed that the interest was mutual, she was unable to offer any support for that claim and she expressly stated that she did not want to allege that Walkinshaw sexually harassed her. Ultimately, when Basinger refused a transfer opportunity, HDJN terminated her employment.

On April 1, 2010, Basinger sued HDJN for retaliation under Title VII of the Civil Rights Act of 1964. Basinger claimed that HDJN terminated her employment because she made a complaint that Walkinshaw had harassed her.

HDJN filed a motion for summary judgment and won, showing that Basinger could not make out a prima facie case of retaliation. That would require that she show: (1) that she engaged in protected activity; (2) that the employer acted adversely against her; and (3) that the protected activity was causally connected to the adverse action.

The Court agreed with HDJN that Basinger simply did not engage in any protected activity by opposing unlawful conduct. It was Walkinshaw, rather than Basinger, who filed the complaint that sparked the harassment investigation. It seemed obvious to the court that it was Basinger, not Walkinshaw, who engaged in harassment. Additionally, Basinger could not show that HDJN acted adversely against Basinger. Though Basinger was ultimately terminated, she was first offered an opportunity to transfer to another office, which she refused.
Under the U.S. Supreme Court’s interpretation of Title VII § 706(k), when the prevailing party is a defendant, fees and costs may be awarded if the court finds that that plaintiff’s action was frivolous, unreasonable, or lacking any foundation. The Court decided that Basinger’s complaint had no evidentiary support and that her case was entirely frivolous. Once the court decided that the defendant would be awarded fees, it weighed several factors, including whether the attorney’s hourly rate and time expended was reasonable. After HDJN demonstrated that its attorney’s fees were reasonable, the Court required Basinger to pay them in full, along with HDJN’s costs, in the amount of $28,236.84.

What makes this case newsworthy is that Title VII plaintiffs are very rarely ordered to pay the Defendant’s attorney’s fees. The U.S. Supreme Court puts a substantial burden on defendants seeking attorney’s fees, so as to not discourage plaintiffs from bringing suit, and the award of attorney’s fees to a defendant is frequently referred to as a “conservative tool, to be used sparingly.” In some cases, such as those in which a plaintiff’s claims were time barred or had already been dismissed, a judge’s decision about frivolity seems simple. In cases such as this one, the judge exercises more discretion in determining frivolity. When a judge determines whether a suit is frivolous, he or she must not be tempted to focus on the case’s ultimate resolution: whether it was dismissed, withdrawn, or otherwise removed from the court. Rather, the judge must ask whether any reasonable jury could ever decide in the plaintiff’s favor. If not, then the suit was frivolous.

In Virginia, filing a frivolous lawsuit raises additional considerations. Generally, attorneys have an ethical obligation to not bring frivolous cases. In Virginia, Rule 3.1 of the Rules of Professional Conduct prohibits attorneys from filing frivolous lawsuits, and violating that rule may result in discipline by the Virginia State Bar. Additionally, Rule 11 of the Federal Rules of Civil Procedure allows a federal court to sanction an attorney who has filed a frivolous lawsuit. Thus, filing a frivolous lawsuit might be more than just expensive—it might be considered unethical.

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