UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 97-60196
Summary Calendar
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CORA JOHNSON,
Plaintiff - Appellant,
versus
SOUTH MISSISSIPPI HOME HEALTH,
Defendant - Appellee.
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No. 97-60650
Summary Calendar
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CORA JOHNSON,
Plaintiff - Appellant,
versus
SOUTH MISSISSIPPI HOME HEALTH CARE,
Defendant - Appellee.
Appeal from the United States District Court
for the Southern District of Mississippi
(2:92-CV-367-PG)
September 3, 1998
Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
In appeal No. 97-60196, Cora Johnson appeals the district
court’s grant of summary judgment in favor of defendant Southern
Mississippi Home Health Care (“SMHH”) on her claim brought
pursuant to 42 U.S.C. § 1981. In appeal No. 97-60650, Johnson
appeals the district court’s award of attorney’s fees in favor of
SMHH.
Turning first to appeal No. 97-60196, the district court
found that Johnson had failed to satisfy her burden of presenting
a prima facie case under the framework established by the Supreme
Court in McDonnell Douglas v. Green, 411 U.S. 792, 93 S. Ct. 1817,
36 L. Ed. 2d 668 (1973). A prima facie case, for purposes of
McDonnell Douglas, consists of a showing that the plaintiff (1)
is a member of a protected group; (2) was qualified and performed
her job sufficiently to meet her employer’s legitimate
expectations; (3) was discharged; and (4) was replaced by a non-
minority. Id. As the district court noted, Johnson clearly
satisfied the first and third elements))namely, she was African-
American and she was fired. However, the district court noted
that Johnson failed to provide any evidence that she was
performing her job satisfactorily. The district court also noted
that Johnson’s claim to have satisfied the fourth element was
questionable in light of the fact that SMHH had offered the job
to another black female who had accepted the offer on an interim
basis, although she ultimately chose not to take the job on a
permanent basis. On appeal, Johnson argues in conclusory fashion
that “she was discharged from a position for which she was
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qualified and replaced with a white employee.” However, Edwards
has never argued))either to the district court or to this
court))that she was performing her job sufficiently to meet SMHH’s
legitimate expectations. Indeed, as the district court cogently
explained, the evidence indicates precisely the opposite. While
Johnson may have been a fully qualified nurse, once she became
office manager, numerous problems ensued, including the
resignation of almost her entire staff as well as the development
of questions regarding her honesty and integrity. Thus, we affirm
the district court’s grant of summary judgment in favor of SMHH
in appeal No. 97-60196 because Johnson has failed to establish her
prima facie case.
In appeal No. 97-60650, Johnson appeals the district court’s
award of attorney’s fees in favor of SMHH. Although we review
awards of attorney’s fees only for abuse of discretion, see United
States v. Mississippi, 921 F.2d 604, 609 (5th Cir. 1991), an award
of attorney’s fees in favor of a prevailing defendant is
appropriate “only when a plaintiff’s underlying claim is
frivolous, unreasonable, or groundless.” Id (emphasis in
original). Frivolity is determined by looking to whether the
plaintiff’s case was so lacking in merit that the claim was
groundless, rather than the fact that it was unsuccessful. See
id. The factors used in determining frivolity are “(1) whether
plaintiff established a prima facie case, (2) whether the
defendant offered to settle, and (3) whether the district court
dismissed the case or held a full-blown trial.” Id.
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The district court noted several reasons for awarding
attorney’s fees in favor of SMHH. First, the district court noted
that in her original complaint, Johnson brought claims under both
Title VII, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981.
Johnson’s attorney-drafted complaint stated that “[p]laintiff
filed a timely charge of discrimination with the Equal Employment
Opportunity Commission and received Notice of his Right to Sue.”
This statement, however, was patently untrue because Johnson filed
her complaint just two days after her termination by SMHH and
never attempted to file any complaint with the Equal Employment
Opportunity Commission. The district court also noted that
Johnson failed to establish two elements (or half) of her prima
facie case and that SMHH had offered to settle the case.
Although, as the district court noted, it is a rare case in which
a prevailing defendant will be entitled to attorney’s fees, see
id., based on Johnson’s affirmative misrepresentations in her
attorney-drafted complaint and the numerous factual and legal
inadequacies in her claim, we cannot say that the district court
clearly erred in award attorney’s fees in favor of SMHH.
AFFIRMED.
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