concurring in part and dissenting in part.
I concur in the affirmance of the trial court’s judgment in favor of the defendantappellee in the case in chief. In concurring I note that the plaintiff’s case is not the strongest ever to come to my attention. On the other hand, it is not the weakest. One problem from which it suffers is that the basic set of facts constitutes a lot of ado about nothing.
It was basically of little moment. It is not designed to stir up the sympathy or compassion of any court. A little common sense on the part of the officer and on the part of the plaintiff could have solved it. Perhaps the factor which produced it was the apparent belief of the plaintiff that the officer and Harris, the operator of the Marina, were in cahoots. We will never know for sure whether this was the case but the evidence points in the direction of their not being in a conspiracy against the plaintiff. So it likely started on a misconception. Another problem was the filing by the officer of a second charge and doing so without checking out the registration. Even if this was a good faith mistake, it started the trouble.
The trial court found and determined that the defendant appellee was not entitled to an attorney’s fee; that the action of plaintiff was not frivolous, unreasonable, or without foundation. This is a matter which *855is properly for the trial court to determine. For this court to refind the facts and reverse on the ground that the cause was frivolous calls for the application of a plain error standard. This was not the condition. (With all respect to my brother:)
The law is not obscure. Christiansburg Garment Co. v. EEOC, 432 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648, together with Newman v. Piggie Park Enterprises, 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263, set down the governing law and demonstrated the vast difference between an award of fees to a plaintiff and an award to a defendant. If the majority were to follow the teachings of these cases we would be unanimous in our judgment. But, the majority opinion is even out of harmony with the decision of this court in E. E. O. C. v. Fruehauf Corporation, 10 Cir., 609 F.2d 434.1 It would also undermine this court’s decision in Morgan v. Brittany Apartments and Parceners, Ltd., No. 79-1230 (unpublished to date, but due to be published immediately).
There is reason to believe that the ease before us is a first in the matter of award of a fee to a defendant. Surely if there were even one authority favoring the stand taken, it would be cited. Judge Barrett would have discovered it. I am not one to object to pioneering. It is the particular effort that bothers me. If a case is to be considered frivolous based on the length of the chancellor’s foot, so to speak, the results are going to be unfortunate.
. In that Title VII case this court said: “There is nothing in the record * * * before us to support the trial court’s finding that the action was frivolous from its inception, or that in prosecuting the action EEOC was motivated by something other than good faith, presumably bad faith. Cottrell v. Newspaper Agency Corporation, 590 F.2d 836, 839 (10th Cir. 1979.)”