[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________
ELEVENTH CIRCUIT
August 4, 2005
No. 04-14744 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 01-01132-CV-ORL-19-KRS
LEA CORDOBA,
Plaintiff-Appellant,
BERNARD DEMPSEY,
Appellant,
versus
DILLARD’S, INC.,
a foreign corporation,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 4, 2005)
Before TJOFLAT and KRAVITCH, Circuit Judges, and MILLS*, District Judge.
TJOFLAT, Circuit Judge:
This case began when Lea Cordoba sued Dillard’s, Inc. in September 2001,
asserting claims under the Americans with Disabilities Act (ADA), 42 U.S.C. §
12101 et seq., and the Florida Civil Rights Act (FCRA), Fla. Stat. § 760.01 et seq.
In February 2003, the district court granted Dillard’s motion for summary
judgment on all claims, Cordba v. Dillard’s, Inc., 2003 WL 21295143 (M.D. Fla.
Feb. 24, 2003), and we affirmed in an unpublished opinion, 82 Fed. Appx. 219,
No. 03-11105 (11th Cir. Sept. 10, 2003). While Cordoba’s appeal from the order
granting summary judgment was still pending, Dillard’s filed a motion in the
district court seeking attorney’s fees and litigation expenses from Cordoba and her
attorneys under the ADA’s fee-shifting provision, 42 U.S.C. § 12205; 28 U.S.C. §
1927; and the court’s inherent power. The district court granted Dillard’s motion,
Cordoba v. Dillard’s, Inc., 2003 WL 21499011 (M.D. Fla. June 12, 2003), and
subsequently ordered Cordoba to pay $10,000 in attorney’s fees and litigation
expenses and $9,579.95 in costs1 and her attorney, Bernard H. Dempsey, Jr., to
*
Honorable Richard Mills, United States District Judge for the Central District of Illinois,
sitting by designation.
1
Costs were assessed separately and were not part of the award of attorney’s fees and
litigation expenses. Because Cordoba has not challenged this assessment on appeal, it is
unaffected by our decision.
2
pay $191,339.95 in attorney’s fees and litigation expenses. Cordoba and Dempsey
appealed, and we now reverse.
I.
A. Cordoba’s Termination
In October 1997, Dillard’s hired Cordoba as a sales associate in the lingerie
department of its store in the Seminole Towne Center shopping mall in Sanford,
Florida. The position required no special skills, and the parties agree that Cordoba
was a competent employee. Cordoba earned between $8 and $9.70 per hour while
at Dillard’s.
Cordoba was one of about 250 employees in the Sanford store. The store is
managed by a store manager, who is assisted by an operations manager. The
operations manager has the authority to discipline and terminate employees. Each
department within the store is managed by an area sales manager (ASM), who
reports directly to the store manager. At the time of Cordoba’s termination, her
immediate supervisor was Tambrina Stossel, the ASM in charge of the lingerie
department. The store’s operations manager was Kathy Groo.
On June 17, 2000, a customer approached Cordoba to return a nightgown.
Because Cordoba had some concerns as to whether the nightgown matched the
customer’s receipt or was even Dillard’s merchandise, she felt that she should
3
consult an ASM before accepting it for a refund. Stossel was not in the store, so
Cordoba called Edye Sebben, the ASM in charge of another department. Cordoba
claims that Sebben was rude to her and caused unnecessary delay in processing the
return. Sebben, however, says that she was completely professional and that
Cordoba inexplicably refused to give her necessary information about the
nightgown over the phone. In any event, Sebben eventually authorized a refund
and, sensing that Cordoba was unhappy, asked Cordoba whether she liked
working at Dillard’s. Cordoba, in essence, replied that she hated working at
Dillard’s and continued to do so only because she needed the insurance.
Cordoba insists that she gave a “sarcastic” response to what she perceived
to be Sebben’s unwarranted hostility. Sebben, in contrast, took Cordoba’s
declaration at face value and said that she was “shocked.” Sebben mentioned the
incident to Stossel when she saw her two days later. Stossel, in turn, insisted on
taking the matter to Groo. After Sebben and Stossel related the incident to Groo,
Groo asked Stossel to accompany Cordoba to Groo’s office to discuss the matter.
When Stossel and Cordoba arrived in Groo’s office, Groo asked Cordoba
about the incident with Sebben, and Cordoba admitted saying that she hated
working at Dillard’s. Groo says that she “was surprised that [Cordoba] had no
explanation . . . or apology” for her behavior. Cordoba, however, says that she
4
explained that Sebben had “verbally attacked” her and that her response was
merely sarcastic. In any event, Groo, Cordoba, and Stossel all agree as to what
transpired next: Groo told Cordoba that if she did not like her job, she could no
longer work at Dillard’s. Cordoba says that she then tried to persuade Groo to
reconsider, explaining that she worked very hard and would not have continued at
Dillard’s for three years if she did not like her job. According to Cordoba’s own
affidavit, her pleas were to no avail: “Ms. Groo did not want to hear my
explanation. She just kept interrupting me and telling me that if I did not like my
job I could not work at Dillard’s. While refusing to listen to me, Ms. Groo handed
me my termination papers.”
B. Cordoba’s Heart Condition
In January 2000 (while she was still working at Dillard’s), Cordoba was
diagnosed as suffering from supraventricular tachycardia (SVT), a congenital heart
disorder. During an SVT episode, Cordoba’s heart would palpitate rapidly,
sometimes at a rate of more than 200 beats per minute. During her employment at
Dillard’s, these episodes were sporadic, sometimes occurring only every few
months and sometimes occurring every few days. Sometimes the episodes lasted
only a few minutes, while others lasted an hour or more. Generally, Cordoba was
able to abate the episodes herself through breathing exercises and massage. After
5
an episode, she usually felt dizzy and fatigued. Cordoba claims to suffer from an
unusually severe form of SVT. Additionally, she claims that her medications have
caused various other problems, including hair loss, leg pains, and hot flashes.
Cordoba discussed her condition with several of her Dillard’s coworkers on a
number of occasions.
Cordoba first consulted a doctor about her condition in July 1998, but the
doctor was unable to determine its precise cause. In August 1998, the doctor had
Cordoba wear a heart monitor for twenty-four hours. Cordoba describes the
monitor as “plainly visible,” and at least one co-worker noticed it and recalled
discussing it with her. For several months, the doctor prescribed a variety of
medications for Cordoba, but these drugs had undesirable side effects and failed to
control her condition fully. In May 1999, for example, Cordoba had to leave work
and go to the hospital because of an episode. In January 2000, she again had to
leave work as the result of an episode. It was on this occasion that an emergency-
room doctor finally diagnosed her as having SVT. As a result, Cordoba’s doctor
prescribed a more potent combination of medications and referred her to a
cardiologist. In March 2000, the cardiologist recommended that she undergo a
surgical procedure called a catheter ablation, which would sever the defective
cardiac circuit responsible for her SVT episodes. Cordoba scheduled the surgery
6
for the summer of 2000.
Stossel was aware of Cordoba’s condition, as the two had discussed it on at
least a few occasions. Specifically, Cordoba says that she told Stossel that she had
been diagnosed with SVT, that she would be undergoing surgery to alleviate the
condition, and that she would need a couple of weeks off to recuperate. Cordoba
recalls Stossel being “curious” and wanting “to know exactly what would go on
during the procedure” because Stossel had a similar condition and took similar
medications. At least once, Stossel noticed Cordoba sitting down during work,
and Cordoba explained that she was resting because she was experiencing
palpitations. Also, because Stossel was her supervisor, Cordoba reported to
Stossel when she had to leave work because of an attack. Finally, Cordoba says
that Stossel was her supervisor in January 2000 when an episode forced her to
leave work and go to the emergency room. Stossel recalls discussing Cordoba’s
condition and upcoming procedure with her, but says that she was not Cordoba’s
supervisor at the time of her January 2000 trip to the emergency room.
In March or April 2000, Cordoba asked Stossel for a reduction in hours and
requested that she not have to work nights because her medication was causing her
to feel fatigued. Stossel told Cordoba that she could not fulfill these requests
immediately because doing so would require hiring a new employee. A month or
7
so later, Dillard’s honored Cordoba’s requests.
As operations manager, Groo had very little contact with Cordoba and
averred that she “had absolutely no inkling . . . Cordoba had any health problems.”
Cordoba produced no evidence that directly contradicted Groo’s testimony. In
October 1998, Groo met with Cordoba about some unexcused absences and
tardies. Cordoba recalls explaining to Groo that she “had been sick and . . . was
going to a lot of doctors’ appointments and getting a lot of testing done.” She told
Groo that the doctors were not sure what was wrong with her, as they had not yet
been able to diagnose her condition. At her deposition, Groo did not specifically
recall this meeting, but her records did indicate that it had taken place. Cordoba
does not claim to have discussed her condition with Groo on any other occasions.
Stossel and Groo both stated that they never discussed Cordoba’s condition, and
Groo was not aware that Cordoba had requested or received a reduction in hours.
Finally, nothing in Cordoba’s personnel file indicates that she been diagnosed with
SVT or even had a heart condition.
II.
A. Cordoba’s ADA/FCRA Claims
In September 2001, Cordoba filed suit against Dillard’s under the ADA and
the FCRA, alleging that she was discriminated against because of her heart
8
condition. In February 2003, the district court granted summary judgment in favor
of Dillard’s. For the purposes of its order, the court assumed that Cordoba’s heart
condition was a “disability” under the ADA, recognizing that the issue presented
“an exceedingly thorny question of fact for which the parties [had] compiled a
voluminous and conflicting record of expert medical testimony and related
documents.” Cordoba, 2003 WL 21295143, at *8. However, the court found that
Cordoba could not survive summary judgment because she had failed to create a
material issue of fact as to whether Groo was aware of her alleged disability. And
because Groo alone was responsible for Cordoba’s termination, Cordoba could not
establish that she had been fired “because of [her] disability.” 42 U.S.C. §
12112(a) (emphasis added); see also Fla. Stat. § 760.10(a) (“It is an unlawful
employment practice for an employer . . . [t]o discharge . . . any individual . . .
because of such individual’s . . . handicap . . . .” (emphasis added)); Wimberly v.
Sec. Tech. Group, Inc., 866 So. 2d 146, 147 (Fla. 4th DCA 2004) (“Because
Florida courts construe the FCRA in conformity with the ADA, a disability
discrimination cause of action is analyzed under the ADA.”). See generally
Cordoba, 2003 WL 21295143, at *8-12.
In the course of its opinion, the district court “note[d] with concern that,
quite apart from the question of what Defendant knew, there is serious reason to
9
doubt even that Plaintiff considered herself to be disabled at any time during her
tenure at Dillard’s.” Id. at *9. In fact, in her post-termination application for
unemployment benefits, Cordoba indicated that she was not disabled. The court
reasoned that it was “not reasonable to suppose that . . . Groo[] had concrete,
actual knowledge of Plaintiff’s disability when Plaintiff herself appeared ignorant
about such status and did not consider herself to be disabled.” Id.
The court also rejected Cordoba’s argument that Dillard’s could be held
liable on the theory that it had “constructive knowledge” of her disability, the
obvious flaw in this theory being that if Groo did not have actual knowledge of
Cordoba’s disability, she could not have fired her “because of” the disability. Id.
at *9-11. The district court cogently explained why, as a matter of logic,
Cordoba’s “constructive knowledge” theory made no sense:
Even if [Cordoba] could prove that [Dillard’s] had “constructive
knowledge” of her disability for some other purpose, it is logically
impossible for Ms. Groo to have fired [Cordoba] because of the
latter’s disability without actual knowledge of that disability. To put
it another way, [Cordoba’s] allegation that Ms. Groo fired [her]
pretextually implies as a matter of logic that Ms. Groo had to have
had actual knowledge of [Cordoba’s] disability. Otherwise, how can
there have been pretext?
Id. at *10.
On appeal, we affirmed. We agreed with the district court that “an employer
10
cannot be liable under the ADA for firing an employee when it indisputably had
no knowledge of the disability,” and that Cordoba had failed to show that Groo,
the relevant corporate decisionmaker, was aware of her alleged disability.
Cordoba, No. 03-11105, slip op. at 3 (quoting Morisky v. Broward Co., 80 F.3d
445, 448 (11th Cir. 1996)) (alteration omitted). We also rejected Cordoba’s
constructive knowledge theory because “discrimination cannot be based on the
constructive knowledge of the decisionmaker, or what the decisionmaker should
have known.” Id. at 6. Similarly, we rejected Cordoba’s related contention that
“Stossel’s explicit knowledge of her illness created institutional liability for
Dillard’s.” Id. at 6. We explained that, “[a]lthough Stossel was aware of
Cordoba’s disability, her knowledge cannot be imputed to Groo or Dillard’s.” Id.
Finally, we noted that Cordoba challenged—as a matter of fact and as a matter of
law—the district court’s apparent reliance on the fact that she did not consider
herself disabled. But because we concluded that the district court had reached the
correct judgment, it was unnecessary for us to address this issue. Id. at 7-8.
B. Dillard’s Motion for Attorney’s Fees, Expert Fees, and Other Expenses
While Cordoba’s appeal from the district court’s order granting summary
judgment was pending, Dillard’s filed a motion in the district court seeking to
recover attorney’s fees, expert fees, and other expenses pursuant to 42 U.S.C. §
11
12205,2 28 U.S.C. § 1927,3 and the court’s inherent power.4 In June 2003, before
this court had issued an opinion in the initial appeal in this case, the district court
granted Dillard’s motion on all three grounds and referred the matter to a
magistrate judge for further proceedings concerning the amount of fees and
expenses to which Dillard’s was entitled.
The district court’s order first addressed the ADA’s fee-shifting provision,
42 U.S.C. § 12205. The Supreme Court has held that in civil-rights cases the
“plaintiff should not be assessed his opponent’s attorney’s fees unless a court finds
that his claim was frivolous, unreasonable, or groundless, or that the plaintiff
2
Section 12205 provides that in ADA cases “the court . . . , in its discretion, may allow
the prevailing party . . . a reasonable attorney’s fee, including litigation expenses, and costs . . . .”
3
Section 1927 provides that “[a]ny attorney or other person admitted to conduct cases in
any court of the United States or any Territory thereof who so multiplies the proceedings in any
case unreasonably and vexatiously may be required by the court to satisfy personally the excess
costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.”
4
See generally Chambers v. NASCO, Inc., 501 U.S. 32, 111 S. Ct. 2123, 115 L. Ed. 2d
27 (1991) (holding that district courts retain the “inherent power” to impose sanctions, including
attorney’s fees, where a litigant has engaged in bad-faith conduct). In Byrne v. Nezhat, 261 F.3d
1075 (11th Cir. 2001), we stated that a court must be “cautious in exerting its inherent power”
and that, “[b]ecause the court’s inherent power is so potent, it should be exercised ‘with restraint
and discretion.’” Id. at 1106 (quoting Chambers, 501 U.S. at 50, 111 S. Ct. at 2132). In Byrne,
counsel “filed a frivolous lawsuit, in bad faith, for the purpose of extorting a settlement,” and,
moreover, “abused the judicial process” by becoming a “willing participant in [his co-counsel’s]
continuing vendetta against the [defendants].” 261 F.3d at 1117. As such, we had no difficulty
affirming sanctions against him as a valid exercise of the district court’s inherent power, id. at
1116, although we did reverse as to the sanctions entered against the plaintiff herself, id. at 1117-
27. The patently frivolous claims and extreme conduct involved in Byrne exemplify the sort of
claims and conduct that ordinarily warrant sanctions against counsel.
12
continued to litigate after it clearly became so.” Christiansburg Garment Co. v.
EEOC, 434 U.S. 412, 422, 98 S. Ct. 694, 701, 54 L. Ed. 2d 648 (1978) (addressing
Title VII’s fee-shifting provision); Bruce v. City of Gainesville, 177 F.3d 949,
951-52 (11th Cir. 1999) (holding that the Christiansburg standard applies under
the ADA’s fee-shifting provision). “[I]f a plaintiff is found to have brought or
continued such a claim in bad faith, there will be an even stronger basis for
charging him with the attorney’s fees incurred by the defense.” Christiansburg,
434 U.S. at 442, 98 S. Ct. at 701. In this context, the district court “must focus on
the question whether the case is so lacking in arguable merit as to be groundless or
without foundation rather than whether the claim was ultimately successful.”
Sullivan v. Sch. Bd. of Pinellas County, 773 F.2d 1182, 1189 (quoting Jones v.
Texas Tech Univ., 656 F.2d 1137, 1145 (5th Cir. Unit A Sept. 1981)5). In the
cases in which we have sustained findings of frivolity, plaintiffs have typically
failed to “introduce any evidence to support their claims.” Sullivan, 773 F.2d at
1189. Other factors that may be relevant to this inquiry include “(1) whether the
plaintiff established a prima facie case; (2) whether the defendant offered to settle;
and (3) whether the trial court dismissed the case prior to trial or held a full-blown
5
In Bonner v. Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc), we adopted as
binding precedent all decisions of the former Fifth Circuit rendered prior to October 1, 1981.
13
trial on the merits.” Id. The Sullivan factors, however, are “general guidelines
only, not hard and fast rules,” and “[d]eterminations regarding frivolity are to be
made on a case-by-case basis.” Id.
At the outset of its analysis, the district court explained that it was
unnecessary for it to determine whether Cordoba was disabled; in fact, the court
stated that it had “only cursorily reviewed the medical evidence” the parties had
submitted on that issue. Cordoba, 2003 WL 21499011, at *2 n.6. In the district
court’s view, the evidence that Groo had any knowledge of Cordoba’s disability
was so plainly insufficient as to make Cordoba’s claim frivolous even assuming
that she was disabled. On this point, as in its order granting summary judgment,
the court seized upon the fact that Cordoba herself—at least at the time she was
fired—did not appear to think of herself as “disabled”:
How could [Cordoba], knowing that she never thought of herself as
disabled, have claimed in good faith that Ms. Groo had actual
knowledge of any alleged disability? Where would Ms. Groo or any
other person at Dillard’s have learned of [Cordoba’s] disability except
from [Cordoba] herself? The fact that [Cordoba] did not consider
herself to be disabled, much less someone who met the statutory
definition of a person with a protected disability, forecloses the
possibility that anyone else at Dillard’s did, and therefore
correlatively forecloses the possibility that she was fired because of
her alleged disability. This is elementary logic, and how [Cordoba]
had the temerity to accuse Ms. Groo and [Dillard’s] of unlawful
discrimination is inexplicable.
14
Id. at *3 (first two emphases added). In other words, the district court suggested
that a plaintiff who does not consider herself disabled can never be discriminated
against “because of” her disability. In any event, the court went on to find that
Cordoba had produced no evidence that Groo was actually aware of her disability,
but had instead relied solely on “raw and unsubstantiated conjecture.” Id.
The district court then assessed Cordoba’s constructive knowledge theory
and concluded that this theory was more than just wrong; as the court put it,
Cordoba’s theory that Groo could have fired her “because of” a disability that
Groo knew nothing about was the equivalent of suggesting that “one can be a
bigot without being a bigot.” Id. at *5. The court went on to criticize this
argument as inconsistent with the “simplest principles of logic and commonsense,”
and even remarked that it was “baffled that [Cordoba] was willing to commit her
spurious theory to paper in light of [Silvera v. Orange County Sch. Bd., 244 F.3d
1253 (11th Cir. 2001)], which emphatically rejected such nonsense.” Cordoba,
2003 WL 21499011, at *5 & n.13.
Thus, it was clear to the district court that Cordoba had fallen far short of
establishing a prima facie case. Given that Cordoba was seeking $900,000, it was
also clear that Dillard’s settlement offer of $10,000 was nominal and “clearly an
effort . . . to save . . . the enormous legal expense of further litigation.” Id. at 6.
15
As such, the offer was not significant to the court’s frivolity determination; in fact,
in the district court’s view, “that [Cordoba] blindly pushed past a generous, though
still nominal, settlement offer strongly militate[d] in favor of attorney’s fees.” Id.
(emphasis added). The court therefore concluded that an award of attorney’s fees
under the ADA’s fee-shifting provision was appropriate.
The court also held that Dillard’s was entitled to attorney’s fees from
Cordoba’s counsel under both 28 U.S.C. § 1927 and the court’s inherent power.
On this point, the court began by stating that, under either § 1927 or its inherent
power,
[t]he proper standard in the Eleventh Circuit for an award of
attorney’s fees from opposing counsel is conduct tantamount to bad
faith. In other words, in contradistinction to several of its sister
circuits, the Eleventh Circuit does not require an express factual
finding by the Court that Plaintiff’s counsel acted in deliberate bad
faith, merely that counsel’s conduct sunk so far beneath a reasonable
standard of competence, much deeper than mere negligence, that it
became essentially indistinguishable from bad faith.
Id. at *7 (citations omitted). Dillard’s agrees that this is an accurate statement of
the law in this circuit, but Cordoba and her counsel argue that our precedent does,
in fact, require a specific finding of actual, subjective bad faith. Our cases are
perhaps somewhat unclear on this point: either they require subjective bad faith,
which may be inferred from reckless conduct, or they merely require reckless
16
conduct, which is considered “tantamount to bad faith.”6 Whether this distinction
is ever significant, it is unimportant in this case for reasons that we explain in part
III.B, infra.
The district court found that counsel had acted in “reckless disregard” of a
“serious defect[]” in Cordoba’s case: Groo’s lack of knowledge of her alleged
disability. Id. at *8. On this point, the court again noted that Cordoba did not
consider herself disabled, and that even Cordoba’s own deposition yielded no
suggestion that Groo was aware of her heart condition. The district court was
further frustrated by the fact that “[a]t some point . . . , counsel obviously grasped”
this defect and “[y]et instead of retreating from the brink, either through a quick
settlement or voluntary dismissal, counsel led [Cordoba] on a full charge over the
edge, arguing preposterously that actual knowledge did not matter, only
6
See, e.g., Schwartz v. Millon Air Inc., 341 F.3d 1220, 1225-26 (11th Cir. 2003) (§
1927); Thomas v. Tennoco Packaging Co., 293 F.3d 1306, 1320 (11th Cir. 2002) (inherent
power); Barnes v. Dalton, 158 F.3d 1212, 1214 (11th Cir. 1998) (inherent power); Avirgan v.
Hull, 932 F.2d 1572, 1582 (11th Cir. 1991) (§ 1927). The language in these cases suggest that
the § 1927 standard is essentially the same as the inherent-powers standard. In Roadway
Express, Inc. v. Piper, 447 U.S. 752, 767, 100 S. Ct. 2455, 2465, 65 L. Ed. 2d 488 (1980),
however, the Supreme Court upheld a ruling awarding costs under § 1927 even while stating that
“the trial court did not make a specific finding as to whether counsel’s conduct . . . constituted or
was tantamount to bad faith, a finding that would have to precede any sanction under the court’s
inherent powers.” Roadway Express thus implies that the two standards are at least slightly
different and that § 1927 does not require a specific finding that counsel acted in, or engaged in
conduct tantamount to, bad faith. After Roadway Express, Congress amended § 1927 to permit
courts to award attorney’s fees in addition to “costs,” but it did not otherwise alter the statute’s
substance. See Pub. L. No. 96-349, § 3, 94 Stat. 1154, 1156 (1980).
17
constructive knowledge.” Id. In sum, the court concluded that because one theory
of Cordoba’s case had no basis in fact (actual knowledge) and the other had no
basis in law (constructive knowledge), Cordoba’s attorneys had “engaged in
conduct tantamount to bad faith” in pursuing the case all the way to summary
judgment. As such, it held that an award of attorney’s fees and expenses was
appropriate under both § 1927 and the court’s inherent power. Id. at *9.
The district court held that Dillard’s was entitled to (1) “all reasonable
fees—legal, expert, paralegal, and otherwise—that [it] incurred during any
discovery related to the question of [Cordoba’s] alleged disability” and (2) “all
reasonable fees for its summary judgment motion, attorney’s fees motion, and any
other motion it had to address because of [Cordoba’s] decision not to concede
once it became, or should have become, apparent that Ms. Groo had no knowledge
of any alleged disability.” Id. at *10. The court then referred the matter to a
magistrate judge to determine the amount of Dillard’s award and what portion of
that award Cordoba herself should be required to pay (with Cordoba’s attorneys
being personally responsible for the balance).7
7
The district court instructed that the award against Cordoba herself should be an amount
sufficient to “(1) convey to [Cordoba] the Court’s dissatisfaction with the conduct of her counsel
and the merit of her claim; (2) place similarly situated plaintiffs on notice that they have an
affirmative duty to participate actively in their cases and exercise control over their lawyers; and
(3) create disincentives for the blind pursuit of claims that have been exposed through discovery
as frivolous.” Cordoba, 2003 WL 21499011, at *10
18
The magistrate judge found that Groo’s lack of knowledge of Cordoba’s
alleged disability should have been apparent to Cordoba and her counsel after
Groo’s deposition was completed on October 18, 2002. Based on this
determination, it recommended that the court award Dillard’s $201,339.95 in
attorney’s fees and expenses. It further recommended that $10,000 in attorney’s
fees be assessed against Cordoba, with the remainder ($191,339.95) to be assessed
against her attorney, Bernard Dempsey.8 The district court overruled all
objections to the magistrate’s report and adopted it in its entirety. This appeal
followed.
III.
A. Standard of Review
The district court’s decision to award fees and expenses under the ADA’s
fee-shifting provision is reviewed for abuse of discretion. E.g., Bonner v. Mobile
Energy Servs. Co., 246 F.3d 1303, 1304 (11th Cir. 2001) (Title VII case). This
deferential standard of review encompasses even the threshold determination that
a plaintiff’s case was so “frivolous, unreasonable, or groundless,” Christiansburg
8
The district court initially ordered that the portion of the award not assessed against
Cordoba should be apportioned equally between Dempsey and an associate in Dempsey’s firm.
Dempsey, however, acknowledged that his co-counsel had acted in accordance with his
instructions, and he did not contend that any portion of the award should be assessed against her.
Consistent with this representation, the magistrate judge recommended that the remainder of the
fee award be assessed entirely against Dempsey.
19
Garment Co., 434 U.S. at 422, 98 S. Ct. at 701, as to justify an award of attorney’s
fees under the ADA. Cf. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 399-
405, 110 S. Ct. 2447, 2457-61, 110 L. Ed. 2d 359 (1990) (holding that a district
court’s legal conclusion that counsel violated Rule 11 is reviewed for abuse of
discretion); Pierce v. Underwood, 487 U.S. 552, 557-63, 108 S. Ct. 2541, 2546-49,
101 L. Ed. 2d 490 (1988) (holding that a district court’s legal conclusion that the
Government’s position was not “substantially justified” under the Equal Access to
Justice Act, 28 U.S.C. § 2412(d)(1)(A), is reviewed for abuse of discretion).
However, “when determining whether a claim was or became frivolous, we view
the evidence in the light most favorable to the non-prevailing plaintiff.” Johnson
v. Florida, 348 F.3d 1334, 1354 (11th Cir. 2003) (citing EEOC v. Pet, Inc., 719
F.2d 383, 384 (11th Cir. 1983)). The abuse-of-discretion standard also applies to
the extent that the district court’s order relies on 28 U.S.C. § 1927 or the court’s
inherent power. E.g., Schwartz v. Millon Air, Inc., 341 F.3d 1220, 1225 (11th Cir.
2003) (§ 1927); Barnes v. Dalton, 158 F.3d 1212, 1214 (11th Cir. 1998) (inherent
power). “An abuse of discretion occurs if the judge fails to apply the proper legal
standard or to follow proper procedures in making the determination, or bases an
award upon findings of fact that are clearly erroneous.” In re Red Carpet Corp. of
Panama City Beach, 902 F.2d 883, 890 (11th Cir. 1990).
20
B. The ADA Fee-Shifting Provision
We first consider whether Cordoba’s claims were so objectively “frivolous,
unreasonable, or groundless” as to justify a fee award under the ADA’s fee-
shifting provision. Christiansburg Garment Co., 434 U.S. at 422, 98 S. Ct. at 701.
We address this question first because if the award cannot be upheld on this basis,
then it also cannot be upheld under § 1927 or as an exercise of the court’s inherent
power, which both require, in addition to objective frivolity, a finding that counsel
engaged in conduct that was at least “tantamount to bad faith,” see supra note 6
and accompanying text. As we read it, Cordoba’s memorandum of law in
opposition to summary judgment (summary-judgment memo) presented three
distinct theories as to why there were genuine issues of material fact regarding the
defendant’s knowledge of her disability. First, she argued that Groo had actual
knowledge. Second, she argued that Stossel had actual knowledge and was, to at
least some extent, involved in the termination decision. Third, she advanced a
constructive-knowledge theory. We address each theory in turn.
1. Groo’s Actual Knowledge
First, we agree with the district court that Cordoba fell far short of creating a
genuine issue as to whether Groo was aware of her disability. Citing only her own
affidavit and deposition, Cordoba’s summary-judgment memo argued that “before
21
Ms. Groo terminated her, [she] informed Ms. Groo that she was scheduled to have
heart surgery.” But even Cordoba’s affidavit (which was filed with her summary
judgment-memo) states that Groo told Cordoba that she “could not work at
Dillard’s” before Cordoba informed her that she “needed [her] job so that [she]
could have health insurance for [her] heart surgery.” Cordoba’s memo may have
meant only that she told Groo about the surgery before she was officially handed
her termination papers—which Dillard’s also disputes—but Groo had already
made the decision to fire Cordoba at that point, and that decision clearly was not
made “because of” Cordoba’s disability. Cordoba’s only other support for this
theory was her own recollection of a meeting with Groo that took place more than
a year before she was fired. At this meeting, Groo apparently inquired about some
unexcused absences and tardies, and Cordoba explained only that she had missed
some work because of doctors’ appointments, and that the doctors had been unable
to determine why she was not feeling well. Given that Cordoba herself told Groo
that her own doctors could not diagnose her condition, this meeting could not have
put Groo on notice that Cordoba was disabled.
Thus, as this court previously held, “[n]one of this evidence allows the
inference that Groo actually knew Cordoba was disabled before she decided to fire
her, much less that Groo fired Cordoba because of her disability.” Cordoba, No.
22
03-11105, slip op. at 4. The relevant question now, however, is whether that
evidence was so obviously deficient that Cordoba and her counsel should be
forced to pay Dillard’s attorney’s fees and expenses.
Although Cordoba’s case was exceedingly weak on this point, it was not so
weak as to make it frivolous for her to argue that Groo’s knowledge of her
disability presented a triable issue of fact. As the Seventh Circuit explained in this
context, “unsupported speculation . . . does not meet a party’s burden of producing
some defense to a summary judgment motion. Speculation does not create a
genuine issue of fact; instead, it creates a false issue, the demolition of which is a
primary goal of summary judgment.” Hedberg v. Ind. Bell Tel. Co., 47 F.3d 928,
931-32 (7th Cir. 1995). In Hedberg, the plaintiff had told his supervisor that he
had a “possible major health problem,” but, because he wanted it “kept private,”
he asked that the supervisor “not tell anybody else.” Id. at 930. About one month
later, the defendant decided to fire the plaintiff. Id. The plaintiff’s supervisor
“reported occasionally” to the relevant decision-maker about the plaintiff’s job
performance, but in his affidavit he stated that, as the plaintiff had requested, he
did not disclose the plaintiff’s “possible major health problem” until well after the
decision to fire the plaintiff had been made. Id. at 931-32. Given the plaintiff’s
“urgent” request that his supervisor not disclose his illness and the total lack of
23
evidence suggesting that the supervisor had done otherwise, the Seventh Circuit
concluded that the plaintiff’s argument that the supervisor was lying “was mere
conjecture, unsupported by any evidence or reasonable inference.” Id. at 932.
Thus, summary judgment was appropriate because there was no evidence that the
decision-maker was aware of the plaintiff’s disability when he made the decision
to fire him.
In this case, while we agree with the district court that Cordoba’s argument
was pure conjecture, the context of her dismissal at least makes her speculation
somewhat less unreasonable than was the case in Hedberg. First, Cordoba had
told Groo that she had been “going to the doctor a lot”—although this was more
than a year before she was fired, and she also stated that the doctors “weren’t sure
what was wrong”. Second, whereas in Hedberg the plaintiff’s supervisor became
aware of the plaintiff’s condition only a month before he was fired, Stossel had
been generally aware of Cordoba’s condition for quite some time. Third, several
other Dillard’s employees were generally aware of Cordoba’s condition as well.
Thus, whereas in Hedberg the plaintiff sought to keep his condition private,
Cordoba appears to have frequently discussed her condition with her coworkers.
Under these circumstances, although Cordoba could ultimately do no more
than speculate that Groo was aware of her condition, this speculation was not so
24
unreasonable that it can be termed frivolous. To be sure, Cordoba’s claims were
weak, and it is easy at this point to recognize that the court and all parties involved
would have been better off had they never been pursued. But in awarding
attorney’s fees against ADA plaintiffs, we must take care not to “undercut the
efforts of Congress to promote the vigorous enforcement” of the Act.
Christiansburg, 434 U.S. at 422, 98 S. Ct. at 701. To this end, it is important that
courts not
engage in post hoc reasoning by concluding that, because a plaintiff
did not ultimately prevail, his action must have been unreasonable or
without foundation. 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.
Id. at 421-22, 98 S. Ct. at 700-01. Because Cordoba’s claims, though weak, were
not entirely “without foundation,” id. at 422, 98 S. Ct. at 700, the district court’s
award of fees and expenses constituted an abuse of discretion.
2. Stossel’s Actual Knowledge
In our prior opinion affirming the district court’s order granting summary
judgment, we stated that “[a]lthough Stossel was aware of Cordoba’s disability,
25
her knowledge [could not] be imputed to Groo or Dillard’s.” Cordoba, No. 03-
11105, slip op. at 6. Because the district court expressly avoided—and we did not
decide—the question whether Cordoba was “disabled” under the ADA, it is clear
that we meant, at most, that Stossel was aware of the general nature of Cordoba’s
heart condition (i.e., her alleged disability).9 There was no evidence, however,
that Stossel was involved in the actual decision to fire Cordoba. Like her
allegation that Groo was aware of her heart condition, Cordoba’s belief that
Stossel was involved in this decision was speculation. As such, this theory of her
case created no genuine issue of material fact and was not an adequate ground for
opposing summary judgment.
But the question we address now is whether Cordoba’s theory can meet the
substantially lesser standard of “not frivolous.” Although Cordoba was never able
to come up with any evidence that Stossel was involved in the termination
9
Cordoba argues that our statement that “Stossel was aware of Cordoba’s disability”
establishes Stossel’s actual knowledge of her alleged disability—for whatever that may be
worth—as the law of the case. “Under the law of the case doctrine, both the district court and the
court of appeals generally are bound by findings of fact and conclusions of law made by the court
of appeals in a prior appeal of the same case.” United States v. Robinson, 690 F.2d 869, 872
(11th Cir. 1982). In our prior opinion, however, we went on to hold that Stossel’s knowledge
was essentially irrelevant because she was not involved in Groo’s decision to fire Cordoba.
Thus, the prior panel may have simply assumed Stossel’s awareness for the purpose of its
decision. The law-of-the-case doctrine does not apply to assumed positions. See 18B Charles
Alan Wright et al., Federal Practice and Procedure § 4478 (2d ed. 2002). In any event, we
conclude that Cordoba did create a genuine issue of fact as to whether Stossel was aware of her
alleged disability. This issue, however, was not a “material” one because Stossel did not
participate in the decision to fire Cordoba.
26
decision—and Dillard’s presented credible evidence to the contrary—we do not
think that it was entirely unreasonable for Cordoba to hope that the court would
permit her case to go to a jury on this theory. After all, only Stossel, Groo, and
Cordoba were present when Cordoba was fired. Moreover, given that Sebben did
not intend to report her confrontation with Cordoba to Groo, Stossel’s decision to
do so was actually something of a “but for” cause of Cordoba’s termination.
These circumstances at least make Cordoba’s theory less unreasonable than
the one the Seventh Circuit considered in Hedberg, supra. There, the plaintiff
conceded that his supervisor had completed his written evaluations of the plaintiff
before he became aware of the plaintiff’s illness, and there was no indication that
the supervisor was present either when the defendant’s department heads decided
to fire the plaintiff, or when the plaintiff was actually fired. See Hedberg, 47 F.3d
at 930-32. As such, Cordoba’s theory that Stossel was at least partly responsible
for her termination was not entirely frivolous—although, again, it was close.
3. Constructive Knowledge
Finally, Cordoba argued that Dillard’s had “constructive knowledge” of her
alleged disability because employees other than Groo (1) were aware of her
condition and scheduled surgery, (2) had observed her experiencing heart
palpitations, (3) knew that she had left work and gone to the emergency room once
27
because of heart palpitations, and (4) had accommodated her request for a
reduction in hours. The district court rightly rejected this theory. The ADA
prohibits discrimination “against a qualified individual with a disability because of
the disability of such individual.” 42 U.S.C. § 12112(a) (emphasis added). As a
matter of logic, Groo could not have fired Cordoba “because of” a disability that
she knew nothing about. This is why we have said that “[d]iscrimination is about
actual knowledge, and real intent, not constructive knowledge and assumed
intent.” Silvera v. Orange County Sch. Bd., 244 F.3d 1253, 1262 (11th Cir. 2001);
see also Brungart v. BellSouth Telecomm., Inc., 231 F.3d 791, 800 (11th Cir.
2000) (“The BellSouth corporation itself did not actually make the decision to take
the adverse employment action; Nelson made that decision, albeit on the
corporation’s behalf. Because Nelson did not know of the protected conduct, he
could not have taken that action on the corporation’s behalf because of the
protected conduct. This is another way of saying that the fact the employer is a
corporation does not relieve a plaintiff of the burden of showing a causal
connection between the protected conduct and the decision to take the adverse
employment action.”). Stated differently, even if we had gone along with
Cordoba’s theory and “imputed” these employees’ knowledge to Dillard’s the
corporate entity, Cordoba’s claim still would have failed because Dillard’s the
28
corporate entity did not make the decision to fire her. Rather, Groo fired Cordoba,
and since Groo was unaware of Cordoba’s alleged disability, she obviously did not
fire her “because of” the alleged disability.
In support of her constructive knowledge theory, Cordoba’s summary
judgment memo cited two cases from this circuit, Breda v. Wolf Camera & Video,
222 F.3d 886 (11th Cir. 2000), and Hilburn v. Murata Elecs. of N. Am., Inc., 181
F.3d 1220 (11th Cir. 1999), and one Ninth Circuit decision, Kimbro v. Atlantic
Richfield Co., 889 F.2d 869 (9th Cir. 1989). The reason for Cordoba’s citation to
Breda eludes us. That case stands for the unexceptional proposition that when an
employer designates a specific person to receive complaints of sexual harassment,
the employer is deemed to have actual notice of such complaints when they are
made to the designated person. See Breda, 222 F.3d at 889-90. There is
absolutely nothing in Breda to suggest that constructive knowledge is a substitute
for actual knowledge in a discriminatory-discharge action under the ADA. At the
summary-judgment stage, Kimbro and Hilburn did not aid Cordoba’s constructive-
knowledge theory either, but they do require somewhat more discussion for the
purposes of the issue we now address.
In Kimbro, the plaintiff (Kimbro) sued his former employer (ARCO) under
the Washington anti-discrimination statute for failing to reasonably accommodate
29
his migraine condition. Although Kimbro was ultimately fired as a result of
absenteeism (which was caused primarily by his migraine headaches), his lawsuit
alleged a failure to make reasonable accommodations, rather than discriminatory
discharge. ARCO argued that it could not be held liable because the management
personnel who decided to fire Kimbro were unaware of his condition. The Ninth
Circuit, however, rejected this defense because Kimbro’s immediate supervisor
was fully aware of Kimbro’s condition, and, under ARCO’s own policy, had a
responsibility to report this information to the ARCO managers who, in turn, had
the authority to accommodate Kimbro’s disability. In fact, this supervisor
participated directly in absenteeism-related disciplinary decisions—although he
did not make the ultimate decision to fire Kimbro. Under these circumstances, the
court held that the supervisor’s knowledge was chargeable to ARCO under general
state-law agency principles. See Kimbro, 889 F.2d at 872-73, 875-77.
Kimbro plainly is not on point here, and the district court rightly criticized
Cordoba’s reliance on it. See Cordoba, 2003 WL 21295143, at *10-11. First, that
case was about reasonable accommodations, not discriminatory discharge. Second
and most important, although ARCO management lacked actual knowledge of
Kimbro’s disability, Kimbro’s supervisor was aware of his condition and was
responsible, under ARCO’s own policy, for communicating that information to
30
management. Thus, ARCO was essentially arguing that it could avoid liability
because its own internal policies had broken down. In this sense, Kimbro is
analogous to Breda: it holds, at most, that when an employer designates a
supervisor as an employee’s contact point for personnel matters such as reasonable
accommodations, the employer cannot later defend a failure to make reasonable
accommodations on the ground that the supervisor failed to relate the employee’s
disability to relevant decision-makers within the company. This principle plainly
has no applicability to a case such as this one where an employee alleges that the
employer’s stated reason for firing her is a pretext for disability discrimination. A
“pretext” is “a purpose or motive alleged . . . in order to cloak [one’s] real
intention.” Webster’s Third New International Dictionary 1797 (1993). It simply
defies logic to argue that Groo’s “real intention” was to fire Cordoba “because of”
a disability that Groo knew nothing about.
In Hilburn, we affirmed the district court’s decision granting summary
judgment in favor of the defendant on the plaintiff’s ADA discriminatory-
discharge claim because the plaintiff failed to establish that she was disabled
within the meaning of the ADA. Hilburn, 181 F.3d at 1231. At the outset of our
analysis, in the context of discussing the elements of a prima facie case, we stated,
“[The plaintiff] must establish that [the defendant-employer] had actual or
31
constructive knowledge of the disability.” Id. at 1226 (emphasis added). Our
opinion includes no further discussion of this aspect of the plaintiff’s case. We
must concede, however, that this stray comment lends some support to Cordoba’s
constructive knowledge theory—a theory that otherwise, as the district court
correctly concluded, “evinces no fidelity to the simplest principles of logic and
commonsense.” Cordoba, 2003 WL 21499011, at *5. We must also acknowledge
that a similar statement can be found in another Eleventh Circuit opinion, albeit an
opinion that also did not address this aspect of the plaintiff’s case. See Gordon v.
E.L. Hamm & Assocs., 100 F.3d 907, 910 (11th Cir. 1996) (stating that “a plaintiff
must demonstrate that the employer had either actual or constructive knowledge of
the disability or considered the employee to be disabled”). Finally, we must point
out that even in the very precedent that the district court thought to be “directly
relevant and devastating to Plaintiff’s case,” Cordoba, 2003 WL 21499011, at *9,
we observed that “[o]ther courts have rejected the contention that a plaintiff can
sustain a prima facie case of handicap discrimination without proof that an
employer had actual or constructive knowledge of an applicant’s disability,”
Morisky, 80 F.3d at 448 (citing Hedberg, 47 F.3d 928).10
10
In Morisky, we issued a one-sentence per curiam opinion “affirm[ing] the judgment of
the district court for the reasons stated in [its] dispositive order,” which we reprinted as an
appendix to our opinion. Morisky, 80 F.3d at 446. The quoted statement is thus from the district
32
In granting summary judgment in favor of Dillard’s, the district court
correctly disregarded these references to “constructive knowledge” as dicta. Once
the issue is framed clearly, it is evident that an employee cannot be fired “because
of” a disability unless the decisionmaker has actual knowledge of the disability.
At this point, however, the issue is no longer whether Cordoba’s constructive
knowledge theory is legally viable (it is not); rather the issue is whether—in light
of our opinions in Morisky, Hilburn, and Gordon—it was frivolous and without
any foundation at the summary-judgment stage of the case.
As to this question, we find it difficult to condemn Cordoba’s theory as
frivolous, built as it was from language in our own opinions. The district court
relied heavily on our opinion in Morisky, concluding that it was “directly relevant
and devastating” to Cordoba’s position.11 But even that opinion did not directly
court’s order, which our opinion, in turn, endorsed.
11
The district court was also “baffled that [Cordoba] was willing to commit her spurious
theory of constructive knowledge to paper in light of Silvera, which emphatically rejected such
nonsense.” Cordoba, 2003 WL 21499011, at *5 n.13. In Silvera, the defendant-school board
fired the plaintiff-employee because it became aware that the plaintiff had pled no contest to
lewd assault on a child and had been arrested twice for battery and once for aggravated assault.
244 F.3d at 1256. The district court denied the defendant’s motion for summary judgment
because it thought that a jury could reasonably infer that the defendant’s stated reason for firing
the plaintiff—his criminal history—was a pretext. One reason that it thought this was a
permissible inference was that the plaintiff allegedly told one board member about his no-contest
plea and first battery arrest when he was hired fourteen years earlier. The district court thought
this knowledge should be imputed to the entire board. Id. at 1261-62. In reversing, we stated,
Even assuming the Board that fired [the plaintiff] in 1996 was composed of
exactly the same members as the Board that had hired him fourteen years
33
dispel Cordoba’s theory. There, we stated that “the issue the Court must address is
narrow: Will knowledge that an applicant for employment has a disability be
imputed to a prospective employer from knowledge that the applicant has taken
special education courses and cannot read or write.” Morisky, 80 F.3d at 447.
Thus, as the opinion itself says, the “narrow” issue we addressed was whether an
employer is on notice of an alleged disability simply because it is aware of a
problem that may be, but is not necessarily, the result of an underlying mental
impairment. We did not address the theory, advanced in this case by Cordoba, that
a supervisor’s knowledge of a disability should be imputed to the employer. In
fact, the opinion in Morisky emphasizes more than once that no employee of the
defendant was aware of the alleged disability. See id. (“At no time did [the
plaintiff] inform anyone employed by [the defendant] that [she] had a . . .
earlier—which is unlikely—if the Board had no actual knowledge of [his] two
arrests from the 1970’s when it hired him in 1982, it did not actually know of
those arrests at that time, and all the imputing in the world is not going to change
that fact. Discrimination is about actual knowledge, and real intent, not
constructive knowledge and assumed intent.
Id. at 1262.
Although we agree with the district court that Silvera’s reasoning undercuts Cordoba’s
constructive-knowledge theory, we do not agree that it so clearly refuted her theory as to make
her argument frivolous and without foundation. As with Morisky, Silvera is not on all fours with
the instant case. It did not consider whether a supervisor’s knowledge of an employee’s
protected status should be imputed to the employer. Thus, while Silvera’s reasoning was
ultimately extended to this case, that it would be was not so clear ex ante to make Cordoba’s
argument frivolous. Given that we had alluded to the possibility of a claim based on constructive
knowledge in Hilburn, Gordon, and Morisky, there was some basis for her theory.
34
disability.”); id. at 448 (noting the plaintiff’s concession that she never “informed
any of the employees of [the defendant] of her specific disability”). Moreover, it
consistently referred to the knowledge of the defendant “Broward” or “Broward
County,” rather than the knowledge of any individual decision-maker. It was, of
course, unnecessary for the opinion to say more: if no employee of the defendant
was aware of a plaintiff’s disability, then the relevant decision-maker obviously
was not aware of it either. But because the opinion did not say more, it did not
directly resolve the question raised by Cordoba’s claims.
To be clear, Cordoba’s theory lacked support in logic and commonsense,
and we have never specifically endorsed it. Its fundamental flaw lies in the fact
that a decision-maker who lacks actual knowledge of an employee’s disability
cannot fire the employee “because of” that disability. Moreover, the cases cited by
the district court all but completely undermine it as a viable argument in this
context.12 Nonetheless, having stated in three different cases that an ADA plaintiff
must establish that her employee had “actual or constructive knowledge” of her
disability, we cannot now say that it was “frivolous, unreasonable, or without
foundation,” Christiansburg, 434 U.S. at 422, 98 S. Ct. at 701, for Cordoba and
12
See, e.g., Morisky, 80 F.3d at 448-49; Silvera, 244 F.3d at 1262; Brungart, 231 F.3d at
800; Hedberg, 47 F.3d at 932-33; Pressley v. Haeger, 977 F.2d 295, 297 (7th Cir.1992).
35
her counsel to rely on these statements as the foundation for one theory of their
case.
4. Cordoba’s ADA Claim Was Not Frivolous
In sum, the defendant itself described Cordoba as a “good,” “competent,”
or, at the very least, “average” employee. Prior to her confrontation with Sebben,
Cordoba had received no serious reprimands. Sebben herself said that she was
“surprised” to learn that Cordoba was fired as a result of the incident. The district
court assumed for the purposes of summary judgment that Cordoba was disabled,
recognizing that this issue presented an “exceedingly thorny question of fact.”
And when the court ruled on Dillard’s motion for attorney’s fees and expenses, the
district court stated that it had “only cursorily reviewed the medical evidence”
relevant to this issue. Given that we must “view the evidence in the light most
favorable to the non-prevailing plaintiff,” Johnson, 348 F.3d at 1354, we also
assume that Cordoba was disabled for the purposes of deciding this appeal. This
case thus involves a competent employee, who we assume to be disabled within
the meaning of the ADA, who was fired as a result of her first significant violation
of her employer’s work rules. It is in this light that we must assess the frivolity of
Cordoba’s (1) allegation that Groo was aware of her disability, (2) allegation that
Stossel was involved in Groo’s decision, and (3) constructive knowledge theory.
36
Although we fully agree that Cordoba’s allegations regarding Groo’s
knowledge and Stossel’s involvement lacked support sufficient to permit a
reasonable jury inference, we do not agree that they were so without circumstantial
foundation as to have been frivolous. Cordoba presented evidence that Stossel
was aware of her condition, and only Groo’s and Stossel’s own testimony
indicated that Stossel neither conveyed this information to Groo nor actually
participated in the decision to fire Cordoba. Likewise, although we agree that
Cordoba’s constructive knowledge theory was fundamentally flawed, we must also
admit that it has support in prior dicta of this court. As such, Cordoba’s claims
were not “frivolous, unreasonable, . . . without foundation,” or “groundless” under
the Christiansburg standard, 434 U.S. at 421, 422, 98 S. Ct. at 700, 701, and it was
therefore an abuse of discretion for the district court to award Dillard’s fees and
expenses on this basis.
IV.
As a postscript, we note that Dillard’s might have avoided much of the
expense of defending Cordoba’s claims had it conducted this litigation differently.
By our calculations, it appears that more than $75,000 of the fees and expenses
awarded were incurred before Groo’s deposition was completed. Moreover, more
than $50,000 in fees were related directly to discovery regarding Cordoba’s
37
alleged disability, another $23,000 was expended procuring expert testimony
regarding her condition, and the bulk of Dillard’s memorandum of law in support
of its motion for summary judgment focused on the question whether Cordoba’s
heart condition was a disability under the ADA. All this work ultimately proved
unnecessary. At the summary-judgment stage, the district court did not consider
the “voluminous and conflicting record of expert medical testimony and related
documents” the parties had compiled because it simply assumed the Cordoba was
disabled and focused instead on Groo’s lack of knowledge. Cordoba, 2003 WL
21295143, at *8. And when it ruled on Dillard’s motion for fees and expenses, the
court stated that it had still “only cursorily reviewed the medical evidence
concerning whether [Cordoba] was disabled.” Cordoba, 2003 WL 21499011, at
*2 n.6.13
13
Even if a fee award had been warranted in this case, we would have serious questions
regarding the propriety of charging Cordoba with fees and expenses incurred in discovery related
to her disability. Virtually all disability-related discovery was completed before Groo’s
deposition was completed, and the magistrate judge determined that Groo’s lack of knowledge
would not have been apparent to Cordoba until after Groo’s deposition. In its report and
recommendation, the magistrate judge stated that, as she understood the district court’s order, the
reason for this element of the award was that “there was insufficient evidence to show that
Cordoba could ever reasonably have believed that she suffered from a disability, as that term is
defined in the [ADA].” This implies, however, that Cordoba’s case was frivolous from the
outset, rather than that it merely became so once Groo’s lack of knowledge was apparent. And if
Cordoba’s case was frivolous from the outset, she should have been responsible for the entire
cost of defending it, not merely the fees and expenses relating to motions filed after Groo’s
deposition. But given that the disability issue presented an “exceedingly thorny question of fact”
that the district court never addressed, Cordoba, 2003 WL 21295143, at *8, and that virtually all
discovery related to that issue took place before Groo’s lack of knowledge became apparent, we
38
Through its employees, Dillard’s was aware of all facts regarding Groo’s
knowledge from the outset of this litigation. The primary basis for the district
court’s order granting summary judgment was (1) Groo’s testimony that, prior to
Cordoba’s termination, she and Stossel never discussed Cordoba’s heart condition
or whether Cordoba should be fired and (2) Stossel’s testimony to the same effect.
If Dillard’s thought that this deficiency in Cordoba’s case was as glaring as the
district court later concluded, one would have expected Dillard’s to schedule any
necessary depositions promptly and then move for summary judgment on this
ground at an early stage in the proceedings.14 At oral argument, we asked
Dillard’s counsel why they didn’t do so. Counsel responded that they had
proceeded with medical/disability-related discovery because “you only get to do
one motion for summary judgment,” and Dillard’s wanted to be prepared to move
for summary judgment on all available grounds. Of course, neither Federal Rule
of Civil Procedure 56 nor the local rules for the Middle District of Florida limit a
defendant to one summary-judgment motion; counsel, however, represented that
can see no reason for awarding Dillard’s fees and expenses relating to that discovery.
14
This observation is, of course, made in hindsight. We would not ordinarily fault a
litigant for having failed to move for summary judgment at the precise point, identified after the
fact, that such a motion would likely have been granted. But given that Dillard’s now argues that
Cordoba’s case was completely frivolous, we think it is fair to ask in hindsight why Dillard’s did
not seek to bring this to the court’s attention at an earlier point in time.
39
the district judge would not have ruled on any motion for summary judgment until
after the deadline for filing all motions for summary judgment had passed.
We have significant doubts as to whether Dillard’s is correct in its belief
that the district court would have declined to rule promptly on such a motion for
summary judgment—particularly if Dillard’s had made clear to the court that the
issue was straightforward, that Groo’s lack of knowledge was dispositive, and that
a prompt ruling on the motion would avoid medical discovery that would be time-
consuming and expensive for both parties. While it is true that “district courts
enjoy broad discretion in deciding how best to manage the cases before them,”
Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1366 (11th Cir. 1997), there is
no reason to assume that a district judge will stubbornly refuse to rule on a motion
for summary judgment at an early stage of the litigation if the moving party clearly
apprises the court that a prompt decision will likely avoid significant unnecessary
discovery. In fact, we expect that district judges will be open to such motions.
See Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S. Ct. 2548, 2555, 91 L. Ed.
2d 265 (1986) (“Summary judgment procedure is properly regarded not as a
disfavored procedural shortcut, but rather as an integral part of the Federal Rules
as a whole, which are designed ‘to secure the just, speedy and inexpensive
40
determination of every action.’” (quoting Fed. R. Civ. P. 1)).15
If Dillard’s is, in fact, correct that it absolutely could not have gotten heard
on an early motion for summary judgment—that is, that the district judge has a per
se rule against timely consideration of such motions—and, for that reason,
Dillard’s did not make such a motion, then the district judge’s rigid way of
disposing of cases caused much unnecessary discovery and expense. This case
thus illustrates that such a rigid practice inevitably undermines several of the
purposes of Rule 56, such as “to prevent vexation and delay, improve the
machinery of justice, promote the expeditious disposition of cases.” See 10A
Charles Alan Wright et al., Federal Practice and Procedure § 2712 (2d ed. 2002)
(footnotes omitted). But if, as we think is more likely, the district judge is
somewhat more flexible than Dillard’s represented at oral argument, then the
15
Cf. Chudasama, 123 F.3d at 1368 (footnotes omitted):
If the district court dismisses a nonmeritorious claim before discovery has
begun, unnecessary costs to the litigants and to the court system can be avoided.
Conversely, delaying ruling on a motion to dismiss such a claim until after the
parties complete discovery encourages abusive discovery and, if the court
ultimately dismisses the claim, imposes unnecessary costs. For these reasons, any
legally unsupported claim that would unduly enlarge the scope of discovery
should be eliminated before the discovery stage, if possible. Allowing a case to
proceed through the pretrial processes with an invalid claim that increases the
costs of the case does nothing but waste the resources of the litigants in the action
before the court, delay resolution of disputes between other litigants, squander
scarce judicial resources, and damage the integrity and the public’s perception of
the federal judicial system.
41
unnecessary cost and expense is attributable instead to Dillard’s failure to move
for summary judgment on the knowledge issue as soon as was practical—whether
because it misjudged the district judge’s likely response to such a motion or
because Dillard’s itself did not perceive Cordoba’s claims to have been as
frivolous as it now argues they were.16
V.
For the foregoing reasons, the judgment of the district court requiring
Cordoba to pay Dillard’s $10,000 in attorney’s fees and expenses, and requiring
Dempsey to pay Dillard’s $191,339.95 in attorney’s fees and expenses is
REVERSED.
16
On this point, we also note that Dillard’s memorandum of law in support of summary
judgment does not place particular emphasis on Groo’s lack of knowledge. Dillard’s first spent
eleven pages arguing that Cordoba’s heart condition is not a disability under the ADA. It then
spent two-and-a-half pages addressing Groo’s knowledge. It then spent four pages defending its
stated reason for firing Cordoba as non-pretextual.
42
Lea Cordoba v. Dillard's Inc.
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2005-08-04
Citations: 419 F.3d 1169
Copy CitationsCombined Opinion