United States District Court, D. Colorado
T. BABCOCK, JUDGE.
case is before me on Defendant CollegeAmerica Denver,
Inc.'s (“CollegeAmerica”) Motion for
Attorneys' Fees [ Doc # 147]. After consideration of the
motion, all related pleadings, and the case file, I deny
Order dated December 2, 2014, I granted CollegeAmerica's
motion to dismiss Plaintiff Equal Employment Opportunity
Commission's (the “EEOC”) first and second
claims for relief but denied its motion to dismiss the
EEOC's claim for retaliation under the Age Discrimination
in Employment Act (the “ADEA”). See Doc
# 16. Well over a year later after significant discovery, the
parties proceeded to trial on the EEOC's retaliation
claim. At the close of the EEOC's case, CollegeAmerica
moved for judgment as a matter of law pursuant to
Fed.R.Civ.P. 50 but this motion was denied. The jury
thereafter returned a verdict in favor of CollegeAmerica.
now seeks to recover the attorney fees it incurred in this
case on and after January 11, 2016 because it asserts that
the deposition testimony given on that date by Debbi Potts,
the party that CollegeAmerica was alleged to have retaliated
against, conclusively established that the EEOC's
retaliation claim had no merit. CollegeAmerica's request
for attorney fees was initially predicated on three legal
bases: (1) the ADEA; (2) the Court's inherent authority;
and (3) the Equal Access to Justice Act (the
“EAJA”). CollegeAmerica has since withdrawn its
request for attorney fees under the EAJA, and I need only
consider whether it is entitled to attorney fees under the
ADEA and/or the Court's inherent authority.
Ms. Potts' Deposition Testimony
CollegeAmerica's request for attorney fees under both the
ADEA and the Court's inherent authority is predicated in
large part on Ms. Potts' January 11, 2016 deposition
testimony, close analysis of this testimony is warranted.
CollegeAmerica argues that there was no merit to the
EEOC's retaliation claim in light of Ms. Potts'
deposition testimony that (1) she had notice that
CollegeAmerica intended to sue her before she filed her first
Charge of Discrimination; (2) she filed her first Charge of
Discrimination because of CollegeAmerica's decision to
sue her; (3) she used an ageist slur to refer to a co-worker;
and (4) the allegations in her Charge of Discrimination were
the fact that Ms. Potts' had notice that CollegeAmerica
intended to sue her for violating the terms of her
termination agreement before she filed her first Charge of
Discrimination did not preclude the EEOC from proving the
causation element of its retaliation claim since the threat
of litigation is not equivalent to the filing of a lawsuit.
In addition, as I noted in my Order on CollegeAmerica's
Motion to Dismiss, see Doc #16, CollegeAmerica did
not sue Ms. Potts immediately after she failed to return the
$7, 000 payment she received under her termination agreement
but rather waited 43 days after the payment deadline had
passed, or a mere 7 days after it received notice of Ms.
Potts' first Charge of Discrimination, to file its
lawsuit against her.
the facts that Ms. Potts was motivated to file the first
Charge of Discrimination because CollegeAmerica threatened to
sue her or that Ms. Potts herself once used an ageist slur to
refer to a co-worker do not conclusively establish that there
was no merit to her Charge or to the retaliation claim that
the EEOC filed on her behalf.
it is clear from her deposition testimony that there was
little evidence to support the allegations in Ms. Potts'
Charge of Discrimination that she was forced to quit her job
with CollegeAmerica due to discrimination and that younger
employees were given better severance packages than her.
CollegeAmerica's affirmative defense that Ms. Potts did
not have a reasonable and good faith belief in the
allegations in her Charge was therefore a strong one.
However, the admissibility of evidence relating to the merits
of Ms. Potts' Charge was an issue of significant dispute
between the parties, and Tenth Circuit law is somewhat
ambiguous on this point. Compare Vaughn v. Epworth
Villa, 537 F.3d 1147 (10th Cir. 2008) (recognizing that
participation clause under Title VII provides broader
protection than opposition clause and that district court
erred in concluding that plaintiff had not engaged in
protected activity based on “dishonest or
disloyal” conduct in submitting unredacted medical
records to the EEOC) with Crumpacker v. Kan. Dept. of
Human Resources, 338 F.3d 1163 (10th Cir. 2003) (prior
decisions interpreting Title VII as permitting retaliation
claims based on unreasonable good-faith belief that
underlying conduct violated Title VII were no longer good
law). In fact, this issue was not decided by me until the
commencement of trial.
conclusion then, while Ms. Potts' January 11, 2016
deposition testimony may have undermined the EEOC's
retaliation claim against CollegeAmerica, it did not
conclusively establish that this claim was wholly without
Attorney Fees Under the ADEA
the ADEA does not provide for an award of attorney fees, this
Court has stated that attorney fees may be awarded to a
prevailing defendant in an ADEA case upon a showing that the
plaintiff litigated the action in “bad faith,
vexatiously, wantonly, or for oppressive reasons.”
Taylor v. Hewett-Packard Co., 2008 WL 205613 at *2
(D. Colo. Jan. 24, 2008). This standard is more stringent