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June 24, 1993


The opinion of the court was delivered by: I. LEO GLASSER

 GLASSER, United States District Judge:

 The plaintiffs commenced this class action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and pursuant to the Equal Pay Act of 1963, 29 U.S.C. § 206(d), alleging that the County of Nassau "discriminates in compensation on the basis of sex by paying historically female job classifications which require an equivalent or lesser composite of skill, effort, responsibility and working conditions" less than historically male job classifications. Also alleged were specific violations of the Equal Pay Act. The plaintiffs sought injunctive relief, back pay, liquidated damages, costs and attorney's fees.

 Pre-trial motions resulted in the dismissal of the Equal Pay Act claims of specifically named plaintiffs; the dismissal of the Title VII claims of all plaintiffs predicated upon a disparate impact theory; and the dismissal of the Title VII claims of all male plaintiffs. Subsequently, the court certified a class and designated the class representatives. See A.F.S.C.M.E. v. Nassau County, 609 F. Supp. 695 (E.D.N.Y. 1985) and 664 F. Supp. 64 (E.D.N.Y. 1987). A stipulation was then entered into bifurcating the liability aspect of the action. The trial of that segment began on November 27, 1989 and ended on May 11, 1990. In an opinion reported in 799 F. Supp. 1370 (E.D.N.Y. 1992), the court held that the plaintiffs failed to prove violations of Title VII or of the Equal Pay Act by a preponderance of the evidence as to all claims, except for the Title VII claims of the class members employed as police detention aides.

 Thereafter, the defendants moved this court for an order pursuant to 42 U.S.C. § 1988 awarding them reasonable attorney's fees in the amount of $ 982,407.23 and expert witness fees in the amount of $ 550,974.66 as the prevailing party in the action. More precisely, the statutory authorization for the recovery of attorney's fees in this case is 42 U.S.C. § 2000e-5 (k) which provides:

In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, . . . a reasonable attorney's fee (including expert fees) as part of the costs . . . .

 The provision for expert fees was added by the Civil Rights Act of 1991 by which Congress overruled the Supreme Court's decision in West Virginia Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 113 L. Ed. 2d 68, 111 S. Ct. 1138 (1991). The issue of expert fees will be addressed after the court determines whether an allowance of reasonable attorney's fees to the defendants may be made.

 Although the statute as it emerged from Congress provides for the discretionary award of a reasonable attorney's fee to "the prevailing party" without distinguishing between the plaintiff and the defendant as the prevailing party, the Court engrafted such a distinction upon it in Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 54 L. Ed. 2d 648, 98 S. Ct. 694 (1978). The question in that case was "what standard should inform a district court's discretion in deciding whether to award attorney's fees to a successful defendant in a Title VII action." Id. at 417. The Court acknowledged that the legislative history of § 2000e-5(k) was sparse. Brief references to the remarks of three Senators in the legislative debates led to the observation that:

If anything can be gleaned from these fragments of legislative history, it is that while Congress wanted to clear the way for suits to be brought under the Act it also wanted to protect defendants from burdensome litigation having no legal or factual basis.

 Id. at 420. The Court noted that:

The Court of Appeals for the District of Columbia Circuit seems to have drawn the maximum significance from the Senate debates when it concluded:
[From these debates] two purposes for § 706(k) emerge. First, Congress desired to "make it easier for a plaintiff of limited means to bring a meritorious suit" . . . . But second, and equally important, Congress intended to "deter the bringing of lawsuits without foundation" by providing that the "prevailing party" - be it plaintiff or defendant - could obtain legal fees. Grubbs v. Butz, 179 U.S. App. D.C. 18, 20, 548 F.2d 973, 975.

 Christiansburg, 434 U.S. at 420.

 The federal appellate courts which had previously considered the question had decided that a fee award could not be made to a prevailing defendant if the action had not been "unfounded, meritless, frivolous or vexatiously brought." See United States Steel Corp. v. United States, 519 F.2d 359, 363-64 (3rd Cir. 1975); see also, Bolton v. Murray Envelope Corp., 553 F.2d 881, 884 n.2 (5th Cir.), reh'g denied, 557 F.2d 823 (5th Cir. 1977); Carrion v. Yeshiva Univ., 535 F.2d 722, 727 (2d Cir. 1976). The formulation adopted by the Supreme Court was that:

[A] 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 continued to litigate after it clearly became so. And, needless to say, if a plaintiff is found to have brought or continued such a claim in bad faith, there will be an ...

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