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OPPENHEIMER v. CHARLES SAMELSON

November 1, 1995

FRED OPPENHEIMER, Plaintiff, against CHARLES SAMELSON, INC. and SUZANNE DIVISION OF CHARLES SAMELSON, INC., Defendants.


The opinion of the court was delivered by: BAER

 HAROLD BAER, JR. *fn1"

 The plaintiff brought his action under 42 U.S.C. § 1981(a) and 42 U.S.C. § 2000e alleging religious discrimination. The action went to trial before a jury which found for the defendants. The defendants as prevailing parties now move for an award of attorneys' fees pursuant to 42 U.S.C. § 1988 and § 2000e-5(k).

 
The standard to be applied in determining whether an award should be made is identical under both [of these] sections. The fact that plaintiff failed to sustain her claims does not automatically entitle the defendant to such fees. Fees may be granted to a prevailing party only upon a finding that the plaintiff's claims were 'frivolous, unreasonable or groundless, or that plaintiff continued to litigate after (they) clearly became so.'

 Spence v. Eastern Airlines, Inc. 547 F. Supp. 204, 205 (1982) (quoting Christiansburg Garment Co. v. EEOC. 434 U.S. 412, 422, 54 L. Ed. 2d 648, 98 S. Ct. 694 (1978) (footnotes omitted)).

 The lawsuit was not dismissed at the end of plaintiff's case. There has been no finding that plaintiff's action was frivolous, unreasonable, or without foundation. Plaintiff merely did not prevail in his case against the defendant.

 The parties agree that the controlling case is that of Christiansburg Garment Co. v. EEOC 434 U.S. 412, 54 L. Ed. 2d 648, 98 S. Ct. 694 (1978).

 In Christiansburg the Court pointed out that the term "meritless"

 
is to be understood as meaning groundless or without foundation, rather than simply that the plaintiff has ultimately lost his case . . . . [A] district court may in its discretion award attorney's fees upon finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.

 Id. at 421.

 Where the court is called upon to make such a finding,

 
it is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation.

 Id. at 421-22.

 The plaintiff had acted as every plaintiff acts, filing his complaint, appearing for deposition and appearing at trial. He left the ...


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