The opinion of the court was delivered by: Lewis A. Kaplan, United States District Judge
This employment discrimination action was brought against the Port Authority of New York and New Jersey (the "Authority") and a number of its individual executives and employees pursuant to the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), and 42 U.S.C. § 1981. The individual defendants were sued also under the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. L. § 296, and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Ad. C. § 8-502, as well, in certain instances, on common law theories. Defendants prevailed entirely in the action, partly on motions for summary judgment and partly by virtue of a unanimous jury verdict. The Authority and defendants Lee Home, Ernes to Butcher and Adrienne Holmes now move for attorneys' fees under Title VII as "prevailing parties." See 42 U.S.C. § 2000e-5(k). In order to prevail on such a motion, the movant must establish that the plaintiff's action was "frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so." Christianberg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978); see also Davidson v. Keenan, 740 F.2d 129, 132 (2d Cir. 1984).
All of the defendants were prevailing parties. The remaining question on liability is whether they have satisfied the Christianberg Garment requirements.
The Authority has not made a sufficient showing to warrant an award of attorneys' fees against it. The Court granted its motion for summary judgment only in part, dismissing the hostile work environment and some failure to promote claims, but not others. While plaintiff's case even on the aspect of the case against the Authority was weak — so weak, in fact, that the Court seriously would have considered setting aside a plaintiff's verdict, had one been returned, as against the weight of the evidence — the Court is not prepared to say that the failure to promote claims that went to trial were so deficient that they met the Christianberg standard.
The same cannot be said with respect to Messrs. Butcher and Home and Ms. Holmes. The Court granted summary judgment dismissing all claims against Home and all Title VII claims against Holmes and Butcher, leaving only small aspects of the original claims against them for trial Plaintiff then voluntarily withdrew the remaining claim against Holmes during trial. The jury found for Butcher on the modest remaining claim against him, which did not rest on Title VII. Moreover, it must be borne in mind that, to the extent the case was brought against these defendants under Title VII, it was entirely frivolous in light of the fact that co-employees of a corporate employer like the Authority are not proper defendants in a Title VII case. Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). Thus, insofar as this action was brought against the individual defendants under Title VII, it was frivolous from the outset.
The difficulty that remains, however, is that individual movants have failed to address the question whether the fact that they prevailed on all claims and that the Title VII claims against them were frivolous from the outset entitles them to recover the entire cost of defending themselves. Nor do their papers suggest that they have allocated the defense costs as between the Title VII claims and the remaining parts of the defense.
One other point requires discussion. Defendants' motion also seeks to tax costs. This application must be made in the first instance to the Clerk.
Accordingly, the motion is denied in all respects. The denial is without prejudice to an application to the Clerk in the normal course to tax costs and to a renewed motion, provided it is filed no later than April 11, 2003, for attorneys' fees, bearing in mind the points made in this order.
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