Sutter v. Shriners Hospitals for Children

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DANIELLE SUTTER, No. 3:21-cv-01874-HZ

Plaintiff, OPINION & ORDER

v.

SHRINERS HOSPITALS FOR

CHILDREN, a nonprofit corporation, and

SUSAN STEEN, an individual,

Defendants.

Randy J. Harvey

Andrew Thomas Mittendorf

Employment Law Professionals

20015 SW Pacific Hwy, Ste 221

Sherwood, OR 97140

Attorneys for Plaintiff

Amanda Bryan

John M. Kreutzer

Bullivant Houser Bailey PC

One SW Columbia St, Ste 800

Portland, OR 97204

Attorneys for Defendant

HERNÁNDEZ, District Judge:

Defendants move for attorney fees and costs as the prevailing party in this employment

discrimination lawsuit. ECF 50, 52. Plaintiff objects. ECF 54. This matter is suitable for decision

without oral argument. For the following reasons, the Court denies the motion for attorney fees

and taxes costs against Plaintiff, as adjusted herein.

BACKGROUND

Plaintiff Danielle Sutter sued Defendants Shriners Hospitals for Children and Susan

Steen, bringing claims for violations of the Family and Medical Leave Act (“FMLA”),

discrimination based on disability and status as a whistleblower, and failure to pay all wages at

termination. Compl., ECF 1. Defendants moved for summary judgment on all seven claims. ECF

39. On August 15, 2023, the Court granted Defendants’ motion in full. Op. & Ord., ECF 48. The

Court entered judgment for Defendants on August 16, 2023. ECF 49. Defendants timely moved

for an award of attorney fees and costs. Defendants seek to recover attorney fees of $100,641,

which they state are related to the defense of Plaintiff’s disability discrimination and

whistleblower claims, not her FMLA or wage claims. Def. Mot. 2. They seek to recover costs of

$3,840.55. Bill of Costs 1. Plaintiff timely filed objections.

DISCUSSION

The Court concludes that Defendants are not entitled to attorney fees, but they are

entitled to recover most of the costs they seek.

I. Attorney Fees

A. Standard

The Court confines its analysis to the four claims for which Defendants seek fees.

Plaintiff brought disability discrimination claims under the Americans with Disabilities Act

(“ADA”), 42 U.S.C. § 12101 et seq., and Oregon Revised Statute (“O.R.S.”) § 659A.112.

Compl. ¶¶ 65-99. She brought claims for employment discrimination on the basis of her status as

a whistleblower under O.R.S. 659A.199 and 659A.203. Id. ¶¶ 100-126. Both the ADA and

Oregon’s employment discrimination statute provide that a prevailing party, including a

prevailing defendant, may recover fees and costs. 42 U.S.C. § 12205; O.R.S. 659A.885(1).

Under the ADA, the district court “in its discretion, may allow the prevailing party . . . a

reasonable attorney’s fee, including litigation expenses, and costs[.]” 42 U.S.C. § 12205.

Attorney fees may be awarded to a prevailing defendant in a civil rights case only if the

plaintiff’s case was “frivolous, unreasonable, or without foundation, even though not brought in

subjective bad faith.” Christiansburg Garment Co. v. Equal Emp. Opportunity Comm’n, 434

U.S. 412, 421 (1978) (so holding in the context of Title VII claims); Summers v. Teichert & Son,

Inc., 127 F.3d 1150, 1154 (9th Cir. 1997) (applying the Christiansburg standard to a prevailing

defendant’s request for attorney fees under the ADA). The district court should not conclude that

the plaintiff’s case was meritless based only on the plaintiff’s failure to prevail. Christiansburg,

434 U.S. at 422. “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. “A case may be

deemed frivolous only when the result is obvious or the . . . arguments of error are wholly

without merit.” Karam v. City of Burbank, 352 F.3d 1188, 1195 (9th Cir. 2003) (internal

quotations omitted).

Oregon’s employment discrimination statute provides that “the court may allow the

prevailing party costs and reasonable attorney fees at trial and on appeal.” O.R.S. 659A.885(1).

Oregon courts apply the Christiansburg standard in addressing prevailing defendants’ claims for

attorney fees under the statute. McCarthy v. Oregon Freeze Dry, Inc., 334 Or. 77, 84, 46 P.3d

721 (2002). Thus, the same standard applies to the four claims for which Defendants seek to

recover attorney fees.

B. Application

The Court concludes that Plaintiff’s claims were weak but not frivolous, so Defendants

are not entitled to attorney fees. In her disability discrimination claims, Plaintiff alleged that she

suffered stress and anxiety because of how she was instructed to handle payroll duties, that she

asked to be relieved of those duties as an accommodation, and that Defendant Shriners declined

to accommodate her. Compl. ¶¶ 65-99. The record showed that Plaintiff obtained two notes from

her doctor stating that Plaintiff suffered stress and anxiety due to the demands of payroll duties,

that she presented those notes to Defendants and asked to be relieved from those duties, and that

Defendants discussed accommodations with her but did not remove her from her payroll duties

because they were deemed an essential function. Op. & Ord. 5. The Court held that Plaintiff

failed to make a prima facie case of disability discrimination because, while stress and anxiety

could be considered mental impairments under the ADA, Plaintiff had not shown she was

disabled under the ADA. Id. at 11-12. Plaintiff submitted no evidence about how long her

condition was expected to last, and she could not be regarded as disabled simply because

Defendant Shriners discussed possible accommodations with her. Id. at 12. The Court found a

genuine dispute as to whether the payroll duties were an essential function. Id. at 12-14.

For the whistleblower claims, Plaintiff alleged that her access to employees’ leave

information was restricted, that she needed that information to process payroll, and that she

reported the problem to Defendants and then faced retaliation. Compl. ¶¶ 100-126. The Court

held that Plaintiff failed to make a prima facie case of whistleblower discrimination under O.R.S.

659A.203 because she conceded that she did not need access to employees’ leave information to

perform the duties she was assigned, so any good-faith belief that Defendants were violating the

law was not reasonable. Op. & Ord. 17-18. Plaintiff did, however, make a prima facie case under

O.R.S. 659A.199, which requires only a good-faith belief. Id. at 18. Finally, the Court held that

Defendant Shriners was entitled to summary judgment on all of the discrimination claims

because Plaintiff failed to show that the proffered legitimate, nondiscriminatory reason for

terminating her—time theft—was pretextual. Id. at 19-22.

Defendants argue that Plaintiff’s disability discrimination claims were frivolous,

unreasonable, or without foundation because she could not establish a prima facie case. Def.

Mot. 4. Defendants state, “There was no evidence that Plaintiff was disabled or did more than

present a doctor’s note and tell Shriners that she wanted to be removed from payroll duties.” Id.

Plaintiff points to the Court’s conclusion that stress and anxiety could be mental impairments

under the ADA and states that her reliance on her doctor’s notes showed she considered herself

disabled. Pl. Resp. 5-6. Plaintiff also points to the genuine dispute over whether timekeeping was

an essential function. Id. at 6.

Defendants argue that Plaintiff’s whistleblower claims were frivolous, unreasonable, or

without foundation, pointing to her concession that she did not need access to leave information

to perform her duties. Def. Mot. 4. Defendants also point out that “Plaintiff did not dispute the

discrepancy between the paper timesheet and the garage and video records that established

the legitimate, non-discriminatory basis for her termination from Shriners.” Id. at 5. Plaintiff

contends that her whistleblower claims were not frivolous, unreasonable, or without

foundation because there was a genuine dispute about whether she had a good-faith belief

that Defendants were violating the law, and there is caselaw suggesting that both

whistleblower statutes require only a good-faith belief. Pl. Resp. 6-8. Plaintiff also argues

that because the two whistleblower statutes are so similar, fees should not be awarded for the

claim under O.R.S. 659A.203 because that same work was needed for the O.R.S. 659A.199

claim, for which Plaintiff did make a prima facie case. Id. at 8-9.

The Court concludes that Plaintiff’s claims, while weak, were not frivolous,

unreasonable, or without foundation. Although Plaintiff failed to produce enough evidence to

make a prima facie case of disability, the underlying theory of the case was consistent with the

law, and there was enough evidence in the record that the outcome of the claims was not

obvious. For the whistleblower claims, Plaintiff’s argument that O.R.S. 659A.203 should be

evaluated by the same standard as 659A.199, the claim for which Plaintiff did make a prima

facie case, is not a frivolous argument. See Pl. Resp. 7-8. Finally, with respect to pretext, while

Plaintiff provided insufficient evidence that the legitimate reason proffered for her termination

was pretextual, the record was not so wholly devoid of evidence of pretext as to render the

outcome obvious. See Hughes v. Rowe, 449 U.S. 5, 15-16 (1980) (“Allegations that, upon careful

examination, prove legally insufficient to require a trial are not, for that reason alone,

‘groundless’ or ‘without foundation’ as required by Christiansburg.”).

Claims comparable to Plaintiff’s in terms of the viability of the underlying legal theory

and the strength of the evidence have been found not to be frivolous. In Summers, for example,

the plaintiff injured his back driving a water truck for the defendant, called to say he did not want

to drive a water truck again, and did not call the defendant to say that he was available to drive

other vehicles. 127 F.3d at 1153. There was no triable issue as to whether the defendant had

discriminated against the plaintiff under the ADA by failing to call him into work. Id. But the

Ninth Circuit held that the defendant was not entitled to attorney fees. Id. at 1154. See also

Karam, 352 F.3d at 1196 (the “tenuous” factual basis for plaintiff’s First Amendment retaliation

claims, and her failure of proof at the summary judgment stage, did not mean that the claims

were frivolous). In contrast, the Ninth Circuit held that a plaintiff’s claim for intimidation under

the ADA was frivolous because “[b]y its own terms, protection under the ADA against

intimidation does not extend to a plaintiff’s attempts to exercise rights granted or protected by

the IDEA—the basis of K.S.’s claim in this case.” C.W. v. Capistrano Unified Sch. Dist., 784

F.3d 1237, 1247 (9th Cir. 2015). See also Harris v. Maricopa Cnty. Superior Ct., 631 F.3d 963,

977 (9th Cir. 2011) (holding that hostile work environment claim was frivolous where the

plaintiff did not allege that the discrimination he faced was severe or pervasive enough to alter

the conditions of his employment). Plaintiff’s discrimination claims rested on viable legal

theories, and while the evidence in her favor was weak, it was not so weak that the outcome was

obvious. The discrimination claims were not frivolous, unreasonable, or without foundation.

Accordingly, Defendants are not entitled to recover attorney fees. The Court now turns to costs.

II. Costs

A. Standard

Until recently, the Court’s analysis of attorney fees would also have resolved the issue of

costs. See Brown v. Lucky Stores, Inc., 246 F.3d 1182, 1190 (9th Cir. 2001) (applying

Christiansburg to an award of costs to a prevailing defendant under the ADA). But the Ninth

Circuit recently held that “Rule 54(d)(1) governs the award of costs to a prevailing ADA

defendant, and such costs may be awarded in the district court’s discretion.” Garcia v. Gateway

Hotel L.P., No. 21-55926, 2023 WL 5989540, at *2 (9th Cir. Sept. 15, 2023). The Court

therefore applies Federal Rule of Civil Procedure 54 to Defendants’ request for costs.

“Unless a federal statute, these rules, or a court order provides otherwise, costs—other

than attorney’s fees—should be allowed to the prevailing party.” Fed. R. Civ. P. 54(d)(1). “[T]he

word ‘should’ makes clear that the decision whether to award costs ultimately lies within the

sound discretion of the district court.” Marx v. Gen. Revenue Corp., 568 U.S. 371, 377 (2013).

That discretion, however, is confined to the categories of recoverable costs enumerated at 28

U.S.C. § 1920. Alflex Corp. v. Underwriters Lab’ys, Inc., 914 F.2d 175, 176 (9th Cir. 1990).

“[A] district court need not give affirmative reasons for awarding costs; instead, it need

only find that the reasons for denying costs are not sufficiently persuasive to overcome the

presumption in favor of an award.” Save Our Valley v. Sound Transit, 335 F.3d 932, 945 (9th

Cir. 2003). See also Dawson v. City of Seattle, 435 F.3d 1054, 1070 (9th Cir. 2006) (“[A] losing

party must establish a reason to deny costs.”). “Appropriate reasons for denying costs include:

(1) the substantial public importance of the case, (2) the closeness and difficulty of the issues in

the case, (3) the chilling effect on future similar actions, (4) the plaintiff’s limited financial

resources, and (5) the economic disparity between the parties.” Escriba v. Foster Poultry Farms,

Inc., 743 F.3d 1236, 1247-48 (9th Cir. 2014). “District courts should consider the financial

resources of the plaintiff and the amount of costs in civil rights cases.” Stanley v. Univ. of S.

California, 178 F.3d 1069, 1079 (9th Cir. 1999) (holding that district court abused its discretion

in refusing to re-tax costs of $46,710.97 awarded to prevailing defendants where plaintiff argued

that she would be rendered indigent if she had to pay the costs and that taxing costs would have a

chilling effect on other civil rights litigants).

B. Application

Defendants seek to recover the costs of serving subpoenas on Plaintiff’s employers and

obtaining transcripts of three depositions, for a total of $3,840.55. Bill of Costs 1. Both costs are

recoverable. Alflex Corp., 914 F.2d at 177 (“[F]ees for deposition copies and private service of

process are properly taxed under section 1920.”). Plaintiff asserts that she cannot pay

Defendants’ costs, and further challenges the reasonableness of some costs. Plaintiff states that

she “is a single mother who does not have the means to pay an award of Defendants’ attorney’s

fees and costs.” Pl. Resp. 10. She states that awarding fees and costs “would have an immense

chilling effect on other Plaintiffs of modest means from seeking legal recourse against large

employers for perceived discrimination and retaliation for fear of being stuck paying a large

attorney’s fees and costs assessment should their case not prevail.” Id.

The Court first considers Plaintiff’s argument that she cannot afford to pay Defendants’

costs and that taxing costs against her would have a chilling effect on other plaintiffs. Defendants

seek $3,840.55 in costs, a relatively low amount. In contrast, the plaintiff in Stanley faced costs

of over $46,000—a large amount for an individual plaintiff of modest means today, and even

larger when the case was decided in 1999. Plaintiff does not provide evidence indicating that she

cannot pay the costs sought. The Court concludes that the amount of costs sought here is not

unduly burdensome to Plaintiff and would not have a chilling effect on other civil rights

plaintiffs. Other courts in this district have awarded costs to prevailing defendants under similar

circumstances. E.g., Hoppman v. Liberty Mut. Ins. Co., No. 3:17-CV-00402-BR, 2018 WL

2432943, at *2-*3 (D. Or. May 30, 2018) (awarding costs of $4,695.20 to prevailing employer in

ADA failure-to-accommodate lawsuit).

The Court taxes costs against Plaintiff with adjustments. Defendants seek $2,770.55 in

costs for obtaining transcripts of the depositions of Plaintiff, Defendant Susan Steen, and Sarah

Risinger, as well as a court reporter appearance fee for Plaintiff’s deposition. Bill of Costs 1, Ex.

1. All three depositions were used extensively. Plaintiff does not argue that these costs are

unjustified. The Court awards Defendants these deposition-related costs.

Defendants seek $1,070 in costs for serving subpoenas on Plaintiff’s employers. Bill of

Costs 1, Ex. 2. Plaintiff argues that these costs should not be taxed against her. Pl. Resp. 11.

First, she states that she “sees no calculated justification for how Defendants used Plaintiff’s

work history in the successful defense of Plaintiff’s claims.” Id. at 12. Plaintiff also argues that

the priority fees for service of each subpoena and the cost of failed service of one subpoena

based on an incorrect address should not be taxed against her. Id. Although Plaintiff’s work

history may not have been important to Defendants’ success on their motion for summary

judgment, that does not mean it was unreasonable for Defendants to subpoena information from

Plaintiff’s employers during discovery. See, e.g., Smith v. Legacy Partners Inc., No.

221CV00629JHCBAT, 2022 WL 1194125, at *4 (W.D. Wash. Apr. 21, 2022) (denying motion

to quash subpoenas served on plaintiff’s former employers in employment discrimination case);

Wilson v. Decibels of Oregon, Inc., No. 1:16-CV-00855-CL, 2017 WL 393602, at *2 (D. Or. Jan.

26, 2017) (holding that employment history was relevant to employment discrimination claim).

But the Court agrees with Plaintiff that she should not have to bear the cost of priority fees for

service of the subpoenas. Defendant does not explain why a priority fee was necessary, and the

Court concludes that it was not necessary. Likewise, Plaintiff should not have to bear the cost of

failed service because the wrong address was given to the process server. See Bill of Costs Ex. 2

at 3. The total priority fees charged were $420, and failed service incurred a $70 fee. Id. at 1-3.

The Court therefore reduces the award of service costs by $490, for an award of $580. In sum,

Defendants are entitled to $3,350.55 in costs.

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CONCLUSION

Defendants’ Motion for Attorney Fees [50] is DENIED. Defendants’ Bill of Costs [52] is

allowed as adjusted. The Clerk is directed to tax costs of $3,350.55 against Plaintiff.

IT IS SO ORDERED.

DATED:__O__c_to__b_e_r _1_2_,_ 2_0__2_3______.

______________________________

MARCO A. HERNÁNDEZ

United States District Judge