The opinion of the court was delivered by: Pisano, District Judge
Defendants, who successfully moved this Court for summary judgment on plaintiffs' Title VII and NJLAD claims, now move for an award of attorney's fees under 42 U.S.C. § 2000e-5(k). Because the Court finds that plaintiffs' claims were without foundation and frivolous, defendants' motion for fees is granted.
On June 15, 1999, Elizabeth Stefanoni ("Elizabeth") and her husband Zachary Stefanoni ("Zachary") sued defendants alleging sexual harassment and retaliation under both Title VII and the New Jersey Law Against Discrimination ("NJLAD"). Specifically, Elizabeth alleged that defendant Gary L. Daniels, Sheriff of Burlington County ("Sheriff Daniels"), sexually harassed her by touching her twice and making five compliments concerning her hair and perfume. Furthermore, both Elizabeth and Zachary brought retaliation claims alleging that the defendants investigated and ultimately terminated their employment in response to Elizabeth's filing of formal sexual harassment charges against Sheriff Daniels.
In an order dated September 21, 2001 the Court granted defendants' motion for summary judgment, and dismissed all of plaintiffs' claims with prejudice. Defendants' motion seeks reimbursement from plaintiffs of costs and fees paid by the Burlington County in the amount of $90,309.64. *fn1
A. Standard to Award Attorney's Fees
In Title VII and NJLAD litigation, the prevailing party may be entitled to an award of attorney's fees at the court's discretion. 42 U.S.C. § 2000e-5(k) ("In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee ... as part of the costs"); N.J.S.A. 10:5-27.1 ("In any action or proceeding brought under this act, the prevailing party may be awarded a reasonable attorney's fee as part of the cost, provided however, that no attorney's fee shall be awarded to the respondent unless there is a determination that the charge was brought in bad faith."). Defendants rely primarily on Title VII in asserting their entitlement to fees. *fn2
The standard for awarding attorney's fees under 42 U.S.C. § 2000e-5(k) to a prevailing defendant differs from that which applies to a prevailing plaintiff. While prevailing plaintiffs "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust," a prevailing defendant is only entitled to fees "upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation." EEOC v. L.B. Foster Co., 123 F.3d 746, 750 (3d Cir. 1997) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978)). Contrary to the NJLAD, Title VII does not require a finding of bad faith. Quiroga v. Hasbro, Inc., 934 F.2d 497, 502 (3d Cir. 1991).
In L.B. Foster, the Third Circuit set forth several factors to consider in determining whether a fee award is appropriate to a Title VII defendant. They are: "(1) whether the plaintiff established a prima facie case; (2) whether the defendant offered to settle; and (3) whether the trial court dismissed the case prior to trial or held a full-blown trial on the merits." L.B. Foster Co., 123 F.3d at 750-51. These factors are to be used as guidelines and not hard and fast rules, and determinations of frivolity are to be made on a case-by-case basis. Id. The L.B. Foster court noted that "[c]ases where findings of `frivolity' have been sustained typically have been decided in the defendant's favor on a motion for summary judgment or a ... motion for involuntary dismissal." Id. at 751. In addition, courts often look to other considerations specific to the facts before them to determine whether attorney's fees are warranted. See Barnes Foundation v. The Township of Lower Merion, 242 F.3d 151, 158 (3d Cir. 2001) (setting forth a non-exclusive list of factors that courts have considered in awarding attorney's fees); see also Whiteland Woods, L.P. v. Township of West Whiteland, No.Civ.A.96-8086, 2001 WL 936490 at *5, (E.D. Pa. Aug. 14, 2001) (factoring "other considerations" into its determination to award attorney's fees).
The Court is mindful that it must "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 with out foundation." Quiroga v. Hasbro, Inc., 934 F.2d 497, 502 (3d Cir.1991) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978)). In determining whether a suit is frivolous, "a district court must focus on the question whether the case is so lacking in arguable merit as to be groundless or without foundation rather than whether the claim was ultimately successful." Jones v. Texas Tech Univ., 656 F.2d 1137, 1145 (5th Cir. 1981). A detailed recitation of the facts upon which Elizabeth and Zachary based their claims is helpful in demonstrating that this case was unreasonable and baseless, and thus frivolous. *fn3
B. Factual Allegations of the Sexual Harassment Suit
Sheriff Daniels took office on January 1, 1996. As Sheriff, he was responsible for fifty seven officers and approximately fourteen clerical employees. The Sheriff's Department was divided into four units: the courts division, the crime prevention unit, the civil processing unit and the investigative unit. The investigative unit was further divided into the child support unit, the fugitive unit and the special investigative unit.
Elizabeth and Zachary began work at the Sheriff's Office on February 14, 1995. Within two months of meeting each other on the job, the two began an office romance. *fn4 Under Sheriff Daniels, Elizabeth was assigned to the child support unit, with occasional stints in the fugitive unit. Zachary began his Sheriff's Department employment in the child support unit, but was transferred to the fugitive unit in June of 1996.
Defendants' troubles with plaintiffs began soon after Sheriff Daniels took office. In early 1996, the Sheriff Department's office manager brought to Sheriff Daniels's attention inconsistencies regarding the plaintiffs' time records. Defs.' Ex. G, 153:3-11; 155:l6-20. Sheriff Daniels and Sergeant Vanderbilt reviewed plaintiffs' time records and determined that there were "serious problems with the record keeping." Apparently, "hours were logged in for times they were actually signed off." Id. at 155:21-25, 156:1-5. Although plaintiffs maintained they were entitled to some seventy hours of flex time, the Sheriff determined that he could not "in good conscience" provide them each with that amount. Id. at 161:13-23. The Sheriff compromised and gave plaintiffs thirty five hours each. Id.
Problems with Elizabeth's on-the-job behavior continued. Between January 1996 and September 1997, Elizabeth was counseled on numerous occasions by Undersheriff Stanfield and Sergeant Vanderbilt, her superiors, concerning her attitude as a member of the investigation section. Id. at 164:12-24. During one incident, Elizabeth agitated Sergeant Vanderbilt to the point that he packed up his belongings and left his office threatening to resign. Later, Elizabeth admitted to Undersheriff Stanfield that the incident was her fault.
2. First Incident of Alleged Harassment
On September 2, 1997, Elizabeth was summoned to jury duty in the Burlington County Courthouse. The Sheriff's Department is located in the same building. During a break, at approximately 11:00 a.m., Elizabeth stopped by the Sheriff's Department investigative unit office on the second floor. Upon exiting a nearby ladies' room, Elizabeth and the Sheriff met in the hallway.
Noting her juror's badge, Sheriff Daniels offered to have her excused from jury duty by telling the jury administrator that there was an impending raid that required Elizabeth's assistance. Plaintiff acquiesced even though, she maintains, that there was no such impending raid. The defendant then "reached over, removed a piece of hair from the side of [her] mouth, and brushed [her] breast." Defs.' Ex. C, 148:1-4. Plaintiff describes the Sheriff's brushing of her breast as "light," and estimates that the contact lasted "maybe a second." Id. at 203:6. Then, as the Sheriff turned to walk away, he stated "don't forget, you owe me." Id. Elizabeth contends that immediately thereafter, she exited the building extremely upset by the incident. However, she did not report the incident to anyone and continued to work at the Sheriff's Department.
3. Elizabeth's Misconduct and Transfer
On October 24, 1997 Elizabeth participated in an arrest while unarmed, violating Sheriff Daniels's explicit orders. New Jersey Attorney General Guidelines require law enforcement officials, against whom a domestic violence claim has been filed, to surrender their firearm until such time as the County prosecutor's office investigates the case and the officer undergoes a psychiatric evaluation. Under these rules, Elizabeth was forced to surrender her firearm when her then husband, Mr. Wayne Brown ("Brown"), filed a New Jersey Civil Complaint and Temporary Restraining Order against her, in which he alleged she threatened kill to him. Defs.' Exs. 64, 65.
Sheriff Daniels allowed Elizabeth to remain active in the investigative unit even though she was prohibited from carrying her firearm. However, the Sheriff forbid Elizabeth from participating in fugitive arrests until she was again allowed to carry a gun. Defs.' Ex. G, 163:19-23. Both Elizabeth and Zachary testified that they understood that she was not permitted to participate in fugitive arrests unarmed. Defs.' Ex. E, 123:3-8. Despite this understanding, Zachary asked Elizabeth to assist him in arresting a fugitive. Defs.' Ex. D, 52:1-16. ...