United States District Court, N.D. California
ORDER ON MOTIONS FOR ATTORNEY FEES AND COSTS RE: DKT.
NOS. 73, 74, 75, 76
R. LLOYD United States Magistrate Judge
September 2016, the court granted summary judgment in favor
of Defendant Kelly Services, Inc. (“Kelly”) on
five of six claims brought by plaintiff Adeel Zaman
(“Zaman”), including employment discrimination
claims under the Fair Employment and Housing Act
(“FEHA”). Dkt. No. 42. Upon the parties'
stipulation, the court dismissed the remaining claim (for
injunctive relief pursuant to California Labor Code Section
1198.5) in March 2017. Dkt. No. 72. Kelly now moves for $75,
038.50 in fees and $5, 790.36 in costs related to Zaman's
FEHA claims. Dkt. Nos. 73, 74. Zaman moves for $55, 950.00 in
fees and $2, 399.85 in costs related to his Labor Code
Claims, Dkt. Nos. 75, 76, and he further requests $1, 425.50
for opposing Kelly's motion, Dkt. No. 80. For the reasons
described below, the court grants each motion in part.
a veteran of the U.S. Marine Corps and a Pakistani- and
Muslim-American, was employed by Kelly, a temporary
employment agency. Kelly terminated Zaman's employment in
January 2015 after he plead no contest to a misdemeanor count
of simple battery. The letters Kelly sent Zaman explaining
this action (dated January 22 and 29, 2015, respectively) did
not state that he was terminated, but rather said,
“Kelly is considering denying you an offer of
employment” based on Zaman's “pre-background
screen, ” and later that “an offer of employment
will not be made to you at this time.” Dkt. No. 81,
Connaughton Decl., Exs. 7, 8.
brought suit against Kelly several months later. Dkt. No. 1,
Ex. A. Zaman's first three claims alleged discriminatory
termination on the basis of his religion, ethnicity, and
perceived disability in violation of FEHA. His fourth claim
alleged wrongful termination. And his fifth and sixth claims
were for a statutory penalty and injunctive relief,
respectively, under California Labor Code Section 1198.5.
Labor Code claims were based on Kelly's failure to
provide him with his personnel file after Zaman submitted a
written request for those documents in March 2015. Kelly
concedes that it did not provide a copy of the requested
records within the 30-day time period specified in Section
1198.5 or before Zaman filed suit. Dkt. No. 71, ¶ 2.
Kelly asserts that it provided the personnel file to Zaman on
July 17, 2015. Dkt. No. 71, ¶ 4; Dkt. No. 81,
Connaughton Decl., Ex. 2. Nevertheless, Zaman asked for the
file in his first set of Requests for Production on July 20,
2015. Dkt. No. 81, Connaughton Decl., Ex. 3. Kelly states
that it produced the file again on August 24, 2015.
Id., Ex. 4.
its initial document production, Kelly produced copies of the
January 22 and January 29 adverse action letters described
above. The letters, however, were dated June 24, 2015, and
August 19, 2015 (i.e., after the complaint was filed).
See Dkt. No. 81, Connaughton Decl., Exs. 12, 13.
When questioned about this oddity, id., Kelly
responded that it was unable to locate the original versions
of these letters at the time of its initial document
production, and that it produced “identical form
version[s]” of the letters. Id., Ex. 13. In
any event, Zaman sent copies of the original letters to Kelly
as part of his own production on August 20, 2015.
Id., Exs. 6, 7, 8.
discovery, on June 24, 2016, Kelly took Zaman's
deposition. Id., Ex. 1. During his deposition, Zaman
conceded that he eventually received his personnel file,
though Zaman's counsel objected to the question and Zaman
clarified a few moments later that he “still [did not]
have all the answers that [he was] looking for.” Dkt.
No. 30, La Val Decl., Zaman Dep., 167:9-168:4. Also during
his deposition, Zaman admitted that he had no direct evidence
of any Kelly employee's bias against Muslims, people of
Pakistani descent, or people with disabilities, and, further,
that he had “no reason to believe” any Kelly
employee was so biased. Id., at 74:18-76:23.
discovery was set to close on July 14, 2016. Dkt. No. 18. The
parties, however, in a July 25, 2016, stipulation, stated
that “a deposition of Kelly and possibly one of its
employees” had yet to occur. Dkt. No. 28. Apparently,
Zaman never took these depositions. Dkt. No. 81, Connaughton
Decl., ¶ 15. Additionally, Zaman never filed a motion to
compel disclosure of any missing pieces of his personnel
file. Dkt. No. 81, Connaughton Decl., ¶ 15.
filed its motion for summary judgment on August 8, 2016. On
September 28, 2016, the court granted summary judgment on the
three FEHA claims and the wrongful termination claim. Dkt.
No. 42. The court concluded that Zaman failed to establish a
prima facie case (by failing to produce evidence establishing
an inference of discrimination), that Kelly established a
legitimate, nondiscriminatory reason for the termination
(Zaman's no contest plea for battery), and that Zaman
failed to show that this reason was pretextual. Id.
The court granted summary judgment on Zaman's fifth claim
for a statutory penalty under Labor Code Section 1198.5 after
Kelly tendered the $750 penalty to Zaman. Id. The
court denied Kelly's motion with respect to Zaman's
sixth claim, for injunctive relief under Section 1198.5, on
the basis that a material fact- whether Zaman had received
his entire personnel file-remained in dispute. Id.
parties continued litigating the claim for injunctive relief
through the pre-trial conference in February 2017. Dkt. No.
70. Finally, in March 2017, rather than proceeding to trial,
the parties stipulated to dismissing the remaining claim
without prejudice and to each side moving for attorney fees
and costs. Dkt. Nos. 71, 72. Zaman maintains that his
“complete accurate file has yet to be produced.”
Dkt. No. 71, ¶ 4.
MOTION FOR ATTORNEY FEES
motion seeks attorney fees and costs related to Zaman's
FEHA claims. Dkt. No. 73. Kelly asserts that it prevailed on
these claims and that it is entitled to fees pursuant to
California Government Code Section 12965. Id. As
such, Kelly requests $75, 038.50 in fees and $5, 790.36 in
costs incurred from June 24, 2016, the date of Zaman's
deposition-at which time, Kelly argues, it should have become
clear to him that his FEHA claims were frivolous, groundless,
or unreasonable, since he admitted the absence of evidence
supporting these claims- to September 28, 2016, the date of
the court's summary judgment order. Id.
opposes Kelly's motion, arguing that his claims were not
frivolous. In particular, he asserts that Kelly's
confusing and inaccurate letters containing the so-called
reasons for his termination, compounded by the odd sequence
of events with respect to the production of these letters,
yielded an inference that his termination was due to
discrimination-or, at least, that Kelly was not being
entirely truthful. Dkt. No. 80. Zaman further argues that he
only learned about Kelly's nondiscriminatory reason for
his firing upon receiving the declarations attached to
Kelly's summary judgment motion. Id. Finally,
Zaman requests that the court sanction Kelly for
manufacturing evidence during discovery (i.e., producing
letters with altered dates) by awarding him the $1, 425.50 he
incurred in opposing Kelly's fee motion. Id.
courts sitting in diversity apply state law in determining
both a party's rights to fees and the method of
calculating them. Mangold v. Cal. Pub. Util.
Comm'n, 67 F.3d 1470, 1478 (9th Cir. 1995). The
standard for a defendant's recovery of attorney fees in
employment discrimination matters is the same under
California law (Cal. Gov. Code § 12965) as it is under
the relevant federal statutes. Bond v. Pulsar Video
Prods., 50 Cal.App.4th 918, 921 (1996).
district court has discretion to award attorney fees to a
prevailing defendant in a FEHA action “upon a finding
that the plaintiff's action was frivolous, unreasonable,
or without foundation [i.e., groundless].”
Christiansburg Garment Co. v. Equal Emp't Opportunity
Comm'n, 434 U.S. 412, 421-22 (1978). Such an award
need not cover the entire litigation, but “may be
limited to the period after events demonstrate[d]” the
claims' groundlessness. Moss v. Associated
Press, 956 F.Supp. 891, 896 (C.D. Cal. 1996);
Williams v. Chino Valley Indep. Fire Dist., 61
Cal.4th 97, 99-100 (2015) (applying the same standard under
Government Code Section 12965(b)). In setting out this
standard in Christiansburg, the Supreme Court,
mindful of the danger of discouraging meritorious suits,
cautioned district courts about hindsight bias:
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. This kind of hindsight bias could
discourage all but the most airtight claims, for seldom can a
prospective plaintiff be sure of ultimate success.
434 U.S. at 421-22. The Court reminded judges that litigation
is unpredictable, and that “decisive facts may not
emerge until ...