                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          AUG 10 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    E. DALE TWILLEY, an individual,

                Plaintiff-Appellant and
                Cross-Appellee,
                                                         Nos. 00-6091
    v.                                                        00-6173
                                                              00-6196
    INTEGRIS BAPTIST MEDICAL                        (D.C. No. 99-CV-458-R)
    CENTER, INC., an Oklahoma                             (W.D. Okla.)
    corporation,

                Defendant-Appellee and
                Cross-Appellant.


                            ORDER AND JUDGMENT            *




Before EBEL , PORFILIO, and KELLY , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). These cases are

therefore ordered submitted without oral argument.



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
         Plaintiff E. Dale Twilley appeals the district court’s grant of summary

judgment to defendant, his former employer, on his complaint alleging that

defendant terminated his employment because of his disability in violation of the

Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213, and in

retaliation for exercising his rights under the Family and Medical Leave Act

(FMLA), 29 U.S.C. §§ 2601-2654. Plaintiff also appeals the district court’s

award of attorney’s fees to defendant; defendant cross-appeals the district court’s

denial of its full attorney’s fee request. We affirm.


                                I. ADA and FMLA Claims

         The parties are familiar with the facts, which are set out and fully addressed

by the district court in its order filed January 25, 2000. We review a grant of

summary judgment de novo, applying the same legal standard as used by the

district court.   Anderson v. Coors Brewing Co. , 181 F.3d 1171, 1175 (10th Cir.

1999).

         The analytical framework set forth in     McDonnell Douglas Corp. v. Green   ,

411 U.S. 792, 802-04 (1973), governs our review of plaintiff’s ADA and FMLA

claims. Morgan v. Hilti, Inc. , 108 F.3d 1319, 1323 (10th Cir. 1997). Once

plaintiff has established a prima facie case of an ADA discrimination claim or a

FMLA retaliation claim, the burden shifts to defendant to offer a legitimate, non-

discriminatory or non-retaliatory motive for its employment decision.       Id. If

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defendant meets that burden, the burden then shifts to       plaintiff to show that “there

is a genuine dispute of material fact as to whether the employer’s proffered reason

for the challenged action is pretextual--i.e., unworthy of belief.”     Id. (quotation

omitted). Pretext can be demonstrated by “showing such weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions in the

employer’s proffered legitimate reasons for its action that a reasonable factfinder

could rationally find them unworthy of credence.”         Id. (quotations omitted).

       The district court concluded that plaintiff failed to establish the last

element in the analysis--namely, an inference that defendant terminated his

employment based on his disability or in retaliation for his taking leave under

FMLA. Defendant presented evidence that plaintiff was discharged because it

had evidence that he altered a medical release form to reflect that he was sick on

days that he was actually on vacation.

       We have carefully reviewed the parties’ briefs and the entire record in the

case. There is ample evidence in the record to support defendant’s claim that it

honestly believed that plaintiff had committed the alteration. We find no

evidence in the record that creates a genuine issue of material fact suggesting that

defendant’s explanation was unworthy of belief. Accordingly, we affirm the

district court’s grant of summary judgment in favor of defendant.




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                                II. Attorney’s Fee Award

       Plaintiff argues the district court erred by awarding defendant attorney’s

fees under the ADA. On cross-appeal, defendant argues the court erred by

reducing its requested fees. The ADA permits the district court, in its discretion,

to award the prevailing party “a reasonable attorney’s fee, including litigation

expenses and costs.” 42 U.S.C. § 12205. The Supreme Court held in

Christiansburg Garment Co. v. EEOC       , 434 U.S. 412 (1978), that a prevailing

defendant in an action brought under Title VII of the Civil Rights Act of 1964

should ordinarily only recover attorney’s fees if the district court finds “that the

plaintiff’s action was frivolous, unreasonable, or without foundation, even though

not brought in subjective bad faith.”   Id. at 421. This standard applies as well to

the recovery of attorney’s fees by prevailing defendants in ADA actions.      Bruce v.

City of Gainesville , Ga. , 177 F.3d 949, 951-52 (11th Cir. 1999).

       We review the decision to award attorney’s fees, and the amount awarded,

for abuse of discretion.   Case v. Unified Sch. Dist. No. 233   , 157 F.3d 1243, 1249

(10th Cir. 1998). Under the abuse of discretion standard, we will not disturb the

district court’s decision unless we have “a definite and firm conviction that the

lower court made a clear error of judgment or exceeded the bounds of permissible

choice in the circumstances.”    Moothart v. Bell , 21 F.3d 1499, 1504 (10th Cir.

1994) (quotation omitted). After reviewing the briefs and the record, we cannot


                                            -4-
say that the district court abused its discretion in awarding attorney’s fees to

defendant.

      The standard in Christiansburg Garment      is met when a party utterly fails to

produce any evidence in support of material issues necessary to withstand

summary judgment.     Head v. Medford , 62 F.3d 351, 355 (11th Cir. 1995);     Smith v.

Smythe-Cramer Co ., 754 F.2d 180, 183 (6th Cir. 1985) (“Courts have awarded

attorneys fees to prevailing defendants where no evidence supports the plaintiff’s

position or the defects in the suit are of such magnitude that the plaintiff’s

ultimate failure is clearly apparent from the beginning or at some significant point

in the proceedings after which the plaintiff continues to litigate.”). We are

satisfied from our review of the record that plaintiff failed to produce any

evidence that defendant’s proffered explanation for the termination was pretextual

and we agree that his claims were based on mere speculation and conjecture. Of

course, “mere conjecture that [the] employer’s explanation is a pretext . . . is an

insufficient basis for denial of summary judgment.”    Branson v. Price River Coal

Co. , 853 F.2d 768, 772 (10th Cir. 1988). Yet, plaintiff continued to litigate after

it became clear during discovery that his claims lacked evidentiary support. Thus,

we agree with the district court’s finding that plaintiff’s claims were frivolous

and unfounded. The district court’s award does not conflict with the standards




                                           -5-
articulated in Christiansberg Garment,    nor does it exceed the bounds of its

permissible choice.

       The district court reduced defendant’s attorney’s fee request from

more than $52,796 to $20,000. The court found that the total number of hours

billed by defendant’s counsel was excessive given that the legal and factual issues

were not complex and the litigation was decided at the summary judgment stage.

See Case , 157 F.3d at 1250 (holding that court must ensure that counsel exercised

“billing judgment” and that hours expended were reasonable). The court also

took into consideration plaintiff’s financial resources and the fact that he suffers

from a life-threatening illness.   See Gibbs v. Clements Food Co. , 949 F.2d 344,

345 (10th Cir. 1991) (holding that non-prevailing civil rights plaintiff’s financial

condition and resources are relevant to amount of attorney’s fees to be awarded to

prevailing defendant). We find no error in the district court’s reduction of the fee

request. See Case , 157 F.3d at 1250 (general reduction of attorney’s fees to

prevailing party not erroneous where sufficient reasons given).




                                           -6-
     For substantially the reasons stated by the district court in its orders filed

January 25, 2000, and May 11, 2001, we AFFIRM.



                                                     Entered for the Court



                                                     Paul J. Kelly, Jr.
                                                     Circuit Judge




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