                                                                  United States Court of Appeals
                                                                           Fifth Circuit
                                                                        F I L E D
                                                                         April 29, 2004
                 IN THE UNITED STATES COURT OF APPEALS
                                                                    Charles R. Fulbruge III
                           FOR THE FIFTH CIRCUIT                            Clerk



                                  No. 03-50820



      LARRY D. SKINNER,

                                                 Plaintiff-Appellant,

                                     versus

      SAN FELIPE DEL RIO CONSOLIDATED INDEPENDENT
      SCHOOL DISTRICT; ET AL.,

                                                 Defendants,

      SAN FELIPE DEL RIO CONSOLIDATED INDEPENDENT
      SCHOOL DISTRICT; EDDIE BACA, in his individual
      capacity; JOANNE RUARK-ACKERMANN, DR., in her
      individual capacity; ANN DIXON, DR., in her individual
      capacity; KAY HERNANDEZ; FRED HERNANDEZ,

                                                 Defendants-Appellees.


                 Appeal from the United States District Court for
                          the Western District of Texas
                            (USDC No. DR-01-CV-7)
         _______________________________________________________


Before KING, Chief Judge, REAVLEY and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*

       Appellant appeals both the award of attorney’s fees and the amount awarded to appellee.

We affirm for the following reasons.

       In assessing whether fees are appropriate under Christiansburg Garment Co. v. EEOC,

434 U.S. 412, 421 (1978), for frivolous or meritless litigation, this Court has been guided by the

Mississippi factors: (1) whether the plaintiff established a prima facie case; (2) whether the

defendant offered to settle; and (3) whether there was a full-blown trial on the merits. United

States v. Mississippi, 921 F.2d 604, 609 (5th Cir. 1991). It is important to note that “[t]hese

factors are, however, guideposts, not hard and fast rules. Determinations regarding frivolity are to

be made on a case-by-case basis.” See EEOC v. L. B. Foster Co., 123 F.3d 746, 751 (3d Cir.

1997) (internal citations and quotations omitted). While satisfying a prima facie case usually

precludes the award of attorney’s fees, there are instances in which the prima facie case may be

shown but the case is still ultimately frivolous. See EEOC v. Union Camp. Corp., 536 F. Supp.

64, 66 (W.D. Mich. 1982). Whether or not the district court correctly determined that the

appellant did not establish the elements of his prima facie case of discrimination, this litigation was

ultimately groundless and frivolous. The court did not abuse its discretion.

       In his reply brief, appellant also challenges the amount of the attorney’s fees. He contests

whether the hours were reasonable as the Defendants did not provide a breakdown of the

reasonable hours expended, argues the Johnson factors did not support the lodestar amount, and

contends that specific deposition and copy costs should not have been deemed recoverable. As

       *
        Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.

                                                  2
these specific issues were not clearly raised before the trial court, they are deemed waived. See

United States ex rel. Wallace v. Flintco Inc., 143 F.3d 955, 971 (5th Cir. 1998).

       AFFIRMED.




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