      RECOMMENDED FOR FULL-TEXT PUBLICATION
           Pursuant to Sixth Circuit Rule 206             2        Gettings v. Building                   Nos. 02-3454/3535
   ELECTRONIC CITATION: 2003 FED App. 0402P (6th Cir.)             Laborers Local 310
               File Name: 03a0402p.06
                                                              Before: DAUGHTREY and GILMAN, Circuit Judges;
                                                                         HAYNES, District Judge.*
UNITED STATES COURT OF APPEALS
                                                                                 _________________
             FOR THE SIXTH CIRCUIT
               _________________                                                      COUNSEL

JUDY GETTINGS,                    X                       ARGUED: William W. Taylor, Steubenville, Ohio, for
            Plaintiff-Appellant -                         Plaintiff. Richard L. Stoper, Jr., ROTATORI, BENDER,
                                                          GRAGEL, STOPER & ALEXANDER, Cleveland, Ohio, for
                     (02-3454), -                         Defendant. ON BRIEF: William W. Taylor, Steubenville,
                                   -  Nos. 02-3454/3535
            Plaintiff-Appellee, -                         Ohio, for Plaintiff. Richard L. Stoper, Jr., Susan L. Gragel,
                                    >                     ROTATORI, BENDER, GRAGEL, STOPER &
                                   ,
           v.                                             ALEXANDER, Cleveland, Ohio, for Defendant.
                                   -
                                   -                                             _________________
BUILDING LABORERS LOCAL            -
310 FRINGE BENEFITS FUND ,         -                                                 OPINION
          Defendant-Appellee, -                                                  _________________
          Defendant-Appellant -
                                   -                         RONALD LEE GILMAN, Circuit Judge. Judy Gettings
                     (02-3535). -
                                                          filed a complaint alleging that her employer, the Building
                                   -                      Laborers Local 310 Fringe Benefits Fund (the Fund), violated
                                   -                      Title VII, ERISA, and the National Labor Relations Act by
                                  N                       discriminating against her on the basis of her gender. For the
      Appeal from the United States District Court        reasons set forth below, we AFFIRM the district court’s
     for the Northern District of Ohio at Cleveland.      grant of summary judgment for the Fund as to all claims. In
   No. 01-01223—Donald C. Nugent, District Judge.         addition, we VACATE the district court’s denial of attorney
                                                          fees to the Fund and REMAND with instructions that the
              Argued: October 24, 2003                    court reconsider the request and provide a reasoned
                                                          explanation for its decision.
       Decided and Filed: November 13, 2003




                                                               *
                                                                The Honorable William J. Haynes, Jr., United States District Judge
                                                          for the Middle District of Tennessee, sitting by designation.

                           1
Nos. 02-3454/3535                    Gettings v. Building       3    4    Gettings v. Building                  Nos. 02-3454/3535
                                     Laborers Local 310                   Laborers Local 310

                     I. BACKGROUND                                   the Fund was discriminating against her because of her
                                                                     gender.     Gettings claims that Mickshaw received a
A. Factual background                                                substantially more lucrative compensation package for
                                                                     performing essentially the same work that she did.
  Gettings was hired by the Fund as a secretary/clerk in 1978.
The Fund administers health, welfare, pension, and other               On October 1, 1998, the OCRC issued Gettings a probable-
benefit plans for the members of the Building and                    cause letter, making a preliminary determination that the
Construction Laborers Local Union 310 (the Union). A                 Fund had probably engaged in unlawful discriminatory
Board of Trustees, comprised of equal numbers of Union and           practices. Depositions of Gettings, the fund administrator,
employer representatives, governs the Fund. In addition to           and the OPEIU union steward were subsequently taken by an
Gettings, five other people were employed in the Fund’s              assistant state attorney general on behalf of the OCRC. In her
office: three clerks, a field auditor, and the fund administrator.   deposition, Gettings admitted that there were significant
Gettings and the three other clerks were members of the              differences between the duties of a field auditor and the duties
Office and Professional Employees International Union                of a clerk, and that Mickshaw was performing some field
(OPEIU), which negotiated their wages and benefits in a              auditor tasks, although, in Gettings’s opinion, not very well.
collective bargaining agreement with the Fund.                       Gettings also conceded that she did not perform any field
Compensation for the field auditor and the fund administrator        auditor duties. She further acknowledged that Mickshaw’s
was set by the Fund’s Board of Trustees.                             duties required that he have access to a Fund-provided car,
                                                                     while her duties did not. Finally, Gettings admitted that her
  In 1989, the Fund hired Robert Mickshaw, the son-in-law            union, OPEIU, had attempted to negotiate retirement benefits
of the Union’s business manager, to be the field auditor.            similar to those received by Mickshaw, but was unsuccessful.
Gettings claims that Mickshaw was incompetent and                    According to Gettings, she withdrew her complaint before the
unqualified for this position. Because Mickshaw was                  OCRC made any final determination on the merits so that she
purportedly unable to fulfill his duties as the field auditor,       could proceed in federal court.
Gettings alleges that she and the other clerks trained him to
perform their clerical duties. As a consequence, Gettings               The EEOC, meanwhile, had declined to investigate
complains that she and Mickshaw were doing the same kind             Gettings’s charge because the Fund employed less than 15
of work, but that Mickshaw was being paid $35,000 more per           employees, which is the minimum number for an entity to be
year than she was by virtue of his formally holding the              considered an “employer” under Title VII. 42 U.S.C.
position of field auditor. Mickshaw also enjoyed more                § 2000e(b). On August 24, 2000, the EEOC sent Gettings a
favorable retirement benefits than Gettings and had access to        letter confirming that her charge of employment
a Fund-provided car.                                                 discrimination had been withdrawn in accordance with her
                                                                     request. The EEOC letter did not, however, indicate that she
B. Procedural background                                             had only 90 days within which to bring a civil action pursuant
                                                                     to 42 U.S.C. 2000e-5(f)(1). Gettings filed a complaint in
  In November of 1997, Gettings filed charges with the Ohio          federal district court over eight months later, alleging (1) sex
Civil Rights Commission (OCRC) and the Equal                         discrimination, in violation of Title VII of the Civil Rights
Employment Opportunity Commission (EEOC), alleging that              Act of 1964, 42 U.S.C. §§ 2000e-2000e(17), and Ohio
Nos. 02-3454/3535                   Gettings v. Building      5    6    Gettings v. Building                  Nos. 02-3454/3535
                                    Laborers Local 310                  Laborers Local 310

Revised Code § 4112.02, (2) discrimination under the                                      II. ANALYSIS
Employee Retirement Income Security Act (ERISA),
29 U.S.C. § 1001-1461, and (3) discrimination based on             A. The district court’s stay of discovery
union membership, in violation of the National Labor
Relations Act (NLRA), 29 U.S.C. § 141-187.                           The Fund filed a motion to stay discovery pending the
                                                                   district court’s ruling on the Fund’s motion for summary
   At the initial case management conference called by the         judgment. Discovery was stayed by the district court without
district court, the Fund indicated that it would soon be filing    opinion. Gettings claims that the denial of discovery was
a motion for summary judgment. The parties also agreed to          manifestly unjust and violated her right to the due process of
limit discovery in light of the prior proceedings before the       law. We review a district court’s decision to limit discovery
OCRC. After the Fund filed its motion for summary                  under an “abuse of discretion” standard. Hahn v. Star Bank,
judgment, Gettings requested an additional 60 days in order        190 F.3d 708, 719 (6th Cir. 1999).
to conduct discovery before submitting her response. The
Fund opposed Gettings’s motion because she had failed to              “Trial courts have broad discretion and inherent power to
comply with the requirement of Rule 56(f) of the Federal           stay discovery until preliminary questions that may dispose of
Rules of Civil Procedure that such a motion include an             the case are determined.” Id. Limitations on pretrial
affidavit containing a specification of facts to be discovered     discovery are appropriate where claims may be dismissed
and an explanation of how the discovered facts would rebut         “based on legal determinations that could not have been
the Fund’s motion for summary judgment. Gettings’s counsel         altered by any further discovery.” Musquiz v. W. A. Foote
confirmed at oral argument that he did not file a Rule 56(f)       Memorial Hospital, Inc., 70 F.3d 422, 430 (6th Cir. 1995). In
affidavit. At the second pretrial conference, the district court   the present case, the Fund’s motion for summary judgment
granted Gettings’s request for additional time to respond, but     contained the following issues that could be decided as a
stayed discovery pending its ruling on the Fund’s motion for       matter of law: whether the Fund, as a single entity, was an
summary judgment.                                                  employer as defined under Title VII, whether Gettings stated
                                                                   a claim under ERISA, and whether the NLRB had exclusive
   In response, Gettings not only opposed the Fund’s               jurisdiction over Gettings’s unfair-labor-practice claim. We
summary judgment motion, but also sought leave to amend            conclude that the district court did not abuse its discretion in
her complaint to add the Union as a defendant, arguing that        making these legal determinations without discovery.
the Fund and the Union were in fact a single entity. The
district court subsequently granted summary judgment in              There are, however, two fact-based issues that could have
favor of the Fund and denied Gettings’s motion to amend her        been fleshed out in more detail if discovery had gone forward.
complaint. Following this ruling, the Fund filed a motion for      First, Gettings might have obtained evidence to support her
attorney fees and costs, which the district court denied by a      theory that the Fund and the Union were acting as a single
marginal entry without any explanation. Gettings appeals the       employer. Second, Gettings might have unearthed facts to
former decision, and the Fund appeals the latter.                  prop up her claim that Mickshaw’s position as the field
                                                                   auditor was a sham. The problem is that Gettings did not
                                                                   comply with Rule 56(f) of the Federal Rules of Civil
                                                                   Procedure, which provides as follows:
Nos. 02-3454/3535                    Gettings v. Building       7   8        Gettings v. Building              Nos. 02-3454/3535
                                     Laborers Local 310                      Laborers Local 310

  Should it appear from the affidavits of a party opposing          B. The Fund’s motion for summary judgment
  the [summary judgment] motion that the party cannot for
  reasons stated present by affidavit facts essential to                1. Standard of review
  justify the party’s opposition, the court may refuse the
  application for judgment or may order a continuance to              We review a district court’s grant of summary judgment
  permit affidavits to be obtained or depositions to be taken       de novo. Logan v. Denny’s, Inc., 259 F.3d 558, 566 (6th Cir.
  or discovery to be had or may make such other order as            2001). Summary judgment is proper where there exists no
  is just.                                                          genuine issue of material fact and the moving party is entitled
                                                                    to judgment as a matter of law. Fed. R. Civ. P. 56(c). In
  This court has interpreted Rule 56(f) as requiring a party        considering a motion for summary judgment, the district court
opposing a summary judgment motion to file an affidavit that        must construe all reasonable inferences in favor of the
“indicate[s] to the district court its need for discovery, what     nonmoving party. Matsushita Elec. Indus. Co. v. Zenith
material facts it hopes to uncover, and why it has not              Radio Corp., 475 U.S. 574, 587 (1986). The central issue is
previously discovered the information.” Cacevic v. City of          “whether the evidence presents a sufficient disagreement to
Hazel Park, 226 F.3d 483, 488 (6th Cir. 2000); see also,            require submission to a jury or whether it is so one-sided that
Wallin v. Norman, 317 F.3d 558, 564 (6th Cir. 2003)                 one party must prevail as a matter of law.” Anderson v.
(summarizing Sixth Circuit precedent that the nonmoving             Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
party must (1) file an affidavit that details the discovery
needed, and (2) explain how it will help rebut the movant’s             2.    Prima facie case of gender discrimination under Title
showing of the absence of a genuine issue of material fact).                  VII and Ohio state law
Gettings filed no such affidavit.
                                                                       In order to establish a prima facie case of gender
  This court has pointed out that “[t]he importance of              discrimination under Title VII, Gettings must show that
complying with Rule 56(f) cannot be overemphasized.”                (1) she was a member of a protected class; (2) she suffered an
Cacevic, 226 F.3d at 488. “Where a party opposing summary           adverse employment action; (3) she was qualified for the
judgment and seeking a continuance pending completion of            position; and (4) that she was treated differently from
discovery fails to take advantage of the shelter provided by        similarly situated members of the unprotected class.
Rule 56(f) by filing an affidavit, there is no abuse of             Alexander v. Local 496, Laborers’ Int’l Union, 177 F.3d 394,
discretion in granting summary judgment if it is otherwise          402-03 (6th Cir. 1999). Because the prima facie case
appropriate.” Id. (internal citation omitted). Because              requirements are essentially the same under Ohio Revised
Gettings failed to file such an affidavit, the district court did   Code § 4112.02, see Ohio Civil Rights Comm’n v. Ingram,
not abuse its discretion in staying discovery pending               630 N.E.2d 669, 672 (Ohio 1994), Gettings’s federal and
resolution of the Fund’s motion for summary judgment.               state-law claims of gender discrimination may be disposed of
                                                                    together.
                                                                      The district court properly determined that Gettings failed
                                                                    to establish a prima facie case for several reasons. First,
                                                                    Gettings did not specifically allege that she suffered an
Nos. 02-3454/3535                    Gettings v. Building      9    10   Gettings v. Building                 Nos. 02-3454/3535
                                     Laborers Local 310                  Laborers Local 310

adverse employment action. She was not terminated,                  present, the Fund has never had 15 or more employees. Only
disciplined, or demoted. Nor was she rejected for the field         6 persons are employed by the Fund. Accordingly, as a
auditor position, since she never applied for it. Second,           matter of law, the Fund was entitled to summary judgment on
Gettings does not allege that she was qualified to be a field       Gettings’s Title VII claim.
auditor. Third, Gettings and Mickshaw were not similarly
situated. Under Title VII, “the plaintiff and the employee            Gettings attempted to overcome Title VII’s definition of an
with whom the plaintiff seeks to compare . . . herself must be      employer by filing a motion to amend her complaint to add
similar in all of the relevant aspects.” Ercegovich v.              the Union as a defendant. She argued that the Union and the
Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir.             Fund were acting as a single employer. Because the Union
1998) (emphasis in original) (internal citation omitted).           has 13 employees and the Fund has 6 employees, their
                                                                    combined workforce would clear the 15-employee statutory
   The district court correctly observed that Gettings was          hurdle if they were considered a single employer. The district
comparing apples to oranges. Gettings and Mickshaw each             court found that Gettings’s motion was moot because, even if
held different jobs, with different qualification requirements      the Union and the Fund were indeed a single employer for the
and duties, and thus had different compensation packages.           purposes of Title VII, Gettings nonetheless failed to establish
Gettings admitted as much in her deposition.                 She    a prima facie case of gender discrimination. Because we
acknowledged that she and Mickshaw had different jobs and           agree with the district court’s adjudication on the merits of
responsibilities and conceded that Mickshaw did perform             Gettings’s gender discrimination claim, we conclude that the
some of his field auditor tasks. Gettings’s opinion that            district court properly dismissed as moot Gettings’s motion to
Mickshaw performed poorly—but was handsomely paid—as                add the Union as a defendant.
the field auditor does not mean that Gettings was being
discriminated against with regard to her own employment as            We also note that there is nothing in the record before us to
a clerk. In sum, she and Mickshaw did not hold positions that       indicate that the Fund and the Union were acting as a single
were similar in all relevant aspects. We thus find no error in      employer. The OCRC examined the operations and
the district court’s conclusion that Gettings failed to establish   management of the Fund and the Union and concluded that
a prima facie case of discrimination under either federal or        the entities were “completely separate” and could not be
state law.                                                          “merged” to satisfy the EEOC’s jurisdictional prerequisites.
                                                                    After considering the appropriate test in this circuit, the
  3. Gettings’s employer for the purposes of the Title VII          district court also concluded that Fund and the Union were
                                                                    separate entities. See Distillery, Wine & Allied Workers Int’l
  The district court also properly granted summary judgment         Union v. National Distillers & Chem. Corp., 894 F.2d 850
on Gettings’s Title VII claim because the Fund does not             (6th Cir. 1990) (examining the interrelation of operations,
satisfy the statutory definition of an employer. An employer,       common management, centralized control of labor relations,
for purposes of Title VII, is “a person engaged in an industry      and common ownership as the key factors in a single-
affecting commerce who has fifteen or more employees for            employer analysis).
each working day in each of twenty or more calendar weeks
in the current or preceding calendar year . . . .” 42 U.S.C.          Because Gettings’s failure to file an affidavit under Rule
§ 2000e(b). The district court found that, from 1995 to the         56(f) ended further development of the record on this point,
Nos. 02-3454/3535                    Gettings v. Building     11    12   Gettings v. Building                 Nos. 02-3454/3535
                                     Laborers Local 310                  Laborers Local 310

we decline to hold that the district court was clearly erroneous      5. The ERISA claim
in deciding that the Fund and the Union were separate
entities. See Michigan Bell Tel. Co. v. Engler, 257 F.3d 587,          Gettings’s complaint also failed to articulate a claim under
592 (6th Cir. 2001) (stating that this court does not disturb       ERISA. The district court assumed that Gettings was
findings of fact unless the district court was clearly erroneous    attempting to argue that she was being discriminated against
in reaching its conclusion). Gettings’s motion to amend her         because she received less favorable retirement benefits or
complaint was therefore not only moot, but meritless.               contributions than Mickshaw. But ERISA does not provide
                                                                    a remedy for gender discrimination. ERISA prohibits
  4.   The district court’s alternative basis for dismissing        discrimination in the exercise of rights under an employee
       the Title VII claim                                          benefit plan covered by ERISA. 29 U.S.C. § 1140.
                                                                    Gettings’s complaint, however, did not allege that she was
   An alternative basis for dismissing Gettings’s Title VII         being discriminated against in the exercise of her rights under
claim, the district court held, was her failure to meet certain     her employee benefit plan, the terms of which were
procedural requirements for filing suit in federal court.           negotiated by her union. Nor did Gettings allege that she had
Usually a person who files a charge with the EEOC that is           requested and was denied any specific benefit that she is due
subsequently dismissed receives notice that she has a right to      under her employee benefit plan. Because Gettings failed to
pursue her claim in federal court. 42 U.S.C. § 2000e-5(f)(1).       state a claim for discrimination under ERISA, the district
This typically takes the form of a “right-to-sue” letter, stating   court properly granted the Fund’s motion for summary
that the individual has 90 days from the date of the letter to      judgment on this issue. Gettings does not contest this aspect
file a civil complaint in court. Gettings argues that her letter    of the district court’s holding.
from the EEOC failed to explain this procedural requirement
and was not captioned as a “right-to-sue” letter. She thus             Instead, Gettings has apparently seized on the Fund’s
contends that she should not be penalized for filing her            interpretation of her ERISA claim as the basis for her appeal.
lawsuit over eight months after receiving the EEOC’s letter.        In interpreting Gettings’s complaint at the summary judgment
                                                                    stage, the Fund assumed that Gettings was arguing that the
   The district court pointed out that Gettings was in a no-win     Fund’s plan did not qualify as a trust entitled to certain tax
situation.    If the EEOC letter confirming Gettings’s              advantages because it was paying higher benefits to the more
withdrawal of her charge met the statute’s requirement that         highly compensated employees, potentially in violation of
she be given notice of her rights, then she filed her complaint     26 U.S.C. § 401(a)(4). The district court disagreed. After a
too late. On the other hand, if the EEOC letter was not a           careful review of Gettings’s complaint, the district court
“right-to-sue” letter, then Gettings filed her case without         determined that Gettings was not alleging any cause of action
receiving clearance to do so. In either case, the district court    based upon the Fund’s purported violation of the Internal
held that Gettings failed to meet the procedural prerequisites      Revenue Code.
of Title VII. Because the district court’s other reasons for
granting the Fund summary judgment are sound, we decline              For the sake of argument, however, the district court
to address this alternative basis for disposing of Gettings’s       assumed that Gettings had standing to assert the ERISA claim
Title VII claim.                                                    as framed by the Fund. It nonetheless concluded that the
                                                                    Fund’s plan was a qualified trust under the tax laws. The
Nos. 02-3454/3535                    Gettings v. Building      13    14   Gettings v. Building                  Nos. 02-3454/3535
                                     Laborers Local 310                   Laborers Local 310

court pointed out that in evaluating whether a trust is              See 29 U.S.C. § 160(a) (empowering the NLRB to prevent
providing highly compensated employees with more                     any person from engaging in unfair labor practices).
favorable benefits than are being received by other plan
members, the tax code instructs that employees covered by              Gettings attempts to circumvent the NLRB’s exclusive
collective bargaining agreements are not considered in this          jurisdiction over this claim by arguing that “OPEIU is not a
comparative analysis. See 26 U.S.C. § 410(b)(3)(A).                  legitimate collective bargaining unit” and that her
                                                                     membership in OPEIU is a “sham.” Even if Gettings is
   Gettings now frames her ERISA claim as a dispute over             correct, which is not supported by the record, the NLRB still
standing. She appeals the district court’s supposed ruling that      has exclusive jurisdiction over the allegations of unfair labor
she did not have standing to bring a claim against the Fund’s        practices. See Carpenters District Council v. United
pension plan for violating the tax code. As discussed above,         Contractors Ass’n of Ohio, Inc., 484 F.2d 119, 121-23 (6th
however, the district court did not hold that Gettings lacked        Cir. 1973) (holding that even where the collective bargaining
standing. To the contrary, the court assumed that Gettings did       agreement is a sham, the NLRB has exclusive jurisdiction
have standing, but concluded that her claim was without              over allegations of unfair labor practices). The district court
merit. Gettings’s unconvincing comeback to the district              was therefore correct to dismiss this claim for lack of subject
court’s determination on the merits is that her collective           matter jurisdiction.
bargaining agreement is “of no consequence.” Regardless of
how Gettings’s ERISA claim is framed—as a discrimination             C. The Fund’s motion for attorney fees
issue, a tax violation issue, or a standing issue—the district
court properly determined that the Fund was entitled to                1. Standard of review
summary judgment.
                                                                        We now turn to the Fund’s cross-appeal, which relates to its
  6. Discrimination based upon union membership                      request for an award of attorney fees against Gettings. The
                                                                     grant or denial of attorney fees by a district court is reviewed
  The district court properly determined that it did not have        under an “abuse of discretion” standard. Berger v. City of
jurisdiction over Gettings’s claim that the Fund had engaged         Mayfield Heights, 265 F.3d 399, 402 (6th Cir. 2001). “Abuse
in an unfair labor practice by paying her less in wages and          of discretion is defined as a definite and firm conviction that
benefits than it paid Mickshaw, in alleged violation of 29           the trial court committed a clear error of judgment.” Id.
U.S.C. § 158. Under the latter provision, an employer                (internal citation omitted). Because the district court denied
engages in an unfair labor practice by discriminating “in            the Fund’s motion for attorney fees by a marginal order
regard to . . . any term or condition of employment to               without any explanation, it is impossible for us to determine
encourage or discourage membership in any labor                      whether the district court committed a clear error of
organization.” The National Labor Relations Board (NLRB),            judgment.       This court has previously expressed its
however, “has been designated by Congress as the exclusive           “disapproval of marginal entry orders” that are contested and
forum of original jurisdiction for adjudicating questions of . . .   dispositive of a substantive issue. Inland Bulk Transfer Co.
unfair labor practices . . . and . . . United States District        v. Cummins Engine Co., 332 F.3d 1007, 1015 n. 7 (6th Cir.
Courts have no such jurisdiction.” Lexington Cartage v. Int’l        2003) (criticizing marginal orders because they frustrate
Brotherhood of Teamsters, 713 F.2d 194, 195 (6th Cir. 1983).         appellate review); see also Bank One v. Abbe, 916 F.2d 1067,
Nos. 02-3454/3535                  Gettings v. Building     15    16    Gettings v. Building                  Nos. 02-3454/3535
                                   Laborers Local 310                   Laborers Local 310

1082 (6th Cir. 1990) (stating that marginal orders are            quotation marks omitted). But a “plaintiff should not be
disfavored because they create difficulties in properly           assessed his opponent’s attorney fees unless the court finds
reviewing such dispositions); United States v. Woods, 885         the claim was groundless at the outset or that the plaintiff
F.2d 352, 353-54 (6th Cir. 1989) (complaining that the            continued to litigate after it clearly became so.” Id. (internal
district court’s use of a marginal order complicated and          citation and quotation marks omitted) This determination,
potentially prejudiced appellate review).                         “requires inquiry into the plaintiff’s basis for filing suit.” Id.
                                                                  (internal citation omitted). Because the district court in the
   A trial judge’s exercise of discretion in fee-award cases,     present case used a marginal order, the record does not reveal
although “entitled to substantial deference . . . is not          whether the court engaged in any inquiry concerning the
absolute.” Adcock-Ladd v. Sec’y of Treasury, 227 F.3d 343,        merits of Gettings’s claim.
349 (6th Cir. 2000) (reversing the district court’s award of
attorney fees because of improper calculation methods). In          “This court has noted that attorneys’ fees should be
awarding attorney fees, a “district court must provide a clear    awarded to defense counsel in Title VII actions only in the
and concise explanation of its reasons.” Id. (internal citation   most egregious circumstances.” Noyes v. Channel Products,
omitted). By the same token, where there is significant           Inc., 935 F.2d 806, 810 (6th Cir. 1991). Such circumstances
evidence in the record to support an award of attorney fees,      may well be present here. The district court’s opinion
the district court should provide some explanation for its        indicates that Gettings knew that the EEOC had declined to
denial of the award rather than simply entering a marginal        investigate her Title VII claim on the basis that the Fund was
order. See Easley v. Value City Stores, Nos. 91-5288, 91-         not an “employer” as defined by that statute. In fact, the
5317, 1992 WL 3714, at *5 (6th Cir. Jan. 10, 1992)                district court found that that is why she withdrew her charge
(unpublished opinion) (remanding the employment                   from the EEOC. The OCRC’s report further informed
discrimination action to the district court to provide a          Gettings that she could not merge the workforces of the
statement of reasons explaining why the employer was not          Union and the Fund in order to meet Title VII’s jurisdictional
entitled to attorney fees when it prevailed on summary            requirements. Gettings thus had every reason to believe that
judgment); see also Ellenburg v. Brockway, Inc., 763 F.2d         her Title VII claim was barred, yet she pursued it anyway.
1091, 1097 (9th Cir. 1985) (remanding the case to the district
court with instructions that the court state its reasons for         She also failed to articulate any cognizable ERISA claim,
denying the appellants’ motion for attorney fees); Gordon v.      as is evident from the conflicting interpretations by the
U.S. Steel Corp., 724 F.2d 106, 108 (10th Cir. 1983) (same).      district court and the Fund regarding the exact nature of
                                                                  Gettings’s ERISA allegations. Under ERISA, a district court
  2.   Evidence supporting an award of attorney fees to the       “may allow a reasonable attorney’s fee and costs of action to
       Fund                                                       either party.” 29 U.S.C. § 1132(g)(1). This court has held
                                                                  that when a district court exercises its discretion in awarding
  “[A] district court may in its discretion award attorney fees   attorney fees under ERISA, it should consider five factors:
to a prevailing defendant upon a finding that the plaintiff’s
action was frivolous, unreasonable, or without                      (1) the degree of the opposing party’s culpability or bad
foundation. . . .” Wilson-Simmons v. Lake County Sheriff’s          faith; (2) the opposing party’s ability to satisfy an award
Dep’t, 207 F.3d 818, 823 (6th Cir. 2000) (internal citation and     of attorney’s fees; (3) the deterrent effect of an award on
Nos. 02-3454/3535                   Gettings v. Building    17
                                    Laborers Local 310

  other persons under similar circumstances; (4) whether
  the party requesting fees sought to confer a common
  benefit on all participants and beneficiaries of an ERISA
  plan or resolve significant legal questions regarding
  ERISA; and (5) the relative merits of the parties’
  positions.
Foltice v. Guardsman Products, Inc., 98 F.3d 933, 936-37
(6th Cir. 1996) (internal citation omitted). The district court
should explicitly consider all of these factors on remand.
                    III. CONCLUSION
   For all of the reasons set forth above, we AFFIRM the
decision of the district court granting summary judgment for
the Fund. In addition, we VACATE the district court’s
denial of attorney fees to the Fund and REMAND with
instructions that the court reconsider the request and provide
a reasoned explanation for its decision.
