                         Mollie BONNER, Sara J. Douglas, Plaintiffs-Appellants,

                                                      v.
 MOBILE ENERGY SERVICES COMPANY, L.L.C., an affiliate of the Southern Company, Southern
Energy, Inc.—Mobile Energy Services Company, Southern Energy Resources, Inc., Defendants-Appellees.

                                               No. 00-12495.

                                      United States Court of Appeals,
                                              Eleventh Circuit.

                                               April 4, 2001.

Appeal from the United States District Court for the Southern District of Alabama. (No. 97-01192.CV-BH-S),
William B. Hand. Judge.
Before TJOFLAT, BARKETT and POLITZ*, Circuit Judges.

        PER CURIAM:

        Mollie Bonner and Sara J. Douglas appeal the adverse award of attorney's fees in their failed Title
VII discrimination action. Our review of the record persuades that a reversal is in order.

        Bonner and Douglas originally sued alleging claims under Title VII of the Civil Rights Act of 1964,1
the Age Discrimination in Employment Act,2 and the Employee Retirement Income Security Act.3 The facts
of this litigation are set forth in great detail in the trial court's March 31, 1999, opinion granting summary

judgment on all claims to the defendants. They need not be here repeated. After entry of said judgment the
appellees petitioned for attorney's fees and expenses. The trial court granted same but only with respect to

the Title VII claims.4 Bonner and Douglas timely appealed. We review for abuse of discretion.5
         A district court may award attorney's fees to the prevailing Title VII defendant when it determines



    *
     Honorable Henry A. Politz, U.S. Circuit Judge for the Fifth Circuit, sitting by designation.
    1
     42 U.S.C. § 2000e et seq.
    2
     29 U.S.C. § 621 et seq.
    3
     29 U.S.C. § 1001 et seq.
    4
     Appellees claimed attorney's fees and expenses totaling $72,602.54 for the defense of all three
federal claims. The trial court denied the motion as to the failed ADEA and ERISA claims, but
subsequently awarded Appellees $71,833.04, nearly 99% of the total amount claimed, as reasonable fees
and expenses for the Title VII claims. Our ruling obviates the necessity to address that anomaly.
    5
     Turner v. Sungard Business Systems, Inc., 91 F.3d 1418 (11th Cir.1996).
that "the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in
subjective bad faith,"6 a standard the Supreme Court has described as "stringent."7 In deciding whether an

action is so lacking in merit as to justify awarding attorney's fees to the prevailing defendant, the trial court

is to consider the denominated Sullivan factors, i.e., whether (1) the plaintiff established a prima facie case;

(2) the defendant offered to settle; and (3) the trial court dismissed the case prior to trial.8

          In its opinion granting fees on the Title VII claim the trial court noted the prescribed Sullivan

analysis, but apparently then unduly relied upon our comment therein 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 ... [where] the plaintiffs did not introduce any evidence to support their claims."9 The trial court
found that Bonner and Douglas had abandoned their claim of racial discrimination when opposing summary
judgment, and had adduced no admissible evidence in support of their claim of gender discrimination. The
court reasoned that this lack of admissible evidence should have been apparent to Bonner and Douglas, but

nonetheless they apparently wrongfully continued to maintain their gender discrimination claim.
          The record fully supports the trial court's grant of summary judgment to the defendants. We are not
convinced, however, that the action was so "patently devoid of merit as to be frivolous."10 The evidence
adduced by Bonner and Douglas was markedly weak, but the district court assumed that they had established

their prima facie case.11 Of particular note, Bonner and Douglas submitted as evidence a neutral arbitrator's

report on their termination concluding that Mobile Energy Services Company did not act with just cause when


    6
     Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978).
    7
     Hughes v. Rowe, 449 U.S. 5, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980)(adopting the same "stringent
standard" used in Title VII cases to determine when an award of attorney's fees is appropriate in cases
brought under 42 U.S.C. § 1983).
    8
     Sullivan v. School Bd. of Pinellas County, 773 F.2d 1182 (11th Cir.1985).
    9
     Sullivan, 773 F.2d at 1189. We previously have determined that deciding when attorney's fees are
appropriate must be done on a case-by-case basis, and the Sullivan factors are only general factors to
guide the inquiry. See Walker v. NationsBank of Florida, N.A., 53 F.3d 1548, 1559 (11th Cir.1995); see
also Sullivan, 773 F.2d at 1189 ("these ... are general guidelines only, not hard and fast rules."). Sullivan
does not create a bright line checklist nor does it permit of a mechanical application.
    10
        Sullivan, 773 F.2d at 1189.
    11
      The district court assumed, without deciding, that the plaintiffs established a prima facie case on
each of their claims, choosing to focus its decision on their failure to show the asserted reasons for their
termination were pretextual.
it discharged them. This report does not suggest that Douglas and Bonner were discharged based upon their

gender, but it does establish at least the foundation of a claim that MESC acted out of ulterior motives. We
must also note that prior to declaring bankruptcy MESC offered Bonner and Douglas $125,000 to settle their

claims, including those arising from the arbitrator's decision. Taken together, we cannot say that Bonner and

Douglas were actionably frivolous or unreasonable in maintaining their gender discrimination claim through
the summary judgment stage. Care must be taken to remain sensitive to the policy considerations militating

against imposing fees on unsuccessful plaintiffs in discrimination claims which might "discourage all but the

most airtight claims" and "undercut the efforts of Congress to promote the vigorous enforcement provisions

of Title VII."12 Accordingly, we must conclude that awarding the defendants attorney's fees herein was an

abuse of discretion, and the action of the court in doing so is REVERSED.




    12
      Christiansburg, 434 U.S. at 421-22, 98 S.Ct. 694.
