          Case: 13-12601   Date Filed: 03/26/2014   Page: 1 of 6


                                                       [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 13-12601
                     ________________________

                D.C. Docket No. 5:12-cv-00201-RS-CJK



MICHAEL RICHARDSON,

                                            Plaintiff-Appellant,

versus



BAY DISTRICT SCHOOLS,

                                            Defendant-Appellee,


                    __________________________

              Appeal from the United States District Court
                  for the Northern District of Florida
                    ________________________

                           (March 26, 2014)
                Case: 13-12601       Date Filed: 03/26/2014       Page: 2 of 6


Before HULL, Circuit Judge, and WALTER, * District Judge, and GOLDBERG, **
Judge.

PER CURIAM:

       Plaintiff-Appellant Michael Richardson works in the maintenance

department of Defendant-Appellee Bay District Schools (“Bay District”).

Richardson brought suit against Bay District, alleging a hostile work-environment

gender-discrimination claim under Title VII. The district court granted summary

judgment in favor of Bay District and subsequently awarded attorney’s fees and

costs to Bay District and against Plaintiff Richardson. After careful review of the

briefs and the record, and with the benefit of oral argument, we affirm the district

court’s grant of summary judgment in favor of Defendant Bay District but reverse

the award of attorney’s fees and costs against Plaintiff Richardson.

       Plaintiff Richardson’s Title VII claim was based on the behavior of his

supervisor Jimmy Thompson, who was also Richardson’s friend. Viewed in the

light most favorable to Plaintiff Richardson, the record shows that Supervisor

Thompson (1) offered money to Richardson’s wife in return for sex; (2) offered

money and possibly even a promotion to Plaintiff Richardson if Richardson could

convince his wife to have sex with Thompson; and (3) proposed the idea of

Thompson and Richardson having sex with Richardson’s wife and other women at

        *Honorable Donald E. Walter, United States District Judge for the Western District of
      Louisiana, sitting by designation.
        **Honorable Richard W. Goldberg, United States Court of International Trade Judge,
sitting by designation.
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the same time. What is more, Supervisor Thompson asked Plaintiff Richardson to

persuade the waitresses at a lunch restaurant to have sex with Thompson in

exchange for money. Thompson used lewd language in his many conversations

with Richardson—not only in discussing Richardson’s wife but also when

referring to other women. 1

       To prevail on a hostile work-environment gender-discrimination claim under

Title VII, a plaintiff “must always prove that the conduct at issue was not merely

tinged with offensive sexual connotations, but actually constituted discrimination

because of sex.” Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81, 118 S.

Ct. 998, 1002 (1998) (quotation marks omitted and alterations adopted). While

Supervisor Thompson’s conduct was highly offensive and inappropriate, the

district court did not err in determining that no reasonable juror could conclude that

Thompson discriminated against Richardson because of Richardson’s gender.

       The record here contains no evidence that Richardson’s gender was the basis

for Thompson’s conduct; for example, there is no evidence that Thompson treated

men differently than women in the work place. Instead, the record indicates that

Thompson directed this conduct towards Richardson because the two were friends

and because Thompson was attracted to Richardson’s wife. In addition, there was

no tangible adverse employment action that had a causal link directly or indirectly

       1
      At oral argument, counsel for Plaintiff Richardson acknowledged that Supervisor
Thompson never expressed a sexual interest in Richardson himself.
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with Supervisor Thompson’s conduct. See Farragher v. City of Boca Raton, 524

U.S. 775, 807, 118 S. Ct. 2275, 2292-93 (1998). The district court therefore

correctly entered summary judgment on Plaintiff Richardson’s hostile work-

environment gender-discrimination claim under Title VII.

      A different conclusion, however, is warranted with respect to the district

court’s award of attorney’s fees and costs to Defendant Bay District. A district

court may award attorney’s fees to a prevailing defendant in a Title VII case only

when the “plaintiff’s action was frivolous, unreasonable, or without foundation.”

Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S. Ct. 694, 700

(1978).

      This “standard is so stringent that the plaintiff’s action must be meritless in

the sense that it is groundless or without foundation in order for an award of fees to

be justified.” Busby v. City of Orlando, 931 F.2d 764, 787 (11th Cir. 1991)

(reversing fee award to prevailing defendant) (quotation marks omitted and

alterations adopted). It is not enough for the prevailing defendant to show that the

plaintiff’s claim was “markedly weak,” see Bonner v. Mobile Energy Servs., 246

F.3d 1303, 1305 (11th Cir. 2001), or even “exceedingly weak,” see Cordoba v.

Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005) (reversing fee award to

prevailing defendant). Instead, the plaintiff’s case must be “so patently devoid of

merit as to be frivolous.” Sullivan v. Sch. Bd. of Pinellas Cnty., 773 F.2d 1182,


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1189 (11th Cir. 1985) (reversing fee award to prevailing defendant); see also Jones

v. Texas Tech Univ., 656 F.2d 1137, 1146 (5th Cir. Sept. 1981) (indicating that a

claim is frivolous when it is “devoid of arguable legal merit or factual support”). 2

       Plaintiff Richardson’s claim was weak, but not so patently devoid of

arguable legal merit to justify an attorney’s fee award. This Court has never

addressed a factually similar hostile work-environment gender-discrimination

claim. In other words, there was no precedent from this Circuit squarely

foreclosing Richardson’s legal argument. It is difficult to say, then, that

Richardson’s attempt to persuade a court of his legal theory was frivolous. See

Cordoba, 419 F.3d at 1185-86 & n.11 (concluding that the district court abused its

discretion in finding the plaintiff’s legal theory frivolous where the plaintiff’s

theory lacked support and relied on dicta but had never been squarely rejected).

       Further, Richardson presented evidence in support of his claim. Just because

this evidence was ultimately not enough to create a jury question with respect to

discrimination on the basis of gender does not make Richardson’s claim frivolous.

See Christiansburg, 434 U.S. at 421-22, 98 S. Ct. at 700-01 (cautioning that courts

should not “assess[] attorney’s fees against plaintiffs simply because they do not

finally prevail”). The district court’s analysis improperly conflated the result of the


       2
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to October 1, 1981.
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case with the determination of whether a fee award was justified. See Jones, 656

F.2d at 1145-47 (reversing award of attorney’s fees to a prevailing defendant

because the district court’s “findings appear[ed] to be no more than reiteration of

its ultimate conclusions on the merits of [the plaintiff’s] claim”).

       In sum, we affirm the district court’s grant of summary judgment in favor of

Defendant Bay District and reverse the district court’s award of Defendant Bay

District’s attorney’s fees and costs against Plaintiff Richardson.3

AFFIRMED IN PART AND REVERSED IN PART.




       3
        Given our decision, we also reverse the district court’s award of attorney’s fees and costs
to Defendant Bay District for responding to Plaintiff Richardson’s motion for reconsideration.
Similarly, Defendant Bay District’s motion for damages and double costs is denied.
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