             Case: 12-14768   Date Filed: 09/23/2013   Page: 1 of 9


                                                       [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                               No. 12-14768
                         ________________________

                 D.C. Docket No. 8:10-cv-02232-SCB-TGW


MELISSA WIGFALL,
CONNIE DANIELS,
GENETHEL DANIELLE PYE,
ANTHONY MILLS,
MALISA BUTLER,
VIRGINIA LARRY,
MELISSA WORLEY,


                                                          Plaintiffs - Appellants,

MARK FLANDERS, et al.,

                                                                        Plaintiffs,

                                    versus

SODEXO, INC., et al.,

                                                                      Defendants,

SAINT LEO UNIVERSITY, INCORPORATED,

                                                           Defendant - Appellee.
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                               ________________________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                            ________________________
                                (September 23, 2013)

Before BARKETT, MARCUS and HILL, Circuit Judges.

PER CURIAM:

       Melissa Wigfall, Connie Daniels, Genethel Danielle Pye, Anthony Mills,

Virginia Larry, Melissa Worley, and Malisa Butler (collectively “Plaintiffs”)

appeal the district court’s award to defendant, Saint Leo University (“St. Leo”), of

attorneys’ fees in the amount of $181,216.50, pursuant to Title VII of the Civil

Rights Act of 1964. 1 St. Leo’s claim for attorneys’ fees arises out of an

employment discrimination lawsuit brought by the Plaintiffs, through legal

counsel, under the Florida Whistleblower Act, the Florida Civil Rights Act, the

Fair Labor Standards Act, 42 U.S.C. § 1981, and Title VII, against St. Leo for race

discrimination and retaliation. The Plaintiffs, all former food-services workers

located at St. Leo’s campus, alleged that St. Leo cancelled its contract with

Sodexo, the company with which St. Leo previously contracted to provide all of its

campus food-services and which employed the Plaintiffs, in retaliation for the

Plaintiffs’ participation in an earlier employment discrimination lawsuit against


       1
         The district court also awarded St. Leo’s its costs in the amount of $10,314.27, which
the Plaintiffs have not appealed.
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Sodexo (“Sodexo Lawsuit”). As a result of St. Leo’s termination of its food-

services contract with Sodexo, the Plaintiffs lost their food-services jobs at St. Leo.

      The district court, on St. Leo’s motion for judgment on the pleadings,

dismissed the Plaintiffs’ race discrimination claims, concluding that the Plaintiffs

had previously asserted in the Sodexo Lawsuit and settled, with prejudice, the

same discrimination claims as were now being asserted in their suit against Saint

Leo. The district court reasoned that under the Plaintiffs’ theory that St. Leo and

Sodexo were their joint employers they could have included St. Leo as a defendant

in the Sodexo Lawsuit, they had a full and fair opportunity to litigate all of the

issues of race discrimination in the Sodexo Lawsuit, and moreover, the Sodexo

Settlement precluded future litigation against St. Leo on these settled claims. The

district court, however, permitted the Plaintiffs to proceed against St. Leo on one

claim only—the retaliatory termination claim, noting that it was unclear, at the

time of its dismissal order, whether St. Leo was the Plaintiffs’ joint employer for

the purposes of a valid retaliation claim.

      Following discovery, St. Leo moved for summary judgment on the

retaliatory termination claim, which the district court granted. On review, another

panel of this Court, assuming, without deciding, that St. Leo was the Plaintiffs’

joint employer and that the Plaintiffs could establish a prima facie case of

retaliation, affirmed summary judgment because St. Leo offered legitimate reasons

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for its termination of the contract with Sodexo, which the Plaintiffs failed to show

were pretextual. Wigfall v. Saint Leo Univ., Inc., 517 F. App’x 910 (11th Cir.

2013) (“Wigfall I”).

      St. Leo, as the prevailing defendant, also moved for attorneys’ fees pursuant

to the standard set forth by the Supreme Court in Christiansburg Garment Co. v.

EEOC, 434 U.S. 412 (1978), which the district court granted in the amount of

$181,216.50. Although it is the general rule that parties are responsible for their

own attorneys’ fees, Congress has provided exceptions through select statutory

provisions, which in some instances permit only a prevailing plaintiff to recover

fees and in other instances, including under Title VII, permit either the prevailing

plaintiff or defendant to recover such fees. Christiansburg, 434 U.S. at 415–16.

Under the Christiansburg standard, a prevailing defendant in a Title VII case may

be granted attorneys’ fees in the discretion of the district court “upon a finding that

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

though not brought in subjective bad faith.” 434 U.S. at 421. The Court, however,

cautioned that

      it is important that a district court resist the understandable temptation
      to engage in post hoc reasoning by concluding that, because a plaintiff
      did not ultimately prevail, his action must have been unreasonable or
      without foundation. This kind of hindsight logic could discourage all
      but the most airtight claims, for seldom can a prospective plaintiff be
      sure of ultimate success.

Id. at 421–22.
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      In applying the Christiansburg standard, we have explained that the focus in

awarding a prevailing defendant attorneys’ fees is whether a plaintiff’s claim “is so

lacking in arguable merit as to be groundless or without foundation rather than

whether the claim was ultimately successful.” Sullivan v. Sch. Bd. of Pinellas

Cnty., 773 F.2d 1182, 1189 (11th Cir. 1985) (quoting Jones v. Texas Tech Univ.,

656 F.2d 1137, 1145 (5th Cir. 1981)). Factors to consider include whether the

plaintiff established a prima facie case, whether the defendant offered to settle, and

whether the case went through a full-blown trial. Id. at 1189. In the analysis, these

factors, however, are “general guidelines only, not hard and fast rules[,]” and

courts must evaluate a request for prevailing defendant attorneys’ fees on a case-

by-case basis. Id.

      Here, the district court held the individual Plaintiffs jointly and severally

liable for St. Leo’s attorneys’ fees for the entirety of the litigation, including all of

the discrimination claims that were dismissed on St. Leo’s motion for judgment on

the pleadings and the sole retaliatory termination claim for which St. Leo was

granted summary judgment. Although we agree that the district court exercised

appropriate discretion in awarding attorneys’ fees for the discrimination claims that

were dismissed on St. Leo’s motion for judgment on the pleadings, we cannot say

that the Plaintiffs’ retaliatory termination claim was “so lacking in arguable merit

as to be groundless or without foundation.” Sullivan, 773 F.2d at 1189. See also

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Quintana v. Jenne, 414 F.3d 1306, 1311–12 (11th Cir. 2005) (holding that

attorneys’ fees may be apportioned and awarded for a frivolous claim while not

being awarded for a separate non-frivolous claim, although both part of the same

lawsuit).

       The Plaintiffs’ retaliatory termination claim was premised on its theory that

Sodexo and St. Leo were joint employers of the food services workers and that St.

Leo cancelled its contract with Sodexo, which resulted in the Plaintiffs’

terminations, to retaliate against the Plaintiffs who participated in the Sodexo

Lawsuit.2 It is undisputed that Plaintiffs’ participation in the Sodexo Lawsuit was

protected activity, and that Plaintiffs’ termination was a materially adverse action.

Thus, whether that materially adverse action was an action by Plaintiffs’ employer

depended on the Plaintiff’s ability to establish that St. Leo was their joint employer

with Sodexo. Although the district court, at the summary judgment stage,

determined that St. Leo was not a joint employer of the Plaintiffs, we cannot say

that the Plaintiffs’ belief otherwise was so weak as to make it frivolous for them to

argue that this presented a triable issue of fact. See, e.g., Cordoba v. Dillard’s,

Inc., 419 F.3d 1169, 1181 (11th Cir. 2005) (concluding that a claim that “was


       2
         The Plaintiffs also alleged that St. Leo was unhappy with Sodexo, which did not inform
St. Leo that it had been sued for employment discrimination, and also with the terms of the
Sodexo Lawsuit Settlement, which called for the replacement of Sodexo’s Manager, Rich Vogel,
who was highly regarded by the students at St. Leo. St. Leo ultimately hired Vogel to work for
the university as its in-house Director of Dining Services when it cancelled the Sodexo food-
services contract.
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exceedingly weak,” involved “pure conjecture,” and “speculation” was not “so

unreasonable that it [could have been] termed frivolous”). As we noted, supra, at

the time the district court dismissed all of the Plaintiffs’ other discrimination

claims and allowed their retaliatory discrimination claim to proceed, the district

court noted that it was unclear whether St. Leo was the Plaintiffs’ joint employer

for the purposes of a valid retaliation claim.

       Although not sufficient to eventually preclude the grant of summary

judgment, there is some evidence in this record that makes the Plaintiffs’ claim that

St. Leo was its joint employer not so unreasonable as to render it frivolous. 3 First,

the Plaintiffs worked solely on-site at St. Leo’s campus, some of them having

worked for St. Leo long before Sodexo had been awarded the food-services

contract. Second, certain provisions of the Management Agreement between St.

Leo and Sodexo indicate that St. Leo had the authority to control some of the

decisions pertaining to the employment of the food-services workers. In particular,

the Agreement provides that Sodexo was Saint Leo’s agent

       in the management of the Food Service operation. [Sodexo] shall
       purchase food and supplies in [Sodexo’s] name and shall pay the


       3
         Factors which this Court has considered in determining an employer-employee
relationship include: “(1) whether or not the employment took place on the premises of the
alleged employer; (2) how much control the alleged employer exerted on the employees; and (3)
whether or not the alleged employer had the power to fire, hire, or modify the employment
condition of the employees.” Morrison v. Magic Carpet Aviation, 383 F.3d 1253, 1255 (11th
Cir. 2004); see also Wirtz v. Lone Star Steel Co., 405 F.2d 668, 669 (5th Cir. 1968) (explaining
that each case must be considered in light of the total situation).
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      invoices. As principal, [Saint Leo] may supervise [Sodexo’s] daily
      operation of the Food Service operations, including dining formats
      and programs, working conditions for Food Services employees and
      safety, sanitation and maintenance of the Premises. (Management
      Agreement ¶ 1.2) (Emphasis added).

The Agreement elsewhere provides that

      All non-management Food Service Employees shall be [Sodexo]
      employees. . . . [Sodexo] shall not, without [Saint Leo’s] prior
      approval, make any substantial change in wages, fringe benefits or
      working conditions of non-management Food Service employees. . .
      (Id. ¶ 4.2) (Emphasis added).

Under both of these provisions, St. Leo retained ultimate authority to control basic

employment decisions, such as working conditions, wages and benefits of the

food-services workers.

      Third, even though Rich Vogel was Sodexo’s on-site manager for the St.

Leo food-services contract, the students at St. Leo apparently believed him to be an

employee of St. Leo as they voted him Employee of the Year at St. Leo for two of

the three years prior to this suit. Fourth, all of the food services workers were

required to wear uniforms and identification badges that indicated they were an

employee of St. Leo, were required to attend Saint Leo’s employee orientations,

and received some instructions directly from Saint Leo officials concerning Dining

Services and catering events on campus.




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       Given this evidence,4 we cannot say that the Plaintiffs’ retaliatory

termination claim, which was dependent on the theory that St. Leo was a joint

employer with Sodexo, was “frivolous, unreasonable, or without foundation” under

the Christiansburg standard, and thus, it was an abuse of discretion for the district

court to award attorneys’ fees on the retaliatory termination claim.

       Accordingly, we vacate the attorneys’ fees award of $181,216.50, and upon

remand, direct the district court to determine the portion of the attorneys’ fees to

attribute to St. Leo’s defense against the Plaintiffs’ discrimination claims which

were dismissed on St. Leo’s motion for judgment on the pleadings.

AFFIRMED, in part, REVERSED and VACATED, in part, and

REMANDED.




       4
         We also note as persuasive to our decision that the Plaintiffs’ theory of St. Leo as its
joint employer is not so unreasonable as to make it frivolous, a prior panel of this Court in
Wigfall I affirmed the summary judgment on the merits of the Plaintiffs’ retaliatory termination
claim not on the question of St. Leo’s status as a joint employer, but instead assumed, without
deciding, this fact to be established for the Plaintiffs’ prima facie case.
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