                                                      PUBLISH




              IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT

                     -----------------------
                           No. 97-8071
                     -----------------------
                D. C. Docket No. 1:95-CV-1872-CC




    BILLY JOE TURLINGTON and
    ELLEN JOCILE TURLINGTON,

                                  Plaintiffs-Appellants,

                        versus

    ATLANTA GAS LIGHT COMPANY,
    RANDY CURRY, ROBERT MILLER,

                                  Defendants-Appellees.

                    ------------------------
          Appeal from the United States District Court
              for the Northern District of Georgia
                    -------------------------

                       (February 26, 1998)




Before BIRCH, Circuit Judge, HILL and KRAVITCH, Senior Circuit
Judges.
KRAVITCH, Senior Circuit Judge:

        This      case   raises   two   important      issues     regarding   the   Age

Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621-

34:   the timing requirements for filing discrimination charges with

the Equal Employment Opportunity Commission (“EEOC”) and the standard

for awarding attorney’s fees to prevailing defendants.

        Plaintiffs-appellants Billy Joe Turlington (“Turlington”) and

his wife, Ellen Jocile Turlington (“Mrs. Turlington”), sued the

Atlanta Gas Light Company (“AGL”) and two AGL employees, Randy Curry

and Robert Miller, alleging, inter alia, that AGL discriminated

against Turlington on the basis of his age in violation of the ADEA.

The district court granted summary judgment to AGL on this claim and

awarded attorney’s fees to AGL.1 The Turlingtons appeal both rulings.

        We affirm the district court’s grant of summary judgment to AGL,

but we vacate the attorney’s fees award and remand the case to the

district court to decide whether the Turlingtons litigated in bad

faith       and    to    substantiate   its       determination    with   appropriate

findings.

                                           I.

        Turlington was employed by AGL from May 1967 to March 1995.

Initially, he worked in AGL’s Information Systems Department (“IS

Department”), where he rose to the position of Supervisor of Shift

Operations.         In February 1990, he was demoted to Class A Computer




        1
      The Turlingtons’ remaining claims were either abandoned at the
summary judgment stage or dismissed by the district court.

                                              1
Operator for failing to demonstrate job improvement during the prior

year.        Turlington presented evidence indicating that AGL, beginning

in February 1990, denied him the same on-the-job training, practice

time, skill training, and software training that it provided to his

younger co-workers.          Although Turlington complained about the denial

of training, his supervisors told him that he was incapable of

learning new skills.2

        On    July   9,    1993,    having   received   four   consecutive    below-

acceptable annual performance evaluations, Turlington was transferred

to   the      Display     Department,   where    he   worked   constructing   signs

manually.         In an effort to block the transfer, Turlington submitted

a written protest, which was prepared by a lawyer. The attorney also

wrote AGL’s Chief Executive Officer stating that he was representing

Turlington “for the discriminatory action taken against [Turlington]

over        the   last    several   years    culminating   with   his   transfer.”3

Turlington filed no discrimination charges with the EEOC at the time.

        A year later, Turlington was still working in the Display




        2
       Among the evidence presented by Turlington was the affidavit
of Gary Boykin, an IS Department employee with responsibility for
training. Boykin confirmed that Turlington did not receive the same
training as younger employees. Boykin also stated that Turlington’s
supervisor, Ed Norwood, said “that the younger employees were able to
grasp the new technology faster and better than the older employees
such as Mr. Turlington.” Affidavit of Boykin at 4-5. According to
Boykin, Turlington not only had the ability to learn but also used
vacation time to develop his computer skills.

        3
       Plaintiff’s Ex. 6 at 1. This lawyer, Ted B. Herbert, was one
of the lawyers representing Turlington in the district court
proceedings in the instant case.

                                             2
Department when he applied for a Class C Computer Operator position

in the IS Department.4    On October 12, 1994, Dale Kilpatrick, manager

of the IS Department, informed Turlington that he would not be

considered for the position because of his previous performance in

the IS Department.     Turlington was 54 years old at the time.

     On December 16, 1994, Turlington filed a discrimination charge

with the EEOC alleging that AGL discriminated against him based on

age by denying his application for the Class C Computer Operator

position and subsequently hiring a 23-year-old man for that position.5

The accompanying affidavit stated that Turlington failed to obtain

the job because his supervisors in the IS Department did not provide

the same technical training to Turlington as they did to his younger

co-workers.

     On January 4, 1995,6 the staff of the Display Department was told

that the Display Department would be downsized to a single Display

Coordinator.    Later that month the Display Coordinator position was

posted, and Turlington and two other candidates applied.                   After

interviews     and   evaluations,   a       three-person   panel   rated    each

applicant, and based on these ratings, one of Turlington’s two

competitors, a 44-year-old man, was selected for the position.                On



     4
      The Class C Computer Operator position is ranked lower than the
Class A Computer Operator position.
     5
       In his brief, Turlington states that he filed his EEOC charge
on October 12, 1994, but the record indicates otherwise.
     6
      Not at issue in this appeal is the fact that Turlington decided
not to choose early retirement, an option available to him from
November 15, 1994, to January 3, 1995.

                                        3
February 17, 1995, Turlington amended his EEOC charge to incorporate

his claim that AGL’s failure to select him as Display Coordinator was

discriminatory.     Turlington’s employment at AGL ended in March 1995.

     In July 1995, the plaintiffs filed suit in federal district

court    alleging   that   the   defendants:   (1)   discriminated   against

Turlington on the basis of his age in violation of the ADEA; (2)

retaliated against Turlington for filing an EEOC charge; (3) breached

contractual obligations to Turlington in violation of Georgia law;

(4) intentionally and/or negligently inflicted emotional distress

upon Turlington in violation of Georgia law; and (5) caused Mrs.

Turlington’s loss of consortium under Georgia law.

     Turlington’s complaint alleged that AGL violated the ADEA in

several ways, including: (1) demoting him in February 1990; (2)

failing to provide him adequate training from February 1990 to July

1993, thus “doom[ing] [him] to poor performance”7 and substandard

evaluations; (3) transferring him in July 1993; (4) refusing to hire

him for the Class C Computer Operator position in October 1994; (5)

refusing to hire him for the Display Coordinator position in 1995;

and (6) thereafter discharging him.

     Defendants filed a motion for summary judgment, which included

a request for reasonable attorney’s fees.              The district court

dismissed plaintiffs’ claims against defendants Curry and Miller;

deemed the retaliation, breach of contract, and emotional distress

claims abandoned; dismissed the loss of consortium claim; granted



     7
         Complaint at 6, ¶ 16.

                                      4
summary judgment to AGL on the ADEA claim; and awarded attorney’s

fees and costs to AGL.         Turlington appeals the district court’s

resolution of the ADEA claim and the award of attorney’s fees.

     On appeal, Turlington has narrowed significantly the basis of

his ADEA allegations, arguing only that AGL discriminated against him

on the basis of age when it denied him the Class C Computer Operator

position in October 1994. According to Turlington, that decision was

discriminatory because it was based on Turlington’s poor evaluations

in   the    IS   Department,   which        in   turn   resulted   from    AGL’s

discriminatory denial of training.

                                    II.

                                       A.

     This court reviews de novo a district court’s grant of summary

judgment.    We apply the same legal standards that bound the district

court and view all facts and any reasonable inferences therefrom in

the light most favorable to the non-moving party.                  See Hale v.

Tallapoosa County, 50 F.3d 1579, 1581 (11th Cir. 1995).                   Summary

judgment is appropriate only when “there is no genuine issue of

material fact and . . . the moving party is entitled to judgment as

a matter of law.”    Fed. R. Civ. P. 56(c).

     Where, as here, a plaintiff attempts to use circumstantial

evidence to establish unlawful discrimination under the ADEA, this

court employs the following burden-shifting scheme.            Initially, the

plaintiff must establish a prima facie case of discrimination.                The

employer then must respond with a legitimate, nondiscriminatory

reason for its actions.        In order to prevail, the plaintiff must

                                       5
establish         that     the        employer’s        articulated      legitimate,

nondiscriminatory          reason      was       a   pretext   to     mask   unlawful

discrimination.          See Walker v. NationsBank of Fla. N.A., 53 F.3d

1548, 1556 (11th Cir. 1995).

       In an ADEA case involving discharge, demotion, or failure to

hire, a plaintiff may establish a prima facie case by showing: (1)

that he was a member of the protected group of persons between the

ages of forty and seventy; (2) that he was subject to adverse

employment action; (3) that a substantially younger person filled the

position that he sought or from which he was discharged; and (4) that

he was qualified to do the job for which he was rejected.                         See

O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, __, 116

S. Ct. 1307, 1310 (1996) (stating that an ADEA plaintiff must show

that   he   was    replaced      by   someone        “substantially   younger,”   not

necessarily by someone under age 40); Jameson v. Arrow Co., 75 F.3d

1528, 1531 (11th Cir.        1996) (listing elements of prima facie case).

We apply this prima facie standard to Turlington’s claim that AGL

discriminated by denying him the Class C Computer Operator position

in 1994.

       Although a plaintiff’s burden in proving a prima facie case is

light, see Isenbergh v. Knight-Ridder Newspaper Sales, Inc., 97 F.3d

436, 439 (11th Cir. 1996), cert. denied, __ U.S. __, 117 S. Ct. 2511

(1997),     summary judgment against the plaintiff is appropriate if he

fails to satisfy any one of the elements of a prima facie case.                   For

example, summary judgment is appropriate against a plaintiff who

fails to demonstrate that he was qualified to perform the position

                                             6
for which he was rejected.           See Baker v. Sears, Roebuck & Co., 903

F.2d 1515, 1520-21 (11th Cir. 1990) (per curiam) (holding that

terminated plaintiff failed to make out prima facie case under the

ADEA; ruling that she was not qualified given her consistent failure

to meet employer's quota for sale of maintenance agreements, a

requirement of the position).

                                            B.

       In granting summary judgment to AGL on Turlington’s ADEA claim,

the district court held that Turlington failed to establish a prima

facie case. Citing Roberts v. Gadsden Mem’l Hosp., 835 F.2d 793, 796

(11th Cir.), amended by 850 F.2d 1549 (1988), which addressed a Title

VII claim rather than an ADEA claim, the district court stated that

a plaintiff seeking to demonstrate a prima facie case under the ADEA

must       demonstrate,    inter    alia,    that   “a    person     outside    of    the

plaintiff’s class with equal or lesser qualifications was promoted,

or the employer continued to seek applicants after the plaintiff was

rejected for the position.”8            Then, focusing on AGL’s denial of the

Display       Coordinator     position,      the    district     court     ruled     that

Turlington failed to establish a prima facie case because the three-

person      panel   that    rated   the     applicants     deemed    the     successful

candidate to be more qualified than Turlington.

       Moreover, according to the district court, Turlington could not

establish a prima facie case by arguing that he would have been as

qualified      as   the    successful     candidate      but   for   AGL’s   allegedly



       8
           Summary Judgment Order at 6.

                                            7
discriminatory training practices.             The district court ruled that

such practices could not be used to establish a prima facie case

because they ended in July 1993, prior to 180 days before Turlington

filed charges with the EEOC in December 1994.                     See 29 U.S.C.

§ 626(d)(1) (stating that an employee claiming a violation of the

ADEA must file charges with the EEOC not more than 180 days after the

date of the allegedly unlawful practice).

     On appeal, Turlington argues that the district court erred in

two ways: first, by addressing only AGL’s denial of the Display

Coordinator position, not the denial of the Class C Computer Operator

position, and second, by concluding that 29 U.S.C. § 626(d)(1)

precluded    Turlington    from    using      time-barred   evidence    to   help

establish    a   prima   facie    case.       Abandoning    all   of   his   other

allegations of ADEA violations, Turlington now argues only that he

would have been qualified for the Class C Computer Operator position

absent AGL’s discriminatory training practices from February 1990 to

July 1993.

                                      C.

     Although we disagree with some of the district court’s analysis,

we nonetheless affirm the district court’s grant of summary judgment

to AGL on Turlington’s ADEA claim.9           We note that a plaintiff seeking



     9
       We may affirm the district court’s decision for reasons
different than those stated by the district court. See Sec. & Exch.
Comm’n v. Chenery Corp., 318 U.S. 80, 88, 63 S. Ct. 454, 459 (1943)
(stating that the decision of the lower court must be affirmed if the
result is correct even though the lower court relied upon a wrong
ground or gave a wrong reason), cited in C.H. Robinson Co. v. Trust
Co. Bank, N.A., 952 F.2d 1311, 1316 (11th Cir. 1992).

                                          8
to establish a prima facie case under the ADEA must show only that he

was qualified to do the job for which he was rejected, see Jameson v.

Arrow Co., 75 F.3d 1528, 1531 (11th Cir. 1996), and, unlike a Title

VII plaintiff, need not show that a person outside of the plaintiff’s

class with equal or lesser qualifications received the job, cf.

Roberts v. Gadsden Mem’l Hosp., 835 F.2d 793, 796 (11th Cir.) (Title

VII case), amended by 850 F.2d 1549 (1988).   The district court thus

erred in ruling that Turlington, in establishing a prima facie case,

had to show that “a person outside of the plaintiff’s class with

equal or lesser qualifications was promoted, or [that] the employer

continued to seek applicants after the plaintiff was rejected for the

position.”   Summary Judgment Order at 6 (emphasis added).10

     Because the district court primarily addressed AGL’s denial of

the Display Coordinator position, the district court did not squarely

determine whether AGL’s denial of the Class C Computer Operator

position was discriminatory. Upon reviewing this allegation, we hold

that Turlington failed to establish a prima facie case with regards

to that adverse employment action.    Turlington does not rebut the

conclusion of Kilpatrick, the manager of the IS Department, who



     10
        The district court also erred by implying that an ADEA
plaintiff could not make out a prima facie case unless he were
replaced by someone outside the protected age class. See O’Connor v.
Consolidated Coin Caterers Corp., 517 U.S. 308, __, 116 S. Ct. 1307,
1310 (1996) (stating that an ADEA plaintiff must show that he was
replaced by someone “substantially younger,” not necessarily by
someone under age 40). Furthermore, the district court incorrectly
stated that the question of whether “the employer continued to seek
applicants after the plaintiff was rejected for the position” is
relevant in determining if an ADEA plaintiff has established a prima
facie case.

                                  9
determined that, in light of Turlington’s prior poor performance in

the IS Department, Turlington was not qualified even to be considered

for the Class C Computer Operator position.          Because he was rejected

so early in the decisionmaking process, Turlington has failed to

demonstrate his qualifications for the job. Cf. Isenbergh v. Knight-

Ridder Newspaper Sales, Inc., 97 F.3d 436, 440 (11th Cir. 1996)

(“[B]ecause the decisionmakers for [the employer] were familiar with

[the employee’s] performance in his work . . . we can infer from the

fact that he was granted an interview that [the employee] was at

least at some level qualified for the new job.”), cert. denied, __

U.S. __, 117 S. Ct. 2511 (1997).        Even though the requirements of a

prima facie case are light, see id. at 439, Turlington has failed to

meet this burden, see Baker v. Sears, Roebuck, & Co., 903 F.2d 1515,

1520-21 (11th Cir. 1990) (per curiam) (ruling that ADEA plaintiff was

not qualified for her position and thus did not establish a prima

facie case).

        Turlington contends that he would have been qualified for the

Class    C   Computer   Operator    position   if   he   had   received   better

training, and thus better evaluations, while working as a Class A

Computer Operator in the IS Department between February 1990 and July

1993. We hold, however, that the district court correctly ruled that

Turlington     could    not   use    time-barred    evidence     of   allegedly

discriminatory training practices in order to establish a prima facie

case.    Two Supreme Court cases, United Air Lines, Inc. v. Evans, 431

U.S. 553, 97 S. Ct. 1885 (1977), and Del. State College v. Ricks, 449

U.S. 250, 101 S. Ct. 498 (1980), support the district court’s

                                       10
analysis.11

     In Evans, the Court expressly precluded plaintiffs from using

time-barred discriminatory acts to establish a prima facie case of

employment discrimination.   The plaintiff in Evans was forced to

resign in 1968 when she married in violation of the company’s policy

of refusing to allow its female flight attendants to be married. 431

U.S. at 554, 97 S. Ct. at 1887.   Although the plaintiff was rehired

in 1972 after the policy was invalidated, she was not awarded

seniority credit for her time off.     Id. at 555, 97 S. Ct. at 1887.

The Court held that the plaintiff could not attack the otherwise

neutral seniority system merely by demonstrating that the system gave

present effect to past discrimination.

     [A] discriminatory act which occurred before the statute was
     passed . . . may constitute relevant background evidence in a
     proceeding in which the status of a current practice is at
     issue, but separately considered, it is merely an unfortunate
     event in history which has no present legal consequences. . . .
     [S]uch a challenge to a neutral system may not be predicated on
     the mere fact that a past event which has no present legal
     significance has affected the calculation of seniority credit,
     even if the past event might at one time have justified a valid
     claim against the employer.

Id. at 558-60, 97 S. Ct. at 1889-90.

     In Ricks, the Court extended Evans and held that a plaintiff

challenging a facially neutral employment termination decision cannot

establish a prima facie case of discrimination by demonstrating that




     11
        The ADEA 180-day limitations period, see 29 U.S.C.
§ 626(d)(1), is quite similar to the Title VII limitations period,
see 42 U.S.C. § 2000e-5(e)(1). Thus, although Evans and Ricks are
Title VII cases, they provide clear guidance in the instant ADEA
case.

                                  11
his termination gave effect to time-barred discriminatory acts.12

Explicitly rejecting the plaintiff’s “continuing violation” theory,

see 449 U.S. at 257-58, 101 S. Ct. at 504-05, the Court stated:

     It is simply insufficient for [the employee] to allege that his
     termination gives present effect to the past illegal act and
     therefore   perpetuates    the   consequences    of   forbidden
     discrimination. The emphasis is not upon the effects of earlier
     employment decisions; rather, it is upon whether any present
     violation exists.

Id. at 258, 101 S. Ct. at 504 (quoting Evans, 431 U.S. at 558, 97

S. Ct. at 1888) (internal quotations omitted) (emphasis in original).

     In light of Evans and Ricks, Turlington failed to establish a

prima facie case of discrimination.    Turlington alleges that AGL’s

denial of the Class C Computer Operator position in October 1994,

although not discriminatory on its face, nonetheless violated the

ADEA by giving effect to past acts of discrimination that occurred

from February 1990 to July 1993.13    Because plaintiffs may not use



     12
       The plaintiff in Ricks, after being denied tenure, received
a one-year “terminal” contract. 449 U.S. at 252-53, 101 S. Ct. at
501. He only filed charges with the EEOC, however, near the end of
that contract. Id. at 254, 101 S. Ct. at 502. Because the denial of
tenure occurred long before the filing of the EEOC charge, the Court
held that the plaintiff’s termination was facially neutral.
     [T]he only alleged discrimination occurred -- and the filing
     limitations period therefore commenced -- at the time the tenure
     decision was made and communicated to Ricks. That is so even
     though one of the effects of the denial of tenure -- the
     eventual loss of a teaching position -- did not occur until
     later. . . .
Id. at 258, 101 S. Ct. at 504 (footnote omitted) (emphasis in
original).
     13
        The district court correctly found that the allegedly
discriminatory training practices ended in July 1993, more than 180
days before Turlington’s initial EEOC filing in December 1994.
Although the complaint does allege that Turlington was denied
requests for computer training while in the Display Department, the

                                 12
time-barred discriminatory acts to help establish a prima facie case

of discrimination, see Evans, 431 U.S. at 558-60, 97 S. Ct. at 1889-

90,   evidence    of    AGL’s   prior   training    practices     cannot   render

discriminatory AGL’s facially neutral decision to deem Turlington

unqualified for the Class C Computer Operator position, see Ricks,

449 U.S. at 258, 101 S. Ct. at 504.14

      We also reject the application of equitable tolling to this

case.      ADEA’s timing requirements might have been equitably tolled

if, in the period prior to the 180 days before filing the initial

EEOC charge, Turlington had no reason to believe he was a victim of

unlawful discrimination.         See Ross v. Buckeye Cellulose Corp., 980

F.2d 648,      660 (11th Cir. 1993), cert. denied, 513 U.S. 814, 115

S. Ct. 69 (1994).15 The evidence, however, indicates that Turlington,


complaint does         not   state   that    this   denial   of   training   was
discriminatory.
      14
        Recent precedent in this circuit supports our determination
that Turlington failed to present a “continuing violation” that would
allow AGL’s liability to be premised on time-barred acts.         See
Calloway v. Partners Nat’l Health Plans, 986 F.2d 446, 448 (11th Cir.
1993) (distinguishing between “the present consequence of a one time
violation, which does not extend the limitations period, and the
continuation of the violation into the present, which does”) (quoting
Beavers v. Am. Cast Iron Pipe Co., 975 F.2d 792, 796 (11th Cir.
1992)). No continuing violation existed here because AGL’s allegedly
discriminatory training practices ended prior to 180 days before
Turlington filed charges with the EEOC.        Cf. Reed v. Lockheed
Aircraft Corp., 613 F.2d 757, 760, 762 (9th Cir. 1980) (applying
continuing   violations   theory   where   allegedly   discriminatory
promotion, compensation, and training policies continued to exist
during the 180-day time period prior to the filing of the EEOC
charge).
      15
        We need not address here all of the possible grounds for
overlooking the ADEA’s timing requirements. Cf. Zipes v. Trans World
Airlines, Inc., 455 U.S. 385, 393, 102 S. Ct. 1127, 1132 (1982)
(“[F]iling a timely charge of discrimination with the EEOC is not a

                                        13
during his time as a Class A Computer Operator in the IS Department,

protested vigorously against his failure to receive the same training

opportunities   offered    to   his    younger   co-workers.     Moreover,

Turlington retained his district court counsel at least as of July 9,

1993, upon being transferred out of the IS Department.         Under these

circumstances, Turlington cannot rely on the theory of equitable

tolling to preserve his right to hold AGL liable for discriminatory

training practices.16     See McClinton v. Ala. By-Products Corp., 743

F.2d 1483, 1487 (11th Cir. 1984) (rejecting equitable tolling where

ADEA plaintiff “suspects that he may have been discriminated against

on account of age and is also generally aware of his legal right to




jurisdictional prerequisite to suit in federal court, but a
requirement that, like a statute of limitations, is subject to
waiver, estoppel, and equitable tolling”).
     16
       Turlington would have had an actionable claim under the ADEA
for denial of training only if, after filing a charge of
discrimination with the EEOC in a timely fashion, Turlington had
established that AGL denied material training opportunities to him on
the basis of age. As this court has held, the ADEA “forbids far more
than merely discriminatory discharge and hiring practices.”       See
Stamey v. S. Bell Tel. & Tel. Co., 859 F.2d 855, 860 (11th Cir.
1988), cert. denied, 490 U.S. 1116, 109 S. Ct. 3178 (1989). The ADEA
makes it illegal for employers “to fail or refuse to hire or to
discharge any individual or otherwise discriminate against any
individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s age.”       29
U.S.C. § 623(a)(1). Discrimination with respect to training programs
is thus actionable under the ADEA, see Kusak v. Ameritech Info. Sys.,
Inc., 80 F.3d 199, 201 (7th Cir. 1996) (“An employer might offer
training programs, promotion opportunities, or disability benefits to
its employees, and the ADEA makes it clear that the employer may not
condition access to those benefits on the age of the employee.”), as
long as the training is materially related to the employee’s job
responsibilities or possibilities for advancement, cf. Crady v.
Liberty Nat’l Bank & Trust Co. of Ind., 993 F.2d 132, 135-36 (7th
Cir. 1993) (stating that ADEA plaintiff must allege “materially
adverse employment action”).

                                      14
obtain redress for that wrong”).    The ADEA’s limitations period thus

bars Turlington from establishing a prima          facie     case based on

evidence of AGL’s prior discrimination in training.

                                   D.

     Turlington cites several cases purporting to demonstrate that he

may establish a prima facie case with the help of time-barred

evidence of AGL’s discriminatory training practices.            Turlington,

however, fails to dispute the controlling authority of Evans and

Ricks.   Moreover, the cases he cites are inapposite.

     For example, four cases merely hold that a plaintiff can use

evidence of time-barred discriminatory conduct to meet his burden of

persuasion   in   a    case   involving     circumstantial    evidence   of

discrimination.   See Allen v. County of Montgomery, 788 F.2d 1485,

1488 (11th Cir. 1986); Downey v. S. Natural Gas Co., 649 F.2d 302,

304-05 (5th Cir. Unit B June 1981); Fisher v. Procter & Gamble Mfg.

Co., 613 F.2d 527, 540 (5th Cir. 1980), cert. denied, 449 U.S. 1115,

101 S. Ct. 929 (1981); Mathewson v. Nat’l Automatic Tool Co., Inc.,

807 F.2d 87, 91 (7th Cir. 1986).          In none of these cases did the

court hold that a plaintiff could use evidence of time-barred conduct

to establish a prima facie case of discrimination.         To the contrary,

in Taylor v. Hudson Pulp & Paper Corp., 788 F.2d 1455, 1461-62 (11th

Cir. 1986), cert. denied, 484 U.S. 953, 108 S. Ct. 345 (1987), this

court explicitly excluded time-barred conduct in determining that the

plaintiff failed to establish a prima facie case of discrimination.

     Turlington also relies on three disparate impact cases that are

not applicable here.    See Walker v. Jefferson County Home, 726 F.2d

                                   15
1554 (11th Cir. 1984); Crawford v. Western Elec. Co., Inc., 614 F.2d

1300, 1314 (5th Cir. 1980); Gonzalez v. Firestone Tire & Rubber Co.,

610 F.2d 241 (5th Cir. 1980).       In Walker, the plaintiff sued for

failing to be selected for an employment position in 1974.      726 F.2d

at 1557.    The court held that the employer’s decision in 1974 was

discriminatory, though neutral on its face, because the decision was

based on the plaintiff’s lack of supervisory authority, which in turn

resulted from the employer’s discriminatory decision in 1972 to deny

the plaintiff a supervisory position. Id. at 1558. Recognizing that

Evans, supra, would bar consideration of the 1972 action in a

disparate treatment case, the court deemed the 1972 action relevant

because Walker’s claim could be characterized as one of disparate

impact.    Id. at 1557 & n.1.   Like Walker, Crawford and Gonzalez also

involved disparate impact claims.        See Crawford, 614 F.2d at 1314-

1318; Gonzalez, 610 F.2d at 244, 249.

     Turlington’s claim, however, is not based on disparate impact.17



     17
        Because we rule that Turlington’s claim did not incorporate
a disparate impact theory, we need not reach two additional issues:
whether Walker is still valid law in light of Ross v. Buckeye
Cellulose Corp., 980 F.2d 648 (11th Cir. 1993) (rejecting disparate
impact claim because freezing of compensation levels within 180 days
of EEOC filing merely gave effect to prior discriminatory pay and
progression system and did not constitute continuing discrimination),
cert. denied, 513 U.S. 814, 115 S. Ct. 69 (1994), and whether the
ADEA permits disparate impact claims. Neither this court nor the
Supreme Court expressly has allowed disparate impact claims under the
ADEA. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S. Ct.
1701, 1706 (1993) (reserving the issue). Compare District Council 37
v. New York City Dep't of Parks and Recreation, 113 F.3d 347, 351 (2d
Cir. 1997) (holding that disparate impact theory is cognizable under
ADEA), with EEOC v. Francis W. Parker Sch., 41 F.3d 1073, 1076-78
(7th Cir. 1994) (suggesting that disparate impact theory is not
cognizable under ADEA), cert. denied, 515 U.S. 1142, 115 S. Ct. 2577

                                    16
To demonstrate disparate impact, a plaintiff must demonstrate that an

employer’s facially neutral practice or test had an adverse impact on

a particular protected group.     See Edwards v. Wallace Community

College, 49 F.3d 1517, 1520 (11th Cir. 1995).    Turlington does not

allege that older workers as a class were denied training, but only

that he was denied training because of his age. Because Turlington’s

case relies solely on a disparate treatment theory, Evans and Ricks

preclude him from using time-barred discriminatory acts to establish

a prima facie case of discrimination.   We thus affirm the district

court’s grant of summary judgment against him.

                                III.

     Finally, we address the question of whether the district court

erred in awarding attorney’s fees to AGL.    After granting summary

judgment to AGL, the district court issued a separate order granting

defendants reasonable attorney’s fees and costs and dismissing the

action.    The district court made no findings in support of this

order.18   The Turlingtons argue that the district court abused its

discretion by awarding attorney’s fees to the prevailing defendants

without having found that the Turlingtons litigated in bad faith.

     We review de novo the legal basis of a district court’s decision

to award attorney’s fees to prevailing defendants.    Cf. Kreager v.

Solomon & Flanagan, P.A., 775 F.2d 1541, 1542-43 (11th Cir. 1985).




(1995).
     18
       Indeed, with the exception of a brief request for attorney’s
fees in defendants’ motion for summary judgment, the parties did not
litigate the issue of attorney’s fees before the district court.

                                 17
This circuit has not determined the circumstances under which a

prevailing defendant may obtain attorney’s fees in an ADEA case.

     The ADEA incorporates selected provisions of the Fair Labor

Standards Act (“FLSA”), including those pertaining to attorney’s

fees. See 29 U.S.C. § 626(b) (stating that attorney’s fees provision

of the FLSA, 29 U.S.C. § 216(b), applies to actions brought under the

ADEA).   Although the attorney’s fees provision of the FLSA does not

address whether, or under what circumstances, attorney’s fees should

be awarded to a      prevailing defendant, see 29 U.S.C. § 216(b), this

court has held that the FLSA entitles a prevailing defendant to

attorney’s    fees    only    where   the    district   court   finds    that   the

plaintiff litigated in bad faith, see Kreager, 775 F.2d at 1542-43

(citing Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240,

258-59, 95 S. Ct. 1612, 1622 (1975) (stating that courts have the

“inherent power” to assess attorney’s fees where a losing party has

“acted   in   bad    faith,   vexatiously,     wantonly,   or   for     oppressive

reasons”)).    Given the close relationship between the ADEA and the

FLSA, see 29 U.S.C. § 626(b), we hold that a district court may award

attorney’s fees to a prevailing ADEA defendant only upon a finding

that the plaintiff litigated in bad faith.              Several other circuits

have so ruled.       See EEOC v. Hendrix College, 53 F.3d 209, 211 (8th

Cir. 1995); EEOC v. O & G Spring & Wire Forms Specialty Co., 38 F.3d

872, 883 (7th Cir. 1994); Gray v. New England Tel. & Tel. Co., 792

F.2d 251, 260 & n.1 (1st Cir. 1986); Morgan v. Union Metal Mfg., 757




                                        18
F.2d 792, 796 (6th Cir. 1985).19

     Here, the district court made no findings whatsoever regarding

the Turlingtons’ bad faith in litigating the case.              On appeal, AGL

points    to   several   of   the   Turlingtons’   litigation    decisions   as

evidence of their bad faith.         We believe, however, that an inquiry

into a party’s bad faith is best conducted by the district court.20

We thus vacate the attorney’s fees award and remand the case to the

district court to decide whether the Turlingtons litigated in bad


     19
        This rule differs significantly from the rule governing the
award of attorney’s fees to prevailing defendants in Title VII cases.
Title VII, unlike the ADEA and the FLSA, explicitly authorizes the
award of attorney’s fees to “the prevailing party.” See 42 U.S.C.
§ 2000e-5(k). Thus, in Title VII cases, a district court “may in its
discretion award attorney’s fees to a prevailing defendant . . . upon
a finding that the plaintiff’s action was frivolous, unreasonable, or
without foundation, even though not brought in subjective bad faith.”
Christianburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S. Ct. 694,
700 (1978).
     20
       Relying on Head v. Medford, 62 F.3d 351 (11th Cir. 1995), AGL
contends that this court should decide whether the Turlingtons
litigated in bad faith. In Head, the district court granted summary
judgment to the defendants on the plaintiff’s federal civil rights
claims, but failed to award attorney’s fees to the defendants. Id.
at 353-55.    A prevailing civil rights defendant is entitled to
attorney’s   fees   if   the  plaintiff’s   claim   was   “frivolous,
unreasonable, or without foundation, even though not brought in
subjective bad faith.” Id. at 355 (citation omitted) (describing
attorney’s fees statute, 42 U.S.C. § 1988). The Head court held that
the plaintiff’s claims were legally frivolous and that the defendants
were entitled to attorney’s fees “unless the district court points
out special circumstances that justify making no award of fees.” Id.
     This court’s limited remand in Head, however, is not relevant
here. In contrast to the defendants in Head, prevailing defendants
in ADEA cases are entitled to attorney’s fees only if the plaintiffs
litigated in bad faith. We believe that the determination of bad
faith is a complex inquiry that should be conducted initially by the
district court, not an appellate court. See Roadway Express, Inc. v.
Piper, 447 U.S. 752, 767, 100 S. Ct. 2455, 2465 (1980) (ruling that
the district court erred in awarding attorney’s fees to a prevailing
defendant without making findings as to bad faith; directing that the
case be returned to the district court to make appropriate findings).

                                       19
faith   and   to   substantiate   its    determination   with   appropriate

findings.     See Kreager, 775 F.2d at 1543 (vacating and remanding

where district court awarded attorney’s fees to prevailing defendant

in FLSA case without making specific findings of bad faith).

AFFIRMED IN PART.    VACATED AND REMANDED IN PART.




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