                Case: 12-11722       Date Filed: 06/17/2014       Page: 1 of 7




                                                                       [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT

                             __________________________

                                    No. 12-11722
                             __________________________

                         D.C. Docket No. 1:08-cv-00155-KD-N

EARATON ADAMS, et al.,

                                                                                     Plaintiffs,
GLORIA SULLIVAN,

                                                                           Plaintiff-Appellee,

                                            versus

AUSTAL, U.S.A., L.L.C.

                                                                        Defendant-Appellant.

                             __________________________

                      Appeal from the United States District Court
                         for the Southern District of Alabama
                           __________________________
                                    (June 17, 2014)

Before PRYOR and COX, Circuit Judges, and ROSENTHAL, * District Judge.


       *
         Honorable Lee H. Rosenthal, United States District Judge for the Southern District of
Texas, sitting by designation.
              Case: 12-11722    Date Filed: 06/17/2014   Page: 2 of 7


PER CURIAM:

      Defendant-Appellant Austal USA, LLC appeals the March 2, 2012 order of

the United States District Court for the Southern District of Alabama denying

Austal’s motion for attorneys’ fees and sanctions against Plaintiff-Appellee Gloria

Sullivan and her counsel. After a thorough review of the record and the arguments

presented on appeal, we find that the district court did not abuse its discretion in

denying Austal’s motion. We affirm.

                                 I. Background

      On March 20, 2008, Sullivan and 21 others filed a putative class action

against Austal under 42 U.S.C. § 1981 and Title VII, 42 U.S.C. §§ 2000e, et seq.

The plaintiffs amended the complaint three times and added one other plaintiff

through amendment. The class was not certified, and the case proceeded with 23

plaintiffs. While all of the plaintiffs asserted a common set of events at the

workplace, each plaintiff added allegations about his or her own experiences and

knowledge.

      Sullivan’s third amended complaint alleged that she began working for

Austal in September 2003. Sullivan asserted claims for hostile work environment,

disparate treatment, disparate impact, and retaliation. Her claims were based on

allegations that white coworkers used racial epithets and made racist comments to

black coworkers; racist comments were written on bathroom walls; nooses and



                                         2
                Case: 12-11722       Date Filed: 06/17/2014      Page: 3 of 7


racist pictures appeared in the workplace; and white coworkers wore confederate-

flag emblems at work. She alleged that the company retaliated against her when

she complained about these events and did nothing to address them. She also

alleged that she was not provided the training that Austal gave white employees

and that promotions were not posted but were given to white males.

       Because the claims were proceeding individually, Austal filed 23 summary-

judgment motions. The district court granted 13 of those motions. On August 29,

2011, the district court granted Austal’s summary-judgment motion against

Sullivan and dismissed all of her claims. Austal then moved the district court to

award $60,000.00 in attorneys’ fees under 42 U.S.C. § 1988 and 42 U.S.C.

§ 2000e-5(k), and to require Sullivan’s counsel to pay the fees as a sanction under

28 U.S.C. § 1927. On March 2, 2012, the district court denied the motion. 1

       The ten plaintiffs who survived summary judgment proceeded to trial. The

first trial, of five plaintiffs’ claims, resulted in a verdict for Austal against two

plaintiffs but no verdict on the hostile-work-environment claims of the other three

plaintiffs. The second trial, for a single plaintiff’s claims, resulted in a defense

verdict. The third trial was for seven plaintiffs’ claims, including the hostile-work-



       1
         The district court stated that it denied Austal’s motion after reviewing the motion,
response, reply, and the pleadings. The fact that the fees and sanctions were sought for work
done through the grant of summary judgment shows that the review extended to the summary-
judgment filings as well.


                                               3
              Case: 12-11722     Date Filed: 06/17/2014    Page: 4 of 7


environment claims of the three plaintiffs remaining from the first trial. The third

jury also returned a verdict in Austal’s favor.

      Austal appeals the denial of the fees and sanctions sought against Sullivan,

and we affirm.

                                   II. Discussion

A.    Austal’s Motion for Attorneys’ Fees

      Under § 1988 or Title VII, a prevailing defendant may move to recover the

fees and costs incurred litigating a claim that was “‘frivolous, unreasonable, or

without foundation.’” Quintana v. Jenne, 414 F.3d 1306, 1309 (11th Cir. 2005)

(quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978)).

“Factors that are important in determining whether a claim is frivolous include (1)

whether the plaintiff established a prima facie case; (2) whether the defendant

offered to settle; and (3) whether the trial court dismissed the case prior to trial or

held a full-blown trial on the merits.” Quintana, 414 F.3d at 1309 (quotation

omitted).   The Supreme Court has cautioned against relying on hindsight to

determine whether a claim was frivolous when it was filed or pursued.              See

Sullivan v. Sch. Bd. of Pinellas Cnty., 773 F.2d 1182, 1188–89 (11th Cir. 1985).

We review the district court’s order denying attorneys’ fees and costs for an abuse

of discretion. See Smalbein v. City of Daytona Beach, 353 F.3d 901, 904 (11th Cir.




                                           4
                 Case: 12-11722       Date Filed: 06/17/2014        Page: 5 of 7


2003) (§ 1988); Cullens v. Ga. Dep’t of Transp., 29 F.3d 1489, 1491 (11th Cir.

1994) (§ 2000e-5(k)).2

       When a plaintiff asserts both frivolous and nonfrivolous § 1988 claims, a

“court may grant reasonable fees to the defendant . . . but only for costs that the

defendant would not have incurred but for the frivolous claims.” Fox v. Vice, —

U.S. —, —, 131 S.Ct. 2205, 2211, 180 L.Ed. 2d 45 (2011). The defendant need

not prove that all of the claims were frivolous to recover fees for defending against

one or more that was. Quintana, 414 F.3d at 1312 (citation omitted).

       The district court did not abuse its discretion in denying Austal’s motion.

“As we have stated previously, the abuse of discretion standard allows a range of

choice for the district court, so long as that choice does not constitute a clear error

of judgment.” See United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004)

(en banc) (quotations and citations omitted). Though Sullivan did not make it past

summary judgment, ten plaintiffs proceeded to trial on similar allegations and

evidence. Austal cannot recover its fees and costs under § 1988 or Title VII



       2
          Austal argues that we must remand because the district court did not explain the denial
of fees. (Blue Br. at 44). Austal notes that the “district court . . . must explain its reasoning in
determining a reasonable attorney’s fee to give this court an adequate and informed basis of
review.” Gilmere v. City of Atlanta, Ga., 931 F.2d 811, 814 (11th Cir. 1991). In that case, the
record did not give us a basis to “review the manner in which the district court determined the
$75 per hour rate to be appropriate.” Id. Here, the record provides a basis to determine whether
Sullivan’s claims were frivolous, and we “may affirm for any reason supported by the record.”
United States v. Hall, 714 F.3d 1270, 1271 (11th Cir. 2013); see also Hubbard v. BankAtlantic
Bancorp, Inc., 688 F.3d 713, 716 (11th Cir. 2012).


                                                 5
              Case: 12-11722     Date Filed: 06/17/2014   Page: 6 of 7


because it has not shown that any of the claims Sullivan alleged in her third

amended complaint were frivolous.

B.    Austal’s Motion for Sanctions

      Austal also appeals the denial of its motion for fees and costs as a sanction

under 28 U.S.C. § 1927.      Under § 1927, an attorney who unreasonably and

vexatiously multiplies proceedings may be sanctioned for the extra fees and costs

incurred because of that conduct. 28 U.S.C. § 1927. The defendant must show

that the conduct was “‘so egregious that it is tantamount to bad faith.’” Peer v.

Lewis, 606 F.3d 1306, 1314 (11th Cir. 2010) (quoting Amlong & Amlong, P.A. v.

Denny’s, Inc., 500 F.3d 1230, 1239 (11th Cir. 2007)). We review for abuse of

discretion. Peterson v. BMI Refractories, 124 F.3d 1386, 1390 (11th Cir. 1997).

      The district court did not abuse its discretion in declining to sanction

Sullivan’s counsel under § 1927. Austal emphasizes that Sullivan did not respond

to some of the claims that the summary-judgment motion addressed. But Austal

acknowledges that its motion included claims that Sullivan had not asserted in her

complaint. The fact that Sullivan did not respond to the parts of Austal’s motion

seeking summary judgment on claims she had not alleged or on claims she had

decided not to pursue is not a basis for sanctions under § 1927. See, e.g., Avirgan

v. Hull, 932 F.2d 1572, 1582 (11th Cir. 1991) (“[W]hen it becomes apparent that

discoverable evidence will not bear out the claim, the litigant and his attorney have



                                         6
                 Case: 12-11722   Date Filed: 06/17/2014   Page: 7 of 7


a duty to discontinue their quest.” (quotation omitted)). Neither this nor Austal’s

remaining arguments persuade us that the district court erred in denying sanctions.

III.   Conclusion

       We affirm the district court’s denial of Austal’s motion for attorneys’ fees

and sanctions.

AFFIRMED




                                          7
