UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOAN H. BRAITSCH,
Plaintiff-Appellee,

v.

EMC CORPORATION,
Defendant-Appellant,

and

                                                                 No. 97-1467
THOMAS AARON; FRANK KEANEY,
Defendants.

EQUAL EMPLOYMENT ADVISORY
COUNCIL; CHAMBER OF COMMERCE;
NEW ENGLAND LEGAL FOUNDATION;
NATIONAL EMPLOYMENT LAWYERS
ASSOCIATION;
Amici Curiae.

Appeal from the United States District Court for the
Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-94-1693-A)

Argued: October 30, 1997

Decided: December 24, 1997

Before MICHAEL, Circuit Judge, BUTZNER, Senior Circuit Judge,
and BULLOCK, Chief United States District Judge for the Middle
District of North Carolina, sitting by designation.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

ARGUED: Whitney Adams, Washington, D.C., for Appellant. Rich-
ard Lee Swick, SWICK & SHAPIRO, P.C., Washington, D.C., for
Appellee. ON BRIEF: C. Torrence Armstrong, MCGUIRE,
WOODS, BATTLE & BOOTHE, L.L.P., McLean, Virginia, for
Appellant. Ann Elizabeth Reesman, Corrie L. Fischel, MCGUIN-
NESS & WILLIAMS, Washington, D.C., for Amicus Advisory
Council; Stephen A. Bokat, Robin A. Conrad, NATIONAL CHAM-
BER LITIGATION CENTER, Washington, D.C., for Amicus Cham-
ber of Commerce. Todd S. Brilliant, NEW ENGLAND LEGAL
FOUNDATION, Boston, Massachusetts, for Amicus Curiae Founda-
tion. John M. Bredehoft, CHARLSON & BREDEHOFT, P.C., Res-
ton, Virginia, for Amicus Curiae Lawyers Association.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

EMC Corporation appeals the district court's denial of its petition
for attorney's fees under 42 U.S.C. § 1988. We cannot determine the
reasons for the district court's conclusions and therefore vacate the
judgment and remand for amplification.

I

Joan H. Braitsch sued EMC Corporation claiming that EMC dis-
criminated against her on the basis of gender, during the course of her
employment and in her termination, violating Title VII of the Civil
Rights Act, 42 U.S.C. § 2000(e). EMC moved for summary judgment
before trial. District Judge Leonie M. Brinkema denied the motion
without prejudice reasoning that "because [Braitsch] ha[d] not been

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afforded the opportunity to take discovery yet . . . it [was] premature
to address the summary judgment issue."

During the subsequent trial, EMC moved for judgment as a matter
of law at the conclusion of Braitsch's evidence. District Judge Claude
M. Hilton granted this motion and dismissed the case.

Braitsch filed a notice of appeal, after which EMC filed a petition
for attorney's fees in the district court. District Judge Hilton denied
EMC's motion. This court affirmed the dismissal of Braitsch's case
by unpublished per curiam opinion. EMC then filed a second petition
for attorney's fees in the district court. Judge Hilton also denied that
motion. From this second denial, EMC now appeals.

II

"[A] district court may in its discretion award attorney's fees to a
prevailing defendant in a Title VII case upon a finding that the plain-
tiff's action was frivolous, unreasonable, or without foundation, even
though not brought in subjective bad faith." Christiansburg Garment
Co. v. EEOC, 434 U.S. 412, 421 (1978). Judge Hilton, denying
EMC's first petition for attorney fees, wrote "[i]t appearing to this
Court that Plaintiff's case survived Defendant's Motion for Summary
Judgment and proceeded to trial, the Court finds that Plaintiff's case
was not frivolous, unreasonable, or without foundation." Judge Hilton
denied EMC's second petition for attorney's fees"for the reasons
stated in [his prior] order."

EMC argues that Judge Hilton's conclusion that Braitsch's case
was not frivolous was based solely on Judge Brinkema's earlier denial
of summary judgment. According to EMC, Judge Brinkema's denial
of summary judgment was based only on the observation that discov-
ery was not complete, and this reason could not form a basis for the
Christiansburg analysis. Braitsch argues that Judge Hilton indepen-
dently found that her lawsuit was not frivolous.

It is not clear from the order whether Judge Hilton undertook an
independent analysis of the case or relied on Judge Brinkema's earlier
denial of summary judgment. We vacate the district court's judgment

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and remand to Judge Hilton for amplification of his conclusion that
the case was not frivolous, unreasonable, or without foundation.

VACATED AND REMANDED

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