                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                    Pursuant to Sixth Circuit Rule 206
                                            File Name: 05a0392p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                     X
                               Plaintiff-Appellant, -
 SHANNON BALMER,
                                                      -
                                                      -
                                                      -
                                                          Nos. 04-5688/6199
           v.
                                                      ,
                                                       >
 HCA, INC.; HEALTH CARE INDEMNITY, INC.,              -
                            Defendants-Appellees. -
                                                     N
                       Appeal from the United States District Court
                    for the Middle District of Tennessee at Nashville.
                  No. 01-01541—Robert L. Echols, Chief District Judge.
                                            Argued: June 8, 2005
                                Decided and Filed: September 14, 2005
            Before: SILER and GIBBONS, Circuit Judges, LAWSON, District Judge.*
                                            _________________
                                                 COUNSEL
ARGUED: John D. Schwalb, WILLIAMS & SCHWALB, Franklin, Tennessee, for Appellant. W.
Travis Parham, WALLER, LANSDEN, DORTCH & DAVIS, Nashville, Tennessee, for Appellees.
ON BRIEF: John D. Schwalb, WILLIAMS & SCHWALB, Franklin, Tennessee, for Appellant.
W. Travis Parham, Robert E. Boston, WALLER, LANSDEN, DORTCH & DAVIS, Nashville,
Tennessee, for Appellees.
                                            _________________
                                                OPINION
                                            _________________


        JULIA SMITH GIBBONS, Circuit Judge. Shannon Balmer appeals the grant of summary
judgment and the award of attorneys’ fees to Health Care Indemnity, Inc. in this employment
discrimination action under Title VII, the Equal Pay Act, and the Tennessee Human Rights Act. For
the following reasons, we affirm the district court’s grant of summary judgment and reverse the
attorneys’ fees award.



        *
         The Honorable David M. Lawson, United States District Judge for the Eastern District of Michigan, sitting
by designation.


                                                        1
Nos. 04-5688/6199 Balmer v. HCA, Inc., et al.                                                 Page 2


                                                 I.
        Health Care Indemnity, Inc. (“HCI”) is an indirect, wholly-owned subsidiary of HCA, Inc.
HCI provides insurance coverage and claims handling for hospitals affiliated or previously affiliated
with HCA. HCI provides limited general liability and employment practices insurance coverage to
beneficiary hospitals, but approximately ninety-five percent of claims handled by HCI relate to
allegations of medical malpractice.
        Plaintiff-appellant Shannon Balmer was hired by HCI in April 1999 as a claims supervisor
earning an annual salary of $39,500.00. Balmer’s responsibilities included processing and
monitoring claims from HCI-insured hospitals in various states not including Tennessee. At the
time Balmer was hired, she had two and one-half years of limited experience in the insurance
industry as a Medicare fraud investigator for CIGNA. Her experience did not meet the requirement
of three to seven years of claims experience stated in the advertisement for the position. Frank
Halliburton, a male, was hired as a claims supervisor on the same day as Balmer with an annual
salary of $50,800.00. Balmer was not aware of Halliburton’s starting salary but did inquire into
whether HCA was willing to pay her more after a human resources representative informed her that
$45,000.00 was at the low end of the salary range for claims supervisors. She was told that her
starting salary was not open for negotiation. Balmer often complained about her salary.
        In February 2000, Chris Gentile, Balmer’s supervisor, and Larraine Gerelick, Gentile’s
supervisor, positively reviewed Balmer’s job performance, resulting in her salary being increased
by six percent. Balmer’s raise, as a percentage of salary, was higher than the raises given to other
claims supervisors. In July or August 2000, at Gerelick’s suggestion, Balmer received a “Star
Award,” which was accompanied by gift certificates valued at $2,331.00. Despite the raise and Star
Award, Balmer continued to complain about her pay.
        Soon after the February 2000 review, Balmer learned the amount of Halliburton’s salary.
When Balmer raised the difference between her salary and Halliburton’s, she was told that
Halliburton was allowed to negotiate his salary because he had more insurance industry experience.
Halliburton had worked as a Claims Specialist for the Tennessee School Board Association for eight
months immediately preceding his employment with HCI, and, prior to that, he worked for AllState
for eleven years. According to Gerelick, Halliburton had substantial experience relevant to his
duties as a claims supervisor at HCI warranting his higher starting salary. Halliburton’s
responsibilities at AllState included reengineering investigation procedures, working with legal
counsel, acting as company spokesperson at trials, depositions, and settlement conferences, and
responsibility for managing and administering budgets. Halliburton’s starting salary at HCI,
$50,800.00, was a decrease from his salary at his previous job. Balmer’s starting salary of
$39,500.00 was an increase from her salary at CIGNA.
        In July 2002, HCI announced that six claims supervisors, four females and two males, were
being promoted to the position of senior claims supervisor. Balmer pursued one of the positions and
alleges that but for her sex she would have gotten the promotion. Later that month, Balmer met with
Gerelick to discuss the pay disparity between Balmer and Halliburton. Gerelick acknowledged the
disparity but told Balmer that Halliburton had more years of experience in the insurance industry.
Gerelick also told Balmer that, though Balmer was doing a much better job than Halliburton,
budgetary constraints meant that the disparity could not be rectified until 2001.
        Balmer told Gentile that she planned to file a gender discrimination suit against HCI in
September 2000. Balmer claims, but the appellees deny, that Gentile told Balmer that he was aware
that she had health problems and wondered if she could handle a battle at that time. He also
allegedly told her that HCI would come down hard on her or something similar and that it would be
difficult for her to find another job in the same field because Gerelick knew so many people in the
Nos. 04-5688/6199 Balmer v. HCA, Inc., et al.                                                                  Page 3


industry. Balmer claims that, following the encounter, Gentile did not return her phone calls, failed
to give her authority needed to settle cases, did not respond to her emails, and began keeping track
of her time away from the office.
       In October 2000, while Balmer was out of town and away from the office for three days,
Gentile viewed the contents of Balmer’s work-related mail “in-box.” One of the items in the in-box
was an invoice from Thompson & Miller, a Louisville law firm that HCI often hires to represent its
insureds in medical malpractice actions in Kentucky. The invoice reflected legal work about
employment issues. Gentile suspected that the legal work was related  to Balmer’s personal dispute
with HCI rather than to HCI hospital claims she was supervising.1 Consequently, Gentile contacted
Thompson & Miller to request information about Balmer’s research request. In response to his
request, Gentile received legal memoranda addressing the precise issues presented by Balmer in her
lawsuit.
        Gentile also found an earlier Thompson & Miller invoice dated September 15, 2000, related
to employment law issues. Balmer had approved the invoice and submitted it to HCI to be paid as
company business. Gentile inquired into the Thompson & Miller invoices upon Balmer’s return to
work. Balmer claims that she had potential claims with Equal Pay Act exposure and had been
advised that an unasserted claim for Equal Pay Act exposure   existed in a pending case and that
Gentile had authorized the Thompson & Miller research.2 Gentile discussed the situation with
Gerelick, who concluded that Balmer had misused company funds. Gerelick decided that Balmer’s
employment should be terminated but stated that she would not have terminated Balmer if the legal
research had been authorized by Gentile. Gerelick met with Balmer on November 21, 2000, and
offered her the choice between being terminated or resigning. Balmer chose to resign. After
resigning, Balmer filed a charge with the Equal Employment Opportunity Commission.
        Balmer originally filed suit in the Circuit Court for Davidson County, Tennessee, alleging
violations of the Tennessee Human Rights Act (“THRA”), Tenn. Code Ann. § 4-21-101 et seq. The
case was removed to the United States District Court for the Middle District of Tennessee based on
allegations in the complaint relating to appellees’ claimed violations of federal law. An Agreed
Protective Order was entered on July 30, 2003, designating various documents as confidential and
requiring that they be filed under seal. On November 13, 2003, Balmer filed her First Amended
Complaint, alleging violations of the Equal Pay Act, 29 U.S.C. § 206(d)(1), Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the THRA. The First Amended Complaint
sought certification of a plaintiff class, as did the original complaint. Balmer failed to file a motion
for class certification by the court-imposed deadline and did not request an extension of that
deadline. Balmer’s counsel filed a motion to withdraw on November 25, 2003, which the district
court granted on December 5, 2003. The appellees filed a motion for summary judgment on
December 9, 2003. The district court issued its Memorandum Opinion and Order granting summary
judgment to the appellees on April 30, 2004. Balmer filed a timely notice of appeal.
        Balmer also appeals the award of attorneys’ fees to appellees. Appellees filed a motion for
attorneys’ fees as “prevailing parties” under Title VII. HCI moved initially for fees in excess of
$91,000.00 The trial court held that the claims of retaliation and gender-based wage discrimination
were not frivolous, but that the class action allegations, the sexual harassment allegations and the
failure to promote claims were frivolous, entitling the appellees to an award of fees. HCI

         1
           Gentile’s belief that the invoice was for Balmer’s personal legal work was based on the subject matter of the
invoice, the fact that Balmer supervised few employment claims, the fact that Balmer supervised no Tennessee files, and
his personal knowledge of her claims files.
         2
          According to Gentile, Balmer was unable to identify any insurance claims under her supervision that involved
the Equal Pay Act or sex discrimination.
Nos. 04-5688/6199 Balmer v. HCA, Inc., et al.                                                     Page 4


resubmitted its claim in accordance with the district court’s July 8, 2004, order. In the amended
claim, HCI asserted that it was entitled to $8,270.20 in fees where the invoices referenced one or
more of the fee-recoverable allegations. All of these fees were incurred prior to the filing of
Balmer’s amended complaint. The appellees also sought $4,166.89, or five percent of the remaining
fees, as attributable to the defense of frivolous claims, but which could not be specifically identified
as related to such claims. Balmer opposed the amount requested by the appellees. The district court
awarded the full amount requested in the amended claim.
        The district court issued its Memorandum Opinion and Order granting the appellees more
than $12,000.00 in attorneys fees on August 24, 2004. The Clerk entered the final taxation of costs
on September 13, 2004. Balmer filed a timely notice of appeal from the order granting fees and final
taxation of costs on September 22, 2004.
                                                   II.
         A district court’s grant of summary judgment is reviewed de novo. Little v. BP Exploration
& Oil Co., 265 F.3d 357, 361 (6th Cir. 2001). The court must “view the evidence and draw all
reasonable inferences therefrom in the light most favorable to the non-moving party.” Id. Summary
judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). For
a dispute to be genuine, the evidence must be such that “a reasonable jury could return a verdict for
the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For the fact to
be material, it must relate to a disputed matter that “might affect the outcome of the suit.” Id.
       The standard of review on appeal in an attorneys’ fees case is abuse of discretion.
Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978).
                                                   A.
        Balmer asserted gender-based wage discrimination claims under the Equal Pay Act, Title
VII, and the THRA. The Equal Pay Act prohibits wage discrimination by covered employers
“between employees on the basis of sex . . . for equal work on jobs the performance of which
requires equal skill, effort, and responsibility, and which are performed under similar working
conditions.” 29 U.S.C. § 206(d)(1). Balmer has met the burden of establishing a prima facie case
under the Equal Pay Act because the “employer paid different wages to an employee of the opposite
sex for substantially equal work.” Timmer v. Mich. Dep’t of Commerce, 104 F.3d 833, 843 (6th Cir.
1997) (citing Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974)). “However, not all
differences in pay for equal work constitute violations” of the EPA. Id.
         After a plaintiff establishes a prima facie case of discrimination under the Equal Pay Act, the
burden shifts to the defendant to show that one of four affirmative defenses justifies the difference
in pay. Kovacevich v. Kent State Univ., 224 F.3d 806, 826 (6th Cir. 2000). The affirmative defenses
are: (1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or
quality of production; or (4) any factor other than sex. Id. (citing 29 U.S.C. § 206(d)(1); Corning
Glass Works, 417 U.S. at 196-97; Buntin v. Breathitt County Bd. of Educ., 134 F.3d 796, 799 (6th
Cir. 1998); Timmer, 104 F.3d at 843). In order to be entitled to summary judgment, the defendant
must prove that there is no genuine issue as to whether the difference in pay is due to a factor other
than sex. EEOC v. Romeo Cmty. Sch., 976 F.2d 985, 989 (6th Cir. 1992). “[T]he employer must
prove that ‘sex provides no part of the basis for the wage differential’” in order to prevail on
summary judgment. Timmer, 104 F.3d at 844 (citing Brennan v. Owensboro-Daviess County Hosp.,
523 F.2d 1013, 1031 (6th Cir. 1975)).
Nos. 04-5688/6199 Balmer v. HCA, Inc., et al.                                                                 Page 5


        Appellees rely on the fourth affirmative defense, a factor other than sex, to argue that the
wage differential between Balmer and Halliburton was based on the two individuals’ relevant work
experience, prior salary history, and requested salary. The Equal Pay Act’s catch-all provision “does
not include literally any other factor, but a factor that, at a minimum, was adopted for a legitimate
business reason.” EEOC v. J.C. Penney Co., Inc., 843 F.2d 249, 253 (6th Cir. 1988) (citation
omitted). A wage differential based on education or experience is a factor other than sex for
purposes of the Equal Pay Act. Hutchins v. Int’l Bhd. of Teamsters, 177 F.3d 1076, 1081 (8th Cir.
1999); see also Irby v. Bittick, 44 F.3d 949, 956 (11th Cir. 1995) (stating that “[e]xperience is an
acceptable factor other than sex if not used as a pretext for differentiation because of gender”);
Pouncy v. Prudential Ins. Co., 668 F.2d 795, 803 (5th Cir. 1982) (“Different job levels, different
skill levels, previous training, and experience: all may account for unequal salaries in an
environment free of discrimination.”); Harker v. Utica Coll., 885 F. Supp. 378, 390 (N.D.N.Y. 1995)
(holding that nine years experience differential between women’s and men’s basketball coaches
justified pay differential). Consideration of a new employee’s prior salary is allowed as long as the
employer does not rely solely on prior salary to justify a pay disparity. See Irby, 44 F.3d at 955 (“If
prior salary alone were a justification, the exception would swallow up the rule and inequality in pay
among genders would be perpetuated.”) (internal quotation marks and citation omitted).
        Balmer asserts that the district court, while acknowledging that the burden of proof was on
the appellees, impermissibly shifted the burden of production back to Balmer to show that the
asserted justification for the wage differential was pretextual. Balmer also argues that HCI  did not
establish experience as a factor other than sex because “the related experience is absent”3 and, even
if Halliburton had more experience, the defense should not be successful because HCI uses
experience as a factor on an ad hoc and inconsistent basis. According to Balmer, HCI must show
not only that Halliburton had more experience than Balmer, but also “the manner in which
Halliburton’s additional experience affected his performance.” (citing Shultz v. Wheaton Glass Co.,
421 F.2d 259, 263-64 (3rd Cir. 1970)). Balmer stretches this argument further, stating that “[t]he
best indication of the importance of Halliburton’s experience is clearly shown in how poorly he
performed following a year of performance.”
         We agree with the district court’s analysis:
         Defendants have presented substantial evidence that the difference in the starting
         salaries of Plaintiff and [Halliburton] was based upon a factor other than sex.
         Defendants’ evidence shows that [Halliburton] asked for a higher salary than
         Plaintiff, had a higher salary history than Plaintiff, and most importantly, the ultimate
         decision maker at HCI determined that [Halliburton] had greater relevant industry
         experience than Plaintiff. The Court finds that Defendants have demonstrated that
         no genuine issue of fact exists as to whether the difference in pay of Plaintiff and
         [Halliburton] is due to a factor other than sex. See Romeo Cmty. Sch., 976 F.2d at
         989. Defendants have therefore met their burden of proving an affirmative defense
         under the [Equal Pay Act] by a preponderance of the evidence.
After finding that HCI had met its burden of proving an affirmative defense, the district court
correctly stated that “[u]nder Sixth Circuit precedent, Plaintiff now bears the burden of producing
evidence creating a triable issue of fact that the reasons proffered by Defendants are pretextual.”
(citing Buntin, 134 F.3d at 800 n.7 (“In an [Equal Pay Act] case, the defendant always bears the

         3
           Balmer’s argument with regard to experience seems to be that Halliburton’s experience handling auto fire and
theft and homeowner theft claims is not relevant experience for handling medical malpractice claims. Balmer claims
that “[a]n employer may not rebut prima facie liability by purporting to rely on criteria which measures attributes
unrelated to probable job performance.” (citing Griggs v. Duke Power Co., 401 U.S. 424 (1971); Johnson v. Uncle Ben’s
Inc., 628 F.2d 419 (5th Cir. 1981)).
Nos. 04-5688/6199 Balmer v. HCA, Inc., et al.                                                      Page 6


burden of proving that its proffered reason is the true basis for the pay differential. The [Equal Pay
Act] plaintiff bears the burden of producing evidence of pretext solely where a reasonable jury
viewing the defendant’s evidence could find only for the defendant[.]”)).
        We also agree with the district court’s assessment of Balmer’s evidence of alleged
differences in the pay of other male and female HCI employees.
       Defendants, however, have shown that Plaintiff’s contentions regarding other
       employees are flawed for a number of reasons: she relies on an extremely small
       sample size; she attempts to compare long time female employees to much more
       recently hired male employees; and she fails to take into account the employees’
       overall qualifications. In the end, Plaintiff’s evidence simply shows that HCI pays
       some men more than women and some women more than men depending on a
       variety of factors. From this evidence no reasonable jury could conclude that the
       difference between Plaintiff and [Halliburton’s] starting salaries was due to sex.
                                                  B.
         To establish a prima facie case of retaliation, a plaintiff must show: (1) that she engaged in
protected activity; (2) that defendant knew of this exercise of her protected rights; (3) that defendant
consequently took an employment action adverse to plaintiff; and (4) that there was a causal
connection between the protected activity and adverse employment action. Fenton v. HiSAN, 174
F.3d 827, 831 (6th Cir. 1999) (citing EEOC v. Avery Dennison Corp., 104 F.3d 858, 860 (6th Cir.
1997)). If a plaintiff establishes a prima facie case of retaliation, the defendant may rebut the
presumption of retaliation by asserting a legitimate, non-discriminatory reason for its actions.
Morris v. Oldham County Fiscal Court, 201 F.3d 784, 793 (6th Cir. 2000). The plaintiff must then
show by a preponderance of the evidence that the employer’s proffered reason for the employment
action is pretextual. Id. The plaintiff must produce sufficient evidence from which the jury could
“reasonably reject [the defendants’] explanation” and infer that the defendants “intentionally
discriminated” against her. Woythal v. Tex-Tenn Corp., 112 F.3d 243, 246-47 (6th Cir. 1997). The
plaintiff must submit evidence demonstrating that the employer did not “‘honestly believe’ in the
proffered non-discriminatory reason for its adverse employment action.” Braithwaite v. Timken Co.,
258 F.3d 488, 494 (6th Cir. 2001) (citing Smith v. Chrysler, 155 F.3d 799, 806-07 (6th Cir. 1998)).
To inquire into the defendant’s “honest belief,” the court looks to whether the employer can
establish “reasonable reliance” on the particularized facts that were before the employer when the
decision was made. Smith, 155 F.3d at 807 (“[T]he key inquiry is whether the employer made a
reasonably informed and considered decision before taking an adverse employment action.”). The
district court correctly stated:
       If there is no reasonable dispute that the employer made a “reasonably informed and
       considered decision” that demonstrates an “honest belief” in the proffered reason for
       the adverse employment action, the case should be dismissed since no reasonable
       juror could find that the employer’s adverse employment action was pretextual. See
       Braithwaite, 258 F.3d at 494.
Balmer’s retaliation claim was summarized by the district court as follows:
       Plaintiff contends that after she told Mr. Gentile she intended to file a lawsuit against
       defendants, he made veiled threats about her health problems and her inability to find
       work in the future. She contends that he then increased her workload, failed to return
       her telephone calls, failed to provide her with sufficient settlement authority, was
       unavailable when she needed to talk to him, and had other employees track her time
       away from the office. Plaintiff also contends that Ms. Gerelick retaliated against her
Nos. 04-5688/6199 Balmer v. HCA, Inc., et al.                                                    Page 7


        by failing to handle Plaintiff’s pay complaints in the manner in which Plaintiff
        thought they should have been handled.
        Balmer argues that the district court failed to consider the retaliatory acts as a whole but
instead considered each act separately. The above quote from the district court contradicts this
assertion. Furthermore, as the district court points out, some of Balmer’s allegations were not
supported by the evidence. The district court noted that “[d]uring her deposition, Plaintiff conceded
that she had more files than some of her peers but less than others.” Also, Balmer “presented no
evidence that Mr. Gentile or Ms. Gerelick limited or attempted to limit Plaintiff’s ability to find
other employment after she resigned from HCI. The evidence shows that Plaintiff found a job with
another insurance company at a higher rate of pay within one month of leaving HCI.” The district
court was also correct in its finding that Balmer’s remaining allegations, with the exception of her
constructive discharge claim, do not rise to the level of adverse employment actions. See Hollins
v. Atl. Co., 188 F.3d 652, 662 (6th Cir. 1999) (“[A] materially adverse change in the terms and
conditions of employment must be more disruptive than a mere inconvenience or an alteration of
job responsibilities.”) (citation omitted).
         Therefore, the only legally cognizable adverse employment action identified by Balmer is
her allegedly forced resignation or constructive discharge. Balmer argues that the temporal
proximity of her protected activity (complaining about alleged sex-based wage discrimination) to
the adverse employment action (her forced resignation) establishes the causal link necessary to a
prima facie case of retaliation. However, “the mere fact that an adverse employment decision occurs
after a charge of discrimination is not, standing alone, sufficient to support a finding that the adverse
employment decision was in retaliation to the discrimination claim.” Booker v. Brown &
Williamson Tobacco Co., 879 F.2d 1304, 1314 (6th Cir. 1989). Because Balmer did not establish
a causal connection between the adverse employment action and her protected activity, she has not
established a prima facie case of retaliation.
        Even if Balmer were able to establish a causal connection, her retaliation claim would still
fail because HCI had a legitimate, non-discriminatory reason for terminating Balmer’s employment,
and Balmer was not able to show that the reason was pretextual. As the district court stated:
        Even if a genuine issue of material fact remains as to whether Plaintiff improperly
        used HCI’s funds to pay for personal legal research, Plaintiff has put forth no
        evidence suggesting that Ms. Gerelick, who ultimately made the decision to end
        Plaintiff’s employment, did not “honestly believe” that Plaintiff had misused HCI’s
        funds.
Balmer’s argument that Gentile authorized the Thompson & Miller legal research does not support
Balmer’s assertion that Gerelick lacked an honest belief that Balmer had misused HCI funds. We
agree with the district court’s conclusion that:
        Plaintiff has not presented any material evidence that Ms. Gerelick did not make a
        “reasonably informed and considered decision” and did not “honestly believe” that
        Plaintiff had misused company funds when she decided to end Plaintiff’s
        employment. As such, Plaintiff has not shown that ending Plaintiff’s employment
        was pretextual, and Plaintiff’s retaliation claims under Title VII and the THRA fail.
                                                   C.
       Title VII gives the court the authority to allow a reasonable attorneys’ fee to a prevailing
defendant-employer in a discrimination suit brought pursuant to Title VII. 42 U.S.C. § 2000e-5(k);
Gettings v. Bldg. Laborers Local 310 Fringe Benefits Fund, 349 F.3d 300, 310 (6th Cir. 2003). The
standard for granting attorneys’ fees to a prevailing employer is more stringent than that for
Nos. 04-5688/6199 Balmer v. HCA, Inc., et al.                                                  Page 8


awarding attorneys’ fees to a prevailing employee. Christiansburg Garment Co., 434 U.S. at 417-
18. The employer may be awarded attorneys’ fees where the plaintiff’s claim was “frivolous,
unreasonable, or without foundation,” or where the plaintiff continued to litigate after it became
clear that her claim was frivolous, unreasonable, or without foundation. Id. Courts should not
conclude that a claim was groundless just because it was ultimately unsuccessful. Id. at 421-22.
        Courts should consider the following factors when making an attorneys’ fees determination:
(1) whether plaintiff presented sufficient evidence to establish a prima facie case; (2) whether
defendant offered to settle the case; and (3) whether the trial court dismissed the case prior to trial
or held a full-blown trial on the merits. EEOC v. L.B. Foster Co., 123 F.3d 746, 751 (3rd Cir. 1997).
Defendants may recover fees for frivolous claims only. Gutierrez v. Denver Post, Inc., 691 F.2d
945, 948 (10th Cir. 1982) (affirming lower court’s award of attorneys’ fees to Title VII defendant
as to some but not all claims on which defendant prevailed). Attorneys’ fees should be awarded
only in the most egregious of circumstances. See e.g., Gettings, 349 F.3d at 310 (affirming lower
court’s award of attorneys’ fees to prevailing Title VII defendant where plaintiff knew a claim was
barred, yet pursued it anyway).
        The district court found that HCI was “entitled to recover attorneys’ fees in connection with
their defense of some, but not all of Plaintiff’s claims.” The district court also noted that Balmer is
“a sophisticated plaintiff. She has a law degree and years of experience supervising insurance
claims that often result in litigation. As a result she has first-hand knowledge of the time and costs
involved with defending against an employment discrimination lawsuit.” The district court
emphasized that Balmer continued to seek class certification “even after learning that the evidence
produced in discovery did not support her theories,” alleged a sexual harassment claim even though
she “admitted in her deposition that she had never been sexually harassed and had never intended
to pursue such a claim,” and pursued an unreasonable and meritless failure to promote claim.
         The district court also noted that HCI informed Balmer of its intent to seek attorneys’ fees
should it prevail in the matter and offered to waive the anticipated fees and costs if Balmer dismissed
the litigation. Balmer rejected the offer and her counsel withdrew shortly thereafter. See L.B. Foster
Co., 123 F.3d at 751 (whether defendant offered to settle the case is a factor to consider in
determining whether to award attorneys’ fees to prevailing defendants). At the time the district court
entered its June 21, 2004 opinion, Balmer was being represented by her fifth and sixth attorneys of
record; all earlier attorneys chose to withdraw from the case. The district court stated that “it seems
possible if not likely that prior counsel withdrew because Plaintiff was committed to advancing at
least one untenable claim.” (citing Owens v. Briggs & Stratton Corp., Nos. 99-3953, 99-4015, 2000
WL 1028932, at *2 (7th Cir. July 25, 2000) (affirming award of attorneys’ fees to prevailing
defendant, noting that plaintiff should have realized that her suit had no chance of success when her
attorney withdrew for fear of sanctions)).
        The district court did not award attorneys’ fees to HCI in relation to Balmer’s gender-based
wage discrimination and retaliation claims. The district court concluded that HCI was entitled to
recover fees incurred in defending Balmer’s sexual harassment claim under Title VII, her gender
discrimination claim based on failure to promote under Title VII, and her purported class
certification. The district court found that HCI was entitled to recover $4,458.80 for entries
specifically related to the fee recoverable allegations, $3,812.40 for fees related to the fee
recoverable allegations, and $4,166.89 for five percent of the total additional work. The total
amount of attorneys’ fees awarded to HCI was $12,437.09.
        Balmer argues that because the district court found that not all of her claims were frivolous,
unreasonable, or without foundation, the trial court abused its discretion in awarding any attorneys’
fees to HCI. There is support for this argument. This court has previously held that it is an abuse
of discretion to award attorneys’ fees to a prevailing defendant where any part of the plaintiff’s
Nos. 04-5688/6199 Balmer v. HCA, Inc., et al.                                                 Page 9


cause of action was not frivolous. Haynie v. Ross Gear Div. of TRW, Inc., 799 F.2d 237, 242 (6th
Cir. 1986), vacated as moot, 482 U.S. 901 (1987) (holding that “where one of the plaintiff’s claims
is non-frivolous, the defendant’s attorney fees may not be shifted to the plaintiff even though others
of the plaintiff’s claims are patently without merit.”); Tarter v. Raybuck, 742 F.2d 977, 987-88 (6th
Cir. 1984) (holding that awarding attorneys’ fees was an abuse of discretion even though some of
plaintiff’s claims were meritless).
        HCI attempts to distinguish Haynie and Tarter. In Haynie, the court reversed the fee award
for the employer but upheld the union’s fee award. 699 F.2d at 242-43. From this result, HCI
argues that “Haynie held that a plaintiff can be properly ordered to pay a fee award based on a
frivolous cause of action, even though she stated a prima facie case on another of her causes of
action.” HCI also argues that the portion of Haynie relied on by Balmer is merely dicta. In Tarter,
the plaintiff brought a cause of action under 42 U.S.C. § 1983 alleging that high school officials had
violated his own and his parents’ Fourth Amendment rights by searching him and detaining all three
of them without consent. Tarter, 742 F.2d at 979. This court reversed the district court’s award of
attorneys’ fees to defendants, holding that though part of plaintiff’s claim was baseless, the cause
of action was not frivolous, in part because the contours of the Fourth Amendment in the context
of a high school were not well-settled. Id. at 987. HCI seeks to differentiate the present case from
Tarter because here Balmer brought several discrete causes of action which were correctly analyzed
cause-by-cause by the district court.
       We agree with the district court that Balmer’s failure to promote and sexual harassment
claims were completely without merit and “frivolous, unreasonable, or without foundation.”
Nevertheless, we reverse the district court’s award of attorney’s fees to HCI. Based on the language
of Haynie and Tarter, we conclude that in this circuit attorneys’ fees may not be awarded to
defendants where the plaintiff has asserted at least one non-frivolous claim.
                                                 III.
       For the foregoing reasons, we affirm the district court’s grant of summary judgment to HCI
and reverse the district court’s award of attorneys’ fees to HCI.
