Obtaining Attorney’s Fees Against Employees Who Represent Themselves in Employment Discrimination Cases
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Over the past decade there has been a sharp rise in employment discrimination lawsuits filed by pro se plaintiffs (i.e., former employee plaintiffs who represent themselves). Although litigation against an unrepresented party may seem like a layup, it actually requires significant expense to defend because pro se plaintiffs often lack the training that is so crucial to the speedy and efficient disposition of cases. See Pfeifer v. Valukas, 117 F.R.D. 420, 422 (N.D. Ill. 1987) (noting the pro se party’s five-inch thick filing gave new meaning to the legal phrase “weight of authority”). It would thus be wise for employers to know what options are be available for obtaining attorney’s fees.
This article sets out to explain just that. In particular, it considers the following five bases for an award of attorney’s fees against pro se litigants: (1) Rule 11 of the Federal Rules of Civil Procedure, (2) Rule 37 of the Federal Rules of Civil Procedure, (3) 28 U.S.C. § 1927, (4) the inherent power of the courts, and (5) the discrimination statute that forms the basis for the plaintiff’s claims.
Under Rule 11, an attorney or unrepresented party may not submit a pleading, motion, or other document with the court:
- for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
- where the claims, defenses, or other legal contentions are not warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
- where the factual contentions do not have evidentiary support or where, if specifically so identified, the pleading was unlikely to have evidentiary support after a reasonable opportunity for further investigation or discovery; or
- where the denials of factual contentions were unwarranted based on the evidence or, if specifically so identified, were unreasonably based on belief or a lack of information.
Although Rule 11 applies to pro se litigants, courts generally hold them to a lower standard than represented parties. In Haines v. Kerner, 404 U.S. 519, 520 (1972), the Supreme Court famously held that a pro se litigant’s pleadings should be liberally construed. Because Rule 11 is focused on the sanctioning of pleadings and other papers, Haines is often used as justification for leniency in Rule 11 proceedings. Even outside the context of Rule 11, the Supreme Court has used Haines to justify leniency against pro se litigants. See Hughes v. Rowe, 449 U.S. 5, 14–16 (1980) (noting that a pro se litigant “should not be punished for his failure to recognize subtle factual or legal deficiencies in his claims”).
Nevertheless, courts have awarded Rule 11 sanctions against pro se litigants where their filings were completely groundless or particularly egregious. See Arugu v. City of Plantation, 440 F. App’x 843, 845–46 (11th Cir. 2011) (approving sanctions against a pro se plaintiff who filed a “motion in opposition” after the court dismissed his lawsuit for failing to comply with a previous court order); Bullard v. Downs, 161 F. App’x 886, 887–88 (11th Cir. 2006) (approving sanctions against pro se plaintiffs who sued state court judges despite the clear application of judicial immunity); Brown v. Consol. Freightway, 152 F.R.D. 656, 659 (N.D. Ga. 1993) (awarding Rule 11 sanctions against a pro se plaintiff who filed a lawsuit after the statute of limitations had expired).
Rule 37 covers improper conduct or representations in discovery proceedings. For example, a party winning a motion to compel discovery is entitled to an attorney’s fee if it first attempted in good faith to obtain the discovery, the opposing party’s nondisclosure was not substantially justified, and other circumstances do not make the award unjust. Rule 37 also covers a party’s failure to comply with a court order, to make initial disclosures or supplement initial disclosures, to appear for a deposition, answer interrogatories, preserve electronically stored information, and more.
Rule 37 sanctions are also difficult to obtain against pro se plaintiffs. As noted above, a party is not necessarily entitled to an attorney’s fee if “other circumstances . . . make the award unjust.” See Fed. R. Civ. P. 37(a)(5)(A). That is where the “pro se status” of a litigant comes in to play. As such, Rule 37 sanctions are normally assessed against pro se plaintiffs only where the violation had nothing to do with the plaintiff’s lack of legal training. See Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989) (approving sanctions where the pro se plaintiff refused to answer any deposition questions even though the court had already ordered him to submit to a deposition and warned him that noncompliance would result in sanctions); LaFavors v. Thayer, 706 F. App’x 489, 492 (11th Cir. 2017) (approving award of attorney’s fees where the pro se litigant skipped his deposition and failed to give any advanced notice of his absence).
28 U.S.C. § 1927
28 U.S.C. § 1927 applies to a broader range of litigation activities than Rule 11 or Rule 37. It authorizes awards of attorney’s fees against any “attorney or other person admitted to conduct cases” that engages in bad faith litigation tactics, outside of the filing of the complaint, that result in prolonging the proceedings. See Steinert v. Winn Grp., Inc., 440 F.3d 1214, 1224 (10th Cir. 2006) (noting that the majority view is that the initial filing of a complaint is outside the scope of § 1927).
While 28 U.S.C. § 1927 covers a broader range of potentially sanctionable conduct, courts around the country are at odds as to whether it applies to pro se litigants given that it only permits sanctions against an “attorney or other person admitted to conduct cases.” The lack of certainty in this respect holds true for Florida, with the Eleventh Circuit Court of Appeals noting that it “has not addressed the question of whether sanctions under Section 1927 could apply to a pro se litigant.” Meidinger v. Healthcare Indus. Oligopoly, 391 F. App’x 777, 779 (11th Cir. 2010). But see Pierce Schultz, A Game of Telephone: Why § 1927 Should Not Apply to Pro Se Litigants, 2 Cts. & Just. L.J. 215, 222–27 (2020) (explaining how and why the application of Section 1927 to pro se litigants is erroneous).
The Inherent Power of the Courts
The inherent power of the courts is the broadest sanctioning tool in a court’s arsenal, applying at any point in the proceedings. Although it overlaps with several of the other rules discussed herein, it can be invoked even when procedural rules exist which sanction the same conduct. Chambers v. NASCO, Inc., 501 U.S. 32, 49 (1991). However, it only applies when a party acts in bad faith, vexatiously, wantonly, or for oppressive reasons (generally known as the “bad faith” standard). Id. at 45–46.
Like the other bases for attorney’s fees awards, the inherent power of the court takes a party’s pro se status into account. To show how, it is first helpful to understand the two types of “bad faith”; there is both subjective and objective bad faith. Subjective bad faith occurs when there is evidence of the party’s malintent. Objective bad faith occurs when a party’s actions are so outside the range of acceptable behavior that we can infer bad faith.
When there is subjective bad faith, there is no room for consideration of a party’s pro se status. In that case, sanctions are appropriate regardless. When analyzing objective bad faith, however, the bar is set a little higher for pro se parties. That is because, given that pro se litigants often lack legal training and experience, there must be a higher level of misconduct before a court can safely infer that the conduct resulted from the malintent of the party, instead of from its “failure to recognize subtle factual or legal deficiencies in his claims.” See Hughes v. Rowe, 449 U.S. 5, 14–16 (1980) (noting that a pro se litigant “should not be punished for his failure to recognize subtle factual or legal deficiencies in his claims”).
The Statute Forming the Basis for the Plaintiff’s Claim
Defendant employers can also seek attorney’s fees pursuant to the attorney’s fee provisions in Title VII, the Florida Civil Rights Act, and other similar anti-discrimination laws. Again, however, it is exceedingly difficult for defendants to obtain fees under those statutory provisions, and especially so with pro se plaintiffs. In Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 414 (1978), the Supreme Court articulated the standard that a prevailing defendant must meet in order to recover attorney’s fees in Title VII cases. The Court held that while a prevailing Title VII plaintiff “ordinarily is to be awarded attorney’s fees in all but special circumstances,” prevailing defendants should only be awarded attorney’s fees upon “a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation.” Id. at 417–21; see also McCoy v. Pinellas Cnty., 920 So. 2d 1260, 1262 (Fla. 2d DCA 2006) (applying the same standard in Florida Civil Rights Act cases).
To determine whether a suit is frivolous, “a district court must focus on the question whether the case 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). In doing so, courts consider the following three factors: “(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.” Id. Indeed, cases that are found to be frivolous are typically dismissed without the need for trial. Id.
The showing needed to obtain attorney’s fees against a pro se litigant is particularly stringent. Even in cases involving a valid employment discrimination claim, the plaintiff might not find hard evidence of wrongdoing until the parties are well into the litigation process. Courts loath to make a plaintiff pay for a company’s legal defense if the plaintiff’s failure to locate such evidence could simply be the result of his or her lack of litigation experience.
In conclusion, employment discrimination lawsuits filed by pro se plaintiffs can be especially frustrating to the defendant employer, as the plaintiff’s unfamiliarity with the law and litigation process can drive up expenses that the employer is unlikely to recover. Consequently, it is especially important in those cases for an employer to have experienced employment counsel who knows what to look for and how to successfully build the case for attorney’s fees from the very beginning.