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When a defendant wins summary judgment in an employment discrimination suit, the defendant is entitled to reimbursement of attorney fees only if the defendant can show that the plaintiff knew the lawsuit had no basis or that the plaintiff’s intent in suing was to harass a former employer, a federal judge has ruled. In her 14-page opinion in Solomen v. Redwood Advisory Co., U.S. District Judge Anita B. Brody refused to award nearly $100,000 in fees in a case brought by a woman who claims she was harassed during her pregnancy and fired eight months after she returned to work. After reviewing decisions from the U.S. Supreme Court and the 3rd U.S. Circuit Court of Appeals, Brody found there is no “bright-line test” for deciding when a winning defendant is entitled to fees. But while a winning plaintiff in a Title VII case is automatically entitled to a fee award, Brody found that “the standard for awarding attorney’s fees to prevailing defendants is substantially more stringent than that for awarding fees to prevailing plaintiffs.” In a February 2002 decision, Brody had dismissed Cheryl Solomen’s claim of pregnancy discrimination after finding that she failed to make out a prima facie case. “A plaintiff who was not pregnant at or near the time she was terminated must demonstrate that the effects of her pregnancy continued to exist at the time she was terminated, either in actual fact or in the thoughts and actions of those responsible for firing her,” Brody wrote. In a pregnancy discrimination suit, Brody said, the plaintiff “must do more than show she was, past tense, pregnant.” Solomen’s suit failed, Brody found, because she couldn’t show a connection between her pregnancy and her firing eight months later. “A plaintiff who was not pregnant at or near the time of the adverse employment action has some additional burden in making out a prima facie case. Such a plaintiff must demonstrate at the prima facie stage, by introducing evidence sufficient to allow the case to go to a jury, that she was affected by pregnancy, childbirth or related medical conditions at the time of the adverse employment action,” Brody wrote. Solomen failed to meet that burden, Brody said, because she never claimed that the pregnancy continued to affect her medically, and her only evidence of animus toward her pregnancy related to comments made nearly a year before she was fired. After the case was dismissed, defense attorneys Melissa E. Lea and David L. Gollin of Wolf Block Schorr & Solis-Cohen filed a motion seeking $98,338.45 in fees on the grounds that Solomen’s suit was baseless. Now Brody has ruled that the defendant is not entitled to fees because it couldn’t show that Solomen’s claim was “frivolous,” “unreasonable,” or “without foundation.” Brody found that Redwood “mounted a strong case for why it chose to terminate Solomen’s employment.” The evidence, Brody said, showed that Solomen had failed to disclose her relationship to her brother-in-law — who was a plaintiff in a slip-and-fall case filed against Redwood — for approximately six months. That delay, Brody said, justified Solomen’s termination, impeached her credibility and demonstrated that she should not have questioned defendant’s motive for firing her. But while Solomen was unable to prove any connection between the alleged discrimination she suffered and her firing, Brody also found that “I cannot conclude from these facts that Solomen knew or should have known that her allegations lacked any evidentiary foundation.” Instead, Brody said, “this case falls within the heartland of discrimination disputes.” Awarding attorney fees to the defense in such a case, Brody said, “could lead to a chilling effect on future civil rights plaintiffs, a result that would contravene Congress’ intent in enacting the very civil rights statutes at issue here.” Solomen was represented by attorney Samuel A. Dion of Dion-Goldberger.

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