1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0402P (6th Cir.)

File Name: 03a0402p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

JUDY GETTINGS,

Plaintiff-Appellant

(02-3454),

Plaintiff-Appellee,

v.

BUILDING LABORERS LOCAL

310 FRINGE BENEFITS FUND,

Defendant-Appellee,

Defendant-Appellant

(02-3535).

X

-

-

-

-

>

,

-

-

-

-

-

-

-

-

-

-

N

Nos. 02-3454/3535

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 01-01223—Donald C. Nugent, District Judge.

Argued: October 24, 2003

Decided and Filed: November 13, 2003 

2 Gettings v. Building

Laborers Local 310

Nos. 02-3454/3535

*

The Honorable William J. Haynes, Jr., United States District Judge

for the Middle District of Tennessee, sitting by designation.

Before: DAUGHTREY and GILMAN, Circuit Judges;

HAYNES, District Judge.*

_________________

COUNSEL

ARGUED: William W. Taylor, Steubenville, Ohio, for

Plaintiff. Richard L. Stoper, Jr., ROTATORI, BENDER,

GRAGEL, STOPER & ALEXANDER, Cleveland, Ohio, for

Defendant. ON BRIEF: William W. Taylor, Steubenville,

Ohio, for Plaintiff. Richard L. Stoper, Jr., Susan L. Gragel,

ROTATORI, BENDER, GRAGEL, STOPER &

ALEXANDER, Cleveland, Ohio, for Defendant.

_________________

OPINION

_________________

RONALD LEE GILMAN, Circuit Judge. Judy Gettings

filed a complaint alleging that her employer, the Building

Laborers Local 310 Fringe Benefits Fund (the Fund), violated

Title VII, ERISA, and the National Labor Relations Act by

discriminating against her on the basis of her gender. For the

reasons set forth below, we AFFIRM the district court’s

grant of summary judgment for the Fund as to all claims. In

addition, we VACATE the district court’s denial of attorney

fees to the Fund and REMAND with instructions that the

court reconsider the request and provide a reasoned

explanation for its decision. 
Nos. 02-3454/3535 Gettings v. Building

Laborers Local 310

3

I. BACKGROUND

A. Factual background 

Gettings was hired by the Fund as a secretary/clerk in 1978.

The Fund administers health, welfare, pension, and other

benefit plans for the members of the Building and

Construction Laborers Local Union 310 (the Union). A

Board of Trustees, comprised of equal numbers of Union and

employer representatives, governs the Fund. In addition to

Gettings, five other people were employed in the Fund’s

office: three clerks, a field auditor, and the fund administrator.

Gettings and the three other clerks were members of the

Office and Professional Employees International Union

(OPEIU), which negotiated their wages and benefits in a

collective bargaining agreement with the Fund.

Compensation for the field auditor and the fund administrator

was set by the Fund’s Board of Trustees. 

In 1989, the Fund hired Robert Mickshaw, the son-in-law

of the Union’s business manager, to be the field auditor.

Gettings claims that Mickshaw was incompetent and

unqualified for this position. Because Mickshaw was

purportedly unable to fulfill his duties as the field auditor,

Gettings alleges that she and the other clerks trained him to

perform their clerical duties. As a consequence, Gettings

complains that she and Mickshaw were doing the same kind

of work, but that Mickshaw was being paid $35,000 more per

year than she was by virtue of his formally holding the

position of field auditor. Mickshaw also enjoyed more

favorable retirement benefits than Gettings and had access to

a Fund-provided car. 

B. Procedural background

 In November of 1997, Gettings filed charges with the Ohio

Civil Rights Commission (OCRC) and the Equal

Employment Opportunity Commission (EEOC), alleging that

4 Gettings v. Building

Laborers Local 310

Nos. 02-3454/3535

the Fund was discriminating against her because of her

gender. Gettings claims that Mickshaw received a

substantially more lucrative compensation package for

performing essentially the same work that she did. 

On October 1, 1998, the OCRC issued Gettings a probablecause letter, making a preliminary determination that the

Fund had probably engaged in unlawful discriminatory

practices. Depositions of Gettings, the fund administrator,

and the OPEIU union steward were subsequently taken by an

assistant state attorney general on behalf of the OCRC. In her

deposition, Gettings admitted that there were significant

differences between the duties of a field auditor and the duties

of a clerk, and that Mickshaw was performing some field

auditor tasks, although, in Gettings’s opinion, not very well.

Gettings also conceded that she did not perform any field

auditor duties. She further acknowledged that Mickshaw’s

duties required that he have access to a Fund-provided car,

while her duties did not. Finally, Gettings admitted that her

union, OPEIU, had attempted to negotiate retirement benefits

similar to those received by Mickshaw, but was unsuccessful.

According to Gettings, she withdrew her complaint before the

OCRC made any final determination on the merits so that she

could proceed in federal court.

 The EEOC, meanwhile, had declined to investigate

Gettings’s charge because the Fund employed less than 15

employees, which is the minimum number for an entity to be

considered an “employer” under Title VII. 42 U.S.C.

§ 2000e(b). On August 24, 2000, the EEOC sent Gettings a

letter confirming that her charge of employment

discrimination had been withdrawn in accordance with her

request. The EEOC letter did not, however, indicate that she

had only 90 days within which to bring a civil action pursuant

to 42 U.S.C. 2000e-5(f)(1). Gettings filed a complaint in

federal district court over eight months later, alleging (1) sex

discrimination, in violation of Title VII of the Civil Rights

Act of 1964, 42 U.S.C. §§ 2000e-2000e(17), and Ohio
Nos. 02-3454/3535 Gettings v. Building

Laborers Local 310

5

Revised Code § 4112.02, (2) discrimination under the

Employee Retirement Income Security Act (ERISA),

29 U.S.C. § 1001-1461, and (3) discrimination based on

union membership, in violation of the National Labor

Relations Act (NLRA), 29 U.S.C. § 141-187.

At the initial case management conference called by the

district court, the Fund indicated that it would soon be filing

a motion for summary judgment. The parties also agreed to

limit discovery in light of the prior proceedings before the

OCRC. After the Fund filed its motion for summary

judgment, Gettings requested an additional 60 days in order

to conduct discovery before submitting her response. The

Fund opposed Gettings’s motion because she had failed to

comply with the requirement of Rule 56(f) of the Federal

Rules of Civil Procedure that such a motion include an

affidavit containing a specification of facts to be discovered

and an explanation of how the discovered facts would rebut

the Fund’s motion forsummary judgment. Gettings’s counsel

confirmed at oral argument that he did not file a Rule 56(f)

affidavit. At the second pretrial conference, the district court

granted Gettings’s request for additional time to respond, but

stayed discovery pending its ruling on the Fund’s motion for

summary judgment. 

In response, Gettings not only opposed the Fund’s

summary judgment motion, but also sought leave to amend

her complaint to add the Union as a defendant, arguing that

the Fund and the Union were in fact a single entity. The

district court subsequently granted summary judgment in

favor of the Fund and denied Gettings’s motion to amend her

complaint. Following this ruling, the Fund filed a motion for

attorney fees and costs, which the district court denied by a

marginal entry without any explanation. Gettings appeals the

former decision, and the Fund appeals the latter. 

6 Gettings v. Building

Laborers Local 310

Nos. 02-3454/3535

II. ANALYSIS

A. The district court’s stay of discovery

The Fund filed a motion to stay discovery pending the

district court’s ruling on the Fund’s motion for summary

judgment. Discovery was stayed by the district court without

opinion. Gettings claims that the denial of discovery was

manifestly unjust and violated her right to the due process of

law. We review a district court’s decision to limit discovery

under an “abuse of discretion” standard. Hahn v. Star Bank,

190 F.3d 708, 719 (6th Cir. 1999). 

“Trial courts have broad discretion and inherent power to

stay discovery until preliminary questions that may dispose of

the case are determined.” Id. Limitations on pretrial

discovery are appropriate where claims may be dismissed

“based on legal determinations that could not have been

altered by any further discovery.” Musquiz v. W. A. Foote

Memorial Hospital, Inc., 70 F.3d 422, 430 (6th Cir. 1995). In

the present case, the Fund’s motion for summary judgment

contained the following issues that could be decided as a

matter of law: whether the Fund, as a single entity, was an

employer as defined under Title VII, whether Gettings stated

a claim under ERISA, and whether the NLRB had exclusive

jurisdiction over Gettings’s unfair-labor-practice claim. We

conclude that the district court did not abuse its discretion in

making these legal determinations without discovery. 

There are, however, two fact-based issues that could have

been fleshed out in more detail if discovery had gone forward.

First, Gettings might have obtained evidence to support her

theory that the Fund and the Union were acting as a single

employer. Second, Gettings might have unearthed facts to

prop up her claim that Mickshaw’s position as the field

auditor was a sham. The problem is that Gettings did not

comply with Rule 56(f) of the Federal Rules of Civil

Procedure, which provides as follows:
Nos. 02-3454/3535 Gettings v. Building

Laborers Local 310

7

Should it appear from the affidavits of a party opposing

the [summary judgment] motion that the party cannot for

reasons stated present by affidavit facts essential to

justify the party’s opposition, the court may refuse the

application for judgment or may order a continuance to

permit affidavits to be obtained or depositions to be taken

or discovery to be had or may make such other order as

is just.

This court has interpreted Rule 56(f) as requiring a party

opposing a summary judgment motion to file an affidavit that

“indicate[s] to the district court its need for discovery, what

material facts it hopes to uncover, and why it has not

previously discovered the information.” Cacevic v. City of

Hazel Park, 226 F.3d 483, 488 (6th Cir. 2000); see also,

Wallin v. Norman, 317 F.3d 558, 564 (6th Cir. 2003)

(summarizing Sixth Circuit precedent that the nonmoving

party must (1) file an affidavit that details the discovery

needed, and (2) explain how it will help rebut the movant’s

showing of the absence of a genuine issue of material fact).

Gettings filed no such affidavit. 

This court has pointed out that “[t]he importance of

complying with Rule 56(f) cannot be overemphasized.”

Cacevic, 226 F.3d at 488. “Where a party opposing summary

judgment and seeking a continuance pending completion of

discovery fails to take advantage of the shelter provided by

Rule 56(f) by filing an affidavit, there is no abuse of

discretion in granting summary judgment if it is otherwise

appropriate.” Id. (internal citation omitted). Because

Gettings failed to file such an affidavit, the district court did

not abuse its discretion in staying discovery pending

resolution of the Fund’s motion for summary judgment.

8 Gettings v. Building

Laborers Local 310

Nos. 02-3454/3535

B. The Fund’s motion for summary judgment

1. Standard of review

We review a district court’s grant of summary judgment

de novo. Logan v. Denny’s, Inc., 259 F.3d 558, 566 (6th Cir.

2001). Summary judgment is proper where there exists no

genuine issue of material fact and the moving party is entitled

to judgment as a matter of law. Fed. R. Civ. P. 56(c). In

considering a motion for summary judgment, the district court

must construe all reasonable inferences in favor of the

nonmoving party. Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986). The central issue is

“whether the evidence presents a sufficient disagreement to

require submission to a jury or whether it is so one-sided that

one party must prevail as a matter of law.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). 

2. Prima facie caseof gender discrimination under Title

VII and Ohio state law

In order to establish a prima facie case of gender

discrimination under Title VII, Gettings must show that

(1) she was a member of a protected class; (2) she suffered an

adverse employment action; (3) she was qualified for the

position; and (4) that she was treated differently from

similarly situated members of the unprotected class.

Alexander v. Local 496, Laborers’ Int’l Union, 177 F.3d 394,

402-03 (6th Cir. 1999). Because the prima facie case

requirements are essentially the same under Ohio Revised

Code § 4112.02, see Ohio Civil Rights Comm’n v. Ingram,

630 N.E.2d 669, 672 (Ohio 1994), Gettings’s federal and

state-law claims of gender discrimination may be disposed of

together.

The district court properly determined that Gettings failed

to establish a prima facie case for several reasons. First,

Gettings did not specifically allege that she suffered an
Nos. 02-3454/3535 Gettings v. Building

Laborers Local 310

9

adverse employment action. She was not terminated,

disciplined, or demoted. Nor was she rejected for the field

auditor position, since she never applied for it. Second,

Gettings does not allege that she was qualified to be a field

auditor. Third, Gettings and Mickshaw were not similarly

situated. Under Title VII, “the plaintiff and the employee

with whom the plaintiff seeks to compare . . . herself must be

similar in all of the relevant aspects.” Ercegovich v.

Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir.

1998) (emphasis in original) (internal citation omitted). 

The district court correctly observed that Gettings was

comparing apples to oranges. Gettings and Mickshaw each

held different jobs, with different qualification requirements

and duties, and thus had different compensation packages.

Gettings admitted as much in her deposition. She

acknowledged that she and Mickshaw had different jobs and

responsibilities and conceded that Mickshaw did perform

some of his field auditor tasks. Gettings’s opinion that

Mickshaw performed poorly—but was handsomely paid—as

the field auditor does not mean that Gettings was being

discriminated against with regard to her own employment as

a clerk. In sum, she and Mickshaw did not hold positions that

were similar in all relevant aspects. We thus find no error in

the district court’s conclusion that Gettings failed to establish

a prima facie case of discrimination under either federal or

state law. 

3. Gettings’s employer for the purposes of the Title VII

The district court also properly granted summary judgment

on Gettings’s Title VII claim because the Fund does not

satisfy the statutory definition of an employer. An employer,

for purposes of Title VII, is “a person engaged in an industry

affecting commerce who has fifteen or more employees for

each working day in each of twenty or more calendar weeks

in the current or preceding calendar year . . . .” 42 U.S.C.

§ 2000e(b). The district court found that, from 1995 to the

10 Gettings v. Building

Laborers Local 310

Nos. 02-3454/3535

present, the Fund has never had 15 or more employees. Only

6 persons are employed by the Fund. Accordingly, as a

matter of law, the Fund was entitled to summary judgment on

Gettings’s Title VII claim. 

Gettings attempted to overcome Title VII’s definition of an

employer by filing a motion to amend her complaint to add

the Union as a defendant. She argued that the Union and the

Fund were acting as a single employer. Because the Union

has 13 employees and the Fund has 6 employees, their

combined workforce would clear the 15-employee statutory

hurdle if they were considered a single employer. The district

court found that Gettings’s motion was moot because, even if

the Union and the Fund were indeed a single employer for the

purposes of Title VII, Gettings nonetheless failed to establish

a prima facie case of gender discrimination. Because we

agree with the district court’s adjudication on the merits of

Gettings’s gender discrimination claim, we conclude that the

district court properly dismissed as moot Gettings’s motion to

add the Union as a defendant. 

We also note that there is nothing in the record before us to

indicate that the Fund and the Union were acting as a single

employer. The OCRC examined the operations and

management of the Fund and the Union and concluded that

the entities were “completely separate” and could not be

“merged” to satisfy the EEOC’s jurisdictional prerequisites.

After considering the appropriate test in this circuit, the

district court also concluded that Fund and the Union were

separate entities. See Distillery, Wine & Allied Workers Int’l

Union v. National Distillers & Chem. Corp., 894 F.2d 850

(6th Cir. 1990) (examining the interrelation of operations,

common management, centralized control of labor relations,

and common ownership as the key factors in a singleemployer analysis). 

Because Gettings’s failure to file an affidavit under Rule

56(f) ended further development of the record on this point,
Nos. 02-3454/3535 Gettings v. Building

Laborers Local 310

11

we decline to hold that the district court was clearly erroneous

in deciding that the Fund and the Union were separate

entities. See Michigan Bell Tel. Co. v. Engler, 257 F.3d 587,

592 (6th Cir. 2001) (stating that this court does not disturb

findings of fact unless the district court was clearly erroneous

in reaching its conclusion). Gettings’s motion to amend her

complaint was therefore not only moot, but meritless. 

4. The district court’s alternative basis for dismissing

the Title VII claim

An alternative basis for dismissing Gettings’s Title VII

claim, the district court held, was her failure to meet certain

procedural requirements for filing suit in federal court.

Usually a person who files a charge with the EEOC that is

subsequently dismissed receives notice that she has a right to

pursue her claim in federal court. 42 U.S.C. § 2000e-5(f)(1).

This typically takes the form of a “right-to-sue” letter, stating

that the individual has 90 days from the date of the letter to

file a civil complaint in court. Gettings argues that her letter

from the EEOC failed to explain this procedural requirement

and was not captioned as a “right-to-sue” letter. She thus

contends that she should not be penalized for filing her

lawsuit over eight months after receiving the EEOC’s letter.

The district court pointed out that Gettings was in a no-win

situation. If the EEOC letter confirming Gettings’s

withdrawal of her charge met the statute’s requirement that

she be given notice of her rights, then she filed her complaint

too late. On the other hand, if the EEOC letter was not a

“right-to-sue” letter, then Gettings filed her case without

receiving clearance to do so. In either case, the district court

held that Gettings failed to meet the procedural prerequisites

of Title VII. Because the district court’s other reasons for

granting the Fund summary judgment are sound, we decline

to address this alternative basis for disposing of Gettings’s

Title VII claim.

12 Gettings v. Building

Laborers Local 310

Nos. 02-3454/3535

5. The ERISA claim

Gettings’s complaint also failed to articulate a claim under

ERISA. The district court assumed that Gettings was

attempting to argue that she was being discriminated against

because she received less favorable retirement benefits or

contributions than Mickshaw. But ERISA does not provide

a remedy for gender discrimination. ERISA prohibits

discrimination in the exercise of rights under an employee

benefit plan covered by ERISA. 29 U.S.C. § 1140.

Gettings’s complaint, however, did not allege that she was

being discriminated against in the exercise of her rights under

her employee benefit plan, the terms of which were

negotiated by her union. Nor did Gettings allege that she had

requested and was denied any specific benefit that she is due

under her employee benefit plan. Because Gettings failed to

state a claim for discrimination under ERISA, the district

court properly granted the Fund’s motion for summary

judgment on this issue. Gettings does not contest this aspect

of the district court’s holding. 

Instead, Gettings has apparently seized on the Fund’s

interpretation of her ERISA claim as the basis for her appeal.

In interpreting Gettings’s complaint at the summary judgment

stage, the Fund assumed that Gettings was arguing that the

Fund’s plan did not qualify as a trust entitled to certain tax

advantages because it was paying higher benefits to the more

highly compensated employees, potentially in violation of

26 U.S.C. § 401(a)(4). The district court disagreed. After a

careful review of Gettings’s complaint, the district court

determined that Gettings was not alleging any cause of action

based upon the Fund’s purported violation of the Internal

Revenue Code. 

For the sake of argument, however, the district court

assumed that Gettings had standing to assert the ERISA claim

as framed by the Fund. It nonetheless concluded that the

Fund’s plan was a qualified trust under the tax laws. The
Nos. 02-3454/3535 Gettings v. Building

Laborers Local 310

13

court pointed out that in evaluating whether a trust is

providing highly compensated employees with more

favorable benefits than are being received by other plan

members, the tax code instructs that employees covered by

collective bargaining agreements are not considered in this

comparative analysis. See 26 U.S.C. § 410(b)(3)(A). 

Gettings now frames her ERISA claim as a dispute over

standing. She appeals the district court’s supposed ruling that

she did not have standing to bring a claim against the Fund’s

pension plan for violating the tax code. As discussed above,

however, the district court did not hold that Gettings lacked

standing. To the contrary, the court assumed that Gettings did

have standing, but concluded that her claim was without

merit. Gettings’s unconvincing comeback to the district

court’s determination on the merits is that her collective

bargaining agreement is “of no consequence.” Regardless of

how Gettings’s ERISA claim is framed—as a discrimination

issue, a tax violation issue, or a standing issue—the district

court properly determined that the Fund was entitled to

summary judgment.

6. Discrimination based upon union membership

The district court properly determined that it did not have

jurisdiction over Gettings’s claim that the Fund had engaged

in an unfair labor practice by paying her less in wages and

benefits than it paid Mickshaw, in alleged violation of 29

U.S.C. § 158. Under the latter provision, an employer

engages in an unfair labor practice by discriminating “in

regard to . . . any term or condition of employment to

encourage or discourage membership in any labor

organization.” The National Labor Relations Board (NLRB),

however, “has been designated by Congress as the exclusive

forum of original jurisdiction for adjudicating questions of . . .

unfair labor practices . . . and . . . United States District

Courts have no such jurisdiction.” Lexington Cartage v. Int’l

Brotherhood of Teamsters, 713 F.2d 194, 195 (6th Cir. 1983).

14 Gettings v. Building

Laborers Local 310

Nos. 02-3454/3535

See 29 U.S.C. § 160(a) (empowering the NLRB to prevent

any person from engaging in unfair labor practices).

Gettings attempts to circumvent the NLRB’s exclusive

jurisdiction over this claim by arguing that “OPEIU is not a

legitimate collective bargaining unit” and that her

membership in OPEIU is a “sham.” Even if Gettings is

correct, which is not supported by the record, the NLRB still

has exclusive jurisdiction over the allegations of unfair labor

practices. See Carpenters District Council v. United

Contractors Ass’n of Ohio, Inc., 484 F.2d 119, 121-23 (6th

Cir. 1973) (holding that even where the collective bargaining

agreement is a sham, the NLRB has exclusive jurisdiction

over allegations of unfair labor practices). The district court

was therefore correct to dismiss this claim for lack of subject

matter jurisdiction. 

C. The Fund’s motion for attorney fees

1. Standard of review

We now turn to the Fund’s cross-appeal, which relates to its

request for an award of attorney fees against Gettings. The

grant or denial of attorney fees by a district court is reviewed

under an “abuse of discretion” standard. Berger v. City of

Mayfield Heights, 265 F.3d 399, 402 (6th Cir. 2001). “Abuse

of discretion is defined as a definite and firm conviction that

the trial court committed a clear error of judgment.” Id.

(internal citation omitted). Because the district court denied

the Fund’s motion for attorney fees by a marginal order

without any explanation, it is impossible for us to determine

whether the district court committed a clear error of

judgment. This court has previously expressed its

“disapproval of marginal entry orders” that are contested and

dispositive of a substantive issue. Inland Bulk Transfer Co.

v. Cummins Engine Co., 332 F.3d 1007, 1015 n. 7 (6th Cir.

2003) (criticizing marginal orders because they frustrate

appellate review);see also Bank One v. Abbe, 916 F.2d 1067,
Nos. 02-3454/3535 Gettings v. Building

Laborers Local 310

15

1082 (6th Cir. 1990) (stating that marginal orders are

disfavored because they create difficulties in properly

reviewing such dispositions); United States v. Woods, 885

F.2d 352, 353-54 (6th Cir. 1989) (complaining that the

district court’s use of a marginal order complicated and

potentially prejudiced appellate review). 

A trial judge’s exercise of discretion in fee-award cases,

although “entitled to substantial deference . . . is not

absolute.” Adcock-Ladd v. Sec’y of Treasury, 227 F.3d 343,

349 (6th Cir. 2000) (reversing the district court’s award of

attorney fees because of improper calculation methods). In

awarding attorney fees, a “district court must provide a clear

and concise explanation of its reasons.” Id. (internal citation

omitted). By the same token, where there is significant

evidence in the record to support an award of attorney fees,

the district court should provide some explanation for its

denial of the award rather than simply entering a marginal

order. See Easley v. Value City Stores, Nos. 91-5288, 91-

5317, 1992 WL 3714, at *5 (6th Cir. Jan. 10, 1992)

(unpublished opinion) (remanding the employment

discrimination action to the district court to provide a

statement of reasons explaining why the employer was not

entitled to attorney fees when it prevailed on summary

judgment); see also Ellenburg v. Brockway, Inc., 763 F.2d

1091, 1097 (9th Cir. 1985) (remanding the case to the district

court with instructions that the court state its reasons for

denying the appellants’ motion for attorney fees); Gordon v.

U.S. Steel Corp., 724 F.2d 106, 108 (10th Cir. 1983) (same).

2. Evidence supporting an award of attorney fees to the

Fund

“[A] district court may in its discretion award attorney fees

to a prevailing defendant upon a finding that the plaintiff’s

action was frivolous, unreasonable, or without

foundation. . . .” Wilson-Simmons v. Lake County Sheriff’s

Dep’t, 207 F.3d 818, 823 (6th Cir. 2000) (internal citation and

16 Gettings v. Building

Laborers Local 310

Nos. 02-3454/3535

quotation marks omitted). But a “plaintiff should not be

assessed his opponent’s attorney fees unless the court finds

the claim was groundless at the outset or that the plaintiff

continued to litigate after it clearly became so.” Id. (internal

citation and quotation marks omitted) This determination,

“requires inquiry into the plaintiff’s basis for filing suit.” Id.

(internal citation omitted). Because the district court in the

present case used a marginal order, the record does not reveal

whether the court engaged in any inquiry concerning the

merits of Gettings’s claim.

“This court has noted that attorneys’ fees should be

awarded to defense counsel in Title VII actions only in the

most egregious circumstances.” Noyes v. Channel Products,

Inc., 935 F.2d 806, 810 (6th Cir. 1991). Such circumstances

may well be present here. The district court’s opinion

indicates that Gettings knew that the EEOC had declined to

investigate her Title VII claim on the basis that the Fund was

not an “employer” as defined by that statute. In fact, the

district court found that that is why she withdrew her charge

from the EEOC. The OCRC’s report further informed

Gettings that she could not merge the workforces of the

Union and the Fund in order to meet Title VII’s jurisdictional

requirements. Gettings thus had every reason to believe that

her Title VII claim was barred, yet she pursued it anyway.

She also failed to articulate any cognizable ERISA claim,

as is evident from the conflicting interpretations by the

district court and the Fund regarding the exact nature of

Gettings’s ERISA allegations. Under ERISA, a district court

“may allow a reasonable attorney’s fee and costs of action to

either party.” 29 U.S.C. § 1132(g)(1). This court has held

that when a district court exercises its discretion in awarding

attorney fees under ERISA, it should consider five factors: 

(1) the degree of the opposing party’s culpability or bad

faith; (2) the opposing party’s ability to satisfy an award

of attorney’s fees; (3) the deterrent effect of an award on
Nos. 02-3454/3535 Gettings v. Building

Laborers Local 310

17

other persons under similar circumstances; (4) whether

the party requesting fees sought to confer a common

benefit on all participants and beneficiaries of an ERISA

plan or resolve significant legal questions regarding

ERISA; and (5) the relative merits of the parties’

positions.

Foltice v. Guardsman Products, Inc., 98 F.3d 933, 936-37

(6th Cir. 1996) (internal citation omitted). The district court

should explicitly consider all of these factors on remand. 

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the

decision of the district court granting summary judgment for

the Fund. In addition, we VACATE the district court’s

denial of attorney fees to the Fund and REMAND with

instructions that the court reconsider the request and provide

a reasoned explanation for its decision.