1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2003 FED App . 0402P (6th C ir.) File Name: 03a04 02p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
J UDY G ETTINGS ,

Plaintiff-Appellant (02-34 54), Plaintiff-Appellee,

v

.

B UIL DING L ABORE RS L OCAL 310 F RINGE B ENEFITS F UND , Defendant-Appellee, Defendant-Appellant

(02-35 35). 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 Willi am J. Haynes, Jr., United State s Dist rict Judge for the Middle District of Tennessee, sitt ing by designati on. Befor e: DAUGH TREY and G IL MAN, Circ

uit Judges ; HAYNES, District Judge. *

_________________ COUNSEL

ARGUED: W illiam W. Taylor, Steubenville, Ohio, for Plaint iff. Richard L . Stoper, Jr ., ROTATO RI, B ENDER, GRA GEL, STOPER

& ALEXANDER, Clevela nd, Ohio, for Defe nd ant. ON BRI EF: William W. Taylor, Steubenville, Ohio, for P laintiff. Richard L . Stoper, Jr ., Susan L . Grag el, RO TATOR I, BENDER, GRAGEL , STOPER & ALEX ANDER, Cle

veland, Ohio, for D efenda nt.

_________________ OPINION

_________________ RON ALD LEE GI

LMAN , C ircui t Ju dge. J udy Getti ngs filed a comp laint allegi ng that her employer, the Building LaborersLocal 310 Fringe Benefits Fund (the Fund), violated Titl e VII , ERIS A, and the National Labor Relatio ns Act b y discriminating agains ther on the basis of her gender. For the
rea s ons set forth below, we AFFIRM the district court’s grant of summary judg

ment for the Fund as to all claims. In addition, we VACATE the district court’s denial of

attorney fee s to the Fund and REMAND with instructions that the court reco nsider the request and provide a reasoned explanation for its decision.Nos. 02-3454/3535 Gettings v. Building Laborers Local 310 3

I. BACKGROUND

A. Fac tual backgr ound

Getti ngs was hired by the

Fund as a secret ary /clerk in 1978. The Fund administers health, welfare, pension, and other benefit pl an s for the members of the Building and Construc tio n Laborers Local Union 310 (the Union). A Board of Trustees, comprised of equal numbers of Union

and employer representatives, governs the Fun d . In a ddition to Getting s, five other people were employ ed in the Fund’s office: three c lerks, a

field auditor, and the fund administrator. G etti ngs and the three other clerks were me mbers of th e Office an d P ro fe ss io na l E mp lo ye es I nternational Union (OPEIU), which negotiated their wag es and benefits in a collective bargaining ag reemen t with the Fund

. Compensation for the field auditor and the fund administrator was set by the F

und’s Board of Trustees.

In1989, the

Fund hir ed Rober t Mi ck shaw, the son-in-law of the Union’s bus ines s manager, to be the field auditor. Getti ngs claims that Mickshaw was incompeten t an d unqualified

for this position. Because Mickshaw was purporte dly

unable to

fulfill his duti es as the field auditor, Getting s a lleges

that she a

nd the othe

r clerk s trained

him to perform their cleri cal du ties. As a con seque nce, Ge ttin gs complains that

she and Mickshaw were doing the same kind of work, but thatMickshaw was being paid $35,000 more per year th an s he was by virtue of his formally holding the position of field auditor. Mickshaw also enjoy ed more favora ble retirement bene fits than G ettings and had a ccess to a Fund-provided car.

B. Proc edural bac kground In November of 1997, Getting s filed charges with the Ohio Civil Rights Commission (OCRC) and the E qual Employment

Oppo rtun ity Commission (EEOC), alleging that 4 Gettings v. Building Laborers Local 310 Nos. 02-3454/3535

the Fund was discriminating against her be caus e of he r gender. Getting s claims th at Mic kshaw received a substantia lly m or e lucrative compensation package for performing essentially

the same work that she did.

OnOctober 1, 1998, the OCRC issued Gettings a probablecause letter, making a preliminary determinat ion that the Fund had prob ably

engag ed in

u nlawful discriminatory practic es. Depositions of Gett in gs, the fund administrator, and the OPEIU union

steward were subsequently taken by an assistantstate attorney g eneral on b eha lf o f th e OC RC . In her deposition, Getting s admitted that t h ere were significant differences between the duties of a field auditor and the duties of a clerk , and that

Mickshaw

was per forming some fiel d auditor ta sks, altho

ugh, in G ettings ’s opinion , not very well. Getti ngs also conc eded tha t she did not p erform a

ny f ield auditor duties. She further

a cknowledged that Mickshaw’s duties required that he have acc ess to a Fund-provided car, while her duties did not. Finally, Ge ttings admitted tha t her union, OPEIU, had

attempted to negotiate retirement benefit s similar to those received by

Mickshaw, but was un success ful. According

to Getting s, she withdrew her complaint before the OCRC made any

final determinat

ion on the merits so thatshe could pro ceed in f

ederal court.
The EEOC, mea

nwhile, h ad decli nedto investigat e Gettings’s charge becaus e the Fund employed less than 15 employ ees, which is the minimum number for an entity to be conside redan “empl oye r” under Title VI

I. 42U.S.C. § 2000e(b). On August 24, 2000, the EEOC sent Getting s a letter confirmin g that her char ge of employ

men t discrimination had

b een withdrawn in accordance w ith her request

. The EEOC letter did not, however, indicate that she had only 90 days within wh

ich to bring a civil action pursuant to 42 U.S.C. 20 00e-5(f

)(1). Ge ttings fi led a com

plaint in federal district court over eight months later, alleging (1) sex discrimination, in violation o f Title VI I of t he Civil Rig

hts Act of 1964, 42 U.S.C. §§ 2000e-2000e(1 7), an d OhioNos. 02-3454/3535 Gettings v. Building Laborers Local 310 5

Revised Code § 4112 .02, (2) d iscriminati on 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 confere nce called by

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

summary judgmen t. The pa rties al so agre ed to limit discover y in light of the prior proceedings befor e the OCRC. After the Fund filed its mot ion f or summary judgmen t, Gettings requested an additional 60 day s in order to conduct discovery

before s ubm itting her response. The Fund o pposed Getting s’s motion b ecause she had f

ailed to
c omply with the req uirement of Rule 56(f) o f the Fe dera l Rules of Civil Pro cedure that su ch a motion include an affida vit containing a spec ific ation of facts to be discovered and an explanation of how the discovered facts would rebut the Fund’s mo tio n for s ummary judgme nt. Gettings’s counsel conf irm ed at oral argument that he did not file a Rule 56(f) affida vit. At the second pretrial conference
, the district court granted Gettings’s request for

additiona l time to respond, but stayed discovery

pending its ruling on the Fund’s motion for summary judgme

nt.

Inresponse , Getti ngs no t only opposed the Fund’s summary judgmen t motion, bu

t also so ughtleave to amend her complaint to add the Union as a defendant, arguing that the Fund and the Union were in fact a s ingle entity. The districtcourt sub sequentl y g ranted s ummary judgmen t in favor of the Fund and denied

Gettings’s motion to amend her complain t. Followin

g this ruling, the Fund

filed a motion for attorney fees an d costs, w

hich th e di st ri ct co ur t d en ie d b y a marginal entry wit hout any expl anati on. Ge ttin gs appeals the former decision, and the Fund appeals the latter

. 6 Gettings v. Building Laborers Local 310 Nos. 02-3454/3535

II. ANALY SIS A. The district court’s stay of discovery

The Fund filed a motion to stay disco ve ry p ending the districtcourt ’s rul ing on the Fund’s motion for summary judgmen t. Discovery was stayed by the district court without opinion. Gettings claims that the denial of discov ery wa s manifest ly unjust and violated

her right to the due process of law. We review a

district c ourt’s de cision tolimit 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 inhere nt po wer to stay discover y un til preliminary questions that may dispose of the case are d etermine d.” Id . Limitations on pretrial disco very are appropriate where c laims may be dismissed “ba sed on legal determinations that could not have bee n altered by any further discovery .” Musqui z v . W. A . Foote Memorial Hospital, Inc. , 70 F.3d 422, 430 (6th Cir. 199 5). In the present

case , the Fund’s motion for summary judgment contained the follow

ing issue s that cou

ld be dec ided as a matter of law: w

hether t he Fund, as a sin g le entity, was an employer as defined under Title VI I, whether Getti ngs stated
a claim under

ERISA, and whether the NL RB had exclusive jurisdiction over

Getting s’s unfa

ir-labor -pract ice cla im. We conclude that the d

istrict c ourt did

not abuse

its discre tion 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 ha

d gone forward. Fir st, Gettings might have obtained evidence to support he r theory that the F

und and th e Union we

re actin g as a si ng le employer. Second, G ettings might ha ve unea rthed fa cts to prop up her cl aim that Mi ckshaw’ s position a s the fie l d auditor was a sha

m. The pro

blem is that Get tings did not comply with Rule 5 6(f) of

the Fed eral Rule s of Civil Procedu re, whic h provide s as follow s: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 state d presen

t by affida vit facts essentia l to justify the party’s opposition, the court may ref use th e applicationfor judgment or may order a continua

n ce to permit affida vits to be obtained or

depositions to be taken
or discovery to be ha

d or may make such other order as is just.

This court has interpreted Rul e 56(f) a s requir ing a pa rty opposing a summary judg ment motion to file an

affida vit that “indica te[s] to the district court its nee d fo r discovery, w hat

m aterial facts it hopes to uncover, and why it has no t previous ly

discovered the information.” C ace vic v. City of Hazel Park , 226 F.3d

483, 488 ( 6th Cir. 200 0); see also
, Walli n v. Norman , 317 F.3d 558, 564 (6th C ir. 2003) (summarizing Sixth Circuit precedent that the nonmoving party must (1) f

ile an af fidavit that det ails the discovery needed, and (2) exp lain how it will help rebut the movant’s show ing of the absence of a genuine issue of material fact). Gettings filed no such affidavit.

T hi s court has pointed out that “[t]he importance of
c omplying

with Rule 56(f) cannot be overemphasized

. ” Cacevic , 226 F.3d at

488. “Where a party

opposing summary judgment and seeking a continuan ce pen ding completion of discovery fails to take advantage of the she lter provided by Rule 56(f) by f

iling an aff

idavit , there is no abuse of discretionin gran

ting su mm ar y j udgmen

t if it is othe

rwise appropriate.” Id . (inter nal citation omitted). B ecause Gettings failed to file such an affida vit, the distri ct court

did notab us e i ts di sc re ti on in st ayi ng di sc ov er y p endi ng resolution of the Fund’s motion for summa ry judgmen t. 8 Gettings v. Building Laborers Local 310 Nos. 02-3454/3535

B. The Fund’ s motio n for summ ary judgm ent 1. Standard of review

We review a dist rict c ourt’ s grant of sum mary judgm en t de novo. Logan v. Denny’s, Inc. , 259 F.3d 558, 566 (6th Cir. 2001). Summa

ry judgment is proper where there exists no genuine issue of

material fact and the moving party is e ntitled to judgment as a matter of law. Fed. R. Civ. P. 56(c)

. In consideringa m ot io n f

or su mm ar y j udgme

nt, the district court must construe a ll reas onable inferences in favor of the
nonmov ing p arty. Matsushita Elec. In dus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986). The centra l issue is “whether the evidence presen

ts a s ufficie

nt disag reemen t to require submission to a jury or whe ther it is so one-sided

that
one party must prev ail as a matter of law.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 251-52 (1986).

2. Pri ma fac ie case of

gen der discr

imination under T

itle VII and Ohio state law

Inorder to

est abl ish a prima facie case of ge nder discrimination under Title VII , Gettings must show tha t (1) she was a member of

a protected class; (2) she suffered an adverse employment

a ction; (3) she was qualified for the position; and (4) t

hat s he w as treated differently from similarly situated members o f the unpr otecte d class. Alexander

v. Local 4 96, Labore

rs’ Int’l Union , 177 F.3d 394, 402-03 (6th Cir. 1 999). Be cause the prima f acie ca se require ments are es sent ially the same under Ohio Revised Code § 4112.02, see Ohio Civil Rights Comm’n v. Ingram
, 630 N.E.2d 66 9, 672 (Oh io 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 f

acie ca se for se

veral r easons. F irst
, Getti ngs did not specifically alleg e that she suffered a nNos. 02-3454/3535 Gettings v. Building Laborers Local 310 9

adverse employ ment acti on. She wa s n o t terminated, disciplined, or demot ed. Nor was she r ejecte d for the

field auditor position, since she ne ver applied for it. Second, Getti ngs does not allege that she was qualified to be a field auditor. Third, Gettings and M ickshaw were no t similarly situated. Under Ti

tle VI I, “the plain

tif f and t he employee with whom the plaintiff seeks to compare . . . herse lf must be similar i n 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 cou rt correctly observed that Gettings was comparingapples to oranges. Gettings and Mickshaw e ach held differe nt jobs, with different

qualific ation re quireme

nts and duties, a nd thus had di ffere nt compen sation pa

ckage s. G etti ngs admitted as much in her deposition. S h e acknowledged

that she and Mickshaw had different jobs and responsibilities a nd conceded that Mickshaw did perform
some of his field auditor tasks. Gettings’s opinion that Mickshawperformed

poorly —but was h andsomel

y paid—as the field audit or doe s not mean t hat Ge ttin gs was be ing discriminated

agains t with reg ard to her own employment as
a cle rk. Insum, she and Mickshaw did not hold positions that
were similar in all relevant aspects. We thus find no error in the district court’s concl usio n that Getti ngs failed to establish
a prima fa cie ca se of discrimination under either federal or state law. 3. Gettings ’s employe

r for the pur

poses of t he Title V II
The districtcourt

also properly g

ranted summary judg

ment
on Gettings’s Title VII

claim becau se th e Fund does not satisfy the statutory

definition of an employer . An employer, for purposes of Title VII , is “a person e ngag ed in an industry affecting commerce who has fifteen or mor e employee s for each working day

in each of twenty

or more calendar

weeks in the current or preceding c alendar 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 employ

ees. Onl y 6 persons are employ

ed by the Fund. Ac cording ly, as a matter of law, the Fund was entitled to summary judgment on Gettings’s Title VII

claim.

Getti ngs attempte d to overcome Title VII ’s definition of an employer by filing a motion to amend he r com pl aint to add the Union as a

defenda nt. She argued that the Union and the Fund were act ing a s a single employer. Because the Union has 13 employees and t he Fund has 6 empl oye es, their combined workforce would clear the 15-em ployee statutory hurdle if they were c onsidere d a singl e employer. The district court found that Gettings’s motion was moot because, even if the Union and the Fund were indeed a single e mployer for the purposes of Tit le VII, Gett ings nonethel ess faile d to establish
a prima fa cie cas e of ge

nder disc rim inati on. Because we agreewith the di stric t court’s adjudication on the merits of Gettings’s gender discrimination claim, we conclude that the districtcourt properly

dismissedas mootGetting s’s motion t o add the Union as a defendant.

We also note

that there is nothing

in the re cord bef

ore us to in dicate that the F

und and th e Union we

re actin g as a si n gl e employer. The OCRC examined the o perations and management

of the Fund and the Union and concluded that the entities were “completel y separate” and could not be “merged”to satisfy

the EEOC’ s jurisdicti onal prereq uisites. After considering the appro priate test in this circuit, the districtcourt al so co ncluded that Fund and the Union were separa te entities. See Distillery, Wine & Allied W

orkers Int’l Union v. Nationa l Distiller s & Chem. Corp. , 894 F.2d 850 (6th Cir. 1990) ( exami ning the interre lation of o

peratio ns, common manage

ment, ce ntralized control o f labor r

elations, and common ownership as the key factors in a

si ngleemployer ana

lysis).

Beca us e Getting s’s failu

re to file an affi davit unde

r Rule 5 6(f) en ded furt

her deve lopment of

the rec ord 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 indec iding th at the Fu nd and the

Union wer

e separ ate entities. See Michigan Bell Tel. Co. v. Engler , 257 F.3d 587, 592 (6th Cir. 2001) (stating that this court does not disturb findi ngs of fact

unless the district court was clearly erroneous in reaching its conclusion). Gettings’smotion to amend her complaint was therefore not only moot, but meritless.

4. The district c ourt’s alte

rnative ba

sis for dismiss

ing the Title V

II claim

Analternative bas is for di sm is si ng G ett in gs’ s Ti tl e VII claim, the di strict co

urt held, was her

failure to meet ce

rtain procedural require

ments for

filing su

it in fede

ral cour t. Usually a person who files

a charge with the

EEOC that i s subseque ntly 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 individ

ual has 90

day s f rom the date

of the letter to file a civil complaint in court. Gettings argues that her letter fromthe EEOC f

ailed to explain

this procedural requirement and was not ca

ptioned 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 confir ming Gettings’s withdrawal of her charge met the statute’s r equirement that she be given notice of her rights, then she filed her complaint too late. On t

he other hand, if t

he EEOC le

tter was not a “right-to-sue” letter, then Gett ings filed her case without receiving clearanceto do so. In either case, the district court held that Gettings failed to meet the procedural pre requisites
o f Title VII . Because the district court’s other rea sons for granting the Fund summary judgme

nt are sound, we decline to address

this alter native basis for disposing of Gettings’s Title VI I cla im. 12 Gettings v. Building Laborers Local 310 Nos. 02-3454/3535

5. The ERISA c

laim Gettings’s complaint

also failed

to articulate a claim under ERISA. The distr

ict cour t assumed

that Getting s was attempting to argue that she was being discriminated agains t because she received less favorable re tirement benefits or contributions than Mick shaw . But ERISA does not provide
a remedy for ge nder disc rimi n ation. ERI SA prohibi ts discrimination in the exercise of right s under an employee bene fit plan covered by

ERISA. 29 U.S.C. § 11 40

. Getting s’ s complaint, however, did not allege that she was being discriminated against in the exercise of her rig hts under her employ ee bene fit plan, t

he terms of whi ch 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. Becau se Gettin gs fail ed to state a claim for discrimination un der ER ISA, the district
c ourt properl y g ranted t he Fund’ s motion for

summa r y judgment on this issue. Gettings does not contest this aspect of the district court’s holding.

Inste ad, Gettings has apparently seized on the Fund’s interpretation

of her ER

ISA c laim as the

basis for her appe al. Ininterpre

ting Gettings’s

complain t a t the summary judg

ment stage, the Fund assum ed that Gettings was arguing that the Fund’s pla

n did no t qualify as a trust entitled to ce rtain tax advantages because it was pay ing higher benefits to the more highly compensated employe es, potentially in v io lation of 26 U.S.C. § 401(a)(4). The district court disagreed. After a
care f ul review of Gettings’s complaint, the district court determined

that Gettings was not alleging any cause of action based upo n t he F und ’s p urp ort ed v io lat io n of th e In terna l Revenue Code.

For the sake of argument, however , the district court assumed that Gettings had

standing to assert

the ERI SA claim
as framed by

the Fund. It nonet

heless co ncluded that the Fund’s plan was a qualified trust under the tax laws. Th eNos. 02-3454/3535 Gettings v. Building Laborers Local 310 13

court pointed ou t that in ev aluating whether a trust is providing highly compe nsated employee s with m or e favora ble benefits than ar e being received by other plan members, the tax code instructs that employ ees covered by collective barga

ining ag reements ar e not cons idered i n this comparative analy sis. See 26 U.S.C. § 410(b)(3)(A).

Getti ngs now fra

me s h er ERISA claim as a dispute over stand ing. She appeals the district court’s supposed ruling that she did not have standingto bring a claim against the Fund’s pensionplan for violating the tax code. As discussed above, however, the distri ct court did not hold

that Gett ings lack ed stand ing. To th e c on tr ar y, the court assumed that Gett ings did have s tanding, but concluded that her claim was witho u t merit. Gettings’s unconvincing comeback to the district
cou rt’s determination on th e merits i s that her collecti v e bargaining

agreement is “of no consequence.” Regardless of how Getting s’s ERI SA claim is framed—as a discrimination issue, a tax violation issue, or a standing issue—the district court properly de

termined that the Fund was entitled t o summary judgmen t.
6. Discrimination based up on union membership

The distric t co urt properly de termined that it did not have jurisdiction over Gettings’s claim that the Fund had eng aged inan unfai

r labor practice

by p ay in g her less in wages and benefit s than it paid Micksha w, in alleged violation of 29 U.S.C. § 158. Under the lat ter prov ision, an employer engages in an u nfa ir labor p ractice by d iscrimina ting “in regard to . .

. any

term or c ondition of

employ ment to
encou rage or disc ou rage membership in any labor organization.” The National Labor RelationsBoard (NLRB ), however, “has bee

n design ated by Congre ss as the exclusive forumof original jurisdiction for adjudicating questions of .

. . unfair labor pr actic es . . . and . . . United States District Courts have no such jurisdiction.” Lexington Cartage v. Int’l Brotherhood

of Teamster s , 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 NL RB to prevent any person f

rom engaging in unfa

ir labor practices).

Getti ngs attempts to circumvent the NLRB’s exclusive jurisdiction over this

claim by arguin g that “ OPE IU is not a legitima te collective bargaini ng unit” and that her membersh

ip in OPEI

U is a “sha

m.” Even

if Getting s is
correct, whichis not suppor ted by the rec ord, the N

LRB s till has exclusive jurisdiction over the allegations of unfair labor practic es. See Carpenters District Council v. United Contracto rs A ss’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 practice s). The districtcourt
was theref

ore cor rect todismiss 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-a ppeal, w hich rel ates to its request for an award of attorney fee s against Gettings. The grant or denial of attorney

fees by a district court

is reviewed

u nder an “abuse of discretion” standard. Berger v . City o f 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 comm itted a clear error of judgment.” Id. (internal citation omitted). Because the district court denied the Fund’s mo tion for a ttorney fees by a ma rginal order without any

explanation, it is impossible for us to determine whether the district court committed a c lear error of judgmen t. This cour

t has pre

viously expresse d 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 100 7 , 1015 n. 7 (6th Cir. 2003) (criticizing mar gina l orders because they frustra te appella te 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 ar e disfavo red because

they create difficul ties in pro

perly

r eviewingsuch dispo sitions); United States v. Woods , 88 5 F.2d 352, 353-54 (6 th Cir. 1989) (complaining that the dist rict court’s use of a marginal order complicated and potentially prejudiced a

ppellate review).

A trial judg e’s exercise of discretion in fee-award cases, altho ugh “ 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 awa rd of attorney fees bec ause of i mp rop er c alc ul ati on m eth ods ). In awarding attorne y f ees, a “district court must provide a clear and concise explanation of its reasons.” Id . (internal citation
o mitted). By

the same

token, wh ere the

re is sig nif ican t evidence in the reco rd to support a n award of attorney

fees, the district court should provide some ex plan ation for its denial of the award rather tha n 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, 19 92) (unpubli shed opinion) ( remanding the employ men t discrimination action to the d istr ict court to provide a statement of reason s explaining why the employ er was not entitled to attorney fe es when

i t prevailed on summary judgment); see also Ellenburg v. Brockway, I nc. , 763 F.2d 1091, 1097 (9th

Cir. 1985) (remanding the case to the district court with instructions that the court state its re as ons for denying the appellants’ motion for attorne y f ees); Gordon v. U.S. Steel Corp. , 724 F.2d 106, 108 (10th Cir. 1983) (same).

2. Evidence

supporting

an award of

attorney f

ees to the Fund “[A] district court may in its discretion awa rd attorney f

ees to a preva ilin g defend ant up on a fi ndin g that the plaintiff’s acti on wa s frivolous, unreasonable, or withou t foundation. . . .” Wilson-Simmons v. Lake C ounty 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 omi

tt ed). But a “plaintiff should not be assessed his opponent’s attorney fe es unless the court finds the claim was groundless at the outset or that the plaintiff continued to litiga te after it clear ly became so.” Id . (internal
c itation and quota

tion marks

omitted) T

his deter min ation
, “requires inquiry

into the plaintiff’s basis for filing suit.” Id. (internal cit a tion omitted). Because the district court in the present case used a

marginal order, the record doe s not reveal whether the cour t engaged in any

inquiry concer ning th e merits of Getting s’s claim

. “This court ha s noted that attorneys’ f ees should be
awar ded to defen se counse l in Title VII actions only

inth e most egregious circumstance s.” Noyes v. Channel Pr oducts, Inc. , 935 F.2d 806, 810 (6th Cir. 1991). Such circumstances may well be pr

esent he re. The dist rict c ourt’s opinion indicates that Gett

ings kne w that t he EE OC had de clined to investig ate her Title VII

claim on the basis that the Fund was notan “empl oyer” as defined by that statute. In fact, the district court found that that is why she

with drew he r charge fro m the EEOC. The OCRC’s report further inf orme d Getti ngs that she c ould not me rge th e workforces of the Union and

the Fund in order to meet Title VII ’s jurisdictional require ments. Gettings thus had every reason to believe that he r T it le VII cl ai m w as ba rr ed , ye t s he pu rs ue d i t a nyw ay.
Sh e als o failed to articulate anycogniza ble ERI SA claim,
as is evident from the conflicting interpretat ions by the districtcourt and the Fund regar ding the exact nature of Gettings’s ERISA

allega tions. Under ERISA, a district court “may allow a reasonable attorney ’s fee and costs of a ction to either party.” 29 U.S.C. § 1 132(g) (1). This court ha s held that when a district c ourt exer

cises its d iscretion in

awarding attorne y f ees unde r ERI SA, it should

consider five fa ctors: (1) the degree of

the opposi

ng par ty’ s culpabi lity

or bad faith; (2) the o

pposing party ’s ability

to satisfy an award of attorney’s

fees; (3) the deterrent effe ct of an award onNos. 02-3454/3535 Gettings v. Building Laborers Local 310 17

other persons u

nder sim ilar circumstances; (4) whether the party re questing fees sought to confer a com m on benefit on all par ticipants and bene ficiari es of an E

RISA planor resolve significant legal ques tions regarding ERISA; and (5) t

he rela tive me rits o f the par

ties’ positions.

Foltice v. Guard

sma n 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. CONCL USION

For all of the

reaso ns se t forth above, we AFFIRM the decisionof the district court granting summary

judgment for the Fund. In addition, we VACATE the district court’s denial of att orney fe es to the Fund and REMAND with instructions that the court reconsider the request and provide a reasoned explanation for its decision.