UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 1:22-cv-22343-KMM Moore/Louis

JORGE MONTEAGUDO ALBURQUERQUE,

Plaintiff,

v.

THE DE MOYA GROUP, INC.,

a Florida Profit Corporation,

Defendant.

________________________________________/

PLAINTIFF’S NOTICE OF SUPPLEMENTAL AUTHORITY

Plaintiff, JORGE MONTEAGUDO ALBURQUERQUE pursuant to Fla. L. R. 7.8, files this 

Notice of Supplemental Authority to direct the Court's attention to a decision that is highly relevant 

to the issues raised in the case at bar which was discovered after the filing of the last brief served 

in this cause by Plaintiff: 

1. In Estevez v. Berkeley Coll., No. 18-CV-10350 (CS), 2022 WL 1963659 (S.D.N.Y. June 

6, 2022), the Court denied Defendants Motion for fees under the fee-shifting provision of 

Title VII, 42 U.S.C. § 2000e-5(k); 28 U.S.C. § 1927; and the Court's inherent authority

finding that while Plaintiffs’ complaints failed to put their employer on notice that the 

complained-of activity is, in fact, unlawfully discriminatory, “there was some ambiguity in 

[Plaintiffs’] complaints, such that the Court cannot say the claims were so entirely meritless 

as to render this one of the rare cases in which awarding fees to defendants is appropriate.”

Id. at *5. 

Case 1:22-cv-22343-KMM Document 108 Entered on FLSD Docket 09/11/2023 Page 1 of 11
A copy of the opinion is attached for this Court's consideration.

Dated: September 11, 2023. Respectfully submitted,

/s/ Nathaly Saavedra 

Nathaly Saavedra, Esq. 

Fla. Bar No. 118315

Email: nathaly@peregonza.com

Juan J. Perez, Esq. 

Fla. Bar No. 115784

Email: juan@peregonza.com

P. Brooks, LaRou, Esq. 

Fla. Bar No. 1039018

Email: brooks@peregonza.com

Jocelyn R. Rocha, Esq.

Fla. Bar No. 1039302

Email: jocelyn@peregonza.com

PEREGONZA THE ATTORNEYS, PLLC

5201 Blue Lagoon Drive,

Suite 290, 

Miami, FL 33126

Tel. (786) 650-0202

Fax. (786) 650-0200

Counsel for Plaintiff

Case 1:22-cv-22343-KMM Document 108 Entered on FLSD Docket 09/11/2023 Page 2 of 11
CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on September 11, 2023, I electronically filed the foregoing 

document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document 

is being served this day on all counsel of record or pro se parties identified on the attached Service 

List in the manner specified, either via transmission of Notices of Electronic Filing generated by 

CM/ECF or in some other authorized manner for those counsel or parties who are not authorized 

to receive electronically Notices of Electronic Filing.

/s/ Nathaly Saavedra

Nathaly Saavedra, Esq. 

Case 1:22-cv-22343-KMM Document 108 Entered on FLSD Docket 09/11/2023 Page 3 of 11
SERVICE LIST

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

Case No. 1:22-cv-22343-KMM Moore/Louis

Nathaly Saavedra, Esq. 

Fla. Bar No. 118315

Email: nathaly@peregonza.com

Juan J. Perez, Esq. 

Fla. Bar No. 115784

Email: juan@peregonza.com

P. Brooks, LaRou, Esq. 

Fla. Bar No. 1039018

Email: brooks@peregonza.com

Jocelyn R. Rocha, Esq.

Fla. Bar No. 1039302

Email: jocelyn@peregonza.com

PEREGONZA THE ATTORNEYS, PLLC

5201 Blue Lagoon Drive,

Suite 290, 

Miami, FL 33126

Tel. (786) 650-0202

Fax. (786) 650-0200

Attorneys for Plaintiff

Brian H. Pollock, Esq. (174742)

brian@fairlawattorney.com

FAIRLAW FIRM

135 San Lorenzo Avenue

Suite 770

Coral Gables, FL 33146

Tel: (305) 230-4884

Counsel for Nathaly Saavedra, Esq. and 

PereGonza The Attorneys

Method of Service: CM/ECF notice

Reginald J. Clyne, Esq.

Florida Bar No. 654302

reginald.clyne@qpwblaw.com

Chanelle Artiles, Esq. 

Florida Bar No. 10006402

chanelle.artiles@qpwblaw.com

Quintairos, Prieto, Wood & Boyer, P.A.

9300 South Dadeland Blvd., 4th Floor

Miami, Florida 33156

Telephone: 305-670-1101

Attorneys for Defendant

Method of Service: CM/ECF notice

Case 1:22-cv-22343-KMM Document 108 Entered on FLSD Docket 09/11/2023 Page 4 of 11
Estevez v. Berkeley College, Slip Copy (2022)

2022 IER Cases 194,903

 © 2023 Thomson Reuters. No claim to original U.S. Government Works. 1

2022 WL 1963659

United States District Court, S.D. New York.

Jimarzarette ESTEVEZ, Deanna

Mancini, and Diane Mekuli, Plaintiffs,

v.

BERKELEY COLLEGE, Joel

Martinez, Gretchen Orsini, and

David Bertone, Defendants.

No. 18-CV-10350 (CS)

|

Signed 06/06/2022

Attorneys and Law Firms

Daniela Nanau, Law Office of Daniela Nanau P.C., Glendale,

New York, Counsel for Plaintiffs.

Bran C. Noonan, FordHarrison LLP, New York, New York,

Counsel for Defendants.

OPINION & ORDER

Seibel, UNITED STATES DISTRICT JUDGE

*1 Before the Court is Defendants’ motion for attorneys’

fees, (ECF No. 105), and Plaintiffs’ cross-motion to stay the

ruling on that motion, (ECF No. 112). For the following

reasons, both motions are DENIED.

I. BACKGROUND

The Court presumes the parties’ familiarity with the facts of

this case, which are set forth in detail in the Court's July 19,

2021 Opinion and Order. (ECF No. 96 (the “Order”).)

Plaintiffs, who were formerly employed in the admissions

office of Berkeley College (the “College”), initiated this

action on November 7, 2018, bringing hostile work

environment and retaliation claims against the College under

Title VII of the Civil Rights Act of 1964 and the New

York State Human Rights Law (“NYSHRL”), and an aiding

and abetting claim under the NYSHRL against Defendant

Martinez. (ECF No. 1 ¶¶ 129-149.)1 Plaintiffs later amended

their Complaint to add NYSHRL aiding and abetting claims

against Defendants Orsini and Bertone. (See ECF No. 28 ¶¶

153-154.) On July 19, 2021, the Court granted Defendants’

motion for summary judgment, dismissing all claims. (See

Order.) As relevant here, the Court concluded that Estevez

and Mancini failed to make out a prima facie retaliation case,

and that Mekuli's retaliation claim had been abandoned. (Id.

at 38-43.) The Court further determined that there was no

evidence from which a reasonable jury could conclude that

Defendants’ proffered explanations for the terminations were

pretextual. (Id. at 44-47.) On August 13, 2021, Plaintiffs

appealed the Court's July 19 Order in its entirety. (ECF No.

98.)

1 The instant motion concerns only the retaliation claims.

(See ECF No. 105; ECF No. 106 (“Ds’ Fees Mem.”) at

1 & n.1.)

On August 17, 2021, twenty-eight days after the Order

granting Defendants’ summary judgment motion was

entered,2 Defendants filed a pre-motion letter in anticipation

of the instant motion for attorneys’ fees. (See ECF No. 99.)

In response, Plaintiffs, without leave,3 filed a cross-motion

(despite the fact that Defendants had not yet moved), in which

they requested that the Court dismiss Defendants’ proposed

fee motion as untimely or, in the alternative, stay litigation

regarding attorneys’ fees until the Court of Appeals resolves

Plaintiffs’ appeal of the July 19 Order.4 (ECF No. 101.) On

September 9, 2021, the Court held a conference to discuss

both motions and set a schedule for the parties to brief both

issues. (See Minute Entry dated Sept. 9, 2021.) The instant

motions followed. (ECF Nos. 105, 112.)

2 While the Court's Order and Opinion is dated July 19,

2021, the order was entered on July 20, 2021. (See ECF

No. 97.)

3 Under my Individual Rules of Practice, a party that

wishes to make a motion must submit a letter setting

forth the basis for the motion, so that the opposing party

may respond and I can hold a pre-motion conference.

See Individual Rule of Practice 2(A). The Rule allows

for a motion to be filed without following that process

where the party reasonably believes that delay in filing

might result in the loss of a right, provided that the party

files, along with the motion, a letter explaining why the

party believes it might be prejudiced if it complied with

the pre-motion conference requirement. See id. Plaintiffs

neither filed such a letter nor explained why abiding by

the rule would prejudice them.

Case 1:22-cv-22343-KMM Document 108 Entered on FLSD Docket 09/11/2023 Page 5 of 11
Estevez v. Berkeley College, Slip Copy (2022)

2022 IER Cases 194,903

 © 2023 Thomson Reuters. No claim to original U.S. Government Works. 2

4 As of the date of this Opinion and Order, Plaintiffs’

appeal remains pending. See Estevez v. Berkeley Coll.,

No. 21-1988 (2d Cir.).

II. DISCUSSION

A. Motion to Stay

*2 Plaintiffs argue that the Court should defer ruling on

Defendants’ motion for attorneys’ fees pending the resolution

of their appeal to the Second Circuit.

The Court looks to four factors when determining whether

a stay of a pending appeal is appropriate: “(1) whether the

stay applicant has made a strong showing that he is likely

to succeed on the merits; (2) whether the applicant will be

irreparably injured absent a stay; (3) whether issuance of

the stay will substantially injure the other parties interested

in the proceeding; and (4) where the public interest lies.”

In re World Trade Ctr. Disaster Site Litig., 503 F.3d 167,

170 (2d Cir. 2007) (cleaned up). The Second Circuit has

“treated these criteria somewhat like a sliding scale,” in that

“the necessary ‘level’ or ‘degree’ of possibility of success

will vary according to the court's assessment of the other

stay factors” and “the probability of success that must be

demonstrated is inversely proportional to the amount of

irreparable injury plaintiff will suffer absent the stay. Simply

stated, more of one excuses less of the other.” Thapa v.

Gonzales, 460 F.3d 323, 334 (2d Cir. 2006). Where a district

court is asked to stay its own order, courts typically analyze

the question of “likelihood of success on the merits” by

looking to whether there are “ ‘serious questions’ going to the

merits of the dispute and the applicant is able to establish that

the balance of hardships tips decidedly in its favor.” In re A2P

SMS Antitrust Litig., No. 12-CV-2656, 2014 WL 4247744, at

*2 (S.D.N.Y. Aug. 27, 2014) (emphasis in original) (quoting

Citigroup Glob. Mkts., Inc. v. VCG Special Opportunities

Master Fund, Ltd., 598 F.3d 30, 35 (2d Cir. 2010)).

Here, even granting Plaintiffs the benefit of the more

permissive “serious questions” standard, the first factor

weighs against Plaintiffs. As explained at length in the Court's

July 19, 2021 Order, Plaintiffs’ retaliation claims suffered

from a number of deficiencies, starting with the fact that

Plaintiffs failed to show that they had even engaged in

protected activity in the first place. (Order at 38-43.) Further,

even if they had made such a showing, their claims were

still not viable because Defendants demonstrated a legitimate,

nonretaliatory reason for each Plaintiff's termination, which

Plaintiffs failed to rebut. (Id. at 43-47.) It was not a close call.

Applying the “sliding scale” approach set out in Thapa and

other Second Circuit cases, Plaintiffs’ burden to show a

likelihood of success on the merits of their appeal increases

where the irreparable injury to Plaintiffs, if the stay is denied,

is not severe. See Thapa, 460 F.3d at 334; In re World Trade

Ctr., 503 F.3d at 170. Here, the only “irreparable injury” that

Plaintiffs articulate is the possibility that they would have to

brief an appeal of the fees issue before the Circuit now instead

of later. (ECF No. 113 at 4-5.)5 This is not a particularly

compelling case for irreparable injury, notwithstanding the

fact that it might be less efficient for Plaintiffs to have to

separately appeal the fees issue while their merits appeal

is still pending. This relatively minor irreparable injury to

Plaintiffs, combined with a weak showing of likelihood

of success on the merits, weigh against granting the stay.

Similarly, Plaintiffs have not demonstrated that the balance of

hardships “tips decidedly in [their] favor” such that a relaxed

approach to the question of likelihood of success on the merits

is appropriate. See In re A2P SMS Antitrust Litig., 2014 WL

4247744, at *2 (emphasis in original).

5 Because Defendants have said they would stay

enforcement of any fee award pending the outcome of all

appeals in this matter, (see ECF No. 116 at 7), Plaintiffs

would not be prejudiced by having to pay an award

before the Circuit decides their appeal.

*3 The remaining factors do not tip the balance toward

Plaintiffs. While Defendants’ concession that they would

not seek payment of any fees until all appeals are decided

suggests that they would not be particularly harmed were the

Court to grant the stay, the public interest weighs in favor of

denying the stay. At this stage, resolution of this issue is the

most efficient use of judicial resources. The Court can dispose

of this issue now rather than wait and decide it at even greater

remove from determination of the merits issue. The parties

have already briefed the fees issue and there appears to be

little to gain (by way of efficiency) in waiting to address these

arguments.

Accordingly, Plaintiffs’ motion to stay is denied, and the

Court will address Defendants’ motion for attorneys’ fees.

B. Motion for Attorneys’ Fees

Defendants move for attorneys’ fees under the fee-shifting

provision of Title VII, 42 U.S.C. § 2000e-5(k); 28 U.S.C. §

1927; and the Court's inherent authority. They also seek a

Case 1:22-cv-22343-KMM Document 108 Entered on FLSD Docket 09/11/2023 Page 6 of 11
Estevez v. Berkeley College, Slip Copy (2022)

2022 IER Cases 194,903

 © 2023 Thomson Reuters. No claim to original U.S. Government Works. 3

retroactive extension for their fees motion, which the Court

addresses as a threshold matter.

1. Rule 6(b)

Defendants request a retroactive extension of their time to

move for fees under Federal Rule of Procedure 6(b). Plaintiffs

argue that Defendants’ motion for fees must be dismissed

because it was untimely and Defendants have failed to

demonstrate excusable neglect for the late filing. (P's Fees

Opp. at 3).

Federal Rule of Civil Procedure 54(d)(2)(B) states that

“[u]nless a statute or a court order provides otherwise, the

motion [for attorneys’ fees] must ... be filed no later than 14

days after the entry of judgment.” Defendants filed their premotion letter on August 17, 2021, twenty-eight days after the

entry of judgment on July 20, 2021. Under Rule 6(b), a district

court “may, for good cause,” retroactively extend deadlines

“on motion made after the time has expired if the party failed

to act because of excusable neglect.” Fed. R. Civ. P. 6(b)(1).

[T]he Supreme Court [has] set forth four factors to be

considered in connection with an assertion of “excusable

neglect” as justification for a missed judicial deadline:

(1) “the danger of prejudice” to the party opposing the

extension; (2) “the length of the delay and its potential

impact on judicial proceedings”; (3) “the reason for the

delay, including whether it was within the reasonable

control” of the party seeking the extension; and (4) whether

the party seeking the extension “acted in good faith.”

While those factors are the central focus of the inquiry, the

ultimate determination depends upon a careful review of

“all relevant circumstances.”

In re Am. Express Fin. Advisors Sec. Litig., 672 F.3d 113, 129

(2d Cir. 2011) (internal citations omitted) (quoting Pioneer

Inv. Servs. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 392

(1993)). While “excusable neglect is an elastic concept that

is at bottom an equitable one, taking account of all relevant

circumstances surrounding the party's omission,” Tancredi v.

Metro. Life Ins. Co., 378 F.3d 220, 228 (2d Cir. 2004) (cleaned

up), the Second Circuit has noted that as a practical matter the

inquiry often focuses on the proffered reason for the delay,

see Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 366 (2d

Cir. 2003).

Defendants’ lead counsel, Mr. Noonan, represents that he

was out of his office during the week of July 26, 2021

attending to some family matters, (ECF No. 107 ¶ 56), which

would have left sufficient time to prepare the pre-motion

letter by August 3, but when he returned on July 31, he

had become ill with COVID-19,6 and remained so until

approximately August 14, (id. ¶¶ 57-58). He filed the premotion letter on August 17, one business day after completing

quarantine. (Id. ¶ 58.) The Court has no reason to doubt

counsel's representations regarding the debilitating nature or

the duration of his COVID-19 symptoms, (see id. ¶¶ 57-58;

ECF No. 115 ¶¶ 2-5), and finds that these circumstances

are out of counsel's control and constitute a reasonable

justification for the delay, see Stewart v. Hudson Hall LLC,

No. 20-CV-885, 2021 WL 406743, at *3 (S.D.N.Y. Feb. 5,

2021).

7

6 His symptoms began on July 31 and he tested positive

on August 2 (despite being vaccinated). (ECF No. 107

¶¶ 57-58.)

7 The fact that Mr. Noonan did not have an associate or

another, more senior, attorney (who would not have been

familiar with the case) file the pre-motion letter does not

convince the Court otherwise. As counsel explains, he

would have needed to review any filing as lead counsel

on this matter, and he was not in a condition to do so.

(ECF No. 114 (“Ds’ Fees Reply”) at 9-10.) While Mr.

Noonan or another attorney with his firm could have,

and should have, notified the Court that an extension was

needed prior to the deadline running, that oversight does

not make the neglect here inexcusable.

*4 The other factors likewise weigh in favor of finding

excusable neglect under Rule 6(b). Plaintiffs argue that, had

the fees motion been filed two weeks earlier and prior to their

notice of appeal, it would have been possible to litigate all

appealable issues together. (ECF No. 111 (“Ps’ Fees Opp.”)

at 7.) But this argument is somewhat disingenuous: earlier

notice of the fees motion would not have changed the deadline

for Plaintiffs to file their notice of appeal, the fees motion

could not have been decided before that deadline, and nothing

about the two-week delay would have prevented the parties

from seeking a stay in the Court of Appeals pending the fees

motion or asking this Court to expedite consideration of the

fees motion. Finally, the length of the delay is quite minimal,

and, as suggested above, there is no basis to conclude that

Defendants’ counsel is acting in bad faith.

Accordingly, Defendants’ motion for a retroactive extension

under Rule 6(b) is granted, and the Court turns to the

substance of the fees motion.

Case 1:22-cv-22343-KMM Document 108 Entered on FLSD Docket 09/11/2023 Page 7 of 11
Estevez v. Berkeley College, Slip Copy (2022)

2022 IER Cases 194,903

 © 2023 Thomson Reuters. No claim to original U.S. Government Works. 4

2. Title VII

Defendants argue that they are entitled to an award of fees

as the prevailing party under Title VII. Section 706(k) of

Title VII provides that “[i]n any action or proceeding under

this subchapter the court, in its discretion, may allow the

prevailing party ... a reasonable attorney's fee ... as part

of the costs.” 42 U.S.C. § 2000e-5(k). While a prevailing

plaintiff will typically be awarded attorneys’ fees as a matter

of course under this provision, a prevailing defendant must

show that the plaintiff's “claim was frivolous, unreasonable,

or groundless, or that the plaintiff continued to litigate after

it clearly became so.” Christiansburg Garment Co. v. EEOC,

434 U.S. 412, 417, 422 (1978).

A claim may be “frivolous, unreasonable, or groundless”

even if not brought in “subjective bad faith.” Id. at 421-22.

But a “defendants’ burden of establishing that a claim was

‘frivolous, unreasonable, or groundless’ or ‘clearly meritless’

is a heavy one, and ‘it is very rare that victorious defendants

in civil rights cases will recover attorneys’ fees.’ ” Fleming

v. MaxMara USA, Inc., No. 06-CV-6357, 2010 WL 1629705,

at *8 (E.D.N.Y. Apr. 21, 2010) (quoting Sista v. CDC

Ixis N. Am., Inc., 445 F.3d 161, 178 (2d Cir. 2004)); see

Hughes v. Rowe, 449 U.S. 5, 14 (1980) (“[T]he plaintiff's

action must be meritless in the sense that it is groundless

or without foundation.”). As such, the mere assertion of a

losing argument does not satisfy the Christiansburg standard.

See LeBlanc-Sternberg v. Fletcher, 143 F.3d 765, 770 (2d

Cir. 1998) (“ ‘[T]he fact that a plaintiff may ultimately

lose his case is not in itself a sufficient justification for the

assessment of fees’ in favor of the defendant.”) (quoting

Hughes, 449 U.S. at 14); Nardoni v. City of N.Y., No. 17-

CV-2695, 2019 WL 542349, at *7 (S.D.N.Y. Feb. 12, 2019)

(“After examining the evidence in this case, we believe that

there was an objectively reasonable basis – even if it was

unmeritorious – to make such an argument.”), report and

recommendation adopted, 2019 WL 952333 (S.D.N.Y. Feb.

27, 2019).

The fee issue here presents a close call: Plaintiff's retaliation

theory was, for the reasons detailed at length in the Court's

July 19 Order, extremely thin. (See Order at 37-47.) And, as

Defendants point out, Plaintiffs stretched the record to the

point of misrepresenting testimony, and have continued to do

so on this motion.8

8 The Court has already warned Plaintiffs’ counsel against

misrepresenting and mischaracterizing the record, (see

Order at 18 n.12, 36 n.18, 39-40 & n.20), yet Plaintiffs

in their briefs on these cross-motions push some of

the same unsupported arguments that prompted those

warnings. For example, in support of their stay request

and in opposition to Defendants’ fees motion, Plaintiffs

protest my finding in the Order that there was no

evidence supporting their position, (see ECF. No. 87 at

26), that Estevez complained to her supervisor, Bertone,

that male co-worker Daniel Lapan had commented that

there was “too much estrogen” in a part of the office

where several women sat, (see ECF No. 117 at 6-7; Ps’

Fees Opp. at 9). As the Court found during summary

judgment, this claim is clearly belied by the record.

(See Order at 39-40 & n.20.) Undeterred, Plaintiffs

attempt to push back against the Court's previous

characterization of this claim as a “whopper” by quoting

testimony from Estevez's deposition that they claim

the Court “overlooked.” (Ps’ Fees Opp. at 9-10.) But

the language that Plaintiffs quote merely confirms the

lack of evidence that Estevez complained to Bertone

about the “estrogen” comment: Plaintiffs accurately

quote Estevez's testimony that she complained to Bertone

about “ ‘my students, my enrollment, Daniel [Lapan]’s

insubordination, the hostility in the admission's office,

Daniel stealing my students.... Joel [Martinez] excluding

me from managerial meetings and inviting Daniel

[Lapan] to them.’ ” (Ps’ Fees Opp. at 9 (alteration in

original) (quoting ECF No. 88 ¶ 120 (quoting ECF

No. 73-10 at 204:14-205:7)).) Nowhere in the quoted

language does Estevez mention the “estrogen” comment.

Further, beyond the quoted portion, Plaintiffs provided

other deposition excerpts in which Estevez was asked

several follow-up questions regarding her complaints to

Bertone about Lapan, (ECF No. 73-10 at 205:21-24,

207:1-208:23, 212:5-24), and none of her answers refer

to the comment either.

Later in their brief, Plaintiffs make a similar

misrepresentation, stating that “[Human Resources

manager Clarissa] Gilliam remembered speaking to

Estevez while investigating Mancini's complaint, and

that Estevez complained about ... Lapan's ‘too much

estrogen’ comments.” (Ps’ Fees Opp. at 12.) This is

another falsification that the Court specifically called

out in the July 19 Order, noting that it “d[id] not seem

inadvertent” and explicitly cautioning counsel “against

such misleading conduct in the future.” (Order at 39 n.20;

see id. at 18 n.12.) In its summary judgment papers and

on the instant fees motion, Plaintiffs’ purported support

for this assertion is paragraph 158 of their response to

Defendants’ Rule 56.1 statement, (ECF No. 88), which in

turn cites page 86 of Gilliam's deposition. On that page,

Case 1:22-cv-22343-KMM Document 108 Entered on FLSD Docket 09/11/2023 Page 8 of 11
Estevez v. Berkeley College, Slip Copy (2022)

2022 IER Cases 194,903

 © 2023 Thomson Reuters. No claim to original U.S. Government Works. 5

Gilliam acknowledges that Estevez complained about

Lapan, but she states only that Estevez complained about

Lapan and Martinez getting lunch. (ECF No. 73-9 at

86:9-25.) On page 89 of her deposition, Gilliam testified

unequivocally that no one ever told her that Lapan

refused to sit in the bullpen because there was “too much

estrogen” there. (ECF No. 115-2 at 89:15-18.)

In addition, Defendants point out Plaintiffs’ unsupported

assertions, made for the first time in their brief opposing

the fees motion, that Ms. Gilliam believed that all

three Plaintiffs “were engaged in protected activity

by complaining about a hostile work environment in

White Plains, which is why she objected to Defendants’

decision to terminate their employment,” and that she

testified to this effect. (Ps’ Fees Opp. at 12-13; see Ds’

Fees Reply at 2.) In support of these assertions, Plaintiffs

cite paragraph 31 of their Rule 56.1 counterstatement.

(Ps’ Fees Opp. at 13, 15.) There are two paragraphs

numbered 31 in that counterstatement, neither of which

says anything about Gilliam or Plaintiffs’ termination.

(See ECF No. 115-1 at 16-17.) It seems Plaintiffs meant

to cite paragraph 37 of their Rule 56.1 counterstatement,

(ECF No. 89 ¶ 37), which in turn cites pages 121 and

122 of Ms. Gilliam's deposition, where she testified in

relevant part:

With all three [Plaintiffs] ... when the terminations

came to my attention ... my recommendation was,

although there were performance issues, I did not

believe at the time they were terminated that they

should be terminated. More time should be given

to observe and deal with performance under the

management with everything that's going on. That was

my recommendation.

(ECF No. 73-9 at 121:19-122:4). To say, from this

testimony, that Gilliam “invok[ed] Plaintiffs’ protected

activity as a reason not to fire them,” (Ps’ Fees Opp. at

15), goes beyond stretching the record and approaches

complete fabrication.

That Plaintiffs’ counsel continues to make false

assertions, after being specifically cautioned not to do so,

is disturbing.

*5 The Court cannot, however, say the retaliation claim was

so frivolous that an award of attorneys’ fees is appropriate.

Estevez did complain about Lapan's conduct, including his

“insubordination,” (see ECF No. 73-10 at 204:22-208:23),

albeit in a manner that failed to put her employer on

notice that “the complained-of activity is, in fact, unlawfully

discriminatory,” Kelly v. Howard I. Shapiro & Assocs.

Consulting Eng'rs, P.C., 716 F.3d 10, 17 (2d Cir. 2013) (per

curiam).9 Similarly, Mancini complained to Gilliam about

Carmichael and the “toxic work environment”, (see ECF No.

74-9) – again in a manner that was too vague to give Gilliam

notice that she was complaining about conduct based on

gender. See Foster v. Humane Soc'y of Rochester & Monroe

Cnty., Inc., 724 F. Supp. 2d 382, 395 (W.D.N.Y. 2010) (“[T]he

mere fact that plaintiff used the term ‘hostile environment’ in

her email to her supervisor is not enough; the court must look

at the substance of her complaint, not the terminology that she

used.”). But there is arguably some ambiguity in Mancini's

and Estevez's complaints, such that the Court cannot say the

claims were so entirely meritless as to render this one of the

rare cases in which awarding fees to defendants is appropriate.

9

In their opposition, Plaintiffs argue, in essence,

that because Estevez complained that Lapan was

insubordinate, and because the reason Lapan was

insubordinate was because he was sexist, Defendants

should have known that Estevez was complaining that

Lapan was sexist. (Ps’ Fees Opp. at 9-10.) Aside from the

fact that Plaintiffs failed to spell out this argument in their

summary judgment papers and the fact that Estevez never

testified or otherwise stated that that was her reasoning,

(see ECF No. 73-10 at 204:22-208:23), acceptance of

Plaintiffs’ argument would require employers to read

the minds of both the complaining employee and the

employee who is the subject of the complaint. Title

VII does not place such a burden. See, e.g., Rojas v.

Roman Cath. Diocese of Rochester, 660 F.3d 98, 108

(2d Cir. 2011) (no protected activity where complaints

were generalized and employer could not reasonably

have understood them as addressed to conduct prohibited

by Title VII).

There is also at least some evidence that Mekuli complained

to Gilliam that Carmichael “ ‘constantly stare[d]’ at her,”

that Mekuli “had to move into her cubicle to hide her body”

from Carmichael, and that Carmichael acted inappropriately

toward her and generally made her uncomfortable. (Order at

17-18 (citing ECF No. 69-1 Ex. II at 188:11-190:21).) While

Plaintiffs inexplicably abandoned Mekuli's retaliation claim

by failing to argue it in their opposition, (see id. at 42-43),10

this scintilla of evidence in Plaintiffs’ favor demonstrates that

pursuing the retaliation claim through summary judgment

was not completely unreasonable.

10 Plaintiffs argue that they did not abandon these

arguments, stating that they “included testimonial

evidence of this meeting [between Gilliam and Mekuli]

in their summary judgment papers, and noted it

throughout their opposition brief.” (Ps’ Fees Opp.

at 12 (citing ECF No. 72 at 1-2, 11).) But pages

1-2 of Plaintiffs’ opposition brief include only a

general assertion, as part of the Preliminary Statement,

Case 1:22-cv-22343-KMM Document 108 Entered on FLSD Docket 09/11/2023 Page 9 of 11
Estevez v. Berkeley College, Slip Copy (2022)

2022 IER Cases 194,903

 © 2023 Thomson Reuters. No claim to original U.S. Government Works. 6

that “each Plaintiff complained to the individually

named Defendants and to the Berkeley College Human

Resources Department about a gender-based hostile

work environment at the White Plains location where

they worked, which was caused by both co-worker

and supervisor misconduct.” (ECF No. 72 at 1-2.)

No citation to the record is given for this assertion.

And pages 11-12 of the brief refer only to the fact

that Gilliam interviewed each Plaintiff and that each

was given what Plaintiffs characterize as retaliatory

Performance Improvement Plans; the only complaints

to which Plaintiff refers on those pages are Mancini's,

not Mekuli's. (Id. at 11-12.) Likewise, the portion of the

brief addressing whether Plaintiffs engaged in protected

activity refers only to Mancini and Estevez and says

nothing about Mekuli. (Id. at 25-28.) Plaintiffs’ counsel's

allegation that the evidence of Mekuli's complaints was

noted throughout Plaintiffs’ opposition brief is another

unacceptable distortion of the record.

*6 Defendants cite cases where defendants were awarded

fees, but in those plaintiffs pursued claims that were, by

comparison, more lacking than those presented here. For

example, in Perry v. S.Z. Restaurant Corp., the plaintiff

alleged that he was denied use of a Burger King bathroom

because he is Black, but his own trial testimony confirmed

that the bathroom in question was out of order, and that he had

seen the sign indicating as much on the bathroom door as well

as a chain blocking access to the stairway where the bathroom

was located. 45 F. Supp. 2d 272, 274 (S.D.N.Y. 1999).

In Steinberg v. St. Regis/Sheraton Hotel, the court deemed

Title VII and Age Discrimination in Employment Act claims

“insupportable” because the plaintiff employees’ respective

claims of religious and national origin discrimination were

undercut by the fact that among their supervisors were

members of the same religion and of the same national origin.

583 F. Supp. 421, 423-25 (S.D.N.Y. 1984). Likewise, the

plaintiffs could not plausibly claim age discrimination when

the employees hired to replace them were the same age or

older. Id. The instant case is simply not as frivolous as either

Perry or Steinberg.

Defendants’ remaining authorities are also inapposite. See

Briskovic v. Our Lady of Mercy Med. Ctr., No. 96-CV-7452,

2000 WL 890182, at *1 (S.D.N.Y. July 5, 2000) (awarding

fees to defendant in Title VII claim where “the evidence

was clear that Plaintiff was fired because he had gotten into

an argument with a supervisory employee in which he had

called her ‘a black bitch’ and threatened to ‘blow up the

fucking building’ ”); Supulski v. Dansville Cent. Sch. Dist.,

No. 13-CV-6253, 2014 WL 7215184, at *3-4 (W.D.N.Y.

Dec. 17, 2014) (plaintiff agreed to resign from her position

in exchange for more than nine months of compensation,

unsuccessfully attempted to revoke her resignation, and sued

for retaliation under Title VII); Lee v. Glessing, No. 99-

CV-872, 2006 WL 2524185, at *4 (N.D.N.Y. Aug. 30, 2006)

(Title VII plaintiff “failed to relate a single instance in which

he experienced discrimination or sexual harassment during

the time he worked” for his former employer); David v. Apfel,

Levy, Zlotnick & Co., No. 91-CV-3384, 1994 WL 532745,

at *1 (S.D.N.Y. Sept. 29, 1994) (Title VII discrimination

claim was baseless where plaintiff conceded he was fired after

confrontation with a coworker and there was no evidence that

race or gender played any role in decision), aff'd, 101 F.3d

684 (2d Cir. 1996); Puglisi v. Underhill Park Taxpayer Assoc.,

964 F. Supp. 811, 815-16 (S.D.N.Y. 1997) (plaintiff directly

contradicted key allegations in his complaint, including by

admitting that he was unaware whether a taxpayers’ meeting

– at which he claimed he was coerced to evict Black tenants

– even happened, and that he had no knowledge to back up

his allegation that a municipality selectively enforced codes

and ordinances); Colucci v. N.Y. Times Co., 533 F. Supp. 1011,

1012 (S.D.N.Y. 1982) (Title VII discrimination and retaliation

claims lacked basis in fact where evidence demonstrated that

plaintiff never applied for the promotion he complained he

was denied, plaintiff failed to take advantage of employer's

efforts to “improve his qualifications and opportunities for

promotion,” and a co-worker who had made similar sexdiscrimination complaints was promoted).

In short, although the retaliation claims in this case were

“very weak,” the Court finds they were “not so frivolous as

to warrant an award of attorney's fees.” Sista v. CDC Ixis N.

Am., Inc., 445 F.3d 161, 178 (2d Cir. 2006) (cleaned up).

3. 28 U.S.C. § 1927 and the Court's Inherent Power

Defendants also argue that they are entitled to attorneys’

fees under 28 U.S.C. § 1927 and the Court's inherent power.

Section 1927 provides that “[a]ny attorney or other person

admitted to conduct cases in any court of the United States

or any Territory thereof who so multiplies the proceedings in

any case unreasonably and vexatiously may be required by

the court to satisfy personally the excess costs, expenses, and

attorneys’ fees reasonably incurred because of such conduct.”

28 U.S.C. § 1927. The purpose of section 1927 sanctions

is “to deter unnecessary delays in litigation.” Bowler v.

U.S. Immigr. & Naturalization Serv., 901 F. Supp. 597, 604

(S.D.N.Y. 1995). “The sanctions authorized under section

Case 1:22-cv-22343-KMM Document 108 Entered on FLSD Docket 09/11/2023 Page 10 of 11
Estevez v. Berkeley College, Slip Copy (2022)

2022 IER Cases 194,903

 © 2023 Thomson Reuters. No claim to original U.S. Government Works. 7

1927 are not to be lightly imposed; nor are they to be triggered

because a lawyer vigorously and zealously pressed his client's

interests.” Colucci, 533 F. Supp. at 1013-14. Rather, “[t]he

section is directed against attorneys who willfully abuse

judicial processes.” Id. at 1014.

*7 “The only difference between a sanctions award under §

1927 and a court's inherent power is that ‘awards under § 1927

are made only against attorneys or other persons authorized

to practice before the courts while an award made under the

court's inherent power may be made against an attorney, a

party, or both.’ ” United States v. Prevezon Holdings, Ltd.,

305 F. Supp. 3d 468, 478 (S.D.N.Y. 2018) (quoting Oliveri v.

Thompson, 803 F.2d 1265, 1273 (2d Cir. 1986)). Accordingly,

“requests for sanctions under Section 1927 and pursuant to the

court's inherent authority may be decided in a single inquiry.”

Id. (cleaned up). “The decision to issue sanctions under either

ground lies within this Court's broad discretion.” Id.

To impose sanctions under section 1927 or the Court's

inherent power, there must be “clear evidence that (1) the

offending party's claims were entirely without color, and (2)

the claims were brought in bad faith – that is, motivated by

improper purposes such as harassment or delay.” Eisemann

v. Greene, 204 F.3d 393, 396 (2d Cir. 2000) (cleaned up).

Having already found that the claims Plaintiffs pursued were

not so frivolous as to warrant an award of fees under Title

VII, the Court cannot say that section 1927 sanctions are

appropriate in this case. It is not clear that the claims were

entirely without color, even if Plaintiffs’ counsel's reckless

approach to misrepresenting the record could give rise to an

inference of bad faith.

4. Rule 11

Defendants did not move under Federal Rule of Civil

Procedure 11, and the Court does not consider it in connection

with Plaintiffs’ counsel's conduct in opposing summary

judgment. But the Court on its own motion raises the issue

in connection with Plaintiffs’ counsel's conduct in opposing

Defendants’ fee motion and in moving for a stay. Footnote

8 above describes factual contentions that appear to lack

evidentiary support, were made in support of unwarranted

legal contentions, and/or were presented for an improper

purpose. See Fed. R. Civ. P. 11(b). Accordingly, Plaintiffs’

counsel is ORDERED to SHOW CAUSE in writing, no later

than June 20, 2022, why the assertions described in that

footnote does not violate Rule 11(b). See Fed. R. Civ. P. 11(c)

(3). If Defendants wish to respond, they may do so by July 5,

2022, and in that event, Plaintiffs’ counsel may reply by July

12, 2022.

III. CONCLUSION

For the foregoing reasons, Plaintiffs’ motion to stay and

Defendants’ motion for fees are both DENIED. Plaintiffs’

counsel is ordered to show cause by June 20, 2022, as set forth

herein.

SO ORDERED.

All Citations

Slip Copy, 2022 WL 1963659, 2022 IER Cases 194,903

End of Document © 2023 Thomson Reuters. No claim to original U.S.

Government Works.

Case 1:22-cv-22343-KMM Document 108 Entered on FLSD Docket 09/11/2023 Page 11 of 11