[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 13-12601

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D.C. Docket No. 5:12-cv-00201-RS-CJK

MICHAEL RICHARDSON, 

 Plaintiff-Appellant,

versus

BAY DISTRICT SCHOOLS, 

 Defendant-Appellee,

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Appeal from the United States District Court

for the Northern District of Florida

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(March 26, 2014)

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Before HULL, Circuit Judge, and WALTER,

* District Judge, and GOLDBERG,**

Judge.

PER CURIAM:

Plaintiff-Appellant Michael Richardson works in the maintenance 

department of Defendant-Appellee Bay District Schools (“Bay District”). 

Richardson brought suit against Bay District, alleging a hostile work-environment 

gender-discrimination claim under Title VII. The district court granted summary 

judgment in favor of Bay District and subsequently awarded attorney’s fees and 

costs to Bay District and against Plaintiff Richardson. After careful review of the 

briefs and the record, and with the benefit of oral argument, we affirm the district 

court’s grant of summary judgment in favor of Defendant Bay District but reverse 

the award of attorney’s fees and costs against Plaintiff Richardson.

Plaintiff Richardson’s Title VII claim was based on the behavior of his

supervisor Jimmy Thompson, who was also Richardson’s friend. Viewed in the 

light most favorable to Plaintiff Richardson, the record shows that Supervisor 

Thompson (1) offered money to Richardson’s wife in return for sex; (2) offered 

money and possibly even a promotion to Plaintiff Richardson if Richardson could 

convince his wife to have sex with Thompson; and (3) proposed the idea of 

Thompson and Richardson having sex with Richardson’s wife and other women at 

 

*Honorable Donald E. Walter, United States District Judge for the Western District of 

 Louisiana, sitting by designation.

**Honorable Richard W. Goldberg, United States Court of International Trade Judge, 

sitting by designation.

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the same time. What is more, Supervisor Thompson asked Plaintiff Richardson to 

persuade the waitresses at a lunch restaurant to have sex with Thompson in 

exchange for money. Thompson used lewd language in his many conversations 

with Richardson—not only in discussing Richardson’s wife but also when 

referring to other women. 1

 

To prevail on a hostile work-environment gender-discrimination claim under 

Title VII, a plaintiff “must always prove that the conduct at issue was not merely 

tinged with offensive sexual connotations, but actually constituted discrimination 

because of sex.” Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81, 118 S. 

Ct. 998, 1002 (1998) (quotation marks omitted and alterations adopted). While 

Supervisor Thompson’s conduct was highly offensive and inappropriate, the 

district court did not err in determining that no reasonable juror could conclude that 

Thompson discriminated against Richardson because of Richardson’s gender. 

The record here contains no evidence that Richardson’s gender was the basis 

for Thompson’s conduct; for example, there is no evidence that Thompson treated 

men differently than women in the work place. Instead, the record indicates that 

Thompson directed this conduct towards Richardson because the two were friends 

and because Thompson was attracted to Richardson’s wife. In addition, there was 

no tangible adverse employment action that had a causal link directly or indirectly 

 1

At oral argument, counsel for Plaintiff Richardson acknowledged that Supervisor 

Thompson never expressed a sexual interest in Richardson himself.

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with Supervisor Thompson’s conduct. See Farragher v. City of Boca Raton, 524

U.S. 775, 807, 118 S. Ct. 2275, 2292-93 (1998). The district court therefore 

correctly entered summary judgment on Plaintiff Richardson’s hostile workenvironment gender-discrimination claim under Title VII.

A different conclusion, however, is warranted with respect to the district 

court’s award of attorney’s fees and costs to Defendant Bay District. A district 

court may award attorney’s fees to a prevailing defendant in a Title VII case only 

when the “plaintiff’s action was frivolous, unreasonable, or without foundation.” 

Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S. Ct. 694, 700 

(1978). 

This “standard is so stringent that the plaintiff’s action must be meritless in 

the sense that it is groundless or without foundation in order for an award of fees to 

be justified.” Busby v. City of Orlando, 931 F.2d 764, 787 (11th Cir. 1991) 

(reversing fee award to prevailing defendant) (quotation marks omitted and 

alterations adopted). It is not enough for the prevailing defendant to show that the 

plaintiff’s claim was “markedly weak,” see Bonner v. Mobile Energy Servs., 246 

F.3d 1303, 1305 (11th Cir. 2001), or even “exceedingly weak,” see Cordoba v. 

Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005) (reversing fee award to 

prevailing defendant). Instead, the plaintiff’s case must be “so patently devoid of 

merit as to be frivolous.” Sullivan v. Sch. Bd. of Pinellas Cnty., 773 F.2d 1182, 

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1189 (11th Cir. 1985) (reversing fee award to prevailing defendant); see also Jones 

v. Texas Tech Univ., 656 F.2d 1137, 1146 (5th Cir. Sept. 1981) (indicating that a 

claim is frivolous when it is “devoid of arguable legal merit or factual support”).2

Plaintiff Richardson’s claim was weak, but not so patently devoid of 

arguable legal merit to justify an attorney’s fee award. This Court has never 

addressed a factually similar hostile work-environment gender-discrimination 

claim. In other words, there was no precedent from this Circuit squarely 

foreclosing Richardson’s legal argument. It is difficult to say, then, that 

Richardson’s attempt to persuade a court of his legal theory was frivolous. See

Cordoba, 419 F.3d at 1185-86 & n.11 (concluding that the district court abused its 

discretion in finding the plaintiff’s legal theory frivolous where the plaintiff’s 

theory lacked support and relied on dicta but had never been squarely rejected).

Further, Richardson presented evidence in support of his claim. Just because 

this evidence was ultimately not enough to create a jury question with respect to 

discrimination on the basis of gender does not make Richardson’s claim frivolous. 

See Christiansburg, 434 U.S. at 421-22, 98 S. Ct. at 700-01 (cautioning that courts 

should not “assess[] attorney’s fees against plaintiffs simply because they do not 

finally prevail”). The district court’s analysis improperly conflated the result of the 

 2

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this 

Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior 

to October 1, 1981.

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case with the determination of whether a fee award was justified. See Jones, 656 

F.2d at 1145-47 (reversing award of attorney’s fees to a prevailing defendant 

because the district court’s “findings appear[ed] to be no more than reiteration of 

its ultimate conclusions on the merits of [the plaintiff’s] claim”). 

In sum, we affirm the district court’s grant of summary judgment in favor of 

Defendant Bay District and reverse the district court’s award of Defendant Bay 

District’s attorney’s fees and costs against Plaintiff Richardson.

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AFFIRMED IN PART AND REVERSED IN PART.

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Given our decision, we also reverse the district court’s award of attorney’s fees and costs 

to Defendant Bay District for responding to Plaintiff Richardson’s motion for reconsideration. 

Similarly, Defendant Bay District’s motion for damages and double costs is denied.

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