* Pursuant to 5TH CIR. R. 47.5, the court has determined that this

opinion should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_________________

No. 97-60196

Summary Calendar

_________________

CORA JOHNSON,

Plaintiff - Appellant,

versus

SOUTH MISSISSIPPI HOME HEALTH,

Defendant - Appellee.

_________________

No. 97-60650

Summary Calendar

_________________

CORA JOHNSON,

Plaintiff - Appellant,

versus

SOUTH MISSISSIPPI HOME HEALTH CARE,

Defendant - Appellee.

Appeal from the United States District Court

for the Southern District of Mississippi

(2:92-CV-367-PG)

September 3, 1998

Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*
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In appeal No. 97-60196, Cora Johnson appeals the district

court’s grant of summary judgment in favor of defendant Southern

Mississippi Home Health Care (“SMHH”) on her claim brought

pursuant to 42 U.S.C. § 1981. In appeal No. 97-60650, Johnson

appeals the district court’s award of attorney’s fees in favor of

SMHH. 

Turning first to appeal No. 97-60196, the district court

found that Johnson had failed to satisfy her burden of presenting

a prima facie case under the framework established by the Supreme

Court in McDonnell Douglas v. Green, 411 U.S. 792, 93 S. Ct. 1817,

36 L. Ed. 2d 668 (1973). A prima facie case, for purposes of

McDonnell Douglas, consists of a showing that the plaintiff (1)

is a member of a protected group; (2) was qualified and performed

her job sufficiently to meet her employer’s legitimate

expectations; (3) was discharged; and (4) was replaced by a nonminority. Id. As the district court noted, Johnson clearly

satisfied the first and third elements))namely, she was AfricanAmerican and she was fired. However, the district court noted

that Johnson failed to provide any evidence that she was

performing her job satisfactorily. The district court also noted

that Johnson’s claim to have satisfied the fourth element was

questionable in light of the fact that SMHH had offered the job

to another black female who had accepted the offer on an interim

basis, although she ultimately chose not to take the job on a

permanent basis. On appeal, Johnson argues in conclusory fashion

that “she was discharged from a position for which she was
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qualified and replaced with a white employee.” However, Edwards

has never argued))either to the district court or to this

court))that she was performing her job sufficiently to meet SMHH’s

legitimate expectations. Indeed, as the district court cogently

explained, the evidence indicates precisely the opposite. While

Johnson may have been a fully qualified nurse, once she became

office manager, numerous problems ensued, including the

resignation of almost her entire staff as well as the development

of questions regarding her honesty and integrity. Thus, we affirm

the district court’s grant of summary judgment in favor of SMHH

in appeal No. 97-60196 because Johnson has failed to establish her

prima facie case.

In appeal No. 97-60650, Johnson appeals the district court’s

award of attorney’s fees in favor of SMHH. Although we review

awards of attorney’s fees only for abuse of discretion, see United

States v. Mississippi, 921 F.2d 604, 609 (5th Cir. 1991), an award

of attorney’s fees in favor of a prevailing defendant is

appropriate “only when a plaintiff’s underlying claim is

frivolous, unreasonable, or groundless.” Id (emphasis in

original). Frivolity is determined by looking to whether the

plaintiff’s case was so lacking in merit that the claim was

groundless, rather than the fact that it was unsuccessful. See

id. The factors used in determining frivolity are “(1) whether

plaintiff established a prima facie case, (2) whether the

defendant offered to settle, and (3) whether the district court

dismissed the case or held a full-blown trial.” Id.
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The district court noted several reasons for awarding

attorney’s fees in favor of SMHH. First, the district court noted

that in her original complaint, Johnson brought claims under both

Title VII, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981.

Johnson’s attorney-drafted complaint stated that “[p]laintiff

filed a timely charge of discrimination with the Equal Employment

Opportunity Commission and received Notice of his Right to Sue.”

This statement, however, was patently untrue because Johnson filed

her complaint just two days after her termination by SMHH and

never attempted to file any complaint with the Equal Employment

Opportunity Commission. The district court also noted that

Johnson failed to establish two elements (or half) of her prima

facie case and that SMHH had offered to settle the case.

Although, as the district court noted, it is a rare case in which

a prevailing defendant will be entitled to attorney’s fees, see

id., based on Johnson’s affirmative misrepresentations in her

attorney-drafted complaint and the numerous factual and legal

inadequacies in her claim, we cannot say that the district court

clearly erred in award attorney’s fees in favor of SMHH.

AFFIRMED.