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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION,

Plaintiff,

v. Case No. 3:10cv378/MCR/CJK

WEST CUSTOMER MANAGEMENT

GROUP, LLC,

Defendant.

_________________________________/

AMENDED REPORT AND RECOMMENDATION1

This matter is before the court on referral from the district judge (doc. 281) for

a report and recommendation regarding Defendant’s Motion for Award of Attorneys’

Fees and Nontaxable Expenses (doc. 278). Plaintiff responded in opposition to the

motion, defendant submitted a reply, and plaintiff submitted a sur-reply. I also

conducted a hearing on the motion. Having carefully considered the motion and

responses, as well as counsels’ argument, I find that plaintiff’s motion should be

granted. 

This is a Title VII case in which the United States Equal Employment

Opportunity Commission (“EEOC”) alleged that West Customer Management Group,

This Report and Recommendation is identical to the one entered on July 24, 2014 (doc. 1

306), except for the addition of the Notice to the Parties of their right to file objections within

fourteen days of service of the order. The fourteen days shall begin to run from the date the

Amended Report and Recommendation is served. 

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LLC (“West”) discriminated against Derrick Roberts based on his national origin,

which is Jamaican. The district judge denied West’s motion for summary judgment,

and the matter proceeded to trial. See E.E.O.C. v. West Customer Mgmt. Group, LLC,

899 F. Supp. 2d 1241 (N.D. Fla. 2012). At the conclusion of plaintiff’s case-in-chief,

West moved for a directed verdict, which the district judge held in abeyance pending

the jury’s verdict. The jury returned a verdict for West, finding, in response to the

first special interrogatory, that Roberts was not qualified for the customer service

representative position for which he applied. Following the entry of judgment in its

2

favor, West moved for attorneys’ fees and non-taxable expenses under Title VII,

arguing that the EEOC’s lawsuit against it was frivolous, unreasonable, and

groundless and that the EEOC continued to litigate after it clearly became so. The

EEOC opposes the motion, insisting that the lawsuit had merit. 

Under Title VII, the district court, “in its discretion, may allow the prevailing

party, other than the Commission . . . , a reasonable attorney’s fee . . . as part of

costs.” 42 U.S.C. § 2000e-5(k). “[T]his provision, by its terms, does not distinguish

between prevailing plaintiffs and prevailing defendants. Both may recover.” 

E.E.O.C. v. Great Steaks, Inc., 667 F.3d 510, 516 (4th Cir. 2012) (internal citation

omitted). Judicial gloss, however, has long informed interpretation of the language

Congress chose. Indeed, “the Supreme Court, in Christiansburg Garment Co. v.

EEOC, 434 U.S. 412, 98 S. Ct. 694, 54 L.Ed.2d 648 (1978), established a different,

more stringent standard governing when prevailing defendants may recover as

compared to prevailing plaintiffs.” Id. “Although attorney’s fees are typically

After the jury returned its verdict, the district judge granted in part and denied in part as 2

moot West’s motion for a directed verdict. 

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awarded to successful Title VII plaintiffs as a matter of course, prevailing defendants

may receive attorney’s fees only when the plaintiff's case is‘frivolous, unreasonable,

or without foundation’” or the plaintiff continues to litigate after it clearly becomes

so. Quintana v. Jenne, 414 F.3d 1306, 1309 (11th Cir. 2005) (quoting

Christiansburg, 434 U.S. at 421). The Supreme Court cautioned that “[i]n applying

these criteria, it is important that a district court resist the understandable temptation

to engage in post hoc reasoning by concluding that, because a plaintiff did not

ultimately prevail, his action must have been unreasonable or without foundation.”3

In Great Steaks, the Fourth Circuit explained the discrepancy between the standards for 3

awarding attorneys’ fees to prevailing plaintiffs and prevailing defendants under Title VII:

Th[e] generous standard [toward plaintiffs] effectuates Congress’s

intent for plaintiffs to serve as “‘private attorney[s] general,’

vindicating a policythat Congress considered of the highest priority.” 

Id. at 416, 98 S.Ct. 694 (quoting Newman v. Piggie Park Enters.,

Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968))

(internal quotation marks omitted). It promotes the vigorous

enforcement of Title VII by making it easier for plaintiffs of limited

means to bring meritorious actions. Id. at 420, 98 S.Ct. 694.

Furthermore, when a court awards attorneys’ fees to a prevailing

plaintiff in a Title VII action, it renders this award “against a violator

of federal law.” Id. at 418, 98 S.Ct. 694. These policy considerations,

however, do not apply in the context of prevailing defendants, so

defendants may not avail themselves of the same generous standard

set for prevailing plaintiffs. See id.

Separate policy considerations drove Congress’s decision to allow

prevailing defendants to recover attorneys’ fees. See id. at 419–20,

98 S.Ct. 694. Congress desired “to protect defendants from

burdensome litigation having no legal or factual basis.” Id. at 420, 98

S.Ct. 694. Although Congress sought to encourage the vigorous

prosecution of meritorious Title VII actions by making it easier to

bring them, it also wanted to deter frivolous lawsuits. See id.

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Christiansburg, 434 U.S. at 421–22. 

4

In an effort to further refine the standard for an award of costs under Title VII,

the Eleventh Circuit set forth three criteria to be considered when determining

whether a claimisfrivolous: “‘(1) whether the plaintiff established a prima facie case;

(2) whether the defendant offered to settle; and (3) whether the trial court dismissed

the case prior to trial or held a full-blown trial on the merits.’” Quintana, 414 F.3d

at 1309 (quoting Sullivan v. Sch. Bd. of Pinellas Cnty., 773 F.2d 1182, 1189 (11th

Cir. 1985)). “These factors ‘are general guidelines only, not hard and fast rules. 

Determinations regarding frivolity are to be made on a case-by-case basis.’” Id.

(quoting Sullivan, 773 F.2d at 1189). “In reviewing frivolity determinations,” the

court “view[s] the evidence in the light most favorable to the plaintiff.” Lawver v.

Hillcrest Hospice, Inc., 300 Fed. Appx. 768, 773 (11th Cir. 2008). 

Here, a balancing of the factors weighs in favor of an award of costs to West. 

First, the EEOC never established a prima facie case of discrimination and continued

to litigate the case long after it was – or at least should have been – apparent it would

not be able to do so. In her order denying West’s summary judgment motion, the

district judge found that the EEOC’s primary evidence – a comment by Steven Henry,

one of the decision makers in the case, that Roberts’ “thick accent” could upset an

In a case expressly disapproved in Christiansburg, the Fifth Circuit had stated, in language

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it believed true to the words of the statute:

We are unable to read the . . . language as intended by Congress to produce different

results depending upon whether the “prevailing party” is the plaintiff or the

defendant. Instead, Congress by plain words rested such awards in the trial court’s

unfettered discretion. Had it wished that discretion to be exercised in a biased rather

than an impartial manner, it could easily have said so and still can.” United States

v. Allegheny-Ludlum Ind., Inc., 558 F. 2d 742, 744 (5th Cir. 1977).

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angry customer – did not constitute direct evidence of discrimination. West, 899 F.

Supp. 2d at 1255. In so finding, the district judge noted that, in the Eleventh Circuit,

“‘an employee’s heavy accent or difficulty with spoken English can be a legitimate

basis for adverse employment action where effective communication skills are

reasonably related to job performance.’” Id. (quoting Tseng v. Fla. A&M Univ., 380

Fed. Appx. 908, 909 (11th Cir. 2010) (unpublished)). The district judge also found

that because the comment could be interpreted in more than one way, the EEOC had

“created a prima facie case of discrimination under the burden-shifting framework

established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973), and Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981).” 

West, 899 F. Supp. 2d at 1255-57. The district judge’s conclusion in that regard was

based, at least in part, on a finding that the EEOC presented sufficient comparator

evidence. Notably, although the district judge found the EEOC’s comparator

evidence sufficient to avoid summary judgment, she acknowledged that the decision

was a “close call.” Id. at 1256. 

5

The district judge was persuaded by the EEOC’s identification of “candidates who were

5

hired despite showing weakness in answers regarding computer skills and customer service

comparable to the weaknesses identified by West in answers given by Roberts.” See doc. 147 at pg.

17. According to the summary judgment order, “[t]he EEOC identified four candidates who were

rejected for a lack of skills or knowledge as well as communication difficulties, such as being soft

spoken. Unlike Roberts, the candidate disposition forms for these candidates indicate clearly that

the candidate could reapply or reinterview within six or twelve months, whereas Roberts claims he

was not told this nor is it reflected on the interviewer’s notes or his candidate disposition form. The

only other candidate identified as having been rejected for poor communication skills and who, like

Roberts, had no notation that the candidate could reapply in six or twelve months, was a candidate

who had recentlymoved to the United States from Puerto Rico.” See doc. 147 at pg. 17. The district

judge concluded that, “[v]iewing these facts in the light most favorable to the EEOC, the facts show

that the interviewer expressly commented on Roberts’ ‘thick accent’ without inviting him to reapply

or reinterview when others were soft spoken but did not have accents appear to have been given this

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Following the court’s ruling on summary judgment, the matter wasset for trial. 

Both partiesfiled motionsin limine. Among other things, West sought to exclude the

EEOC’s evidence of alleged comparators. West argued that the comparators were

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not similarly situated to Roberts because they did not have the same “trifecta” of

deficiencies as Roberts – an inability to communicate clearly, poor computer skills,

and poor customer service skills. The EEOC apparently conceded the issue, as the

district judge stated in her order that after hearing oral argument, it was clear that the

parties agreed that no comparator had been identified as having all three deficits

observed in Roberts. See doc. 257 at pg. 7. The district judge also noted that some

of the alleged comparators were interviewed by different West employees and that

only one possible comparator outside of Roberts’ class – the Puerto Rican applicant

– was noted as having difficulty communicating. That applicant, according to the

court, “arguably was treated more favorably than Roberts in that West did not reject

the applicant outright.” See doc. 257 at pg. 7. The court concluded that “because the

crux of th[e] case [was] Roberts’ ability or inability to communicate clearly–which

[was] the only deficit . . . related to Roberts’ protected status and raise[d] an inference

of discriminatory intent– only the applicant with a noted deficiency in communication

skills and who was not rejected outright [would] be considered sufficiently similar in

relevant respects to be a comparator.” At trial, however, the EEOC offered no

courtesy.” See doc. 147 at pg. 17. 

Although not pertinent for purposes of the prima facie case, the EEOC sought to exclude 6

a statement by an EEOC investigator during a telephone conference with a West representative that

she and her supervisor had to ask Roberts to repeat information on several occasions during the

investigation but ultimately were able to understand him. The court found the statement admissible

to rebut testimony offered by the EEOC as to Roberts’ accent. See doc. 257 at pp. 3-7. 

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evidence regarding the Puerto Rican applicant or any other comparator – according

to West, because different decision makers were involved thusrendering the applicant

dissimilarly situated to Roberts for Title VII purposes. 

7

Even more to the point concerning the pending determination, an agency

publication, identified as the EEOC Compliance Manual, expressly undermined the

EEOC’s claimagainst West. In the manual, which was never disclosed to West or the

district judge at the summary judgment stage, the EEOC acknowledges that

“[e]mployers sometimes have legitimate business reasons for basing employment

decisions on linguistic characteristics.” See doc. 278, pg. 39. The EEOC then

explains that “[a]n employment decision based on foreign accent does not violate

Title VII if an individual’s accent materially interferes with the ability to perform job

duties” and thatsuch an “assessment depends upon the specific duties of the position

in question and the extent to which the individual’s accent affects his or her ability

to perform job duties.” See id. at pg. 40. “Positions for which effective oral

communication in English may be required include . . . customer service . . . and

telemarketing.” See id. As an example of an instance in which a job decision based

on accent does not violate Title VII, the Manual describes a hotel concierge who

At the hearing on the instant motion, the EEOC acknowledged, for the first time, that it 7

was“hard pressed” to find a comparator in this case. At the same time, the EEOC continued to

suggest that the district judge improperly excluded its comparator evidence. It appears that the

EEOC has never appreciated the fact that none of its alleged comparators was similarly situated to

Roberts in all relevant respects, as required under the applicable law, and that such evidence

therefore was irrelevant and inadmissible. See Brown v. Sch. Bd. of Orange Cnty., Fla., No. 11-

10819, 2012 WL 613758, at *2 (11th Cir. Feb. 28, 2012) (“To be an adequate comparator, the

preferentially treated individual from outside plaintiff’s protected class must be similarly situated

to the plaintiff in all relevant respects.”); Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th

Cir. 2004) (“The comparator must be nearly identical to the plaintiff to prevent courts from secondguessing a reasonable decision by the employer.”). 

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assists guests with directions and travel arrangements but speaks with a heavy

Ghanaian accent that has resulted in numerous guest complaints based on an inability

to understand him. See id. 

The example set forth in the EEOC’s Compliance Manual applies squarely to

the facts of this case. The parties do not dispute that West is in the business of

providing customer service through call centers. They likewise do not dispute that

a customerservice representativemust be able to communicate effectively in English. 

The undisputed evidence shows that West made the decision not to hire Roberts

based largely on Roberts’ “thick accent” and concern that it would agitate angry

customers. That Roberts spoke with a heavy accent was confirmed by the EEOC’s

8

representatives, who acknowledged that they had difficulty understanding him and

had to ask him to repeat himself several times. It also was confirmed by a former

West employee who testified at trial. 

The EEOC itself, the foremost expert on issues of employment discrimination, 

should have known that Henry’s comment about Roberts’ “thick accent” was not a

sufficient basis to sustain a Title VII claim before it filed this suit. It should have 9

Unlike in the example in the EEOC’s Compliance Manual, West referenced only Roberts’ 8

accent and not his national origin. 

It seems that the EEOC equates accent discrimination with national origin discrimination, 9

which plainly is inconsistent with its own internal guidelines and applicable law. In fact, despite the

district judge’s summaryjudgment ruling, the EEOC continues to maintain that itjustifiablybelieved

through the time of trial that Henry’s comment regardingRoberts’ accent constituted direct evidence

of discrimination. See, e.g., doc. 280 at pg. 15 (“Such statement [regarding Roberts’ thick accent]

was a direct statement indicating Henry’s prejudice against Roberts’ accent, and Henry’s belief that

customerswould be prejudiced against Roberts and would become angrybecause of Roberts’ accent.

A reasonably jury could have inferred that Henry decided almost immediately to deny Roberts

employment because of his national origin or accent, and set out to cover up his discriminatory

motive.”). This assertion is somewhat remarkable considering that Henry’s expressed view virtually

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known that there was no comparator when it received West’s discovery responses. 

At the time she ruled on West’s summary judgment motion, the district judge had not

been made aware of the EEOC manual and, influenced by the EEOC’s litigation

stance, was under the impression that the EEOC had proper comparator evidence. 

Had all of the probative evidence properly been before the district judge at the

summary judgment stage, the summary judgment ruling very likely would have been

different. Indeed, even based on the evidence as it was presented to her at the time,

the district judge commented repeatedly on the tenuous nature of the EEOC’s claim. 

Having the benefit of all of the evidence in the case, the undersigned finds that the

EEOC did not establish a prima facie case of discrimination and that it should have

been apparent to the EEOC that it would not be able to do so by the end of discovery,

at the latest. The undersigned thus finds that the first factor weighs in favor of an

award of costs to West.

Second, to the extent West’s offer to settle the case has any significance in the

matter, it, too, weighs in West’s favor. According to the Eleventh Circuit, “[i]n the

absence of evidence of an offer of a substantial amount in settlement, this factor does

not support either party.” Quintana, 414 F.3d at 1310. As the EEOC acknowledges,

West made a “nominal” settlement offer that did not even address the non-monetary

terms proposed by the EEOC, which included a public consent decree. If anything,

such an offer shows that West viewed the EEOC’s case as weak. 

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tracked the EEOC’s own guidance as set out in the Compliance Manual concerning the very real

relationship between direct customer service and an employee’s (or potential employee’s) difficult

accent. 

Somewhat related to this factor, and perhaps to West’s unwillingness to offer more money,

10

settlement in this case was always doomed by EEOC’s insistence upon not just monetary benefit to

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Finally, although the case proceeded to trial, this factor is neutral because, as

discussed above, the district judge did not have all of the evidence, or an accurate

account of the evidence, before her at the summary judgment stage. See Scelta v.

Delicatessen Support Servs., 146 F. Supp. 2d 1255, 1269-70 (M.D. Fla. 2001) (“The

consideration of whether there was a pre-trial dismissal or a trial obviously does not

cut against the plaintiff, but it also does not significantly militate in her favor.

Advancing beyond summary judgment does not establish that a case has merit or

immunize a party fromattorneys’ fees.”) (citing Nielsen v. Trans World Airlines, Inc.,

95 F.3d 701, 703 (8th Cir.1996); Flowers v. Jefferson Hospital Ass’n, 49 F.3d 391,

392–93 (8th Cir. 1995); Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir.1993)

(allowing a claim to go to trial does not negate the plaintiff's responsibility to litigate

a factually grounded claim at trial); El Shahawy v. Lee, No. 8:95cv269RWN, 1999

WL 33919538, at *6 (M.D. Fla. April 23, 1999) (“While the fact that a plaintiff's

claims survived summary judgment could be relevant in deciding whether to award

fees to a defendant in certain cases, such fact would only properly be considered in

a case in which the plaintiff's claims easily withstood summary judgment. But such

was not the instant case, in which the Court’s summary judgment order expressly

warned that Plaintiff’s claims survived summary judgment by the narrowest of

margins, pointing out the very weak evidentiary basis of his claims.”). Moreover,

Mr. Roberts, but also a public consent decree. See doc. 278 at pg. 60. As stated by government

counsel in this case, once suit is filed, the EEOC will not settle without a public consent decree and

press release. One wonders whether others have lost a chance at monetary settlement due to the

EEOC’s need–and policy– to garner trophies. Such query parallels an observation made by a noted

Nobel laureate: “It is indeed probable that more harm and misery have been caused by men

determined to use coercion to stamp out a moral evil than by men intent on doing evil.” Friedrich

A. Hayek, The Constitution of Liberty (1960).

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considering the scant evidence of discrimination offered at trial, the fact that the

district judge held West’s motion for directed verdict in abeyance is of little

significance, as most experienced trial judges would do the same in order to avoid

creating an issue for appeal. See, e.g., Scelta, 146 F. Supp. 2d at 1260. In any event,

as the Fourth Circuit noted, the denial of a motion for directed verdict does not ipso

facto establish a case’s merit:

[a]lthough in some instances a frivolous case will be

quickly revealed assuch, it may sometimes be necessary to

blow away the smoke screens the plaintiff had thrown up

before the defendants may prevail. Moreover, it is possible

for a plaintiff to establish a prima facie case which is weak

but which is sufficient to survive a directed verdict, but

which is nonetheless groundless in light of a defense

readily apparent to the plaintiff from the outset of the

litigation.

Great Steaks, Inc., 667 F.3d at 518 (internal marks and citations omitted); see also

Lee, 1999 WL 33919538, at *9 (“[T]his Court’s proper, considered exercise of its

duties and its generosity in allowing Plaintiff’s civil rights claims to go to trial, albeit

with a stern warning, does not negate the Plaintiff’s responsibility to litigate factually

grounded claims.”).

The undersigned is aware of the asserted public policy reasons for exercising

caution when considering an award of attorneys’ fees against a plaintiff, as well as

the implications of such an award against the EEOC, both of which were addressed

in Christiansburg. The court also is aware, however, of the impact baseless lawsuits

have on employers and businesses, particularly when they are backed by the full

force, and seemingly unlimited purse, of the government. In this case, the EEOC

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could produce no evidence that West rejected Roberts based on his national origin. 

To the contrary, the evidence showed – and the EEOC admitted – that West rejected

Roberts based on his accent, which was a legitimate non-discriminatory reason, as

recognized in the EEOC manual. Giving the EEOC the benefit of the doubt and

assuming the case was not patently frivolous when filed, the undersigned finds that

it became so after West served its discovery responses and the EEOC was not able to

identify a single comparator. At that point, the EEOC’s entire case rested on West’s

alleged shifting explanationsfor rejecting Roberts, which always included his accent

and fell far short of establishing a prima facie case of discrimination. No reasonable 11

jury could have found the evidence in this case sufficient to sustain a Title VII claim,

and the EEOC, which is charged with enforcing the nation’s employment laws,

should have recognized that fact. Rather than do so, the EEOC continued to press a

baseless claim long after it should have been dismissed, imposing upon West years

of litigation at enormous expense, both in terms of time and money. Disallowing

attorneys’ fees and expenses under the circumstances of this case would constitute a

manifest injustice. 

For the reasons set forth above, the undersigned finds that the Defendant’s

Motion for Award of Attorneys’ Fees and Nontaxable Expenses (doc. 278)should be

granted. See Turner v. Sungard Business Sys., Inc., 91 F.3d 1418, 1423 (11th Cir.

1996) (noting that the Eleventh Circuit has never “limit[ed] a litigant’s duty under

Christiansburg to the time of filing the complaint” and that the fact that a plaintiff

The EEOC acknowledges that Roberts was told at his interview that he would not be hired 11

because of his accent and lack of computer skills. According to the EEOC, West later added that

Roberts lacked the requisite customer service skills and experience. It is undisputed, however, that

both decision makers testified that Roberts’ accent alone disqualified him from employment. 

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“may have had a reasonable basis for believing that he had been denied a promotion

based on his race when the complaint was filed is insufficient under

Christiansburg”); Walker v. NationsBank of Florida N.A., 53 F.3d 1548, 1558 (11th

Cir. 1995) (holding that, “in determining whether a prevailing defendant is entitled

to attorney's fees under Title VII, the district court must focus on the question of

whether the case is seriously lacking in arguable merit”); see also EEOC v.

Peoplemark, Inc., 732 F.3d 584, 593 (6th Cir. 2013) (holding that the district court

did not abuse its discretion in awarding attorney’s fees from the date the EEOC

should have known that it could not prove its claim “to the end of the litigation”);

EEOC v. Agro Distrib., LLC, 555 F.3d 462, 473 (5th Cir. 2009) (noting that “[t]he

EEOC must vigorously enforce the Americans with Disabilities Act and ensure its

protections to affected workers, but in doing so, the EEOC owes duties to employers

as well: a duty reasonably to investigate charges, a duty to conciliate in good faith,

and a duty to cease enforcement attempts after learning that an action lacks merit”);

Scelta, 146 F. Supp. 2d at 1270 (“[B]y the time of the pre-trial conference . . . ,

discovery should have been completed and legal theories should have been

established. There was no justification from that point on for pursuing the

discrimination claims. Consequently, attorneys’ fees and expenses shall be awarded

to the defendants from . . . and after . . . the date of the pre-trial conference.”). 

Accordingly, it is hereby RECOMMENDED as follows:

1. That Defendant’s Motion for Award of Attorneys’ Fees and Nontaxable 

Expenses (doc. 278) be GRANTED.

2. That West be awarded attorneys’ fees and costs from the date it served

its last responses to the EEOC’s discovery requests through the conclusion of trial.

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3. That West be allowed twenty-one (21) days in which to submit materials 

in support of its claim for attorneys’s and nontaxable expenses and that the EEOC be

allowed fourteen (14) days thereafter in which to respond.

4. That the matter be remanded to the undersigned to conduct all further 

proceedings in the event the parties cannot agree on a reasonable award of costs.

 At Pensacola, Florida this 28th day of July, 2014.

/s/Charles J. Kahn, Jr. 

 CHARLES J. KAHN, JR.

UNITEDSTATESMAGISTRATEJUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed

within fourteen days after being served a copy hereof. Any different deadline that

may appear on the electronic docket is for the court’s internal use only, and does not

control. A copy of any objections shall be served upon any other parties. Failure to

object may limit the scope of appellate review of factual findings. See 28 U.S.C. §

636; United States v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988).

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