Free Order on Motion for Review - District Court of Colorado - Colorado

Case 1:02-cv-02239-WDM-MJW

Document 156

Filed 07/26/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO JUDGE WALKER D. MILLER Civil Action No. 02-cv-2239-WDM-MJW ANN GARRISON, et al., Plaintiffs, v. GAMBRO, INC., Defendant.

ORDER ON MOTION FOR REVIEW OF TAXATION OF COSTS Miller, J. This matter is before me on Defendant' Motion for Review of Taxation of s Costs, in which Defendant requests that I award expert witness fees in the amount of $24,680.30, which were denied by the Clerk of the Court in its October 19, 2004 Bill of Costs.1 The parties do not dispute that this issue is governed by 42 U.S.C. § 2000e5(k), which provides: In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee (including expert fees) as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person.

The Clerk also reduced slightly the costs for transcripts. Defendant does not challenge this reduction.

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Case 1:02-cv-02239-WDM-MJW

Document 156

Filed 07/26/2005

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In Christiansb urg Garment Co. v. Equal Employment Opportunity Comm' 434 n, U.S. 412, 421 (1978), the Supreme Court construed a prior version of § 2000e-5(k) to permit a district court, in its discretion, to award attorney' fees " a prevailing s to defendant in a Title VII case upon a finding that the plaintiff' action was frivolous, s unreasonable, or without foundation, even though not brought in subjective bad faith." See also Simons v. Southwest Petro-Chem, Inc., 28 F.3d 1029, 1033 (10th Cir. 1994) (" Title VII defendant is not entitled to an award of fees unless the court finds that the A plaintiff' claim was frivolous, unreasonable, or groundless, or that the plaintiff s` continued to litigate after it clearly became so" (quoting Christiansb urg, 434 U.S. at ) 422). Defendant contends that it retained expert witness Frank J. Landy, Ph.D., to counter Plaintiffs' assertion that the standardized assessment tests used by Defendant were not validated for the position at issue. I have reviewed the parties' summary judgment filings and my order granting summary judgment in favor of Defendant. Although Plaintiffs' claims in general, and their claim with regard to the validation of the tests in particular, were ultimately unavailing, I cannot conclude the claims were or became frivolous, unreasonable, or groundless.

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Case 1:02-cv-02239-WDM-MJW

Document 156

Filed 07/26/2005

Page 3 of 3

Accordingly, it is ordered that Defendant' Motion for Review of Taxation of s Costs, filed October 26, 2004, is denied. DATED at Denver, Colorado, on July 26, 2005. BY THE COURT:

/s/ Walker D. Miller United States District Judge

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