Virginia Lawyers Weekly//April 3, 2023
Virginia Lawyers Weekly//April 3, 2023//
Although the court previously held an employee’s race discrimination claim was time barred, it refused to award attorneys’ fees to the prevailing supervisor. The fact that the court rejected the man’s “continuing violation” theory wasn’t enough to show that the suit was “frivolous, unreasonable, or without foundation.”
Rodney Mills sued the City of Norfolk and Jeffrey Wise, in his individual capacity, alleging racial discrimination. The court granted defendants’ motions for summary judgment. Now before the court is Wise’s motion for attorneys’ fees and costs.
It is undisputed that defendant qualifies as the “prevailing party” in this case. Therefore, defendant is entitled to at least a partial award of fees, as well as litigation expenses, under § 1988, if plaintiff’s equal protection claim was “frivolous, unreasonable, or without foundation.”
Defendant argues that the equal protection claim was frivolously filed because plaintiff knew that that Jan. 3, 2019, was the operative start date for the statute of limitations for all claims at the time of filing. Plaintiff responds that, under the continuing violation doctrine, because Wise promoted a Caucasian employee over plaintiff on Nov. 9, 2019, plaintiff’s amended complaint was filed well within the two-year statute of limitations period. Plaintiff argues that the fact that the court considered and subsequently rejected plaintiff’s continuing violation theory in granting defendants’ motions for summary judgment does not render his actions to be unreasonable or frivolous. The court agrees.
Defendant does not provide any evidence demonstrating that the equal protection claim was raised to harass Wise or cause any delay in this action. Accordingly, this court is reluctant to award attorneys’ fees on the sole basis that the claim is time-barred, particularly where the claim is not otherwise devoid of legal merit or asserted in bad faith.
Defendant’s motion for attorneys’ fees denied.
Mills v. City of Norfolk, Case No. 2:21-cv-185, March 17, 2023. EDVA at Norfolk (Jackson). VLW 023-3-141. 5 pp.