EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, Cross-Appellee, v. BAILEY FORD, INC., Defendant-Appellee, Cross-Appellant

26 F.3d 570, 1994 U.S. App. LEXIS 17999, 65 Empl. Prac. Dec. (CCH) 43,257, 65 Fair Empl. Prac. Cas. (BNA) 609

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 21, 1994
• Docket: 93-2436
• Status: Published

Opinions

PER CURIAM:

There was evidence in the record to support the district court’s finding that Bailey Ford did not discriminate against Ms. Qualls on the basis of her sex in refusing to hire her as a truck salesperson. EEOC has not persuaded us that the court’s assessment of the evidence and credibility of the witnesses was clearly erroneous. Consequently, we cannot reverse his findings.

Further, Fed.R.Civ.P. 68 was not properly invoked by Bailey Ford as a device to charge costs against EEOC in this case. See Delta Airlines, Inc. v. August, 450 U.S. 346, 101 S.Ct. 1146, 67 L.Ed.2d 287 (1991). EEOC did not “obtain” a judgment in the sense used by the Supreme Court in August. Moreover, even if appellee were entitled to recover “costs” under Rule 68, its attorneys’ fees are not among the properly recoverable costs without a determination that the action was frivolous, unreasonable, or without foundation. See O’Brien v. City of Greers Ferry, 873 F.2d 1115, 1120 (8th Cir.1989); Crossman v. Marcoccio, 806 F.2d 329 (1st Cir.1986), cert. denied, 481 U.S. 1029, 107 S.Ct. 1955, 95 L.Ed.2d 527 (1987).¹

The judgment of the district court is AFFIRMED.

1 . Because Bailey Ford did not raise the issue, we do not here decide whether EEOC had the authority to continue pursuing the discrimination case after the death of the charging party.