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

Fifth Circuit

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 of Appeals for the Fifth Circuit·Decided July 21, 1994·No. 93-2436·Published·Cited by 18 cases

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.

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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.

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 (5th Cir. 1994).

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26 F.3d 570 (EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, Cross-Appellee, v. BAILEY FORD, INC., Defendant-Appellee, Cross-Appellant) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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

26 F.3d 570 (Fifth Circuit, 1994)

Opinions

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