Gettings v. Bldg & Laborers

• Court: Court of Appeals for the Sixth Circuit
• Decided: November 13, 2003
• Docket: 02-3535
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Gettings v. Building Nos. 02-3454/3535 ELECTRONIC CITATION: 2003 FED App. 0402P (6th Cir.) Laborers Local 310 File Name: 03a0402p.06 Before: DAUGHTREY and GILMAN, Circuit Judges; HAYNES, District Judge.* UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT _________________ COUNSEL

JUDY GETTINGS, X ARGUED: William W. Taylor, Steubenville, Ohio, for Plaintiff-Appellant - Plaintiff. Richard L. Stoper, Jr., ROTATORI, BENDER, GRAGEL, STOPER & ALEXANDER, Cleveland, Ohio, for (02-3454), - Defendant. ON BRIEF: William W. Taylor, Steubenville, - Nos. 02-3454/3535 Plaintiff-Appellee, - Ohio, for Plaintiff. Richard L. Stoper, Jr., Susan L. Gragel, > ROTATORI, BENDER, GRAGEL, STOPER & , v. ALEXANDER, Cleveland, Ohio, for Defendant. - - _________________ BUILDING LABORERS LOCAL - 310 FRINGE BENEFITS FUND , - OPINION Defendant-Appellee, - _________________ Defendant-Appellant - - RONALD LEE GILMAN, Circuit Judge. Judy Gettings (02-3535). - filed a complaint alleging that her employer, the Building - Laborers Local 310 Fringe Benefits Fund (the Fund), violated - Title VII, ERISA, and the National Labor Relations Act by N discriminating against her on the basis of her gender. For the Appeal from the United States District Court reasons set forth below, we AFFIRM the district court’s for the Northern District of Ohio at Cleveland. grant of summary judgment for the Fund as to all claims. In No. 01-01223—Donald C. Nugent, District Judge. addition, we VACATE the district court’s denial of attorney fees to the Fund and REMAND with instructions that the Argued: October 24, 2003 court reconsider the request and provide a reasoned explanation for its decision. Decided and Filed: November 13, 2003

* The Honorable William J. Haynes, Jr., United States District Judge for the Middle District of Tennessee, sitting by designation.

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I. BACKGROUND the Fund was discriminating against her because of her gender. Gettings claims that Mickshaw received a A. Factual background substantially more lucrative compensation package for performing essentially the same work that she did. Gettings was hired by the Fund as a secretary/clerk in 1978. The Fund administers health, welfare, pension, and other On October 1, 1998, the OCRC issued Gettings a probable- benefit plans for the members of the Building and cause letter, making a preliminary determination that the Construction Laborers Local Union 310 (the Union). A Fund had probably engaged in unlawful discriminatory Board of Trustees, comprised of equal numbers of Union and practices. Depositions of Gettings, the fund administrator, employer representatives, governs the Fund. In addition to and the OPEIU union steward were subsequently taken by an Gettings, five other people were employed in the Fund’s assistant state attorney general on behalf of the OCRC. In her office: three clerks, a field auditor, and the fund administrator. deposition, Gettings admitted that there were significant Gettings and the three other clerks were members of the differences between the duties of a field auditor and the duties Office and Professional Employees International Union of a clerk, and that Mickshaw was performing some field (OPEIU), which negotiated their wages and benefits in a auditor tasks, although, in Gettings’s opinion, not very well. collective bargaining agreement with the Fund. Gettings also conceded that she did not perform any field Compensation for the field auditor and the fund administrator auditor duties. She further acknowledged that Mickshaw’s was set by the Fund’s Board of Trustees. duties required that he have access to a Fund-provided car, while her duties did not. Finally, Gettings admitted that her In 1989, the Fund hired Robert Mickshaw, the son-in-law union, OPEIU, had attempted to negotiate retirement benefits of the Union’s business manager, to be the field auditor. similar to those received by Mickshaw, but was unsuccessful. Gettings claims that Mickshaw was incompetent and According to Gettings, she withdrew her complaint before the unqualified for this position. Because Mickshaw was OCRC made any final determination on the merits so that she purportedly unable to fulfill his duties as the field auditor, could proceed in federal court. Gettings alleges that she and the other clerks trained him to perform their clerical duties. As a consequence, Gettings The EEOC, meanwhile, had declined to investigate complains that she and Mickshaw were doing the same kind Gettings’s charge because the Fund employed less than 15 of work, but that Mickshaw was being paid $35,000 more per employees, which is the minimum number for an entity to be year than she was by virtue of his formally holding the considered an “employer” under Title VII. 42 U.S.C. position of field auditor. Mickshaw also enjoyed more § 2000e(b). On August 24, 2000, the EEOC sent Gettings a favorable retirement benefits than Gettings and had access to letter confirming that her charge of employment a Fund-provided car. discrimination had been withdrawn in accordance with her request. The EEOC letter did not, however, indicate that she B. Procedural background had only 90 days within which to bring a civil action pursuant to 42 U.S.C. 2000e-5(f)(1). Gettings filed a complaint in In November of 1997, Gettings filed charges with the Ohio federal district court over eight months later, alleging (1) sex Civil Rights Commission (OCRC) and the Equal discrimination, in violation of Title VII of the Civil Rights Employment Opportunity Commission (EEOC), alleging that Act of 1964, 42 U.S.C. §§ 2000e-2000e(17), and Ohio Nos. 02-3454/3535 Gettings v. Building 5 6 Gettings v. Building Nos. 02-3454/3535 Laborers Local 310 Laborers Local 310

Revised Code § 4112.02, (2) discrimination under the II. ANALYSIS Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001-1461, and (3) discrimination based on A. The district court’s stay of discovery union membership, in violation of the National Labor Relations Act (NLRA), 29 U.S.C. § 141-187. The Fund filed a motion to stay discovery pending the district court’s ruling on the Fund’s motion for summary At the initial case management conference called by the judgment. Discovery was stayed by the district court without district court, the Fund indicated that it would soon be filing opinion. Gettings claims that the denial of discovery was a motion for summary judgment. The parties also agreed to manifestly unjust and violated her right to the due process of limit discovery in light of the prior proceedings before the law. We review a district court’s decision to limit discovery OCRC. After the Fund filed its motion for summary under an “abuse of discretion” standard. Hahn v. Star Bank, judgment, Gettings requested an additional 60 days in order 190 F.3d 708, 719 (6th Cir. 1999). to conduct discovery before submitting her response. The Fund opposed Gettings’s motion because she had failed to “Trial courts have broad discretion and inherent power to comply with the requirement of Rule 56(f) of the Federal stay discovery until preliminary questions that may dispose of Rules of Civil Procedure that such a motion include an the case are determined.” Id. Limitations on pretrial affidavit containing a specification of facts to be discovered discovery are appropriate where claims may be dismissed and an explanation of how the discovered facts would rebut “based on legal determinations that could not have been the Fund’s motion for summary judgment. Gettings’s counsel altered by any further discovery.” Musquiz v. W. A. Foote confirmed at oral argument that he did not file a Rule 56(f) Memorial Hospital, Inc., 70 F.3d 422, 430 (6th Cir. 1995). In affidavit. At the second pretrial conference, the district court the present case, the Fund’s motion for summary judgment granted Gettings’s request for additional time to respond, but contained the following issues that could be decided as a stayed discovery pending its ruling on the Fund’s motion for matter of law: whether the Fund, as a single entity, was an summary judgment. employer as defined under Title VII, whether Gettings stated a claim under ERISA, and whether the NLRB had exclusive In response, Gettings not only opposed the Fund’s jurisdiction over Gettings’s unfair-labor-practice claim. We summary judgment motion, but also sought leave to amend conclude that the district court did not abuse its discretion in her complaint to add the Union as a defendant, arguing that making these legal determinations without discovery. the Fund and the Union were in fact a single entity. The district court subsequently granted summary judgment in There are, however, two fact-based issues that could have favor of the Fund and denied Gettings’s motion to amend her been fleshed out in more detail if discovery had gone forward. complaint. Following this ruling, the Fund filed a motion for First, Gettings might have obtained evidence to support her attorney fees and costs, which the district court denied by a theory that the Fund and the Union were acting as a single marginal entry without any explanation. Gettings appeals the employer. Second, Gettings might have unearthed facts to former decision, and the Fund appeals the latter. prop up her claim that Mickshaw’s position as the field auditor was a sham. The problem is that Gettings did not comply with Rule 56(f) of the Federal Rules of Civil Procedure, which provides as follows: Nos. 02-3454/3535 Gettings v. Building 7 8 Gettings v. Building Nos. 02-3454/3535 Laborers Local 310 Laborers Local 310

Should it appear from the affidavits of a party opposing B. The Fund’s motion for summary judgment the [summary judgment] motion that the party cannot for reasons stated present by affidavit facts essential to 1. Standard of review justify the party’s opposition, the court may refuse the application for judgment or may order a continuance to We review a district court’s grant of summary judgment permit affidavits to be obtained or depositions to be taken de novo. Logan v. Denny’s, Inc., 259 F.3d 558, 566 (6th Cir. or discovery to be had or may make such other order as 2001). Summary judgment is proper where there exists no is just. genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In This court has interpreted Rule 56(f) as requiring a party considering a motion for summary judgment, the district court opposing a summary judgment motion to file an affidavit that must construe all reasonable inferences in favor of the “indicate[s] to the district court its need for discovery, what nonmoving party. Matsushita Elec. Indus. Co. v. Zenith material facts it hopes to uncover, and why it has not Radio Corp., 475 U.S. 574, 587 (1986). The central issue is previously discovered the information.” Cacevic v. City of “whether the evidence presents a sufficient disagreement to Hazel Park, 226 F.3d 483, 488 (6th Cir. 2000); see also, require submission to a jury or whether it is so one-sided that Wallin v. Norman, 317 F.3d 558, 564 (6th Cir. 2003) one party must prevail as a matter of law.” Anderson v. (summarizing Sixth Circuit precedent that the nonmoving Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). party must (1) file an affidavit that details the discovery needed, and (2) explain how it will help rebut the movant’s 2. Prima facie case of gender discrimination under Title showing of the absence of a genuine issue of material fact). VII and Ohio state law Gettings filed no such affidavit. In order to establish a prima facie case of gender This court has pointed out that “[t]he importance of discrimination under Title VII, Gettings must show that complying with Rule 56(f) cannot be overemphasized.” (1) she was a member of a protected class; (2) she suffered an Cacevic, 226 F.3d at 488. “Where a party opposing summary adverse employment action; (3) she was qualified for the judgment and seeking a continuance pending completion of position; and (4) that she was treated differently from discovery fails to take advantage of the shelter provided by similarly situated members of the unprotected class. Rule 56(f) by filing an affidavit, there is no abuse of Alexander v. Local 496, Laborers’ Int’l Union, 177 F.3d 394, discretion in granting summary judgment if it is otherwise 402-03 (6th Cir. 1999). Because the prima facie case appropriate.” Id. (internal citation omitted). Because requirements are essentially the same under Ohio Revised Gettings failed to file such an affidavit, the district court did Code § 4112.02, see Ohio Civil Rights Comm’n v. Ingram, not abuse its discretion in staying discovery pending 630 N.E.2d 669, 672 (Ohio 1994), Gettings’s federal and resolution of the Fund’s motion for summary judgment. state-law claims of gender discrimination may be disposed of together. The district court properly determined that Gettings failed to establish a prima facie case for several reasons. First, Gettings did not specifically allege that she suffered an Nos. 02-3454/3535 Gettings v. Building 9 10 Gettings v. Building Nos. 02-3454/3535 Laborers Local 310 Laborers Local 310

adverse employment action. She was not terminated, present, the Fund has never had 15 or more employees. Only disciplined, or demoted. Nor was she rejected for the field 6 persons are employed by the Fund. Accordingly, as a auditor position, since she never applied for it. Second, matter of law, the Fund was entitled to summary judgment on Gettings does not allege that she was qualified to be a field Gettings’s Title VII claim. auditor. Third, Gettings and Mickshaw were not similarly situated. Under Title VII, “the plaintiff and the employee Gettings attempted to overcome Title VII’s definition of an with whom the plaintiff seeks to compare . . . herself must be employer by filing a motion to amend her complaint to add similar in all of the relevant aspects.” Ercegovich v. the Union as a defendant. She argued that the Union and the Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. Fund were acting as a single employer. Because the Union 1998) (emphasis in original) (internal citation omitted). has 13 employees and the Fund has 6 employees, their combined workforce would clear the 15-employee statutory The district court correctly observed that Gettings was hurdle if they were considered a single employer. The district comparing apples to oranges. Gettings and Mickshaw each court found that Gettings’s motion was moot because, even if held different jobs, with different qualification requirements the Union and the Fund were indeed a single employer for the and duties, and thus had different compensation packages. purposes of Title VII, Gettings nonetheless failed to establish Gettings admitted as much in her deposition. She a prima facie case of gender discrimination. Because we acknowledged that she and Mickshaw had different jobs and agree with the district court’s adjudication on the merits of responsibilities and conceded that Mickshaw did perform Gettings’s gender discrimination claim, we conclude that the some of his field auditor tasks. Gettings’s opinion that district court properly dismissed as moot Gettings’s motion to Mickshaw performed poorly—but was handsomely paid—as add the Union as a defendant. the field auditor does not mean that Gettings was being discriminated against with regard to her own employment as We also note that there is nothing in the record before us to a clerk. In sum, she and Mickshaw did not hold positions that indicate that the Fund and the Union were acting as a single were similar in all relevant aspects. We thus find no error in employer. The OCRC examined the operations and the district court’s conclusion that Gettings failed to establish management of the Fund and the Union and concluded that a prima facie case of discrimination under either federal or the entities were “completely separate” and could not be state law. “merged” to satisfy the EEOC’s jurisdictional prerequisites. After considering the appropriate test in this circuit, the 3. Gettings’s employer for the purposes of the Title VII district court also concluded that Fund and the Union were separate entities. See Distillery, Wine & Allied Workers Int’l The district court also properly granted summary judgment Union v. National Distillers & Chem. Corp., 894 F.2d 850 on Gettings’s Title VII claim because the Fund does not (6th Cir. 1990) (examining the interrelation of operations, satisfy the statutory definition of an employer. An employer, common management, centralized control of labor relations, for purposes of Title VII, is “a person engaged in an industry and common ownership as the key factors in a single- affecting commerce who has fifteen or more employees for employer analysis). each working day in each of twenty or more calendar weeks in the current or preceding calendar year . . . .” 42 U.S.C. Because Gettings’s failure to file an affidavit under Rule § 2000e(b). The district court found that, from 1995 to the 56(f) ended further development of the record on this point, Nos. 02-3454/3535 Gettings v. Building 11 12 Gettings v. Building Nos. 02-3454/3535 Laborers Local 310 Laborers Local 310

we decline to hold that the district court was clearly erroneous 5. The ERISA claim in deciding that the Fund and the Union were separate entities. See Michigan Bell Tel. Co. v. Engler, 257 F.3d 587, Gettings’s complaint also failed to articulate a claim under 592 (6th Cir. 2001) (stating that this court does not disturb ERISA. The district court assumed that Gettings was findings of fact unless the district court was clearly erroneous attempting to argue that she was being discriminated against in reaching its conclusion). Gettings’s motion to amend her because she received less favorable retirement benefits or complaint was therefore not only moot, but meritless. contributions than Mickshaw. But ERISA does not provide a remedy for gender discrimination. ERISA prohibits 4. The district court’s alternative basis for dismissing discrimination in the exercise of rights under an employee the Title VII claim benefit plan covered by ERISA. 29 U.S.C. § 1140. Gettings’s complaint, however, did not allege that she was An alternative basis for dismissing Gettings’s Title VII being discriminated against in the exercise of her rights under claim, the district court held, was her failure to meet certain her employee benefit plan, the terms of which were procedural requirements for filing suit in federal court. negotiated by her union. Nor did Gettings allege that she had Usually a person who files a charge with the EEOC that is requested and was denied any specific benefit that she is due subsequently dismissed receives notice that she has a right to under her employee benefit plan. Because Gettings failed to pursue her claim in federal court. 42 U.S.C. § 2000e-5(f)(1). state a claim for discrimination under ERISA, the district This typically takes the form of a “right-to-sue” letter, stating court properly granted the Fund’s motion for summary that the individual has 90 days from the date of the letter to judgment on this issue. Gettings does not contest this aspect file a civil complaint in court. Gettings argues that her letter of the district court’s holding. from the EEOC failed to explain this procedural requirement and was not captioned as a “right-to-sue” letter. She thus Instead, Gettings has apparently seized on the Fund’s contends that she should not be penalized for filing her interpretation of her ERISA claim as the basis for her appeal. lawsuit over eight months after receiving the EEOC’s letter. In interpreting Gettings’s complaint at the summary judgment stage, the Fund assumed that Gettings was arguing that the The district court pointed out that Gettings was in a no-win Fund’s plan did not qualify as a trust entitled to certain tax situation. If the EEOC letter confirming Gettings’s advantages because it was paying higher benefits to the more withdrawal of her charge met the statute’s requirement that highly compensated employees, potentially in violation of she be given notice of her rights, then she filed her complaint 26 U.S.C. § 401(a)(4). The district court disagreed. After a too late. On the other hand, if the EEOC letter was not a careful review of Gettings’s complaint, the district court “right-to-sue” letter, then Gettings filed her case without determined that Gettings was not alleging any cause of action receiving clearance to do so. In either case, the district court based upon the Fund’s purported violation of the Internal held that Gettings failed to meet the procedural prerequisites Revenue Code. of Title VII. Because the district court’s other reasons for granting the Fund summary judgment are sound, we decline For the sake of argument, however, the district court to address this alternative basis for disposing of Gettings’s assumed that Gettings had standing to assert the ERISA claim Title VII claim. as framed by the Fund. It nonetheless concluded that the Fund’s plan was a qualified trust under the tax laws. The Nos. 02-3454/3535 Gettings v. Building 13 14 Gettings v. Building Nos. 02-3454/3535 Laborers Local 310 Laborers Local 310

court pointed out that in evaluating whether a trust is See 29 U.S.C. § 160(a) (empowering the NLRB to prevent providing highly compensated employees with more any person from engaging in unfair labor practices). favorable benefits than are being received by other plan members, the tax code instructs that employees covered by Gettings attempts to circumvent the NLRB’s exclusive collective bargaining agreements are not considered in this jurisdiction over this claim by arguing that “OPEIU is not a comparative analysis. See 26 U.S.C. § 410(b)(3)(A). legitimate collective bargaining unit” and that her membership in OPEIU is a “sham.” Even if Gettings is Gettings now frames her ERISA claim as a dispute over correct, which is not supported by the record, the NLRB still standing. She appeals the district court’s supposed ruling that has exclusive jurisdiction over the allegations of unfair labor she did not have standing to bring a claim against the Fund’s practices. See Carpenters District Council v. United pension plan for violating the tax code. As discussed above, Contractors Ass’n of Ohio, Inc., 484 F.2d 119, 121-23 (6th however, the district court did not hold that Gettings lacked Cir. 1973) (holding that even where the collective bargaining standing. To the contrary, the court assumed that Gettings did agreement is a sham, the NLRB has exclusive jurisdiction have standing, but concluded that her claim was without over allegations of unfair labor practices). The district court merit. Gettings’s unconvincing comeback to the district was therefore correct to dismiss this claim for lack of subject court’s determination on the merits is that her collective matter jurisdiction. bargaining agreement is “of no consequence.” Regardless of how Gettings’s ERISA claim is framed—as a discrimination C. The Fund’s motion for attorney fees issue, a tax violation issue, or a standing issue—the district court properly determined that the Fund was entitled to 1. Standard of review summary judgment. We now turn to the Fund’s cross-appeal, which relates to its 6. Discrimination based upon union membership request for an award of attorney fees against Gettings. The grant or denial of attorney fees by a district court is reviewed The district court properly determined that it did not have under an “abuse of discretion” standard. Berger v. City of jurisdiction over Gettings’s claim that the Fund had engaged Mayfield Heights, 265 F.3d 399, 402 (6th Cir. 2001). “Abuse in an unfair labor practice by paying her less in wages and of discretion is defined as a definite and firm conviction that benefits than it paid Mickshaw, in alleged violation of 29 the trial court committed a clear error of judgment.” Id. U.S.C. § 158. Under the latter provision, an employer (internal citation omitted). Because the district court denied engages in an unfair labor practice by discriminating “in the Fund’s motion for attorney fees by a marginal order regard to . . . any term or condition of employment to without any explanation, it is impossible for us to determine encourage or discourage membership in any labor whether the district court committed a clear error of organization.” The National Labor Relations Board (NLRB), judgment. This court has previously expressed its however, “has been designated by Congress as the exclusive “disapproval of marginal entry orders” that are contested and forum of original jurisdiction for adjudicating questions of . . . dispositive of a substantive issue. Inland Bulk Transfer Co. unfair labor practices . . . and . . . United States District v. Cummins Engine Co., 332 F.3d 1007, 1015 n. 7 (6th Cir. Courts have no such jurisdiction.” Lexington Cartage v. Int’l 2003) (criticizing marginal orders because they frustrate Brotherhood of Teamsters, 713 F.2d 194, 195 (6th Cir. 1983). appellate review); see also Bank One v. Abbe, 916 F.2d 1067, Nos. 02-3454/3535 Gettings v. Building 15 16 Gettings v. Building Nos. 02-3454/3535 Laborers Local 310 Laborers Local 310

1082 (6th Cir. 1990) (stating that marginal orders are quotation marks omitted). But a “plaintiff should not be disfavored because they create difficulties in properly assessed his opponent’s attorney fees unless the court finds reviewing such dispositions); United States v. Woods, 885 the claim was groundless at the outset or that the plaintiff F.2d 352, 353-54 (6th Cir. 1989) (complaining that the continued to litigate after it clearly became so.” Id. (internal district court’s use of a marginal order complicated and citation and quotation marks omitted) This determination, potentially prejudiced appellate review). “requires inquiry into the plaintiff’s basis for filing suit.” Id. (internal citation omitted). Because the district court in the A trial judge’s exercise of discretion in fee-award cases, present case used a marginal order, the record does not reveal although “entitled to substantial deference . . . is not whether the court engaged in any inquiry concerning the absolute.” Adcock-Ladd v. Sec’y of Treasury, 227 F.3d 343, merits of Gettings’s claim. 349 (6th Cir. 2000) (reversing the district court’s award of attorney fees because of improper calculation methods). In “This court has noted that attorneys’ fees should be awarding attorney fees, a “district court must provide a clear awarded to defense counsel in Title VII actions only in the and concise explanation of its reasons.” Id. (internal citation most egregious circumstances.” Noyes v. Channel Products, omitted). By the same token, where there is significant Inc., 935 F.2d 806, 810 (6th Cir. 1991). Such circumstances evidence in the record to support an award of attorney fees, may well be present here. The district court’s opinion the district court should provide some explanation for its indicates that Gettings knew that the EEOC had declined to denial of the award rather than simply entering a marginal investigate her Title VII claim on the basis that the Fund was order. See Easley v. Value City Stores, Nos. 91-5288, 91- not an “employer” as defined by that statute. In fact, the 5317, 1992 WL 3714, at *5 (6th Cir. Jan. 10, 1992) district court found that that is why she withdrew her charge (unpublished opinion) (remanding the employment from the EEOC. The OCRC’s report further informed discrimination action to the district court to provide a Gettings that she could not merge the workforces of the statement of reasons explaining why the employer was not Union and the Fund in order to meet Title VII’s jurisdictional entitled to attorney fees when it prevailed on summary requirements. Gettings thus had every reason to believe that judgment); see also Ellenburg v. Brockway, Inc., 763 F.2d her Title VII claim was barred, yet she pursued it anyway. 1091, 1097 (9th Cir. 1985) (remanding the case to the district court with instructions that the court state its reasons for She also failed to articulate any cognizable ERISA claim, denying the appellants’ motion for attorney fees); Gordon v. as is evident from the conflicting interpretations by the U.S. Steel Corp., 724 F.2d 106, 108 (10th Cir. 1983) (same). district court and the Fund regarding the exact nature of Gettings’s ERISA allegations. Under ERISA, a district court 2. Evidence supporting an award of attorney fees to the “may allow a reasonable attorney’s fee and costs of action to Fund either party.” 29 U.S.C. § 1132(g)(1). This court has held that when a district court exercises its discretion in awarding “[A] district court may in its discretion award attorney fees attorney fees under ERISA, it should consider five factors: to a prevailing defendant upon a finding that the plaintiff’s action was frivolous, unreasonable, or without (1) the degree of the opposing party’s culpability or bad foundation. . . .” Wilson-Simmons v. Lake County Sheriff’s faith; (2) the opposing party’s ability to satisfy an award Dep’t, 207 F.3d 818, 823 (6th Cir. 2000) (internal citation and of attorney’s fees; (3) the deterrent effect of an award on Nos. 02-3454/3535 Gettings v. Building 17 Laborers Local 310

other persons under similar circumstances; (4) whether the party requesting fees sought to confer a common benefit on all participants and beneficiaries of an ERISA plan or resolve significant legal questions regarding ERISA; and (5) the relative merits of the parties’ positions. Foltice v. Guardsman Products, Inc., 98 F.3d 933, 936-37 (6th Cir. 1996) (internal citation omitted). The district court should explicitly consider all of these factors on remand. III. CONCLUSION For all of the reasons set forth above, we AFFIRM the decision of the district court granting summary judgment for the Fund. In addition, we VACATE the district court’s denial of attorney fees to the Fund and REMAND with instructions that the court reconsider the request and provide a reasoned explanation for its decision.