Skinner v. San Felipe Del Rio Consolidated Independent School District

95 F. App'x 717

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 29, 2004
• Docket: 03-50820
• Status: Unpublished

Opinion

PER CURIAM. *

Appellant appeals both the award of attorney’s fees and the amount awarded to appellee. We affirm for the following reasons.

In assessing whether fees are appropriate under Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978), for frivolous or merit-less litigation, this Court has been guided by the Mississippi factors: (1) whether the plaintiff established a prima facie case; (2) whether the defendant offered to settle; and (3) whether there was a full-blown trial on the merits. United States v. Mississippi, 921 F.2d 604, 609 (5th Cir.1991). It is important to note that “[t]hese factors are, however, guideposts, not hard and fast rules. Determinations regarding frivolity are to be made on a case-by-case basis.” See EEOC v. L.B. Foster Co., 123 F.3d 746, 751 (3d Cir.1997) (internal citations and quotations omitted). While satisfying a prima facie case usually precludes the award of attorney’s fees, there are instances in which the prima facie case may be shown but the case is still ultimately frivolous. See EEOC v. Union Camp. Corp., 536 F.Supp. 64, 66 (W.D.Mich.1982). Whether or not the district court correctly determined that the appellant did not establish the elements of his prima facie case of discrimination, this litigation was ultimately groundless and frivolous. The court did not abuse its discretion.

In his reply brief, appellant also challenges the amount of the attorney’s fees. He contests whether the hours were reasonable as the Defendants did not provide a breakdown of the reasonable hours expended, argues the Johnson factors did not support the lodestar amount, and contends that specific deposition and copy costs should not have been deemed recoverable. As these specific issues were not clearly raised before the trial court, they are deemed waived. See United States ex rel. Wallace v. Flintco Inc., 143 F.3d 955, 971 (5th Cir.1998).

AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.