The opinion of the court was delivered by: PENN
JOHN GARRETT PENN, United States District Judge.
The plaintiff filed this action, in which she alleges discrimination based on race (plaintiff is black), pursuant to 42 U.S.C. §§ 1981, 1988 and 2000e-2. She was hired by the defendant on October 29, 1979, as a receptionist. She alleges that she was discriminated against in the area of promotions, wages and other practices in the office.
In September 1982 the plaintiff filed a discrimination complaint against the defendant with the United States Equal Employment Opportunity Commission (EEOC). A fact finding conference was held in January 1983 and thereafter, an EEOC Equal Opportunity Specialist suggested that the defendant offer a cash settlement. In response to this suggestion, the defendant offered $500 to settle the case. This offer was almost immediately rejected by the plaintiff, who at that time was not represented by counsel. In February 1983, EEOC informed defendant that the agency intended to continue its investigation and EEOC did so by requesting additional information from the defendant including such items as defendant's personnel handbook, a job opening announcement pertaining to the office where the plaintiff was employed, data on defendant's employment evaluation policies, and specific information on defendant's job evaluations of the plaintiff. Later, a second conference was held at which time the plaintiff was accompanied by an attorney for the first time. Defendant opened the conference by offering to settle the matter for $1,000. Plaintiff rejected the offer, did not make a counter proposal, terminated the EEOC investigation and requested a right to sue letter.
Plaintiff filed her complaint in this case on September 23, 1983. In her complaint she asked the Court to permanently enjoin the defendant from discriminating on the basis of race, to require the defendant to reimburse her for loss of promotional opportunities and loss of other benefits, to grant her compensatory and punitive damages, and to award her attorney's fees and costs. Plaintiff had left her employment with the defendant in November 1982 and was not seeking reemployment.
The parties engaged in discovery and then in October 1984 entered into a Stipulation of Settlement and Order under which defendant paid the plaintiff $12,000 in full settlement of all claims except that the parties reserved the right of the plaintiff to claim attorney's fees and costs as the "prevailing party" in this litigation. Defendant contended throughout, and in the written settlement, reserved its right to argue that the plaintiff was not the "prevailing party" under applicable law.
The case is now before the Court on plaintiff's application for the payment of attorney's fees and costs. After giving careful consideration to the motion and the opposition thereto, together with the record in this case, the Court concludes that plaintiff is the "prevailing party" and that the fee application should be granted.
It is now well established that a plaintiff who settles a discrimination action prior to final judgment and prior to a determination that the defendant is guilty of discriminatory employment practices may nevertheless be the "prevailing party" and thereby entitled to attorney's fees and costs. See Maher v. Gagne, 448 U.S. 122, 100 S. Ct. 2570, 65 L. Ed. 2d 653 (1980); Miller v. Staats, 227 U.S. App. D.C. 299, 706 F.2d 336 (1983); Comm'rs Court of Medina County, Texas v. United States, 221 U.S. App. D.C. 116, 683 F.2d 435 (1982).
Defendant opposes any award to the plaintiff as the "prevailing party" and in doing so notes that during the settlement discussions the defendant was under the impression that the monetary settlement included attorney's fees and costs, and further that the plaintiff and her attorney had entered into a contingency fee arrangement and thus her attorneys should now be required to recover their fees out of the $12,000 paid to the plaintiff under the terms of the settlement. The defendant also contends that the plaintiff has not advanced a public interest under Title VII, that there was no need for the plaintiff to maintain this action since it was pending before the EEOC, and that the plaintiff has not succeeded on the central issue of discrimination. All of these arguments must be rejected.
In Miller, supra, our Court of Appeals addressed the issue of when a plaintiff is a "prevailing party". The court noted that "the statutory reference to the court's 'discretion' does not authorize a refusal to award any fees to a prevailing plaintiff unless special circumstances would render such an award unjust." Miller, supra, 227 U.S. App. D.C. at 303, 706 F.2d at 340 (citation omitted). The court observed that "for purposes of the attorney fees provisions, they [the plaintiffs in Miller ] need only allege a claim that is colorable under the civil rights laws - that has some minimum basis in law. . . . This is a question of law, not fact." 227 U.S. App. D.C. at 305, 706 F.2d at 342 (footnote omitted). Plaintiff is not required to prove defendant "'guilty, to some degree of discrimination,' . . . to establish their 'prevailing party' status." Id.
The plaintiff has met her burden. On its face, her complaint sets forth a legal claim of discrimination against the defendant; it is not frivolous on its face. Moreover, in response to interrogatories propounded by the defendant, the plaintiff has cited specific instances of what she claims to be discriminatory practices by the defendant. For example, she alleged that when she applied for a promotion for a posted job she was told that she did not qualify because her shorthand skills were not adequate. Complaint paras. 13-6. Yet, a white applicant applied and was given the position even though the white applicant had no shorthand experience. Complaint para. 17. In response to an interrogatory, plaintiff stated the name of the secretary who received the promotion. Plaintiff's Response to Interrogatories 34 and 35. Similar examples can be found in her complaint and her response to other interrogatories propounded by the defendant.
The plaintiff's allegations and responses to interrogatories do not establish her allegations and responses as facts, but they do establish that she has at least "allege[d] a claim that is colorable under the civil rights laws." Miller, 227 U.S. App. D.C. at 305, 706 F.2d at 342. Thus, the plaintiff is entitled to attorney fees and costs absent a showing by ...