v. Building Laborers Local 310 Fringe Benefits Fund

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0402P (6th Cir.)
File Name: 03a0402p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
JUDY GETTINGS,
Plaintiff-Appellant
(02-3454),
Plaintiff-Appellee,
v.
BUILDING LABORERS LOCAL
310 FRINGE BENEFITS FUND,
Defendant-Appellee,
Defendant-Appellant
(02-3535).
X
-
-
-
->
,
-
-
-
-
-
-
-
-
-
-
N
Nos. 02-3454/3535
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 01-01223—Donald C. Nugent, District Judge.
Argued: October 24, 2003
Decided and Filed: November 13, 2003
2 Gettings v. Building
Laborers Local 310
Nos. 02-3454/3535
*The Honorable William J. Haynes, Jr., United States District Judge
for the Middle District of Tennessee, sitting by designation.
Before: DAUGHTREY and GILMAN, Circuit Judges;
HAYNES, District Judge.*
_________________
COUNSEL
ARGUED: William W. Taylor, Steubenville, Ohio, for
Plaintiff. Richard L. Stoper, Jr., ROTATORI, BENDER,
GRAGEL, STOPER & ALEXANDER, Cleveland, Ohio, for
Defendant. ON BRIEF: William W. Taylor, Steubenville,
Ohio, for Plaintiff. Richard L. Stoper, Jr., Susan L. Gragel,
ROTATORI, BENDER, GRAGEL, STOPER &
ALEXANDER, Cleveland, Ohio, for Defendant.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. Judy Gettings
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
discriminating against her on the basis of her gender. For the
reasons set forth below, we AFFIRM the district court’s
grant of summary judgment for the Fund as to all claims. 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.

-- 1 of 9 --

Nos. 02-3454/3535 Gettings v. Building
Laborers Local 310
3
I. BACKGROUND
A. Factual background
Gettings was hired by the Fund as a secretary/clerk in 1978.
The Fund administers health, welfare, pension, and other
benefit plans for the members of the Building and
Construction Laborers Local Union 310 (the Union). A
Board of Trustees, comprised of equal numbers of Union and
employer representatives, governs the Fund. In addition to
Gettings, five other people were employed in the Fund’s
office: three clerks, a field auditor, and the fund administrator.
Gettings and the three other clerks were members of the
Office and Professional Employees International Union
(OPEIU), which negotiated their wages and benefits in a
collective bargaining agreement with the Fund.
Compensation for the field auditor and the fund administrator
was set by the Fund’s Board of Trustees.
In 1989, the Fund hired Robert Mickshaw, the son-in-law
of the Union’s business manager, to be the field auditor.
Gettings claims that Mickshaw was incompetent and
unqualified for this position. Because Mickshaw was
purportedly unable to fulfill his duties as the field auditor,
Gettings alleges that she and the other clerks trained him to
perform their clerical duties. As a consequence, Gettings
complains that she and Mickshaw were doing the same kind
of work, but that Mickshaw was being paid $35,000 more per
year than she was by virtue of his formally holding the
position of field auditor. Mickshaw also enjoyed more
favorable retirement benefits than Gettings and had access to
a Fund-provided car.
B. Procedural background
In November of 1997, Gettings filed charges with the Ohio
Civil Rights Commission (OCRC) and the Equal
Employment Opportunity Commission (EEOC), alleging that
4 Gettings v. Building
Laborers Local 310
Nos. 02-3454/3535
the Fund was discriminating against her because of her
gender. Gettings claims that Mickshaw received a
substantially more lucrative compensation package for
performing essentially the same work that she did.
On October 1, 1998, the OCRC issued Gettings a probable-
cause letter, making a preliminary determination that the
Fund had probably engaged in unlawful discriminatory
practices. Depositions of Gettings, the fund administrator,
and the OPEIU union steward were subsequently taken by an
assistant state attorney general on behalf of the OCRC. In her
deposition, Gettings admitted that there were significant
differences between the duties of a field auditor and the duties
of a clerk, and that Mickshaw was performing some field
auditor tasks, although, in Gettings’s opinion, not very well.
Gettings also conceded that she did not perform any field
auditor duties. She further acknowledged that Mickshaw’s
duties required that he have access to a Fund-provided car,
while her duties did not. Finally, Gettings admitted that her
union, OPEIU, had attempted to negotiate retirement benefits
similar to those received by Mickshaw, but was unsuccessful.
According to Gettings, she withdrew her complaint before the
OCRC made any final determination on the merits so that she
could proceed in federal court.
The EEOC, meanwhile, had declined to investigate
Gettings’s charge because the Fund employed less than 15
employees, which is the minimum number for an entity to be
considered an “employer” under Title VII. 42 U.S.C.
§ 2000e(b). On August 24, 2000, the EEOC sent Gettings a
letter confirming that her charge of employment
discrimination had been withdrawn in accordance with her
request. The EEOC letter did not, however, indicate that she
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
federal district court over eight months later, alleging (1) sex
discrimination, in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e-2000e(17), and Ohio

-- 2 of 9 --

Nos. 02-3454/3535 Gettings v. Building
Laborers Local 310
5
Revised Code § 4112.02, (2) discrimination under the
Employee Retirement Income Security Act (ERISA),
29 U.S.C. § 1001-1461, and (3) discrimination based on
union membership, in violation of the National Labor
Relations Act (NLRA), 29 U.S.C. § 141-187.
At the initial case management conference called by the
district court, the Fund indicated that it would soon be filing
a motion for summary judgment. The parties also agreed to
limit discovery in light of the prior proceedings before the
OCRC. After the Fund filed its motion for summary
judgment, Gettings requested an additional 60 days in order
to conduct discovery before submitting her response. The
Fund opposed Gettings’s motion because she had failed to
comply with the requirement of Rule 56(f) of the Federal
Rules of Civil Procedure that such a motion include an
affidavit containing a specification of facts to be discovered
and an explanation of how the discovered facts would rebut
the Fund’s motion for summary judgment. Gettings’s counsel
confirmed at oral argument that he did not file a Rule 56(f)
affidavit. At the second pretrial conference, the district court
granted Gettings’s request for additional time to respond, but
stayed discovery pending its ruling on the Fund’s motion for
summary judgment.
In response, Gettings not only opposed the Fund’s
summary judgment motion, but also sought leave to amend
her complaint to add the Union as a defendant, arguing that
the Fund and the Union were in fact a single entity. The
district court subsequently granted summary judgment in
favor of the Fund and denied Gettings’s motion to amend her
complaint. Following this ruling, the Fund filed a motion for
attorney fees and costs, which the district court denied by a
marginal entry without any explanation. Gettings appeals the
former decision, and the Fund appeals the latter.
6 Gettings v. Building
Laborers Local 310
Nos. 02-3454/3535
II. ANALYSIS
A. The district court’s stay of discovery
The Fund filed a motion to stay discovery pending the
district court’s ruling on the Fund’s motion for summary
judgment. Discovery was stayed by the district court without
opinion. Gettings claims that the denial of discovery was
manifestly unjust and violated her right to the due process of
law. We review a district court’s decision to limit discovery
under an “abuse of discretion” standard. Hahn v. Star Bank,
190 F.3d 708, 719 (6th Cir. 1999).
“Trial courts have broad discretion and inherent power to
stay discovery until preliminary questions that may dispose of
the case are determined.” Id. Limitations on pretrial
discovery are appropriate where claims may be dismissed
“based on legal determinations that could not have been
altered by any further discovery.” Musquiz v. W. A. Foote
Memorial Hospital, Inc., 70 F.3d 422, 430 (6th Cir. 1995). In
the present case, the Fund’s motion for summary judgment
contained the following issues that could be decided as a
matter of law: whether the Fund, as a single entity, was an
employer as defined under Title VII, whether Gettings stated
a claim under ERISA, and whether the NLRB had exclusive
jurisdiction over Gettings’s unfair-labor-practice claim. We
conclude that the district court did not abuse its discretion in
making these legal determinations without discovery.
There are, however, two fact-based issues that could have
been fleshed out in more detail if discovery had gone forward.
First, Gettings might have obtained evidence to support her
theory that the Fund and the Union were acting as a single
employer. Second, Gettings might have unearthed facts to
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:

-- 3 of 9 --

Nos. 02-3454/3535 Gettings v. Building
Laborers Local 310
7
Should it appear from the affidavits of a party opposing
the [summary judgment] motion that the party cannot for
reasons stated present by affidavit facts essential to
justify the party’s opposition, the court may refuse the
application for judgment or may order a continuance to
permit affidavits to be obtained or depositions to be taken
or discovery to be had or may make such other order as
is just.
This court has interpreted Rule 56(f) as requiring a party
opposing a summary judgment motion to file an affidavit that
“indicate[s] to the district court its need for discovery, what
material facts it hopes to uncover, and why it has not
previously discovered the information.” Cacevic v. City of
Hazel Park, 226 F.3d 483, 488 (6th Cir. 2000); see also,
Wallin v. Norman, 317 F.3d 558, 564 (6th Cir. 2003)
(summarizing Sixth Circuit precedent that the nonmoving
party must (1) file an affidavit that details the discovery
needed, and (2) explain how it will help rebut the movant’s
showing of the absence of a genuine issue of material fact).
Gettings filed no such affidavit.
This court has pointed out that “[t]he importance of
complying with Rule 56(f) cannot be overemphasized.”
Cacevic, 226 F.3d at 488. “Where a party opposing summary
judgment and seeking a continuance pending completion of
discovery fails to take advantage of the shelter provided by
Rule 56(f) by filing an affidavit, there is no abuse of
discretion in granting summary judgment if it is otherwise
appropriate.” Id. (internal citation omitted). Because
Gettings failed to file such an affidavit, the district court did
not abuse its discretion in staying discovery pending
resolution of the Fund’s motion for summary judgment.
8 Gettings v. Building
Laborers Local 310
Nos. 02-3454/3535
B. The Fund’s motion for summary judgment
1. Standard of review
We review a district court’s grant of summary judgment
de novo. Logan v. Denny’s, Inc., 259 F.3d 558, 566 (6th Cir.
2001). Summary judgment is proper where there exists no
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
considering a motion for summary judgment, the district court
must construe all reasonable inferences in favor of the
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). The central issue is
“whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
2. Prima facie case of gender discrimination under Title
VII and Ohio state law
In order to establish a prima facie case of gender
discrimination under Title VII, Gettings must show that
(1) she was a member of a protected class; (2) she suffered an
adverse employment action; (3) she was qualified for the
position; and (4) that she was treated differently from
similarly situated members of the unprotected class.
Alexander v. Local 496, Laborers’ Int’l Union, 177 F.3d 394,
402-03 (6th Cir. 1999). Because the prima facie case
requirements are essentially the same under Ohio Revised
Code § 4112.02, see Ohio Civil Rights Comm’n v. Ingram,
630 N.E.2d 669, 672 (Ohio 1994), Gettings’s federal and
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

-- 4 of 9 --

Nos. 02-3454/3535 Gettings v. Building
Laborers Local 310
9
adverse employment action. She was not terminated,
disciplined, or demoted. Nor was she rejected for the field
auditor position, since she never applied for it. Second,
Gettings does not allege that she was qualified to be a field
auditor. Third, Gettings and Mickshaw were not similarly
situated. Under Title VII, “the plaintiff and the employee
with whom the plaintiff seeks to compare . . . herself must be
similar in all of the relevant aspects.” Ercegovich v.
Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir.
1998) (emphasis in original) (internal citation omitted).
The district court correctly observed that Gettings was
comparing apples to oranges. Gettings and Mickshaw each
held different jobs, with different qualification requirements
and duties, and thus had different compensation packages.
Gettings admitted as much in her deposition. She
acknowledged that she and Mickshaw had different jobs and
responsibilities and conceded that Mickshaw did perform
some of his field auditor tasks. Gettings’s opinion that
Mickshaw performed poorly—but was handsomely paid—as
the field auditor does not mean that Gettings was being
discriminated against with regard to her own employment as
a clerk. In sum, she and Mickshaw did not hold positions that
were similar in all relevant aspects. We thus find no error in
the district court’s conclusion that Gettings failed to establish
a prima facie case of discrimination under either federal or
state law.
3. Gettings’s employer for the purposes of the Title VII
The district court also properly granted summary judgment
on Gettings’s Title VII claim because the Fund does not
satisfy the statutory definition of an employer. An employer,
for purposes of Title VII, is “a person engaged in an industry
affecting commerce who has fifteen or more employees for
each working day in each of twenty or more calendar weeks
in the current or preceding calendar year . . . .” 42 U.S.C.
§ 2000e(b). The district court found that, from 1995 to the
10 Gettings v. Building
Laborers Local 310
Nos. 02-3454/3535
present, the Fund has never had 15 or more employees. Only
6 persons are employed by the Fund. Accordingly, as a
matter of law, the Fund was entitled to summary judgment on
Gettings’s Title VII claim.
Gettings attempted to overcome Title VII’s definition of an
employer by filing a motion to amend her complaint to add
the Union as a defendant. She argued that the Union and the
Fund were acting as a single employer. Because the Union
has 13 employees and the Fund has 6 employees, their
combined workforce would clear the 15-employee statutory
hurdle if they were considered a single employer. The district
court found that Gettings’s motion was moot because, even if
the Union and the Fund were indeed a single employer for the
purposes of Title VII, Gettings nonetheless failed to establish
a prima facie case of gender discrimination. Because we
agree with the district court’s adjudication on the merits of
Gettings’s gender discrimination claim, we conclude that the
district court properly dismissed as moot Gettings’s motion to
add the Union as a defendant.
We also note that there is nothing in the record before us to
indicate that the Fund and the Union were acting as a single
employer. The OCRC examined the operations and
management of the Fund and the Union and concluded that
the entities were “completely separate” and could not be
“merged” to satisfy the EEOC’s jurisdictional prerequisites.
After considering the appropriate test in this circuit, the
district court also concluded that Fund and the Union were
separate entities. See Distillery, Wine & Allied Workers Int’l
Union v. National Distillers & Chem. Corp., 894 F.2d 850
(6th Cir. 1990) (examining the interrelation of operations,
common management, centralized control of labor relations,
and common ownership as the key factors in a single-
employer analysis).
Because Gettings’s failure to file an affidavit under Rule
56(f) ended further development of the record on this point,

-- 5 of 9 --

Nos. 02-3454/3535 Gettings v. Building
Laborers Local 310
11
we decline to hold that the district court was clearly erroneous
in deciding that the Fund and the Union were separate
entities. See Michigan Bell Tel. Co. v. Engler, 257 F.3d 587,
592 (6th Cir. 2001) (stating that this court does not disturb
findings of fact unless the district court was clearly erroneous
in reaching its conclusion). Gettings’s motion to amend her
complaint was therefore not only moot, but meritless.
4. The district court’s alternative basis for dismissing
the Title VII claim
An alternative basis for dismissing Gettings’s Title VII
claim, the district court held, was her failure to meet certain
procedural requirements for filing suit in federal court.
Usually a person who files a charge with the EEOC that is
subsequently dismissed receives notice that she has a right to
pursue her claim in federal court. 42 U.S.C. § 2000e-5(f)(1).
This typically takes the form of a “right-to-sue” letter, stating
that the individual has 90 days from the date of the letter to
file a civil complaint in court. Gettings argues that her letter
from the EEOC failed to explain this procedural requirement
and was not captioned as a “right-to-sue” letter. She thus
contends that she should not be penalized for filing her
lawsuit over eight months after receiving the EEOC’s letter.
The district court pointed out that Gettings was in a no-win
situation. If the EEOC letter confirming Gettings’s
withdrawal of her charge met the statute’s requirement that
she be given notice of her rights, then she filed her complaint
too late. On the other hand, if the EEOC letter was not a
“right-to-sue” letter, then Gettings filed her case without
receiving clearance to do so. In either case, the district court
held that Gettings failed to meet the procedural prerequisites
of Title VII. Because the district court’s other reasons for
granting the Fund summary judgment are sound, we decline
to address this alternative basis for disposing of Gettings’s
Title VII claim.
12 Gettings v. Building
Laborers Local 310
Nos. 02-3454/3535
5. The ERISA claim
Gettings’s complaint also failed to articulate a claim under
ERISA. The district court assumed that Gettings was
attempting to argue that she was being discriminated against
because she received less favorable retirement benefits or
contributions than Mickshaw. But ERISA does not provide
a remedy for gender discrimination. ERISA prohibits
discrimination in the exercise of rights under an employee
benefit plan covered by ERISA. 29 U.S.C. § 1140.
Gettings’s complaint, however, did not allege that she was
being discriminated against in the exercise of her rights under
her employee benefit plan, the terms of which were
negotiated by her union. Nor did Gettings allege that she had
requested and was denied any specific benefit that she is due
under her employee benefit plan. Because Gettings failed to
state a claim for discrimination under ERISA, the district
court properly granted the Fund’s motion for summary
judgment on this issue. Gettings does not contest this aspect
of the district court’s holding.
Instead, Gettings has apparently seized on the Fund’s
interpretation of her ERISA claim as the basis for her appeal.
In interpreting Gettings’s complaint at the summary judgment
stage, the Fund assumed that Gettings was arguing that the
Fund’s plan did not qualify as a trust entitled to certain tax
advantages because it was paying higher benefits to the more
highly compensated employees, potentially in violation of
26 U.S.C. § 401(a)(4). The district court disagreed. After a
careful review of Gettings’s complaint, the district court
determined that Gettings was not alleging any cause of action
based upon the Fund’s purported violation of the Internal
Revenue Code.
For the sake of argument, however, the district court
assumed that Gettings had standing to assert the ERISA claim
as framed by the Fund. It nonetheless concluded that the
Fund’s plan was a qualified trust under the tax laws. The

-- 6 of 9 --

Nos. 02-3454/3535 Gettings v. Building
Laborers Local 310
13
court pointed out that in evaluating whether a trust is
providing highly compensated employees with more
favorable benefits than are being received by other plan
members, the tax code instructs that employees covered by
collective bargaining agreements are not considered in this
comparative analysis. See 26 U.S.C. § 410(b)(3)(A).
Gettings now frames her ERISA claim as a dispute over
standing. She appeals the district court’s supposed ruling that
she did not have standing to bring a claim against the Fund’s
pension plan for violating the tax code. As discussed above,
however, the district court did not hold that Gettings lacked
standing. To the contrary, the court assumed that Gettings did
have standing, but concluded that her claim was without
merit. Gettings’s unconvincing comeback to the district
court’s determination on the merits is that her collective
bargaining agreement is “of no consequence.” Regardless of
how Gettings’s ERISA claim is framed—as a discrimination
issue, a tax violation issue, or a standing issue—the district
court properly determined that the Fund was entitled to
summary judgment.
6. Discrimination based upon union membership
The district court properly determined that it did not have
jurisdiction over Gettings’s claim that the Fund had engaged
in an unfair labor practice by paying her less in wages and
benefits than it paid Mickshaw, in alleged violation of 29
U.S.C. § 158. Under the latter provision, an employer
engages in an unfair labor practice by discriminating “in
regard to . . . any term or condition of employment to
encourage or discourage membership in any labor
organization.” The National Labor Relations Board (NLRB),
however, “has been designated by Congress as the exclusive
forum of original jurisdiction for adjudicating questions of . . .
unfair labor practices . . . and . . . United States District
Courts have no such jurisdiction.” Lexington Cartage v. Int’l
Brotherhood of Teamsters, 713 F.2d 194, 195 (6th Cir. 1983).
14 Gettings v. Building
Laborers Local 310
Nos. 02-3454/3535
See 29 U.S.C. § 160(a) (empowering the NLRB to prevent
any person from engaging in unfair labor practices).
Gettings attempts to circumvent the NLRB’s exclusive
jurisdiction over this claim by arguing that “OPEIU is not a
legitimate collective bargaining unit” and that her
membership in OPEIU is a “sham.” Even if Gettings is
correct, which is not supported by the record, the NLRB still
has exclusive jurisdiction over the allegations of unfair labor
practices. See Carpenters District Council v. United
Contractors Ass’n of Ohio, Inc., 484 F.2d 119, 121-23 (6th
Cir. 1973) (holding that even where the collective bargaining
agreement is a sham, the NLRB has exclusive jurisdiction
over allegations of unfair labor practices). The district court
was therefore correct to dismiss this claim for lack of subject
matter jurisdiction.
C. The Fund’s motion for attorney fees
1. Standard of review
We now turn to the Fund’s cross-appeal, which relates to its
request for an award of attorney fees against Gettings. The
grant or denial of attorney fees by a district court is reviewed
under an “abuse of discretion” standard. Berger v. City of
Mayfield Heights, 265 F.3d 399, 402 (6th Cir. 2001). “Abuse
of discretion is defined as a definite and firm conviction that
the trial court committed a clear error of judgment.” Id.
(internal citation omitted). Because the district court denied
the Fund’s motion for attorney fees by a marginal order
without any explanation, it is impossible for us to determine
whether the district court committed a clear error of
judgment. This court has previously expressed its
“disapproval of marginal entry orders” that are contested and
dispositive of a substantive issue. Inland Bulk Transfer Co.
v. Cummins Engine Co., 332 F.3d 1007, 1015 n. 7 (6th Cir.
2003) (criticizing marginal orders because they frustrate
appellate review); see also Bank One v. Abbe, 916 F.2d 1067,

-- 7 of 9 --

Nos. 02-3454/3535 Gettings v. Building
Laborers Local 310
15
1082 (6th Cir. 1990) (stating that marginal orders are
disfavored because they create difficulties in properly
reviewing such dispositions); United States v. Woods, 885
F.2d 352, 353-54 (6th Cir. 1989) (complaining that the
district court’s use of a marginal order complicated and
potentially prejudiced appellate review).
A trial judge’s exercise of discretion in fee-award cases,
although “entitled to substantial deference . . . is not
absolute.” Adcock-Ladd v. Sec’y of Treasury, 227 F.3d 343,
349 (6th Cir. 2000) (reversing the district court’s award of
attorney fees because of improper calculation methods). In
awarding attorney fees, a “district court must provide a clear
and concise explanation of its reasons.” Id. (internal citation
omitted). By the same token, where there is significant
evidence in the record to support an award of attorney fees,
the district court should provide some explanation for its
denial of the award rather than simply entering a marginal
order. See Easley v. Value City Stores, Nos. 91-5288, 91-
5317, 1992 WL 3714, at *5 (6th Cir. Jan. 10, 1992)
(unpublished opinion) (remanding the employment
discrimination action to the district court to provide a
statement of reasons explaining why the employer was not
entitled to attorney fees when it prevailed on summary
judgment); see also Ellenburg v. Brockway, Inc., 763 F.2d
1091, 1097 (9th Cir. 1985) (remanding the case to the district
court with instructions that the court state its reasons for
denying the appellants’ motion for attorney fees); Gordon v.
U.S. Steel Corp., 724 F.2d 106, 108 (10th Cir. 1983) (same).
2. Evidence supporting an award of attorney fees to the
Fund
“[A] district court may in its discretion award attorney fees
to a prevailing defendant upon a finding that the plaintiff’s
action was frivolous, unreasonable, or without
foundation. . . .” Wilson-Simmons v. Lake County Sheriff’s
Dep’t, 207 F.3d 818, 823 (6th Cir. 2000) (internal citation and
16 Gettings v. Building
Laborers Local 310
Nos. 02-3454/3535
quotation marks omitted). But a “plaintiff should not be
assessed his opponent’s attorney fees unless the court finds
the claim was groundless at the outset or that the plaintiff
continued to litigate after it clearly became so.” Id. (internal
citation and quotation marks omitted) This determination,
“requires inquiry into the plaintiff’s basis for filing suit.” Id.
(internal citation omitted). Because the district court in the
present case used a marginal order, the record does not reveal
whether the court engaged in any inquiry concerning the
merits of Gettings’s claim.
“This court has noted that attorneys’ fees should be
awarded to defense counsel in Title VII actions only in the
most egregious circumstances.” Noyes v. Channel Products,
Inc., 935 F.2d 806, 810 (6th Cir. 1991). Such circumstances
may well be present here. The district court’s opinion
indicates that Gettings knew that the EEOC had declined to
investigate her Title VII claim on the basis that the Fund was
not an “employer” as defined by that statute. In fact, the
district court found that that is why she withdrew her charge
from the EEOC. The OCRC’s report further informed
Gettings that she could not merge the workforces of the
Union and the Fund in order to meet Title VII’s jurisdictional
requirements. Gettings thus had every reason to believe that
her Title VII claim was barred, yet she pursued it anyway.
She also failed to articulate any cognizable ERISA claim,
as is evident from the conflicting interpretations by the
district court and the Fund regarding the exact nature of
Gettings’s ERISA allegations. Under ERISA, a district court
“may allow a reasonable attorney’s fee and costs of action to
either party.” 29 U.S.C. § 1132(g)(1). This court has held
that when a district court exercises its discretion in awarding
attorney fees under ERISA, it should consider five factors:
(1) the degree of the opposing party’s culpability or bad
faith; (2) the opposing party’s ability to satisfy an award
of attorney’s fees; (3) the deterrent effect of an award on

-- 8 of 9 --

Nos. 02-3454/3535 Gettings v. Building
Laborers Local 310
17
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.

-- 9 of 9 --