A recent Eastern District decision, Butler v. Coca-Cola, 12 Civ. 1791 (Aug. 26, 2013), illustrates the risks inherent in litigation in general and employment litigation in particular.
There, the court taxed costs against plaintiff in the amount of $2,800.64 following its dismissal, on summary judgment, of plaintiff’s Section 1981 hostile work environment and retaliation claims.
Citing the “default rule .. that costs should be awarded to the prevailing party” subject to the court’s discretion and notwithstanding plaintiff’s claim that her “impoverished circumstances” justified a denial of taxation of costs, the court noted:
It is thus not too much to ask any litigant, whether in a civil rights case or otherwise, to appreciate her possible exposure for a relatively small amount of costs in making the decision whether to commence litigation in a federal court. It is also not an undue deterrent to expect plaintiff’s lawyers to advise a client that that when she sues, she faces an exposure for a relatively nominal amount of costs should she not prevail, and I assume that happened here.
This last point is applicable because, although plaintiff points to the case having been brought in good faith, the fact is that while the filing did not violate Fed.R.Civ.P. 11, this was a marginal case from the outset, built largely on an alleged piece of workplace gossip (a supervisor allegedly said something to the effect that he was getting rid of African–American workers because Mexicans were harder working). But plaintiff was never even able to offer admissible evidence that this remark had ever been made. Her hostile work environment claim was also quite clearly time-barred once she conceded, as she had to, that there was no evidence supporting her claim for discriminatory termination, having already suffered an arbitrator’s adverse finding that she was fired for cause. In any event, good faith alone is not a sufficient ground to deny costs.
As to her claim of financial hardship, the court noted that plaintiff did not present a financial affidavit as to her current circumstances and that she appeared to have recently started a new job.