In a suit of this kind, involving both frivolous and non-frivolous claims, a defendant may re- cover the reasonable attorney’s fees he expended solely because of the frivolous allegations. And that is all. Consistent with the policy underlying §1988, the defendant may not receive compensation for any fees that he would have paid in the absence of the frivolous claims.

A 69 year old male who was terminated for allegedly engaging in sexual harassment did not survive summary judgment on his age discrimination claim in this Fifth Circuit case. Plaintiff claimed he was treated differently than younger workers, presented his own affidavit denying he engaged in the alleged harassment, presented a co-worker's affidavit that she did not "perceive his alleged comments as sexual harassment," and a statement from another worker that the person who fired plaintiff had called him an “old, gray-haired fart.” The later remark occurred more than a year before the termination and was deemed a stray remark. Because the issue is whether the company's articulated reason is a pretext for discrimination, not whether it is true or not, the Court found both the co-worker's perception and the plaintiff's denial insufficient to create a material issue of fact on the issue of pretext. As to the dissimilarity of treatment of the younger workers, plaintiff had failed to argue that below in opposing summary judgment, so the court did not consider that argument.

In Burnett v. Stewart Title, Inc., the federal Fifth Circuit Court of Appeals has joined the Third Circuit in holding that Section 525 of the Bankruptcy Code does not provide a cause of action against private employers who engage in discriminatory hiring practices against debtors in bankruptcy.

A divided Fifth Circuit panel has ruled that a mixed motive instruction in a Title VII retaliation case is appropriate, does not require direct evidence to support it, and is not inconsistent with the Supreme Court's decision in Gross v. FBL Financial Services, Inc., 129 S. Ct. 23 43 (2009). The majority opinion (Reavely and Wiener) is a must read for practitioners in the Fifth Circuit. It presents the past and present law of the Circuit in a straightforward, understandable opinion. The dissent (Jolly) notes the decision conflicts with the Seventh Circuit's ruling in Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 961 (7th Cir. 2010).