The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER DENYING DEFENDANT'S MOTION FOR ATTORNEY'S FEES OR, IN THE ALTERNATIVE, MOTION FOR SANCTIONS
Plaintiff, Alan T. Boyce, brought a pro se action against defendant, Interbake Foods, alleging claims of hostile work environment and retaliation under Title VII and a state-law claim of intentional infliction of emotional distress. The court granted Interbake's motion to strike two sets of documents that Boyce produced in opposing Interbake's summary judgment motion and granted Interbake's summary judgment motion on all claims. Docket 99. Boyce appealed. Docket 102. The appeal is still pending. Interbake moves for attorney's fees or, in the alternative, for sanctions for the costs associated with its motion to strike. Docket 106. Boyce does not resist the motion.*fn1 The motion is denied.
The pertinent facts to this order are as follows:*fn2 Interbake is a cookie and cracker manufacturer. Boyce, an African-American male, began working at Interbake in August of 2005 in the packaging and additions department at Interbake's facility in North Sioux City, South Dakota.
In January of 2008, Boyce filed a charge of racial discrimination with the Equal Employment Opportunity Commission (EEOC), and the dispute was resolved through mediation on February 21, 2008. From February of 2008 to June 5, 2008, a few incidents occurred between Boyce and Interbake's managers, which Boyce believed constituted discrimination and retaliation. In June of 2008, Boyce filed a charge of discrimination and retaliation with the South Dakota Division of Human Rights (SDDHR). The SDDHR dismissed the charge. Boyce appealed the SDDHR decision to the South Dakota Circuit Court for the First Judicial Circuit, which determined that Interbake's actions constituted neither racial discrimination nor retaliation.
Additional incidents occurred from July of 2008 through February 29, 2009, which Boyce believed constituted racial discrimination and retaliation. In April of 2009, Boyce filed a charge with the EEOC alleging discrimination and retaliation. The EEOC dismissed the charge, and Boyce received his right-tosue letter on June 11, 2009. Boyce filed this lawsuit on September 10, 2009.
On November 1, 2010, Interbake moved for summary judgment. Docket 41. Boyce resisted and submitted a number of documents in opposition to the motion. Interbake moved to strike two sets of documents that Boyce had filed. Docket 94.
In November of 2010, Boyce discovered a cookie at Interbake, which he claimed was racially offensive. Boyce moved to compel discovery about the cookie and other items. After construing Boyce's motion to compel as a motion to modify the Rule 16 scheduling order, the court denied all requests in the motion except Boyce's request to allow additional discovery over the allegedly racially offensive cookie. Docket 82. In ruling on Interbake's summary judgment motion, the court considered the additional information about the allegedly racially offensive cookie.
Interbake moves under Title VII for its costs and attorney's fees in defending this action in the amount of $49,088.50.*fn3 The court has discretion to award attorney's fees to the prevailing party in a Title VII case. 42 U.S.C. § 2000e-5(k). Even though Boyce has appealed the court's grant of summary judgment, the court "retains jurisdiction over collateral matters, such as attorney's fees or sanctions, while an appeal is pending." State ex rel. Nixon v. Coeur D'Alene Tribe, 164 F.3d 1102, 1107 n.3 (8th Cir. 1999) (citations omitted).
"[T]he Supreme Court has distinguished between prevailing Title VII plaintiffs and prevailing Title VII defendants" in awarding attorney's fees. Marquart v. Lodge 837, Int'l Ass'n of Machinists & Aerospace Workers, 26 F.3d 842, 848 (8th Cir. 1994). A court awards attorney's "fees to a prevailing Title VII plaintiff in 'all but very unusual circumstances[.]' " Id. (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 415 (1975)). But a prevailing Title VII defendant only receives its attorney's fees if the "court finds that [the plaintiff's] claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so." Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412,422 (1978); E.E.O.C. v. Trans States Airlines, Inc.,462 F.3d 987, 996 (8th Cir. 2006) (same). " 'The strict nature of the Christiansburg standard is premised on the need to avoid undercutting Congress'[s] policy of promoting vigorous prosecution of civil rights violations under Title VII[.]' " Chester v. St. Louis Housing Auth., 873 F.2d 207, 209 (8th Cir. 1989)(alteration in original) (quoting Miller v. Los Angeles Cnty. Bd. of Educ., 827 F.2d 617, 619 (9th Cir. 1987)).
In applying the Christiansburg test, the court must "resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation. This kind of hindsight logic could discourage all but the most airtight claims[.]" Christiansburg, 434 U.S. at 421-22. If the plaintiff had a colorable Title VII claim, even if the court ultimately determined that the claim was meritless, then attorney's fees to the defendant are not usually proper. Trans States,462 F.3d at 996. "Those factors which have prompted courts to award attorney's fees to a prevailing defendant are typified by a finding that the plaintiff brought his action in bad faith." Mosby v. Webster Coll., 563 F.2d 901, 905 (8th Cir. 1977) (citations omitted).
" 'Christiansburg should be applied in pro se cases with attention to the plaintiff's ability to recognize the merits of his or her claims.' " Chester, 873 F.2d at 209 (quoting Miller, 827 F.2d at 620). Moreover, "pro se plaintiffs cannot simply be assumed to have the same ability as a plaintiff represented by counsel to recognize the ...