Burks

MEMORANDUM *

In a prior appeal, a panel of this court affirmed the district court’s summary judgment dismissal of an action filed by Robert Burks, an African-American traffic officer with the California Highway Patrol (“CHP”), in which Burks had alleged race discrimination, racial harassment, and retaliation in violation of Title VII and California’s Fair Employment and Housing Act. See Burks v. California Highway Patrol, 2 Fed.Appx. 887 (9th Cir.2001). Concluding that it could not tell whether the district court had pro'perly applied the analysis set forth in Christiansburg Garment Co. v. EEOC, 434 U.S. 412 , 98 S.Ct. 694 , 54 L.Ed.2d 648 (1978) for determining the propriety of an award of attorney’s *109 fees to a prevailing Title VII defendant, the panel vacated the district court’s attorney’s fee award and remanded for clarification and more specific findings. Id. at ---. Burks now appeals the district court’s second order awarding the CHP $130,144 in attorney’s fees. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We review a trial court’s grant of attorney’s fees under 42 U.S.C. § 2000e-5(k) for abuse of discretion. See EEOC v. Bruno’s Restaurant, 13 F.3d 285, 287 (9th…

Dissenting.

I respectfully dissent. Even if Burks did present a prima facie case, the fact remains that he knew what the California Highway Patrol’s response to that would be, and, likewise, had no evidence to challenge that response. In other words, at the end of the day he could not prevail and he knew that from the beginning, even if the district court did not. Thus, the district court did not err.