Mollie Bonner and Sara J. Douglas appeal the adverse award of attorney's fees in their failed Title VII discrimination action. Our review of the record persuades that a reversal is in order.

Bonner and Douglas originally sued alleging claims under Title VII of the Civil Rights Act of 1964,1 the Age Discrimination in Employment Act,2 and the Employee Retirement Income Security Act.3 The facts of this litigation are set forth in great detail in the trial court's March 31, 1999, opinion granting summary judgment on all claims to the defendants. They need not be here repeated. After entry of said judgment the appellees petitioned for attorney's fees and expenses. The trial court granted same but only with respect to the Title VII claims.4 Bonner and Douglas timely appealed. We review for abuse of discretion.5

A district court may award attorney's fees to the prevailing Title VII defendant when it determines that "the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith,"6 a standard the Supreme Court has described as "stringent."7 In deciding whether an action is so lacking in merit as to justify awarding attorney's fees to the prevailing defendant, the trial court is to consider the denominated Sullivan factors, i.e., whether (1) the plaintiff established a prima facie case; (2) the defendant offered to settle; and (3) the trial court dismissed the case prior to trial.8

In its opinion granting fees on the Title VII claim the trial court noted the prescribed Sullivan analysis, but apparently then unduly relied upon our comment therein that "[c]ases where findings of 'frivolity' have been sustained typically have been decided in the defendant's favor on a motion for summary judgment ... [where] the plaintiffs did not introduce any evidence to support their claims."9 The trial court found that Bonner and Douglas had abandoned their claim of racial discrimination when opposing summary judgment, and had adduced no admissible evidence in support of their claim of gender discrimination. The court reasoned that this lack of admissible evidence should have been apparent to Bonner and Douglas, but nonetheless they apparently wrongfully continued to maintain their gender discrimination claim.

The record fully supports the trial court's grant of summary judgment to the defendants. We are not convinced, however, that the action was so "patently devoid of merit as to be frivolous."10 The evidence adduced by Bonner and Douglas was markedly weak, but the district court assumed that they had established their prima facie case.11 Of particular note, Bonner and Douglas submitted as evidence a neutral arbitrator's report on their termination concluding that Mobile Energy Services Company did not act with just cause when it discharged them. This report does not suggest that Douglas and Bonner were discharged based upon their gender, but it does establish at least the foundation of a claim that MESC acted out of ulterior motives. We must also note that prior to declaring bankruptcy MESC offered Bonner and Douglas $125,000 to settle their claims, including those arising from the arbitrator's decision. Taken together, we cannot say that Bonner and Douglas were actionably frivolous or unreasonable in maintaining their gender discrimination claim through the summary judgment stage. Care must be taken to remain sensitive to the policy considerations militating against imposing fees on unsuccessful plaintiffs in discrimination claims which might "discourage all but the most airtight claims" and "undercut the efforts of Congress to promote the vigorous enforcement provisions of Title VII."12 Accordingly, we must conclude that awarding the defendants attorney's fees herein was an abuse of discretion, and the action of the court in doing so is REVERSED.