Free Reply to Response to Motion - District Court of Arizona - Arizona

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Tibor Nagy, Jr. (#007465) ([email protected]) Erica Rocush (#021297) ([email protected]) SNELL & WILMER L.L.P. One South Church Avenue, Suite 1500 Tucson, AZ 85701-1630 Telephone: (520) 882-1200 Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff and, KELLEY J. MILES, Plaintiff-Intervenor, v. THE BOEING COMPANY, a Delaware corporation, and BOEING AEROSPACE OPERATIONS, INC., a Delaware corporation, Defendants.

No. CV'03 1210 PHX PGR REPLY IN SUPPORT OF DEFENDANTS' MOTION FOR AWARD OF ATTORNEYS' FEES (Oral Argument Requested)

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In response to Boeing's Motion for Award of Attorneys' Fees, Plaintiff EEOC ("EEOC") and Plaintiff-Intervenor Kelley Miles ("Miles") (collectively, "Plaintiffs") make several arguments as to why the Court should not award Boeing its attorneys' fees and costs incurred in defense of Plaintiffs' retaliation claims. None of Plaintiffs'

arguments, however, effectively refutes the legal and factual bases for such an award, as explained in Boeing's Memorandum of Points and Authorities in Support of Defendants' Motion for Award of Attorneys' Fees ("Memorandum"), nor do these arguments justify denying Boeing the attorneys' fees and non-taxable costs it incurred

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defending against Plaintiffs' retaliation claims. I. BOEING TIMELY FILED A FAIR ESTIMATE OF THE AMOUNT OF FEES IT WOULD BE SEEKING. Initially, Plaintiffs assert that Boeing should be denied any fee award because it failed to timely provide a fair estimate of the amount of fees it was seeking. Plaintiffs' argument cites no case authority, nor is it supported by Local Rule 54.2(b)(1)(B). That rule requires simply that a party seeking recovery of attorneys' fees provide "a fair estimate" of the amount of attorneys' fees and non-taxable costs sought within fourteen days of the entry of judgment. This Court entered judgment in favor of Boeing on October 4, 2005. Boeing filed it Motion for Award of Attorneys' Fees ("Motion") on October 12, 2005 (clearly within the 14 days mandated by Rule 54.2), and stated therein: Boeing has not yet determined the precise amount of attorneys' fees and non-taxable costs related to the retaliation claims, as undersigned counsel first must conduct an extensive review of time sheets and billings paid by Defendant in this matter. As explained above, Boeing seeks an award limited to the portion of the total fees that are reasonably related to the defense of the retaliation claims and, therefore, needs to determine what portion of the total is attributable to the defense of those claims. Notwithstanding the foregoing, Defendant affirms that so far it has paid, or agreed to pay, approximately $157,000.00 in defense of this litigation. (Motion at p. 4). The foregoing paragraph plainly states that Boeing would be seeking some portion of the approximately $157,000 in fees and costs that it had incurred in defense of this litigation, and that this portion would relate exclusively to the Plaintiffs' retaliation claims. Nothing in Rule 54.2(b)(1)(B) suggests that a "fair estimate" requires any further elaboration. Plaintiffs' argument appears to be nothing more than an attempt to elevate form over substance. The amount Boeing eventually requested in its subsequent

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Memorandum of Points and Authorities was less than its initial estimate.

Thus,

Plaintiffs cannot claim that they were somehow unfairly prejudiced by Boeing's initial estimate. Moreover, Plaintiffs were accorded a full and fair opportunity to address and respond to the exact amount of the fees Boeing seeks from them. Plaintiffs' "fair estimate" arguments should be disregarded. II. PLAINTIFFS' RETALIATION CLAIMS WERE FRIVOLOUS. A. The Three Factors Cited by Boeing in its Motion Are Relevant to the Court's "Frivolousness" Determination. Accordingly,

Plaintiffs do not dispute that 42 U.S.C. § 2000e-5(k) permits an award of fees to a prevailing party in a Title VII matter, nor that a prevailing defendant in such cases is entitled to an award of fees and non-taxable costs when a plaintiff's claim is "frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978); EEOC v. Pierce Packing Co., 669 F.2d 605, 609 (9th Cir. 1982). Plaintiffs do challenge the applicability of the three factors used in the cases cited in Boeing's Memorandum for determining whether the Christiansburg "frivolousness" standard has been met. However, when one analyzes Plaintiffs' arguments, at most they contend that the three factors do not constitute an exclusive test and that each fee application must be judged on its facts. Boeing has no quarrel with that contention. Consequently, what remains is that both case law and common sense mandate that "frivolousness" should be determined, at least in pertinent part, by assessing (1) whether the plaintiffs met their prima facie case, (2) whether, and to what extent, the defendant made a settlement offer, and (3) whether the case was dismissed before trial. See, e.g., Quintana v. Jenne, 414 F.3d 1306, 1309 (11th Cir. 2005); EEOC v. L.B. Foster Co., 123 F.3d 746, 751 (3d Cir. 1997). If a plaintiff cannot even establish a prima facie case or present sufficient evidence to take a case to trial, those factors (along with the absence

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of a substantial offer of settlement from the defendant) logically weigh in favor of a finding of frivolousness. B. Plaintiffs' Retaliation Claims Were Frivolous.

In addition to disingenuously challenging the relevance of the three factors identified by Boeing in its Memorandum, Plaintiffs' only other response to Boeing's "frivolousness" arguments is to attempt to relitigate the motion for summary judgment. Plaintiffs merely repeat the same arguments they originally made in their responses to the motion for summary judgment, claiming this time that those arguments prove Plaintiffs' claims were not frivolous. In the interest of judicial economy, and because Plaintiffs fail to present any new arguments as to why their retaliation claims should not be deemed frivolous, Boeing will not repeat the arguments made in its Memorandum. Boeing reemphasizes that Plaintiffs failed to state a prima facie case for their retaliation claims and that they continued to litigate the retaliation claims long after they should have realized that those claims were unsupported, and in some instances even contradicted, by admissible evidence and relevant legal authority. Plaintiffs' continued litigation of the retaliation claims, therefore, was "frivolous, unreasonable, and without foundation" and merits an award of fees and non-taxable costs in favor of Boeing. III. APPORTIONMENT OF FEES BETWEEN THE SEXUAL HARASSMENT AND RETALIATION CLAIMS IS APPROPRIATE. Next, Plaintiffs argue that, even if their retaliation claims were deemed frivolous, Boeing still is not entitled to any attorneys' fees because the retaliation and sexual harassment claims were interrelated. According to Plaintiffs, such interrelation justifies denying all fees to Boeing. jurisdiction. The only case Plaintiffs cite in support of their argument is Crowe v. Wiltel, 103 Such an outcome is unsupported by the law of this

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F.3d 897 (9th Cir. 1996). The Ninth Circuit's entire fee award discussion in Crowe consists of the following paragraph: We review for abuse of discretion the district court's denial of fees and costs. Title VII permits courts to award the prevailing party in an employment discrimination case a reasonable attorney's fee as part of an award of costs. In addition, the Supreme Court has held that "a district court may in its discretion award attorney's fees to a prevailing defendant in a Title VII case upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." The district court concluded that Crowe's various claims were so interrelated that fees could not practicably be attributed to the Title VII claims alone. The court further decided that her claims were not so frivolous or unreasonable as to meet the Christiansburg standard. The district court was well within its discretion in concluding that Wiltel and Malone were not entitled to fees and costs. The court properly took into account the impracticality of assessing costs and the fact that the plaintiff's claims were neither frivolous nor unfounded in evidence. As is clear from the foregoing paragraph, and contrary to Plaintiff's assertions, Crowe is neither analogous to the present case nor an "express endorsement" by the Ninth Circuit that a court should not apportion fees between frivolous and non-frivolous claims when such claims are interrelated. The decision contains no analysis whatsoever of the apportionment issue. Moreover, the Ninth Circuit's holding that the defendant in Crowe was not entitled to any fees was, in part, expressly based on the Court's finding that none of the plaintiff's claims were frivolous. Moreover, notwithstanding the cryptically analyzed Crowe decision, a much more recent Ninth Circuit case, Cairns v. Franklin Mint Co., 292 F.3d 1139 (9th Cir. 2002), contains an extensive discussion of the fees apportionment issue, and expressly endorses apportionment of fees as an accepted practice in the Ninth Circuit. In Cairns, the defendant Franklin Mint sought an award of fees for its successful defense of the plaintiff's three claims brought under the federal Lanham Act. Under the Lanham Act, attorneys' fees are available to prevailing parties only in exceptional cases--where the

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claims are "groundless, unreasonable, vexatious or pursued in bad faith" (a standard strikingly similar to the Title VII standard for prevailing defendants). Id. Although Franklin Mint successfully defended against all three Lanham Act claims (which involved a "common core of facts" and/or "related legal theories"), the district court found that only two of the three claims were "groundless" and, therefore, subject to an award of attorneys' fees. The district court determined the proper amount of the fee award simply by discounting all of the fees incurred in defense of the Lanham Act claims by thirty percent to account for the one of the three claims for which Franklin Mint was not entitled to fees.1 Notably, as relevant to Plaintiffs' argument in this case, although Franklin Mint's attorneys grouped together all of their time for the three Lanham Act claims, and did not distinguish time as being spent on any individual claim, neither the district court nor the Ninth Circuit viewed this as any impediment to awarding fees. Indeed, in upholding the district court's fee award, the Ninth Circuit stated that where, as in this case, the plaintiff's claims involve a common core of facts or are based on related legal theories, it is difficult to divide the hours expended on a claim-by-claim basis. This Circuit has cautioned, however, that "the impossibility of making an exact apportionment [between recoverable Lanham Act claims and nonrecoverable nonLanham Act claims] does not relieve the district court of its duty to make some attempt to adjust the fee award in an effort to reflect an apportionment." By analogy, the same rule should apply in cases such as this one, which involves nonrecoverable Lanham Act claims, rather than...non-recoverable non-Lanham Act claims. Id. at 1157 (citations omitted, emphasis in original). The Ninth Circuit concluded that Although Plaintiffs argue that the case is distinguishable because the Court noted that Franklin Mint had an unusually large number of hours and timekeepers involved in its defense, such a distinction is irrelevant for purposes of Boeing's fee request, as it does not in any way undermine the Ninth Circuit's holding that the district court was correct in awarding fees to the defendant and merely reducing them to account for the fact that the defendant was not entitled to fees on one of the three Lanham Act claims, even though the claims were interrelated.
1

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"[a] percentage reduction was appropriate in this case." Id. Similarly, in Ward v. Hickey, 996 F.2d 448, 455-56 (1st Cir. 1993), the First Circuit endorsed a proportional award of fees to a prevailing defendant when only some of the plaintiff's claims were fee-recoverable, holding that the district court erred in relying on the so-called "interrelated claims doctrine" to deny the defendant an award of fees under 42 U.S.C. § 1988 (which uses the same standard for fee awards as § 2000e5(k)). The interrelated claims doctrine states "that once a court decides that a party has prevailed for the purposes of a fee-shifting statute, a fee award may include fees for work performed on unsuccessful claims if that party's unsuccessful claims are interrelated to the successful claims by a common core of facts or related legal theories." Id. In declining to apply that doctrine to deny a fee award to a prevailing defendant, the First Circuit stated: We find the district court's reliance on the interrelated claims doctrine misplaced. That doctrine is used for convenience in the difficult task of calculating fees. It is inapplicable unless the court initially finds the plaintiff a prevailing party. A court may not use the doctrine to decide not to grant any fees. The standard for a civil rights defendant to receive fees is high to encourage legitimate civil rights claims. On the other hand, frivolous civil rights claims waste judicial resources that would otherwise be used for legitimate claims. Accordingly, a district court should not deny fees for defending frivolous claims merely because calculation would be difficult. Id. (citations omitted); see also Hensley v. Eckerhart, 461 U.S. 424, 435 n.10 (1983) (noting that if a plaintiff succeeds on one claim but also asserts a frivolous claim, "the defendant may recover attorneys' fees incurred in responding to" the frivolous claim); Curry v. A.H. Robins Co., 775 F.2d 212 (7th Cir. 1985) (awarding defendant its attorneys' fees and costs for plaintiff's claim under 42 U.S.C. § 1988 after finding plaintiff's § 1983 claim was frivolous, even though plaintiff's remaining two interrelated claims were not recoverable).

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As the foregoing cases establish (especially Cairns), it is completely appropriate for a court to award a prevailing defendant a portion of its fees incurred in defending against a frivolous claim, even if that claim is interrelated with a nonfrivolous claim. Indeed, the First Circuit in Ward held that failure to apportion in such cases is wholly inappropriate and subject to remand. Therefore, it would be entirely appropriate as a matter of law, and under these facts, for the Court to award Boeing that portion of its fees and non-taxable costs reasonably related to the defense of the retaliation claims. Furthermore, relying on the allocation used in Cairns, an award of 50% of Boeing's total fees and non-taxable costs is both reasonable and appropriate. As

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explained in the Memorandum, Plaintiffs' retaliation claims were at least as important, and required at least as much effort to defend, as the hostile work environment claims. Therefore, Boeing is entitled to the fees and costs it requested in the Memorandum, which represents 50% of the total fees incurred by Boeing in defending this litigation. IV. PLAINTIFFS CANNOT ESCAPE LIABILITY FOR FEES BY RELYING ON THE EEOC'S REASONABLE CAUSE FINDING. Plaintiffs also attempt to escape liability for attorneys' fees and costs by relying on the EEOC's "reasonable cause" findings. First, Miles argues that she cannot be held financially responsible for pursuing her frivolous retaliation claims because she reasonably relied on the EEOC's cause determination.2 Such an argument might have merit where the plaintiff is unrepresented. See e.g., Mitchell v. Office of Los Angeles Miles also argues that fees should not be awarded against her because of her financial situation. Although Boeing concedes that a party's financial situation is a relevant factor in determining if a fee award is appropriate, the law in the Ninth Circuit is clear that "a district court should not refuse to award attorney's fees to a prevailing defendant under 42 U.S.C. § 1988 or 42 U.S.C. § 2000e-5(k) solely on the ground of the plaintiff's financial situation." Miller v. Los Angeles County Bd. of Educ., 827 F.2d 617 (9th Cir. 1987). However, if the Court finds that that Miles, because of her financial situation, should not be liable for fees, then it is within the Court's discretion to make the EEOC, which is under no similar financial constraints, liable for the entire amount of fees.
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County Superintendent, 805 F.2d 844 (9th Cir. 1986) (fees should not be awarded against pro se plaintiff who relied on an EEOC reasonable cause finding). To the contrary, Miles was represented by competent legal counsel throughout this litigation. Her attorneys were more than capable of determining whether the EEOC's "reasonable cause" determination had merit, especially when the Plaintiff herself contradicted some of the very "facts" upon which the EEOC presumably based its determination.3 Blindly following the EEOC's lead serves no legitimate purpose and should not be rewarded with a free pass from the adverse effects of a fee-shifting award. Turning to the EEOC's claim that its own "reasonable cause" determination justifies avoidance of liability for Boeing's attorneys' fees and costs, this argument is nothing short of mystifying. According to the EEOC's reasoning, a reasonable cause determination creates a form of absolute immunity on behalf of the EEOC against all attorneys' fee awards (not just the one in this case), inasmuch as the EEOC always finds "reasonable cause to believe there has been unlawful conduct" in cases that it elects to prosecute civilly. The EEOC's sole apparent support for this defense is the Ninth Circuit's decision in Mitchell, supra. However, as noted above, that case involved a pro se plaintiff's reliance on an EEOC determination, not the EEOC's attempt to rely on its own determination. Moreover, since Mitchell was decided, the Ninth Circuit has expressly held in at least two published opinions that an EEOC reasonable cause determination "d[oes] not create a genuine issue of material fact." See Coleman v. Quaker Oats Co., 232 F.3d 1271 (9th Cir. 2000) and Mondero v. Salt River Project, 400 F.3d 1207, 1215 (9th Cir. 2005). An EEOC reasonable cause determination should fare no better when scrutinized For example, as this Court noted in its Dismissal Order, Miles alleged that she was falsely accused of damaging an aircraft, when her sworn testimony directly refuted this allegation. Thus, Miles was responsible for providing information to the EEOC that she knew, or should have known, lacked any evidentiary support.
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under a fee-shifting analysis.

Furthermore, the EEOC's immunity defense would

effectively eviscerate the plain meaning of 42 U.S.C. 2000e-5(k), as well as any decisions in which courts have awarded attorneys' fees to defendants who prevailed against the EEOC. See, e.g., EEOC v. Datapoint Corp., 457 F. Supp. 62 (W.D. Tex. 1978) (awarding fees to prevailing defendant because EEOC continued to litigate a claim it should have known was meritless); Neidhardt v. D.H. Holmes Co., 583 F. Supp. 1271 (E.D. La. 1984) (same). In short, as both the EEOC and Miles continued to litigate their frivolous retaliation claims, one (or both) of them must be responsible for the fees they caused Boeing to incur. As noted in the Memorandum, Boeing expresses no opinion as to the appropriate allocation of any ultimate fee award between the Plaintiffs, but it would be unjust for Boeing to bear the burden of the fees incurred in defending against the frivolous retaliation claims merely because the EEOC issued a reasonable cause finding. V. THE FEES INCURRED BY BOEING WERE REASONABLE. Finally, Plaintiffs do not dispute the reasonableness of the fees and costs Boeing has incurred in defending this litigation. Therefore, if the Court finds, as it should, that Boeing is entitled to the fees and costs related to the retaliation claims, the Court should award 100% of the fees and costs claimed by Boeing, plus accrued interest. DATED this 24th day of January, 2006. SNELL & WILMER L.L.P.

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By

s/ Tibor Nagy, Jr. Tibor Nagy, Jr. Erica Rocush One South Church Avenue Suite 1500 Tucson, AZ 85701-1630 Attorneys for Defendants

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Certificate of Service I hereby certify that on January 24, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Mary Jo O'Neill C. Emanuel Smith Katherine J. Kruse Equal Employment Opportunity Commission 3300 North Central Avenue, Suite 690 Phoenix, AZ 85012-2504 Attorneys for Plaintiff EEOC Richard L. Green Paul D. Friedman Van O'Steen and Partners 3605 North Seventh Avenue Phoenix, AZ 85013 Attorneys for Plaintiff-Intervenor Miles

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____s/ Tibor Nagy, Jr.
400288.2

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