Free Response in Opposition to Motion - District Court of Arizona - Arizona

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MARY JO O'NEILL AZ BAR # 005294 C. EMANUEL SMITH MS BAR # 7473 KATHERINE J. KRUSE AZ BAR # 019167 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Phoenix District Office 3300 North Central Avenue, Suite 690 Phoenix, Arizona 85012 Telephone: (602) 640-5029 e-mail: [email protected] Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Equal Employment Opportunity Commission, ) ) ) ) Plaintiff, ) ) Kelley J. Miles, ) ) Plaintiff-Intervenor, ) ) vs. ) ) The Boeing Company, a Delaware ) corporation, and Boeing Aerospace Operations, Inc., a Delaware corporation, ) ) ) Defendants. CV 03-1210 PHX PGR PLAINTIFF EEOC'S SUPPLEMENTAL RESPONSE TO DEFENDANTS' MOTION FOR AWARD OF ATTORNEYS' FEES

Plaintiff, the EEOC, hereby files this supplemental response to Defendants' Motion for Award of Attorneys' Fees. Defendants filed their initial Motion on October 12, 2005 and the EEOC filed a Response on October 31, 2005. Defendants filed a Memorandum of Points and Authorities on December 5, 2005, pursuant to Local Rule Civil 54.1. This supplemental response address the issues in Defendants' Memorandum that have not been fully addressed already. The EEOC also joins in the Supplemental Response filed by Plaintiff Intervenor, with the exception of the first two paragraphs of subsection 5, beginning on page 15, for which the EEOC lacks sufficient knowledge. The EEOC incorporates its initial Response, the portion of Intervenor's Supplemental Response to which it joins, and its Motion to Strike Defendants' evidence regarding settlement discussions, herein by reference. A. The Retaliation Claim Was Not Frivolous, Unreasonable, or Without Foundation

As set forth in the EEOC's initial Response, Boeing cannot obtain attorneys' fees

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unless it proves that the Plaintiffs' retaliation claim, the only claim for which it seeks fees, was "frivolous, unreasonable, or without foundation." Christianburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978). The EEOC's initial Response explains why the retaliation claim was non-frivolous, reasonable, and with foundation when filed, and Intervenor's supplemental response explains why the claim remained so throughout the litigation. In arguing to the contrary in their Memorandum, Defendants continue to engage in the very post hoc reasoning the Supreme Court cautioned against. Id. at 421-422. For all of the reasons set forth in both the EEOC's initial response and Intervenor's supplemental response, Defendants' M otion for Award of Attorneys' Fees should be denied in entirety. B. Fees Should Not Be Aw arded for the Retaliation Claim Because the Litigation Largely Involves One Extended Course of Conduct and Two Legal Claims Regarding That Conduct.

The Ninth Circuit has expressly endorsed the practice of not apportioning fees when claims are so interrelated that fees cannot be practicably attributed to specific claims. See Crowe v. Wiltel Comm. Sys., 103 F.3d 897, 900-901 (9 th Cir. 1996). Due to the highly interrelated nature of the claims in this action, it is impossible to attribute the fees in this litigation to one claim or another. Defendant even acknowledges that many of the allegations made by Plaintiffs related to both the hostile work environment and retaliation claims. Not only the allegations, but the vast majority of the evidence gained during discovery, pertain to both the hostile work environment and the retaliation claims. The claims in this case are so highly interrelated because they rely on one extended course of conduct. Plaintiffs asserted that, after an initial period of harassment due to Kelley Miles's sex, female, the rest of the harassing conduct directed to Kelley Miles over many years constituted a hostile work environment based on both (1) her sex, female, and (2) retaliation for Miles's complaints about the initial harassment. That is, the claims largely involve one extended course of conduct and two legal claims regarding that conduct. Plaintiffs discussed the high degree of interrelationship between the claims at multiple points in their Response to Defendants' summary judgment motion. Plaintiffs stated: Because Boeing did not adequately address Miles' initial reports of harassment, the harassment continued via misconduct by both Miles's coworkers and by her supervisor and other managers. The harassment continued 2 Case 2:03-cv-01210-PGR Document 152 Filed 01/06/2006 Page 2 of 7

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to be an expression of hostility to Miles as a female, and was sufficiently severe and pervasive to create a hostile work environment. See Oncale, 523 U.S. at 81. The incidents are also retaliatory harassment for Miles's reports; thus they constitute adverse employment action for purposes of the retaliation claim Ray, 217 F.3d at 1242, 1243. (Pls.' Jt. Resp. to Defs.' Mot. for Summ. J. at 13-14; see also Jt. Resp. at § VIII heading (stating "Failure of Internal Processes Constitutes Further Harassment and Retaliation").1 Due to this high degree of interrelationship, the course of this litigation would have changed only nominally had there been only a claim of harassment based on sex, and no claim of harassment as retaliation. Awarding Defendants' attorneys fees on the retaliation claim, then, would unfairly compensate Defendants for defending a harassment claim for which they do not seek fees at all, a claim they acknowledge to be non-frivolous, reasonable, and with foundation. Given the high degree of interrelationship between the claims, it is not surprising that Defendants do not attempt to separate fees between the two claims. Defendants do not point to a single one of the depositions that would not have been taken had their been no retaliation claim, or any other discovery that would have differed more than nominally. Defendants assert, without support, that five deponents responded to questions that related almost exclusively to the allegations underlying the retaliation claims. This assertion is misleading at best. These deponents responded to questions that related to the harassment claim, the retaliation claim, and, in large part, the facts that pertained to both claims. Defendant makes repeated statements about the "distinct" and "independent" hostile work environment and retaliation claims. For the reasons already stated, these assertions are also, at best, misleading. As explained above and in Plaintiffs' summary judgment response, the highly-interrelated claims involve harassment based on gender, followed by more harassment based on both gender and retaliation. Defendants cannot now, merely by asserting to the contrary, make the claims "distinct" and "independent."

Defendants' assertion, that 16 of the 28 pages of Plaintiffs' response pertain to the retaliation claim, is misleading. Only 5 of Plaintiffs' 28 pages of response pertain solely to the retaliation claim, setting forth the governing legal standard and analyzing the facts as they related to retaliation. Slightly more than 7 pertain solely to the harassment claim. Over 10 set forth facts pertaining to both claims. The remainder pertain to other matters including punitive damages. 3 Case 2:03-cv-01210-PGR Document 152 Filed 01/06/2006 Page 3 of 7

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For all of the reasons set forth in this section, the request for attorneys' fees for the retaliation claim should be denied due to the inseparable nature of the harassment and retaliation claims. C. The Cases on Which Defendants Rely Due Not Support their Request for Fee Apportionment

The cases Defendants cite, in which the Ninth Circuit has reduced fees on a percentage basis, are readily distinguishable from the above-captioned action. In Schwarz v. Secretary of Health and Human Servs., 73 F.3d 895, 904 (9 th Cir. 1995), the Ninth Circuit concluded that the claims on which the plaintiff prevailed were based on different facts and a different course of conduct than that involved in the claims on which the plaintiff did not prevail. Specifically, the claims on which the plaintiff prevailed involved allegations of a glass ceiling that prevented her from being promoted in an office in Portland, while the claims on which she did not prevail involved the process for appointment in an office in Phoenix, and the conduct of the Phoenix area personnel manager. Id. at 903-904. It was only upon concluding that the claims were unrelated that the Ninth Circuit upheld a percentage reduction in the fees that would have been awarded to Plaintiff under the lodestar method. Id. at 904-905. Here, in contrast, the claims involved a highly-interrelated, largely

inseparable course of harassment, as explained in detail above. Therefore, the Schwarz decision does not support Defendants' request for an apportionment of fees. In Cairns v. Franklin Mint Co., 292 F.3d 1139, 1157 (9 th Cir. 2002), the Ninth Circuit concluded that reducing the fees requested by Defendant, by various percentages for different claims, was appropriate because the unusually large number of hours (10,900) and timekeepers (45) made application of the lodestart method unworkable. No such justification for applying a percentage reduction of Defendants' total fees exists in the above-captioned case; Defendants only ask for a percentage because they did not, and cannot, assign the vast majority of the fees to only one of the two highly-interrelated claims. In Cairns, 292 F.3d at 1157, the Ninth Circuit also relied on specific factual findings of the District Court to justify various percentage reductions. Specifically: (1) one of the claims was on interlocutory appeal part way through the litigation; thus fees assigned to that

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claims and another were reduced; (2) no fees were available on one claim; thus fees for claims lumped within the category including that claim were reduced; (3) a portion of computerized research is overhead; thus, computer research fees were reduced. Id. In contrast, in the above-captioned action, Defendants do not request apportionment on any factual basis related to fee expenditure. Their only basis for requesting a fifty percent apportionment is their assertion that they are entitled to fees on one of two claims, i.e., fiftypercent of the total. The fact that Defendants seek fees for one of two claims is not a legitimate basis for concluding that the fee award, if any, should be fifty percent, particularly given that actual fees would have varied only nominally had the retaliation claim not been asserted.2 Given the inapplicability of the cases Defendant cites, the case most analogous is Crowe, 103 F.3d at 900-901, in which the Ninth Circuit upheld the district court's decision not to apportion fees when claims are so interrelated that fees cannot be practicably attributed to specific claims. Defendants have not attempted to show that any fees are attributable to the retaliation claim specifically; thus, their motion for fees should be denied. D. The Fifty-Percent Unreasonable Fee Apportionment Defendant Requests is

Should the Court decline to deny Defendants' Motion for Award of Attorneys' Fees for the multiple reasons provided in this pleading and those incorporated herein by reference, the percentage awarded for defense of the retaliation claim should be far less than fifty percent. A far smaller percentage should be apportioned to the retaliation claim because, as explained above, the course of this litigation would have varied only nominally even absent this claim, due to the highly interrelated nature of the two claims arising largely out of one

In Harris v. Marhoefer, 24 F.3d 16, 17, the plaintiff originally asserted claims against ten defendants and went to trial against six separate defendants but prevailed against only one defendant. The Ninth Circuit upheld the district court's percentage reduction, but the Court's brief opinion does not indicate whether the claims against the six separate defendants involved highly-interrelated factual allegations. The claim on which plaintiff prevailed involved the liable defendant's use of excessive force in violation of § 1983, but the factual and legal allegations against the other defendants are not presented. In contrast, the above-captioned case involves an interrelated course of conduct by agents of the Boeing Corporation and/or its subsidiary. 5 Case 2:03-cv-01210-PGR Document 152 Filed 01/06/2006 Page 5 of 7

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pattern of harassing conduct. At most, the retaliation claim alone required a nominal amount of separate legal research and factual investigation, in the range of one to two percent of the entire fees incurred to defend this litigation. E. Defendants' Evidence and Arguments Regarding Settlement Discussions Should be Stricken

For the reasons already set forth in the EEOC's Motion to Strike, Defendants' evidence and arguments regarding settlement discussions should be stricken and not considered in ruling on the motion for award of attorneys' fees.3 RESPECTFULLY SUBM ITTED this 6th day of January, 2006. MARY JO O'NEILL Regional Attorney C. EMANUEL SMITH Supervisory Trial Attorney s/Katherine J. Kruse KATHERINE J. KRUSE Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Phoenix District Office 3300 North Central Ave., Suite 690 Phoenix, Arizona 85012-2504 (602) 640-5029 Attorneys for Plaintiff

If the court declines to strike Defendants' argument regarding settlement discussions, the EEOC seeks leave to file an affidavit controverting the multiple factual misstatements about settlement discussions contained in Defendants' memorandum. 6 Case 2:03-cv-01210-PGR Document 152 Filed 01/06/2006 Page 6 of 7

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I certify that on this 6th day of January, 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: Tibor Nagy, Jr., Esq. Erica Rocush, Esq. Snell & Wilmer, L.L.P. One South Church Avenue, Suite 1500 Tucson, Arizona 85701-1630 Attorneys for Defendants Richard L. Green, Esq. Paul D. Friedman, Esq. O'Steen and Harrison 300 West Clarendon Ave., Suite 400 Phoenix, Arizona 85013 Attorneys for Plaintiff-Intervenor

s/ Katherine J. Kruse

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