Free Reply in Support of Motion - District Court of Arizona - Arizona

1 FENNEMORE CRAIG
Ronald J. Stolkin (No. 002552)
2 Whitney M. Sedwick (N0. 022686)
One South Church Avenue
3 Suite 100
Tucson, Arizona 85701-1627
4 Telephone: (520) 879-6800
5 Attorneys for Defendants
Regis Corporation; Super Cuts
6
7
8 UNITED STATES DISTRICT COURT
9 DISTRICT OF ARIZONA
10 MARY CSANYI, a single woman, No. CV 03-1987 PHX IAT
ll Plaintiff, REPLY IN SUPPORT OF
DEFENDANTS’ MOTION FOR
12 v. ATTORNEYS’ FEES
13 REGIS CORPORATION; SUPER
CUTS,
14
Defendants.
15
16 Defendants’ Motion For Attorneys Fees ("Motion") expressly stated that "[they]
17 seek fees only for those claims brought [by Plaintiff] pursuant to Title VII [of the Civil
18 Rights Act of 1964]. * * * 42 U.S.C. § 2000e-5(k)." Motion at 2 (emphasis added). In
19 both the Motion and their Memorandum Of Points And Authorities In Support of
20 Attomeys’ Fees ("Memorandum"), Defendants set forth statutory authority, case authority
21 and facts to support their request for an award of attorneys’ fees pursuant to Title VII.
22 Plaintiff” s Response, on the other hand, relies on legal authority that is wholly unrelated to
23 Defendants’ request for fees pursuant to Title VII, and upon a superficial argument based
24 on a demonstrably false premise.
25 / / /
26 / / /
P l:EN`NEMOI§E CRAIG
Case 2:03-cv-01987-JAT Document 111 Filed 08/18/2006 Page1 014

1 I. Plaintiff Did Not Bring A Claim For Violation Of The Americans With
2 Disabilites Act g"ADA") And Defendants Do Not Seek Fees Under Authority
Of The ADA.
3 Plaintiff argues that Defendants should not be entitled to fees pursuant to 42 U.S.C.
4 § 12205 and cites Summers v. A. Teichert & San, Inc., 127 F.3d 1150 (9th Cir. 1997), as
5 support for that argument. First, Defendants did not seek fees pursuant to 42 U.S.C.
6 § 12205. Rather, they sought fees pursuant to Title VII, 42 U.S.C. § 2000e-5(k).
7 Section 12205, which provides for recovery of attomey’s fees by the prevailing party in
8 an ADA case, is inapplicable to Defendants’ request for fees under Title VII.
9 Second, T eichert, citing Christiansburg Garment C0. v. EEOC, 434 U.S. 412, 421,
10 (1978), merely reiterated that, in an ADA action, the Court has discretion under 42 U.S.C.
ll § 12205 to grant attomeys’ fees to the prevailing party "upon a finding that the plaintiffs
12 action was frivolous, unreasonable, or without foundation.” Ia'. 127 F.3d at 1154.
13 Plaintiff did not bring a claim pursuant to the ADA.
14 II. Plaintiffs Action Was Frivolous, Unreasonable, and/or Without Foundation.
15 Christiansburg Garment C0. v. EEOC (upon which T eichert relies), recognized not
16 only that attomeys’ fees to the prevailing party are appropriate "upon a finding that the
17 plaintiffs action was frivolous, unreasonable, or without foundation," but also that
18 Congress intended to protect employers from "litigation having no legal or factual basis."
19 434 U.S. at 420. In this case, plaintiffs action was frivolous, unreasonable, or without
20 foundation. I
21 For example, with regard to her reta11at10¤i claim, Plaintiff did not simply fail to
22 present evidence sufficient to justify relief at trial, she never filed a charge of
23 discrimination with the EEOC in the first instance alleging that she had been retaliated
24 against. In addition, Plaintiffs credibility was called into question when she changed her
25 testimony from testimony she gave during her deposition and in answering interrogatories.
26 Her newly contrived testimony at trial was that she complained to her employer that she
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1 had been harassed because of her race and/or national origin, not that she had been
2 sexually harassed as she testified during her deposition and as she stated in her answers to
3 interrogatories. Finally, Plaintiff presented g evidence at trial of retaliation, which
4 resulted in her retaliation claim being dismissed after Plaintiff rested. (Findings of Fact
5 and Conclusions of Law at footnote 2.)
6 Plaintiff also sued Regis, but presented absolutely no evidence that she ever was
7 employed by Regis or that a relationship or affiliation existed between Regis and Super
8 Cuts. As a result, Regis was dismissed at the completion of trial. (Findings of Fact and
9 Conclusions of Law at footnote 1.)
10 Plaintiff offered E evidence that similarly situated non-Bolivian or non-Hispanic
11 employees were treated differently than Plaintiff nor did Plaintiff offer any evidence that
12 Defendants’ reason for transferring her was false and that it was actually a pretext for race
13 or national origin discrimination. In fact, Plaintiff” s entire focus for her Title VII claims
14 was on Cara Smith, her manager, who had difficulty understanding Plaintiff because of
15 her accent, even though Plaintiff knew that Cara Smith played no role in the decision to
16 transfer her.
17 Finally, this Court found Plaintiff` s testimony that she was the victim of race and
18 national origin discrimination "not credible." (Findings of Fact and Conclusions of Law,
19 Finding of Fact No. 52); see Charves v. W Union Tel. C0., 711 F.2d 462, 464 (lst Cir.
20 1983) (affirming award of attomeys’ fees because plaintiff was not a credible witness).
21 III. Conclusion.
22 For the foregoing reasons, Defendants request that their Motion for Attorney’s Fees
23 be granted.
24 / / /
25 / / /
26 / / /
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1 DATED this 18th day of August, 2006.
2 FENNEMORE CRAIG
3
4 By /s/ Ronald J. Stolkin
Ronald J. Stolkin
5 Whitney M. Sedwick
Attorneys for Defendants
6 Regis Corporation; Super Cuts
7
8
9 CERTIFICATE OF SERVICE
10
I hereby certify that on August 18, 2006, I electronically transmitted the attached
11 document to the Clerk’s Office using the CM/ECF system for filing and transmittal of a
12 Notice of Electronic Filing to the following CM/ECF registrants:
13 Angela M. Wilson-Goodman
538 S. Gilbert Road, Suite 101
14 Gilbert, Arizona 85296
15
16 /s/ Julie Calvano Tolby
Julie Calvano Tolby
17
18 PHX/RSTOLKIN/1825577. l/79228.006
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P FENl51E1»10l;·1i CRAIG
Pu0!·.>41X _ 4 —
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