Duncan v. Related Management Company, LP

RESPONSE to Motion

W.D. Tex.January 9, 2019

_____________________________________________________________________________________________ PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR ATTORNEYS’ FEES AND COSTS PAGE 1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS MIDLAND-ODESSA DIVISION JOVITA DUNCAN, § CAUSE NO. § PLAINTIFF, § § V. § 7:16-cv-00397-DC § RELATED MANAGEMENT COMPANY, LP, § § DEFENDANT. § JURY DEMANDED PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR ATTORNEYS’ FEES AND TAXABLE COSTS TO THE HONORABLE UNITED STATES DISTRICT COURT: Plaintiff Jovita Duncan (“Plaintiff”) files this Response to Defendant Related Management Company, L.P. (“Defendant)’s Motion for Attorneys’ Fees and Taxable Costs, and would respectfully show the Court as follows: Even though Defendant prevailed at trial, it is not entitled to its attorneys’ fees because Plaintiff’s case was not groundless, frivolous, or unreasonable. Attorneys’ fees are not appropriate in Title VII cases merely because the plaintiff did not prevail. EEOC v. Tarrant Distributors, Inc., 750 F.2d 1249, 1251 (5th Cir. 1984) citing Christiansburg Garment Co. v. Equal Employment Opportunity Comm., 434 U.S. 412, 421-22 (1978). Whether to award attorneys’ fees is within the sound discretion of the trial court. Tarrant Distributors, 750 F.2d at 1250-51. Christiansburg Garment is the bellwether case that established the standard for the award of attorneys’ fees to a prevailing defendant in a civil rights case under Title VII. 434 U.S. 412 (1978). Section 706(k) of Title VII provides that the district court has discretion to award reasonable attorneys’ fees to the prevailing party. Due to policy considerations, the U.S. Supreme Court Case 7:16-cv-00397-DC Document 113 Filed 01/09/19 Page 1 of 8 _____________________________________________________________________________________________ PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR ATTORNEYS’ FEES AND COSTS PAGE 2 determined that different standards apply depending on whether the prevailing party is the plaintiff or the defendant. A prevailing plaintiff is ordinarily entitled to attorneys’ fees in all but special circumstances. 434 U.S. at 417. Two strong equitable considerations justify the award of attorneys’ fees to a prevailing plaintiff that are “wholly absent in the case of a prevailing defendant.” 434 U.S. at 418. First, Congress intended a plaintiff in a civil rights case to be a “private attorney general” vindicating a right “of the highest priority.” 434 U.S. 418 citing Newman v. Piggie Park Enterprises, 390 U.S. 400, 402 (1968). Second, when a district court awards fees to a prevailing plaintiff, “it is awarding them against a violator of federal law.” Id. In contrast, a plaintiff should not be assessed his opponent’s attorneys’ fees “unless a court finds that his claim was frivolous, unreasonable, or groundless, or that plaintiff continued to litigate after it clearly became so.” Id. at 423. The Supreme Court instructs that the district court should not engage in hindsight review to conclude that just because the plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation. Id. at 421-22. “For seldom can a prospective plaintiff be sure of ultimate success.” Id. at 422. Awarding attorneys’ fees to a prevailing defendant will have a chilling effect on the prosecution of civil rights cases. See Miller v. City of Plymouth, No. 2:09-CV-205 JVB, 2013 U.S. Dist. LEXIS 140419, 2013 WL 5461095, at *1 (N.D. Ind. Sept. 30, 2013) (refusing to award attorneys’ fees to defendants who prevailed against plaintiffs’ federal civil rights claims and related state law claims; even allowing defendants to recover fees “only for defending the state portion of [p]laintiffs’ claims . . . could have a chilling effect on civil rights litigants” because the “claims were closely intertwined”); Ramsay v. Broward Cty. Sheriff's Office, No. 05-61959-CIV, 2008 U.S. Dist. LEXIS 119114, 2008 WL 3851648, at *2 (S.D. Fla. Aug. 14, 2008) (holding, in pro se employment discrimination case, that “allow[ing] a plaintiff's claim to go forward with the spectre of fee awards Case 7:16-cv-00397-DC Document 113 Filed 01/09/19 Page 2 of 8 _____________________________________________________________________________________________ PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR ATTORNEYS’ FEES AND COSTS PAGE 3 looming if plaintiff does not succeed on the merits . . . would chill future plaintiffs from bringing civil rights actions and utterly destroy the public policy reasons for allowing victorious plaintiffs to recover attorney's fees in the first instance”). Defendant claims that Plaintiff’s claims were meritless and lacked foundation for three reasons: (1) the EEOC did not make a cause finding in Plaintiff’s favor; (2) Plaintiff offered rebuttal testimony to attempt to impeach Paul Almquist at trial; and (3) Plaintiff sought to quash certain pretrial discovery sent to third parties. None of these reasons justify an award of attorneys’ fees to Defendant. Defendant’s Motion for Attorneys’ Fees and Taxable Costs should be denied. (Plaintiff’s Objections to Defendant’s Bill of Costs are filed separately.) I. THE ADMINISTRATIVE PROCESS BEFORE THE EEOC DOES NOT DETERMINE THE MERITS OF THE CASE. Without citation to a single case, Defendant argues that an award of attorneys’ fees is justified because Defendant contends that the facts alleged during the EEOC administrative process vary from the facts developed at trial. Defendant has not provided a trial transcript, only its interpretation of the trial testimony. Defendant also failed to introduce the EEOC Charge at trial. There is a line of cases that addresses the circumstance when the facts alleged in the complaint are alleged to vary from the facts alleged in the EEOC charge. The rule is that the “scope” of the judicial complaint is limited to the “scope” of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination. Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970). But that is not Defendant’s argument. EEOC determinations and findings of fact are admissible as probative evidence but are not binding on the trier of fact. McClure v. Mexia Indep. School Dist., 750 F.2d 396, 400 (5th Cir. 1985). It follows that whether a final determination on the merits varies or coincides with an EEOC determination is no basis for an award of attorneys’ fees. See Eichman v. Linden & Sons, Inc., 752 Case 7:16-cv-00397-DC Document 113 Filed 01/09/19 Page 3 of 8 _____________________________________________________________________________________________ PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR ATTORNEYS’ FEES AND COSTS PAGE 4 F.2d 1246, 1249 (7th Cir. 1985) (fact that EEOC found no reasonable cause does not mean that case is frivolous). Defendant’s Motion for Attorneys’ Fees should be denied. II. PLAINTIFF PROPERLY ATTEMPTED TO IMPEACH PAUL ALMQUIST BY PROVIDING HER REJECTION OF HIS ATTENTION AS A MOTIVE FOR HIS TESTIMONY. Plaintiff did not try to “advance a whole new sex harassment theory in a vain attempt to discredit [Paul Almquist’s] testimony.” [Doc. 108 at p. 7]. Although Mr. Almquist signed a statement attached to Defendant’s Motion for Summary Judgment, Mr. Almquist was not deposed. Plaintiff testified that Mr. Almquist had made sexual advances toward her but that she was able to handle them. However, a jury was entitled to consider whether her rejection of his advances may have influenced his testimony against her. It was the jury’s prerogative to judge the credibility of the witnesses. In January 2017, Mr. Almquist sent Plaintiff a message on Facebook calling her “gorgeous” and asking her if she was still in Midland. She responded, “No I moved back home Ohio.” His response was “Dayum.” A true and correct copy follows. This evidence was not available at trial as Plaintiff had forgotten about it. Had it been admitted, it is possible that the jury might have viewed Mr. Almquist’s testimony differently. Case 7:16-cv-00397-DC Document 113 Filed 01/09/19 Page 4 of 8 _____________________________________________________________________________________________ PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR ATTORNEYS’ FEES AND COSTS PAGE 5 Case 7:16-cv-00397-DC Document 113 Filed 01/09/19 Page 5 of 8 _____________________________________________________________________________________________ PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR ATTORNEYS’ FEES AND COSTS PAGE 6 III. PLAINTIFF HAD THE RIGHT TO OBJECT TO DEFENDANT’S PRETRIAL DISCOVERY REQUESTS TO THIRD PARTIES. As indicated in Defendant’s Motion for Attorneys’ Fees [Doc. 108 at p. 8], the Court granted in part and denied in part Plaintiff’s Motion to Quash Subpoena for Educational Records and for Protective Order [Doc. 13]. The fact that a federal law, the Family Education Rights and Privacy Act (FERPA), specifically protects educational records demonstrates that individuals have legitimate privacy concerns in their educational records. After seeking Plaintiff’s educational records from her junior college, Defendant actually objected to her transcript at trial, claiming that her diploma was acceptable. [Doc. 70 at p. 1.] Plaintiff had produced her diploma without objection during discovery. The Court allowed discovery of Plaintiff’s educational records and employment records both before and after her employment with Defendant. Very few, if any, of the documents were offered by Defendant at trial. Ultimately, the requests were a fishing expedition. Plaintiff’s legitimate efforts to protect her personal information are no basis for an award of attorneys’ fees. IV. THIS COURT’S DENIAL OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT INDICATES THAT PLAINTIFF’S CLAIMS WERE NOT FRIVOLOUS, GROUNDLESS, OR UNREASONABLE. According to the Fifth Circuit, “[a] necessary consequence of [the] decision that summary judgment was improper in this case is that [Plaintiff’s] action was neither frivolous, unreasonable, nor baseless.” Trevino v. Celanese Corp., 701 F.2d 397, 407 (5th Cir. 1983). The Fifth Circuit has also held that the plaintiff’s ability to establish the prima facie elements of claim for employment discrimination supports a district court’s decision to deny a motion for attorneys’ fees to a prevailing defendant. EEOC v. Tarrant Distributors, Inc., 750 F.2d 1249, 1251 (5th Cir. 1984). See also Green v. E.I. DuPont de Nemours Co., 207 F.3d 659 (Table). 2000 WL 122516 at *2 (affirming district court’s denial of defendant’s motion for attorneys’ fees because plaintiff’s case survived motion for summary judgment and motion for directed verdict.” Case 7:16-cv-00397-DC Document 113 Filed 01/09/19 Page 6 of 8 _____________________________________________________________________________________________ PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR ATTORNEYS’ FEES AND COSTS PAGE 7 V. DEFENDANT HAS PROVIDED NO EVIDENCE THAT THE AMOUNT SOUGHT IS REASONABLE BECAUSE IT HAS NOT INCLUDED DETAILED TIME RECORDS. Defendant has not provided detailed time records. Defendant’s motion does not comply with Local Rule CV-7(j)(1) because it does not include “a supporting document organized chronologically by activity or project, listing attorney name, date, and hours expended on the particular activity or project, as well as an affidavit certifying (1) that the hours expended were actually expended on the topics stated, and (2) that the hours expended and rate claimed were reasonable.” To calculate a reasonable fee award, the court must first calculate the lodestar by multiplying the number of hours reasonably spent on the litigation times a reasonable hourly billing rate. Saizan v. Delta Concrete Products Co., Inc., 448 F.3d 795, 798 (5th Cir. 2006). Attorney billing records must support the number of hours that are claimed to have been spent on the litigation. Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993). Each hour claimed motion must be reasonable. League of United Latin American Citizens No. 4552 v. Roscoe Indep. Sch. Dist., 119 F.3d 1228, 1232 (5th Cir. 1997). Reasonable hours do not include those that, in the exercise of counsel’s “billing judgment,” were “excessive, redundant or otherwise unnecessary.” Hensley, 461 U.S. at 434. Fee applicants are also expected to exercise billing judgment where necessary to ensure that only reasonably expended hours are fee-shifted to the losing party. Defendant did not provide detail sufficient for the Court to evaluate the reasonableness of its claim for attorneys’ fees. For example, it is impossible to tell what tasks were performed by each timekeeper. It is impossible to tell if there is any duplication of effort. Counsel has not segregated the time it spent on Defendant’s Counterclaim, which was dismissed for lack of subject matter jurisdiction. [Doc. 75]. Case 7:16-cv-00397-DC Document 113 Filed 01/09/19 Page 7 of 8 _____________________________________________________________________________________________ PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR ATTORNEYS’ FEES AND COSTS PAGE 8 WHEREFORE, Plaintiff respectfully prays that the Court deny Defendant’s Motion for Attorneys’ Fees and Taxable Costs and for such other and further relief, at law or in equity, to which Plaintiff may show herself justly and lawfully entitled. Respectfully Submitted, By: /s/ Holly B. Williams Holly B. Williams Texas Bar No. 00788674 WILLIAMS LAW FIRM, P.C. 1209 W Texas Avenue Midland, Texas 79701-6173 432-682-7800 432-682-1112 (fax) holly@williamslawpc.com ATTORNEY FOR PLAINTIFF JOVITA DUNCAN CERTIFICATE OF SERVICE I hereby certify that on January 9, 2019 I electronically submitted the foregoing document with the Clerk of Court for the U.S. District Court, Western District of Texas, using the electronic case files system of the court. The electronic case files system sent a “Notice of Electronic Filing” to the following individuals who have consented in writing to accept this Notice as service of this document by electronic means: Noel A. Lesica Robert H. Bernstein Greenberg Traurig, LLP 500 Campus Dr, Ste 400 Florham Park, NJ 07932-0677 lesican@gtlaw.com bernsteinrob@gtlaw.com /s/ Holly B. Williams Holly B. Williams Case 7:16-cv-00397-DC Document 113 Filed 01/09/19 Page 8 of 8