Free Motion for Attorney Fees - District Court of Arizona - Arizona

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Tibor Nagy, Jr. (#007465) Erica Rocush (#021297) 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,

No. CV'03 1210 PHX PGR DEFENDANTS' MOTION FOR AWARD OF ATTORNEYS' FEES

LAW OFFICES One South Church Avenue, Suite 1500 Tucson, Arizona 85701-1630 (520) 882-1200

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

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Defendants The Boeing Company and Boeing Aerospace Operations, Inc. (collectively, "Boeing" or "Defendant"), by and through undersigned counsel, and pursuant to Fed.R.Civ.P. 54(d)(2) and Local Rule 54.2, Rules of Practice for the United States District Court for the District of Arizona, hereby move this Court for an award of attorneys' fees and related non-taxable expenses in the above-captioned action. This Motion is based on the Court's October 4, 2005 Judgment dismissing this civil action, as explained in the Court's September 28, 2005 Order granting summary judgment to Defendant, and the attorneys' fee award provision of 42 U.S.C. § 2000e-5(k).

Case 2:03-cv-01210-PGR

Document 130

Filed 10/12/2005

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LAW OFFICES One South Church Avenue, Suite 1500 Tucson, Arizona 85701-1630 (520) 882-1200

Pursuant to Local Rule 54.2(b), Rules of Practice for the United States District Court for the District of Arizona, Boeing is not submitting a complete memorandum of points and authorities or supporting documentation with this Motion, but will do so within 60 days of entry of judgment, or as otherwise ordered by the Court. However, in order to clarify its request, Boeing provides the following summary. I. SUMMARY OF BASIS FOR FEE REQUEST. In its Order dated September 28, 2005, this Court entered summary judgment in favor of Defendant and against Plaintiff EEOC ("EEOC") and Plaintiff-Intervenor Kelley Miles ("Miles") (collectively "Plaintiffs") on all counts contained in EEOC's Complaint and Miles's Complaint-in-Intervention. Therefore, Boeing is the prevailing party in this action. Accordingly, pursuant to 42 U.S.C. § 2000e-5(k), Defendant now moves the Court for an award of a portion of its reasonable attorneys' fees and related non-taxable expenses incurred in defending the case. This statute provides that: [i]n any action or proceeding under this title [42 U.S.C. §§ 2000e et seq.] the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee (including expert fees) as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person. Either the plaintiff or defendant may be awarded fees under the statute. Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978); EEOC v. Pierce Packing Co., 669 F.2d 605, 609 (9th Cir. 1982). However, a prevailing defendant is entitled to an award of fees and costs under § 2000e-5(k) only when the claim is "frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." Christiansburg Garment Co., 434 U.S. at 421; Pierce Packing Co., 669 F.2d at 609. Although the Court granted summary judgment to Boeing on each of the EEOC's and Miles's claims, Boeing does not seek to recover fees and non-taxable costs on the Plaintiffs' hostile work environment claims. While summary judgment on the hostile

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Document 130- 2 - Filed 10/12/2005

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environment claims certainly was appropriate, there is a chance that those claims might withstand scrutiny under the rigorous Christiansburg standard. On the other hand, the retaliation claims present a different story. Each of those claims not only was subject to dismissal on summary judgment, but they were also "frivolous, unreasonable, or without foundation." Therefore, Defendant is entitled to recover its reasonable attorneys' fees and non-taxable costs expended in defense of those claims, all of which were based on alleged violations of 42 U.S.C. § 2000e-3(a). This fee request is founded, in part, on the Court's determination that the EEOC and Miles failed to establish key elements of a prima facie case for unlawful retaliation. For example, neither Plaintiff could establish that Miles suffered any adverse employment action, nor could they establish that there was any causal connection between the alleged "adverse action" and Miles's protected conduct. Moreover, the retaliation claims that were based on Jeff Luidhardt's issuance of corrective action notices to Miles were dismissed on the further bases that (1) Miles had failed to exhaust her administrative remedies on this portion of the claim, and (2) the EEOC had failed to investigate or issue a cause finding regarding this alleged conduct. Therefore, neither the EEOC nor Miles met the jurisdictional prerequisites for bringing this retaliation claim before the Court. A plaintiff's inability to establish its prima facie case is an important factor that favors the awarding of attorneys' fees to prevailing defendants under 42 U.S.C. § 2000e5(k). See, e.g., EEOC v. L.B. Foster Co., 123 F.3d 746, 751 (3d Cir. 1997); Sullivan v. School Board, 773 F.2d 1182, 1189 (11th Cir. 1985). Because the EEOC and Miles could not establish a prima facie case of retaliation (not to mention failing to even meet the jurisdictional prerequisites), and yet knowingly prosecuted frivolous and foundationless claims, Boeing is entitled to an award of attorneys' fees and non-taxable costs under 42 U.S.C. § 2000e-5(k) against both the EEOC and Miles.

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II.

FAIR ESTIMATE OF AMOUNT OF FEES SOUGHT. 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. Pursuant to Local Rule 54.2(b)(2), Defendant will submit its complete memorandum of points and authorities and supporting documentation in support of this Motion, including a precise calculation of fees and non-taxable costs sought, within 60 days of entry of judgment, or as otherwise ordered by the Court. DATED this 12th day of October, 2005. 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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LAW OFFICES One South Church Avenue, Suite 1500 Tucson, Arizona 85701-1630 (520) 882-1200

Certificate of Service I hereby certify that on October 12, 2005, 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.

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