Opposition Brief — Gisch v. Extendacare Health Systems, Inc.

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Text

| FILED

No. 97-1818 JUN 1 6 1998

i The t OF THE CLERK

Supreme Court of the United States ——

October Term, 1997

3 —

GLORIA GISCH,

Petitioner

EXTENDACARE HEALTH SYSTEMS, INC

and T?2 MEDICAL, INC.,

Respondents

On Petition For Writ Of Certiorari

To The Court Of Appeals For The Fifth District

Of Texas At Dallas

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

oe —__—_———-—_

Dan C. DARGEN!

FRANKLIN E. WriGHT

Counsel of Record

JoHN D. SMART

WINSTEAD SecHrest & Minick P.C

5400 Renaissance Tower

1201 Elm Street

Dallas, Texas 75270-2199

(214) 745-5400

(214) 745-5390 (Fax)

Attorneys for Respondents

QUESTIONS PRESENTED FOR REVIEW (RESTATED)

Premised solely on one incident of

disparate treatment (pregnancy discrimination),

the trial court granted Petitioner injunctive

relief. The Texas Court of Appeals vacated the

injunction because of Petitioner’s failure to

adduce any evidence of a history of

discriminatory practices on the part of

Respondents, any indication of future non-

compliance with the law, or any need to fashion

injunctive relief to make Petitioner whole.

Should this Court grant review where Petitioner

would not reap any personal benefit even if the

injunction were reinstated?

2. Whether the Texas Court of Appeais

properly determined that Petitioner was not a

prevailing party under 42 U.S.C. § 2000e-5(k)

and therefore not entitled to an award of

attorneys’ fees and costs, where Petitioner

failed to obtain any affirmative relief on her

Title VII claim that would materially alter the

legal relationship between the parties or

directly benefit the Petitioner.

3. Whether the Texas Court of Appeals

applied the correct standard of review in

determining that the Trial Court improperly

issued a permanent injunction against

Respondents.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW (RESTATED) . i

pe 8 ge ee eer ee ii

TABLE OF AUTHORITIES ie ee Oe Be a Bi ee er ee

Stes Oe See Gee 6s st we ae ee 1

ARGUMENT AND AUTHORITIES Se we 8 a ee ee ee

REASONS FOR DENYING THE PETITION ed ee eee

A. THE COURT SHOULD NOT GRANT A

WRIT OF CERTIORARI BECAUSE THE

TEXAS COURT OF APPEALS

PROPERLY DETERMINED THAT

PETITIONER WAS NOT ENTITLED TO

INJUNCTIVE RELIEF WHERE SHE

FAILED TO ADDUCE (1) ANY

EVIDENCE OF A HISTORY OF

DISCRIMINATORY PRACTICES, (2)

ANY EVIDENCE THAT FUTURE

DISCRIMINATION WAS LIKELY, OR

(3) ANY NEED TO FASHION

INJUNCTIVE RELIEF TO MAKE

PETITIONER WHOLE, FOLLOWING A

SINGLE INCIDENT OF DISPARATE

iii

TREATMENT ON THE PART OF

RESPONDENTS.

THE COURT SHOULD NOT GRANT A

WRIT OF CERTIORARI BECAUSE THE

TEXAS COURT OF APPEALS

PROPERLY CONCLUDED THAT

PETITIONER WAS NOT A

PREVAILING PARTY UNDER 42

U.S.C. § 2000E-5(k) AND

THEREFORE WAS NOT ENTITLED TO

AN AWARD OF ATTORNEY’S FEES

AND COSTS WHERE PETITIONER

FAILED TO OBTAIN ANY

AFFIRMATIVE RELIEF ON HER

TITLE VII CLAIM THAT WOULD

MATERIALLY ALTER THE LEGAL

RELATIONSHIP BETWEEN THE

PARTIES OR DIRECTLY BENEFIT

THE. PETITIONER.

Be Petitioner Was Not A

Prevailing Party.

THE COURT SHOULD NOT GRANT A

WRIT OF CERTIORARI BECAUSE THE

TEXAS COURT OF APPEALS APPLIED

THE -CORRECT STANDARD OF REVIEW

IN DETERMINING THAT THE TRIAL

COURT IMPROPERLY ISSUED A

PERMANENT INJUNCTION AGAINST

RESPONDENTS.

= The Court Of Appeals

Correctly Determined

That The: - Tries: Comet

Abused Its Discretion By

Granting Injunctive

Relief.

Review By The Court Of

Appeals Is Not Limited

To An Abuse Of

Discretion Standard.

TABLE OF AUTHORITIES

Page

Cases

ACLU of New Jersey v. Black Horse Pike

Reg’l Bd. Of Educ., 84 F.3d 1471

Ce Men VE hag rd oe ar 28

Arbelovsky v. Ebasco Servs. Inc., 922

P.2d 225 (Alaska 1996) a ace ee 28

Armstrong Forest Prods. v. Redempco,

IBG ss 818 S.W.2d 446 (Tex.

App.—Texarkana 1991, writ denied) . 20

Armstrong v. Turner Industries, [Inc.,

1998 WL 241888, *6 n.24 (Sth Cir.

i a es ae ee ip 12

Brown v. Carroll, 683 S.W.2d 61 (Tex.

App.-—Tyler 1984, no writ) ... aay: 20

Carmichael v. Birmingham Saw Works, 738

F.2d 1126 (11th Cir. 1984) ge eae aA 12

City of Los Angeles v. Lyons, 461 U.S. 95

(1983) ake er aaa Ta a. Mee RS a eee 12

City of Mesquite v. Colthorp, 685 S.W.2d

78 (Tex. App.—Dallas 1984, writ

re ee gl as is en 28

DeGaetano v. Smith Barney, Inc., 983 F.

Supp. 459 (S.D.N.Y. 1997)

DiPietro v. Runyon, 914 F. Supp. 714 (D.

Mass. 1996)

Electronic Data Sys., Corp.- v. Powell,

524 S.W.2d 393 (Tex. Civ.

App.—Dallas 1975, writ ref'dn.r.e.)

Fair Employment Council of Greater

Washington, Inc. v. BMC Marketing

Corp., 28 F.3d 1268 (D.C.Cir. 1994)

Farrar v. Hobby, 113 &. Gt. S366

(1992) ae Se ie 14, 23, i6, 28,

Gregory v. Williams, 871 F.2d 1239 (4th

Cir. 1989)

Griffith v. State of Colorado, 17 F.3d

1323 (1Ots Cie. 208 oe : i

Hanrahan v. Hampton, 446 U.S. 754, 100 S.

Ct. 1987 (1980)

Heath v. Brown, 807 F.2d 1229 (Sth Cir.

vii

Hensley v. Eckerhart, 461 U.S. 424, 103

eee ee ee RS ee ee yen 15,

Hewitt v. Helms, 482 U.S. 753, 107 S. Ct.

2672 (1987)

Hosna v. Groose, 80 F.3d 298 (8th Cir.

1996)

James v. Stockham Valves and Fittings

Ce.» SSS F.2G 310 (Sth Cir. 1977)

Kamberos v. GTE Automatic Elec., Inc.,

603 F.2d 598 (7th Cir. 1979), cert.

denied, 454 U.S. 1060, 102 S. Ct.

612 (1981) a ae Ue mek Bane eae a a3.

Landon v. Jean-Paul Budinger, Inc., 724

S.W.2d 931, 938 (Tex. App.—Austin

1987, no writ) Saas ae a Oto 24,

Luhan v. Defenders of Wildlife, 504 U.S.

555 (1992)

Lund v. Affleck, S87 F.2d 75 (ist Cir.

1978)

Martines v. Wiison, 32 F.3d 1415 (Sth

Cir. 1994)

villi

Maul v. Constan, 23 F.3d 143 (7th Cir.

1994)

Mennor v. Fort Hood Nat’l Bank, 829 F.2d

553 (Sth Cir. 1987)

Meyer v. Brown & Root Construction Co.,

661 F.2d 369 (5th Cir. 1981)

Morimanno v. Taco Bell, 979 F. Supp. 791

(N.D. Ind. 1997)

Pederson v. Louisiana Sate University,

912 F. Supp. 892 (M.D. La. 1996)

Phillips v. Smalley Maintenance Servs.,

Inc.,. 7ii F.2@ 1824 tiith Cir: 19863)

Pino v. Locascio, 101 F.3d 235 (2nd Cir.

1996)

Quarantino v. Tiffany & Co., 129 F.3d 702

(ana Cix. 2997)

Reyna v. Reyna, 738 S.W.2d 772 (Tex.

App.-—Austin 1987, no writ)

Rhodes v. Stewart, 488 U.S. 1, 109 S. Ct.

202 (1988)

Rice v.

Genova Products, Inc., 9

Supp. 813 (N.D.

Ruffin v.

989

507

Safeguard Bus. Sys.,

Great Dane Trailers,

[21th Cir.

Ind. 1997)

1992), cert.

U.8.,: O20, 233 6. Cl. 1237

fe 2s

969 F.2d

den.,

(1993)

Inc. v. Schaffer,

822 S.W.2d 640 (Tex. App.—Dallas

1991, no writ)

Sheppard v. Riverview Nursing Ctr.,

F.3G i332

denied, 117 S.

Shiffman

Spencer v. General Electric Co.,

651

Texas State

i4tu° Ck,

Ct. 483 (1996)

a3,

SG és

cerc.

v. Cimarron Aircraft Corp, 615

F.Supp. 382 (W.D.Okla. 1985)

Face Cais <: 9

Teachers

990)

894 F.2d

Association Vv.

Garland Independent School District,

0.8. 72, 309. 8.. Cl. 2486

489

Thompson

Cix.

v. AFL-CIO,

1996)

74 F.3d 1492

(1989)

33,

(6th

United States v. State of Wash., 98 F.3d

1159 (9th Cir. 1996)

United States v. Tsosie, 92 F.3d 1037

(10th Cir. 1996) ~.

United States v. W.T. Grant Co., 345 U.S.

629 (1953)

Valdez v. Church’s Fried Chicken, Inc.,

628 F. Supp. 596 (W.D.Tex. 1988)

W.T. By Tatum v. Andalusia City Schools,

977 F. Supp. 1437 (M.D. Ala. 1997)

Walker v. Anderson Elec. Connectors, 944

F.2d 841 (11th Cir. 1991), cert.

denied, 506 U.S. 1078, 113 S. Ct.

1043 (1993)

Walton v. Cowin Equipment Co., 774

F.Supp. 1343 (M.D.Fla. 1990), aff'd,

974 F.2d 1348 (llth Cir. 1992)

Williams v. General Foods Corp., 492 F.2d

See CTE CSe.. 39a - Gos a Se 23,

Williams v. Thomas, 692 F.2d 1032 (Sth

Cir. 1982), cert. den., 462 U.S.

1133, 103 S. Ct. 3115 (1983)

Zabkowicz v. West Bend Co., Div. Dart

Indus., Inc., 789 F.2d 540 (7th Cir.

1986)

Statutes

42 U.S.C. § 1988

42 U.S.C. § 2000e-5(k) eet ee. ea ee ae 2

Americans with Disabilities Act

Individuals with Disabilities Education

Act

Tex. Lab. Code § 21.259

Texas Commission on Human Rights Act

Title Ix

Title VII of the Civil Rights Act of 1964

a, 48, 36, 32. 124,33; 29,28.

STATEMENT OF THE CASE

Petitioner Gloria Gisch (“Petitioner”) was

hired by Respondent Extendacare Health Systems,

Inc. in January of 1987 to work as a

pharmacist. In mid-1989, she became director of

operations and was allowed to purchase a 9.9%

interest in Extendacare for approximately

$8000.00. In November 1990, Respondent’ T-

Medical Services, Inc. purchased Extendacare.

Petitioner received $1.5 million for her

interest as a result of this sale. During the

course of negotiations toward the sale,

Petitioner assured T? that she would continue

working at the Extendacare facility as

Operations Manager and that would devote as

much time and energy to her job with T as

necessary. In fact, on November 30, 1990

Petitioner entered into a two year written

employment agreement with T* and Extendacare.

In this agreement, she agreed to devote her

time, energy, and still to perform her duties

aS Operations Manager for Extendacare. In

return, Respondents agreed to pay Petitioner an

annual salary of $75,000.00.

However, during the months immediately

prior to the sale, Petitioner had been feeling

ill and in fact became so concerned with her

physical condition that she asked a co-worker

to run tests to see whether she had Lyme

disease and/or was pregnant. Shortly before the

date of the sale of Extendacare to _ T?,

Petitioner discovered that she was pregnant.

However, she did not disclose her medical

problems or her pregnancy to her partners at

Extendacare or to anyone at T’ until immediately

after the sale closed on November 30, 1990.

Beginning December 5, 1990 and thereafter,

Appellee did not report to work at Extendacare.

On January 10, 1991, after not reporting

to work in over five weeks, Petitioner met with

Paul Kolander, her immediate supervisor.

Although there was conflicting testimony

regarding what occurred at this meeting,

Petitioner testified that Mr. Kolander gave her

the option of resigning or being terminated

from her position at Extendacare and that, by

reason of her refusal to resign, she was

terminated. Only hours after this meeting,

however, Petitioner discussed her situation

with Jeffrey Muir, general counsel of T?, who

told her that it was not his understanding or

the Company’s intent that she was to have been

terminated. By letter dated January 11, 1991,

Mr. Muir assured Petitioner that she was still

regarded as an employee and that she would

continue to receive her salary and benefits.

Petitioner did not return to work after

har _ - fh wes denen a i es 7. 4 ~ :

ner vanuary 10 conversation with Muir or submit

medical documentation justifying her continued

her absence from work. By letter dated February

11, 1991, Extendacare asked Petitioner to

either report for work by February 13, 1991 or

provide medical documentation affirming that

she was physically unable to work. It is

undisputed that Petitioner had been fully

released by her obstetrician to return to work

at this time. However, Petitioner did not

report to work by February 13, 1991 and did not

provide any medical documentation to

Extendacare or T*. Assuming that Petitioner had

resigned by reason of her failure to report to

work or to provide the requested medical

documentation, Respondents terminated

Petitioner’s employment status.

Petitioner initially filed suit against

Respondents for pregnancy discrimination under

the Texas Commission on Human Rights Act

(“TCHRA”), negligent infliction of emotional

distress, intentional infliction of emotional

distress, breach of duty of good faith and fair

dealing, and breach of contract. Petitioner

then added her supervisor, Christine Burns, as

a defendant, and sued her individually for

breach of contract, detrimental reliance,

fraud, intentional infliction of emotional

distress, and breach of fiduciary duty.

Petitioner later amended her suit to add

causes of action against Respondents for

retaliation under Title VII of the Civil Rights

Act of 1964, and for invasion of privacy.

Respondents were granted summary judgment on

Petitioner’s causes of action for intentional

infliction of emotional distress, breach of

duty of good faith and fair dealing, and

retaliation. Ms. Burns was granted summary

judgment on all the claims Petitioner asserted

against her. During the course of the

litigation, Petitioner dropped her claims for

negligent infliction of emotional distress and

false light invasion of privacy.

Petitioner’s remaining claims were tried

to a jury, which returned a verdict against

Petitioner on her breach of contract claim and

her fraudulent inducement claim. The jury found

in favor of Respondents on their breach of

contract claim against Petitioner but awarded

no damages. Similarly, the jury found that

Petitioner had been terminated because of

pregnancy but awarded no damages to Petitioner.

Finally, the jury found that Respondents had

invaded Petitioner’s privacy by reviewing her

medical records and awarded damages of

$9,530.00. Even though Petitioner obtained no

affirmative relief on her Title VII claim, the

Trial Court then awarded Petitioner $250,000.00

in attorney’s fees as a prevailing party under

Title VII and the TCHRA. In addition, although

there was no evidence of any current

discriminatory practice or policy followed by

Respondents or any past effects of

discrimination to remedy, the Trial Court

directed Respondents to “institute and carry

out policies and practices to eradicate the

effects of its past and present unlawful

employment practices.” (Petitioner’s Appendix

B-3).

On appeal to the Court of Appeals for the

Fifth District of Texas, the Appellate Court

properly reviewed the record and found that

there was no evidence to support the issuance

of injunctive relief and vacated that portion

of the judgment. In the absence of any

injunctive relief, any award of damages, or

entry of any other relief under Title VII that

materially altered the relationship between

Petitioner and Respondents, the Appellate Court

then correctly reasoned that Petitioner could

not qualify for prevailing party status.

Consequently, the Appellate Court vacated the

disproportionately large award of attorneys’

fees made by the trial court. Petitioner’s

subsequent attempts to reverse the decision of

the appeals courts were justifiably rebuffed by

the Texas Supreme Court.

Petitioner now seeks a writ of certiorari

solely for the purpose of regaining an

obscenely large fee award for her attorneys who

spent literally thousands of hours in order to

obtain a judgment of $9,530.00 under a state

law claim for invasion of privacy, a cause of

action which does not allow for recovery of

attorneys’ fees under Texas law. For the

reasons set forth below, Respondents submit

that the Appellate Court correctly determined

that Petitioner’s “success” on the merits of

her Title VII claim—a declaration that one

incident of disparate treatment occurred—does

not entitle her to injunctive relief,

prevailing party status or any award of

attorney’s fees under Title VII.

ARGUMENT AND AUTHORITIES

REASONS FOR DENYING THE PETITION

A. THE COURT SHOULD NOT GRANT A WRIT OF

CERTIORARI BECAUSE THE TEXAS COURT OF APPEALS

PROPERLY DETERMINED THAT PETITIONER WAS NOT

ENTITLED TO INJUNCTIVE RELIEF WHERE SHE FAILED

TO ADDUCE (1) ANY EVIDENCE OF A HISTORY OF

DISCRIMINATORY PRACTICES, (2) ANY EVIDENCE THAT

FUTURE DISCRIMINATION WAS LIKELY, OR (3) ANY

NEED TO FASHION INJUNCTIVE RELIEF TO MAKE

PETITIONER WHOLE, FOLLOWING A SINGLE INCIDENT

OF DISPARATE TREATMENT ON THE PART OF

RESPONDENTS.

Petitioner’s first and primary

justification for this Court to grant her

request for a writ of certiorari is the

assertion that the Texas Court of Appeals

improperly vacated the injunctive relief

issued by the Trial Court that Respondents

“institute and carry out policies and practices

which will eradicate the effects of its past

and present unlawful employment practices.”

(Petitioner’s Appendix B-3).

This assertion of error is premised upon

the mistaken belief that Title VII mandates a

grant of injunctive relief and the trial court

has no discretion to deny injunctive relief

when the Title VII plaintiff proves a violation

of the statute. However, this interpretation of

the law finds no support in the language of the

statute or, for that matter, in the authorities

cited in the petition for writ of certiorari.

The remedial provisions of Title VII

provide that if a court finds that arm employer

has intentionally engaged in an unlawful

employment practice or is engaging in such

practices, “the court may enjoin the respondent

from engaging in such unlawful employment

practice, and order such affirmative action as

may be appropriate. .. .” 42 U.S.C. § 2000e-

5(g) (1) (emphasis added). The statute does not

mandate injunctive relief, nor does it provide

trial courts with any guidelines to determine

when injunctive relief should be employed.

Furthermore, nothing in the statutory language

of Title VII suggests that appellate courts are

prohibited from establishing guidelines or

criteria to assist trial courts in determining

when injunctive relief is appropriately

granted. In this case, the Texas Appellate

Court conducted an extensive analysis of the

authorities on point, including both the cases

cited by Respondents “indicating injunctive

relief is discretionary and dependent upon

several factors” and the cases cited by

Petitioner that purport to mandate injunctive

relief once there is a finding of

discrimination. (Petitioner’s Appendix A-9).

The Appellate Court detected “a common thread”

among these cases concerning the

appropriateness of injunctive relief:

If there is evidence of past

discrimination and the record

reveals the probability of future

discriminatory practices, the trial

court must fashion injunctive relief

for the benefit of anyone victimized

by the discriminatory practice. If

there is no evidence of future

noncompliance with the law, however,

injunctive relief may not be

necessary to make the plaintiff

whole or benefit incidental

nonparties. If the plaintiff has not

requested any praspective relief

such as reinstatement, injunctive

relief may not be necessary to make.

the victim whole. For nonparties to

benefit from injunctive relief, the

injunction should benefit the

pliainti£t, address past

discriminatory practices, or address

probable future noncompliance with

the law.

(Petitioner’s Appendix A-13-—A-14) (citations

omitted). The court then properly reviewed the

record for evidence to support the issuance of

an injunction under any of these factors and

found none.

Specifically, the record failed to

establish a past record or history of

discrimination by Respondents against pregnant

women. (Petitioner’s Appendix A-15). Likewise,

nothing in the record suggested that

Respondents were likely to discriminate against

pregnant women in the future. Indeed, the

record established that Christine Burns, who

Petitioner sued in her individual capacity,

continued to work for Respondents while she was

eight months pregnant. Id. Since there was no

danger of any continuing or probable future

violation, injunctive relief was not necessary

to the fair resolution of the conflict. Id.

The Appellate Court also determined that

the injunctive relief imposed by the ~Trial

Court would. benefit neither plaintiff nor

nonparties. First, Plaintiff would not benefit

because she no longer worked for Respondents

and had abandoned her claim for reinstatement.

Second, nonparties would receive no benefit

because there was no evidence in the record

that Respondents had a policy or practice of

discriminating against pregnant women.

(Petitioner’s Appendix A-15). Accordingly, the

Appellate Court had no other recourse than to

vacate the injunctive relief imposed by the

Trial Court.

Respondents do not contest Petitioner’s

assertions regarding the broad discretionary

powers of trial courts to fashion injunctive or

other equitable relief in Title VII cases.

There is a significant distinction, however,

between exercising discretion based upon

evidence establishing the need for injunctive

relief and the arbitrary imposition of

injunctive relief. In this case, the Trial

Court ordered Respondents to “institute and

Carry out policies and practices which will

eradicate the effects of its past and present

unlawful employment practices” even though the

record contained no evidence of any continuing

effects of past discrimination or the existence

of any current discriminatory policies or

practices. Under these circumstances, the

Appellate Court properly vacated the Trial

Court’s arbitrary grant of injunctive relief.

Although Petitioner suggests that the

Court of Appeals’ decision to vacate the grant

of injunctive relief is somehow contrary to

established precedent, the decision is actually

perfectly consistent with the prior decisions

of this Court and the lower courts. For

example, this Court has stated that the purpose

of an injunction is to prevent future illegal

acts.’ Where there is no reasonable expectation

that the discriminatory conduct will recur,

there is no need for nor entitlement to

injunctive relief.? Furthermore, courts should

deny injunctive relief in individual disparate

treatment cases if the plaintiff fails to offer

credible evidence of broad-based, pervasive or

continuing discrimination in the workplace.?

‘United States v. W.T. Grant Co., 345 U.S. 629, 633

(1953).

*Valdez v. Church’s Fried Chicken, Inc., 628 F.

Supp. 596, 621 (W.D.Tex. 1988).

*See, e.g., Griffith v. State of Colorado, Div. of

Youth Services, 17 F.3d 1323, 1330 (10th Cir. 1994);

Walton v. Cowin Equipment Co., 774 F.Supp. 1343, 1349

nally, courts have repeatedly held that a

request for injunctive relief should be denied

as moot where the plaintiff no longer works for

the defendant, does not seek reinstatement, and

has failed to show any way in which she would

personally benefit from the requested relief,

because the class benefitted by the injunction

must include the plaintiff. Otherwise, the

injunctive relief is unnecessary to the “just

disposition of the action.”* Indeed, it is well-

established that “past exposure to illegal

sonduct does not in itself show a present case

or controversy regarding injunctive

relief ; ; ; if unaccompanied by any

continuing, present adverse effects.”*® All of

M.D.Fla. 1990), aff’d, 974 F.2d 1348 (11th Cir. 1992);

Spencer v. General Electric Co., 894 F.2d 651, 660 (4th

iz. 3990

‘Carmichael v. Birmingham Saw Works, 738 F.2d 1126,

6 (llth Cir. 1984). See also, Meyer v. Brown & Root

: Co., S62. F.2aa 369, 37s S908. C3E. 29GsI 3

hiffman v. Cimarron Aircraft Corp, 615 F.Supp. 382, 387

D.Ok] ] }

‘Armstrong v. Turner Industries, Inc., 1998 WL

241888, *6 n.24 (Sth Cir. May 14, 1998), quoting Luhan v.

Defenders of Wildlife, 504 U.S. 555, 564 (1992). See

alsc, City of Los Angeles v. Lyons, 461 U.S. 95, 103

1983) (“past wrongs do not in themselves amount to that

real and immediate threat of injury necessary to make out

a case or controversy”); Fair Employment Council of

Sreater Washington, Inc. v. BMC Marketing Corp., 28 F.3d

1268, 1272-74 (D.C.Cir. 1994) (employment testers lacked

standing to pursue Title VII injunctive relief because

these legal principles support the Appellate

Court’s decision to vacate the injunctive

relief imposed by the Trial Court.

Conversely, none of the authorities cited

by Petitioner support the issuance of

injunctive relief in factual situations similar

to the one at bar. For example, in James v.

Stockham Valves and Fittings Co.,* the appeals

court held that injunctive relief was required

because the record established that’ the

employer continued to utilize discriminatory

hiring and training practices such as

educational and age requirements and aptitude

tests which had not been validated.’ Similarly,

the record in Gregory v. Williams, in which a

sheriff was determined to have refused to

consider women for deputy positions,

established that the sheriff’s successor had

continued the same practice.* Overall, there is

complete lack of support for Petitioner’s

argument that injunctive relief is mandatory

whenever a trial court sustains a jury finding

they could not allege a likelihood of future violations by

defendant).

*559 F.2d 310 (Sth Cir. 1977).

ce. Gy te

®°871 F.2d 1239 (4th Cir. 1989).

of discrimination. On the contrary, because the

appeals court correctly held that Petitioner

failed to adduce any evidence to support a

grant of injunctive relief, Petitioner’s

request for writ of certiorari should be

denied.

B. THE COURT SHOULD NOT GRANT A WRIT OF

CERTIORARI BECAUSE THE TEXAS COURT OF APPEALS

PROPERLY CONCLUDED THAT PETITIONER WAS NOT A

PREVAILING PARTY UNDER 42 U.S.C. § 2000E-

5(k)AND THEREFORE WAS NOT ENTITLED TO AN AWARD

OF ATTORNEY’S FEES AND COSTS WHERE PETITIONER

FAILED TO OBTAIN ANY AFFIRMATIVE RELIEF ON HER

TITLE VII CLAIM THAT WOULD MATERIALLY ALTER THE

LEGAL RELATIONSHIP BETWEEN THE PARTIES OR

DIRECTLY BENEFIT THE PETITIONER.

: Petitioner Was Not A Prevailing

Party.

Only a prevailing party is entitled to an

award of attorneys’ fees or court costs.’ The

Supreme Court’s decision in Farrar v. Hobby

governs the issue of prevailing party status in

employment discrimination cases.*® Petitioner

argues that Farrar is inapplicable because her

°*Tex. Lab. Code § 21.259; 42 U.S.C. § 2000e-5(k).

“S06 U.S. 1063, 113 8S. Ct. 566, 121 Lb. Ba. 20 494

(1992).

case involves a state cause of action and a

Title VII claim, whereas the plaintiff in

Farrar was awarded damages under 42 U.S.C. §

1988.** However, most of the cases Petitioner

relies on to support her argument involved

claims under 42 U.S.C. § 1988!'2 Moreover,

Petitioner is not able to cite any precedent

that suggests that this Court’s conclusion as

to one civil rights provision regarding

attorney’s fees is not applicable to another.

The truth is that courts have routinely

applied the standards set forth in Farrar in

employment discrimination cases to determine

whether a plaintiff is a prevailing party

entitled to an award of attorneys’ fees and to

determine whether an award of attorneys’ fees

is reasonable.*? Moreover, courts have used the

“See Petitioner’s Brief at 11.

*See Texas State Teachers Association v. Garland

Independent School District, 489 U.S. 782, 109 S. Ct. 1486

(1989); Hensley v. Eckerhart, 461 U.S. 424, 103 S. Ct.

1933 ( 1983); Heath v. Brown, 807 F.2d 1229 (Sth Cir.

1987); Williams v. Thomas, 692 F.2d 1032 (Sth Cir. 1982),

cert. den., 462 U.S. 1133, 103 S. Ct. 3115 (1983); Lund v.

Affleck, 587 F.2d 75 (list Cir. 1978).

See Hanrahan v. Hampton, 446 U.S. 754, 758 n.4,

100 S. Ct. 1987, 1989 n.4 (1980); Quarantino v. Tiffany &

Co., 129 F.3d 702, 706 (2nd Cir. 1997); Pino v. Locascio,

101 F.3d 235, 237 (2nd Cir. 1996); Sheppard v. Riverview

Nursing Ctr., Inc., 88 F.3d 1332, 1335-36 & n.3 (4th

standards in Farrar to determine prevailing

party status and attorneys’ fees in cases

brought under Titie IX,** the Individuals with

Disabilities Education Act,*® and the Americans

with Disabilities Act.

A plaintiff is considered a “prevailing

party” only if: (1) the plaintiff obtains

relief on the merits of her claim; (2) the

relief materially alters the legal relationship

between the parties by modifying the

defendant’s behavior; and (3) that relief

directly benefits the plaintiff*’ (emphasis

added). Under this test, Petitioner cannot be

considered a prevailing party. Even if the

Court of Appeals had not vacated the injunctive

Cir.), cert. denied, 117 3. Ct. 483 (1996); Griffita v.

State of Colorado, 17 F.3d 1323, 1328 (10th Cir. 1994);

DeGaetano v. Smith Barney, Inc., 983 F. Supp. 459, 465

(S.D.N.Y. 1997); Morimanno v. Taco Bell, 979 F. Supp. 791,

795 (N.D. Ind. 1997); DiPietro v. Runyon, 914 F. Supp.

714, 716 (D. Mass. 1996).

*Pederson v. Louisiana Sate University, 912 F.

Supp. 892, 926 (M.D. La. 1996).

‘SW.T. By Tatum v. Andalusia City Schools, 977 F.

Supp. 1437, 1442 (M.D. Ala. 1997).

%Rice v. Genova Products, Inc., 978 F. Supp. 813,

823 (N.D. Ind. 1997).

“"Parvar, SOG: 1.38. 143-112, 223 8: e Se S73:

Martinez v. Wilson, 32 F.3d 1415, 1422 (9th Cir. 1994).

relief, Petitioner did not receive any relief

on the merits of her discrimination claim that

materially altered the legal relationship

between the parties by modifying Respondents’

behavior in a way that directly benefitted

Petitioner. This conclusion is even more

apparent in light of the decision of the Court

of Appeals to vacate the trial court’s grant of

injunctive relief.

A jury verdict or a trial court’s finding

that a defendant violated a plaintiff’s civil

rights, does not, in the absence of actual

relief that benefits the plaintiff, render a

plaintiff a prevailing party.* Because

Petitioner was no longer employed by

Respondents and did not seek reinstatement, the

injunctive relief did not provide any material

relief of direct benefit to Petitioner.’? While

it might qualify as a “moral” victory, a

finding of discrimination simply fails to

sufficiently alter a plaintiff’s legal

relationship with a defendant to entitle the

‘Rhodes v.. Stewart, 488 U.S. 1, 4, 109 &. Ct. 2062,

204 (1988); Hewitt v. Helms, 482 U.S. 753, 761, 107 S. Ct.

2672, 2676 (1987); Walker v. Anderson Elec. Connectors,

944 F.2d 841, 846-47 (lith Cir. 1991), cert. denied, 506

0.8: 10976, 2213.4... 2.: 3063 {3993}.

Petitioner’s Appendix A-14.

plaintiff to prevailing party status.*° Given

that Petitioner was not a prevailing party,

Petitioner is not entitled to an award of

attorneys’ fees or court costs, and the Court

of Appeals properly vacated these awards by the

Trial Court.

The cases that Petitioner cites to bolster

her argument clearly state that, at a minimun,

the prevailing party must be able to point to

a resolution that materially alters the legal

relationship between her and the defendant.”

Petitioner’s only relief on her discrimination

claim, the injunction, was properly vacated on

appeal. However, even if the Court of Appeals

had not - vacated the injunctive relief,

Petitioner did not receive any relief on the

merits of her discrimination claim that

modified Respondents’ behavior in a way that

directly benefitted Petitioner. Because she was

no longer the Respondents’ employee and did not

seek reinstatement, the injunctive relief

imposed by the trial court would not have

“rParrar, $06 U.S. at 112-13, 113 S. Ct. at S73-S7¢4.

*1See Texas State Teachers Association v. Garland

Independent School District, 489 U.S. 782, 783, 109 S. Ct.

1486, 1493-1494 (1989); Ruffin v. Great Dane Trailers, 969

F.2d 989, 992 (lith Cir. 1992), cert. den., 507 U.S. 910,

343: 3S. St. Aas? 428252:

provided any material relief of direct benefit

to Petitioner.

This Court has further stated that a

technical victory may be so insignificant that

it is insufficient to support prevailing party

status.*? Here, although the jury found that

the Respondents discriminated against the

Petitioner on the basis of her pregnancy, it

awarded her absolutely no damages for this

claim. The jury’s refusal tc award Petitioner

damages leaves her with neither a judgment to

enforce against Respondents nor any mechanism

through which to modify their behavior toward

her. Thus, Petitioner achieved only a Pyrrhic

victory which is not significant enough to

render her a prevailing party within the

meaning of Title VII.

The cases that Petitioner cites to support

her argument that the court should award her

attorneys’ fees for time spent on her tort and

discrimination causes of action are clearly

distinguishable from this case because they

involve plaintiffs that actually received

“Texas State Teachers Association, 489 U.S. at 782,

tesa, s039 8. Co. et 3493...

. 20

damages for their Title VII claims.?’ These

plairtiffs were statutorily entitled to

attorneys’ fees for their claims. In contrast,

Petitioner is not statutorily entitled to

attorneys’ fees because the jury did not award

her any damages for her Title VII claim. In

sum, Petitioner’s technical victory does not

entitle her to prevailing party status under

Title VII.

Even if Petitioner was entitled to

prevailing party status, the Court should still

deny Petitioner’s request for writ of

certiorari because her lack of success on the

merits of her Title VII could not justify an

award of attorneys’ fees.** Whether a party that

achieves only minimal success is entitled to

attorneys’ fees depends on three factors. The

most important factor is the degree of the

success the plaintiff obtained as measured by

the difference between the amount the plaintiff

requested and the amount the plaintiff received

23See Phillips v. Smalley Maintenance Servs., Inc.,

711 F.2d 1524 (11th Cir. 1983); Zabkowicz v. West Bend

Co., Div. Dart Indus., Inc., 789 F.2d 540 (7th Cir. 1986);

Mennor v. Fort Hood Nat‘’‘l Bank, 829 F.2d 553 (Sth Cir.

1987).

*Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.

Ct. 1933, 1943 ( 1983); Armstrong Forest Prods. v.

Redempco, Inc., 818 S.W.2d 446, 453 (Tex. App.—Texarkana

1991, writ denied).

in the judgment.*? The Petitioner sought several

million dollars in compensatory and punitive

damages because of pregnancy discrimination and

the jury awarded nothing. Because of the

discrepancy between the recovery Petitioner

sought and what the jury actually awarded, the

only reasonable fee to award Petitioner is no

fee at all.”

Another factor in determining whether a

party is entitled to attorneys’ fees is the

legal importance of the lawsuit on which the

party claims to have prevailed.*’ While

discrimination claims are undeniably important,

the fact that Petitioner only complained about

her individual rights and did not claim a

pattern or practice of discrimination that

necessarily involved others minimizes’ the

importance of her lawsuit.

The final factor in determining whether a

prevailing party is entitled to attorneys’ fees

requires a consideration of the public purpose

served by the litigation in the context of

whether the plaintiff’s victory vindicated

important rights and will deter future

“oRerrar, SOG U.S. at 214, 223 6. Sts ac Sité,;

*Rarrar, 506 U.S. at 415. 213 SCs BE STS:

ie, Bt 23%.

violations.** Attorneys’ fees are appropriate

only if the plaintiff’s victory entails

something more than a mere determination that

the defendant violated plaintiff’s rights.”

Petitioner’s suit did not vindicate important

rights because it served no public purpose.’°®

Petitioner brought suit only on her own behalf,

alleging only violations of her rights. She did

not claim to represent a class of similarly

situated individuals, nor did she claim that

Respondents engaged in a pattern and practice

of violating the law.** Considering the de

minimis mature of Petitioner’s recovery

compared to the relief Petitioner requested,

Petitioner would be entitled to no fee even if

she were considered a prevailing party.

Cc. ‘THE COURT SHOULD NOT GRANT A WRIT OF

CERTIORARI BECAUSE THE TEXAS COURT OF APPEALS

APPLIED THE CORRECT STANDARD OF REVIEW IN

DETERMINING THAT THE TRIAL COURT IMPROPERLY

ISSUED A PERMANENT INJUNCTION AGAINST

RESPONDENTS.

“id. at 3213-328.

29Maul v. Constan, 23 F.3d 143, 145 (7th Cir. 1994).

°Td. at 146.

Sid. at. 265.

nee eee eee eee eeeeeeeS,----—‘ié—

Petitioner complains that the Court of

Appeals erred by examining the record and

balancing the equities to determine’ the

propriety of an award of injunctive relief,

rather than reviewing the award for abuse of

discretion. This argument is’ fundamentally

flawed in two respects. First, injunctive

relief is not mandatory under Title VII and

therefore balancing of the equities is

perfectly appropriate. Furthermore, balancing

the equities is consistent with an abuse of

discretion standard of review where, as here,

injunctive relief is available, but not

required.*? Second, in reviewing a trial court’s

ruling on a permanent injunction, a Texas

appeals court may review all of the evidence to

determine whether the ruling of the trial court

was correct, as in any other appellate review.”

ae The Court Of Appeals Correctly

Determined That The Trial Court

Abused Its Discretion By Granting

Injunctive Relief.

32See Kamberos v. GTE Automatic Elec., Inc., 603

F.2d 598, 603 (7th Cir. 1979), cert. denied, 454 U.S.

1060, 102 S. Ct. 612 (1981); Williams v. General Foods

Corp., 492 F.2d 399, 407 (7th Cir. 1974); Brown v.

Carroll, 683 S.W.2d 61, 62 (Tex. App.-—Tyler 1984, no

writ).

See Safeguard Bus. Sys., Inc. v. Schaffer, 822

S.W.2d 640, 644 (Tex. App.—Dallas 1991, no writ).

In determining whether the trial court

abused its discretion, the appeals court must

review the record on appeal to determine what

information was available to and relied on by

the trial court in making its decision.*™ On

review of the record in this case, the

appellate court found that there was no

evidence of a history of discriminatory

practices, no indication of future

noncompliance with the law, and no need to

fashion injunctive relief to make’ the

Petitioner whole.** The appeals court also

concluded that there was no danger of a

continuing violation of the law, that neither

Petitioner nor nonparties would benefit from

the injunctive relief imposed by the trial

court, and that such injunctive relief was

unnecessary to the fair resolution of this

gcontiict.*

In light of this record, the Court of

Appeals determined that the trial court abused

its discretion by awarding injunctive relief.

Abuse of discretion exists when the reviewing

court is firmly convinced that the lower court

Landon v. Jean-Paul Budinger, Inc., 724 S.W.2d

931, 938 (Tex. App.-—Austin 1987, no writ).

**Petitioner’s Appendix A-14-A-15.

**Petitioner’s Appendix A-15.

ee ae

made a mistake.’’ Likewise, a trial court abuses

its discretion by purporting to exercise its

discretion without sufficient information upon

which a rational decision may be made or by

making an erroneous choice as a matter of law.

The Court of Appeals properly determined

that the Trial Court abused its discretion by

awarding injunctive relief in the absence of

evidence of past systematic discrimination or

probable future discrimination. In other words,

it was an abuse of discretion to issue

injunctive relief where there was no evidence

of any need for such relief, there was no

continuing discriminatory practice to enjoin,

and an injunction would not accomplish anything

Or serve any purpose. As noted above, the

purpose of an injunction is to prevent future

illegal acts.*® Thus, in the absence of any

evidence of probable future illegality, it was

an abuse of discretion for the Trial Judge to

grant injunctive relief in this case.

"Thompson v. AFL-CIO, 74 F.3d 1492, 1509 (6th Cir.

1996).

*Reyna v. Reyna, 738 S.W.2d 772, 774-75 (Tex

App.-—Austin 1987, no writ).

United States v. W.T. Grant Co., 345 U.S. 629,

633, 73 S. Ct. 894, 898 (1953).

Petitioner’s argument, the

f Appeals did not substitute its

of the Trial Court nor did it

e on a matter already decided

ourt. An appeals court has the

eview the record and determine

Try

| aa

pw rr

a trial court erred in granting

lief.*° Moreover, under the “abuse

ion” standard, a reviewing court may

= iz. after weighing the _ relevant

it has a definite and firm conviction

court below has committed a clear

f judgment.** Conversely, to uphold a

injunctive relief, the record must

sufficient facts upon which the trial

uld have rationally exercised its

the Court of Appeals concluded that

danger of a continuing violation

law and that injunctive relief was not

> Kamberos v. GTE Automatic Elec., Inc

ap. ee

8 7th Cir. 1979), cert. denied, 454 U.S.

2 om - 612 (1981); Williams v. General Foods

4 P:2@ 399, - 4607 (78 Cie... 29 7e) 3 Brow: -v.

68 S.W.2d 61, 62 (Tex. App.-Tyler 1984, no

ed States v. State of Wash., 98 F.3d 1159

th Cir 996); Arbelovsky v. Ebasco Servs. Inc

| Zan, eat (Alaska 1996).

-¢

2See Landon, 724 S.W.2d at 938.

necessary to the fair resolution of this

conflict.**? Therefore, the Trial Judge committed

a clear error of judgment, incorrectly applied

the law to these facts, and abused his

discretion by requiring Respondent to

“institute and carry out policies and practices

which will eradicate the effects of Plaintiff’s

past and present unlawful employment

practices.” (Petitioner’s Appendix B-3).

Injunctive relief was not mandatory in

this case, but the Trial Court had

discretionary authority to grant appropriate

relief. The Court of Appeals correctly held

that the Trial Court erred by granting

injunctive relief because there was no evidence

of a pattern or practice of discrimination or

evidence of a probability of future

discriminatory practices. As noted above,

Petitioner no longer works for Respondent and

does not seek reinstatement. Moreover,

Respondents no longer employ Christine Burns,

Paul Kolander and Jeffrey Muir-—the individuals

alleged to have discriminated against

Petitioner. Where neither Petitioner nor anyone

else will benefit, injunctive relief is

inappropriate. Consequently, the trial court’s

unexplained and unsupported conclusion that

injunctive relief was appropriate was based on

“Petitioner’s Appendix A-15.

clearly erroneous factual findings and

constituted an abuse of discretion, which was

appropriately remedied by the Texas Appellate

couse .*

2. Review By The Court Of Appeals Is

Not Limited To An Abuse of

Discretion Standard.

Alternatively, the Texas Court of Appeals’

determination in this case is correct because

its review of the Trial Court’s Order granting

permanent injunctive relief is not limited to

an abuse of discretion standard of review. As

with any other review under Texas appellate

procedure, the courts of appeal may review all

of the evidence to determine whether the ruling

of the trial court was correct.** Accordingly,

the Court of Appeals applied the correct

standard of review.

**See Hosna v. Groose, 80 F.3d 298, 303 (8th Cir.

1996); ACLU of New Jersey v. Black Horse Pike Reg’l Bd.

Of Educ., 84 F.3d 1471, 1476 (3rd Cir. 1996); United

States v. Tsosie, 92 F.3d 1037, 1041 (10th Cir. 1996).

*SSee Safeguard Bus. Sys., Inc. v. Schaffer, 822

S.W.2d 640, 644 (Tex. App.—Dallas 1991, no writ); City of

Mesquite v. Colthorp, 685 S.W.2d 78, 81 (Tex. App.—Dallas

1984, writ ref’d n.r.e.); Electronic Data Sys., Corp. v.

Powell, 524 S.W.2d 393, 395 (Tex. Civ. App.—Dallas 1975,

writ ref’d n.r.e.).

77 TT ee a

CONCLUSION

For the foregoing reasons, Respondents

pray that Petitioner’s request for a writ of

certiorari be denied.

Respectfully submitted,

Winstead Sechrest & Minick P.Cc.

5400 Renaissance Tower

1201 Elm Street

Dallas, Texas 75270-2199

Dan C. Dargene

Texas Bar No. 05394200

Franklin E. Wrigh

Texas Bar No. 22029010

John D. Smart

Texas Bar No. 18523310

Attorneys for Respondents

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.