Opposition Brief — Yourdon, Inc. v. Bridges

No. 96-1432 peau OR THE CLERK |

In The

Supreme Court of the United States

October Term, 1996

+

YOURDON, INC.,

Petitioner,

Vs.

SUSAN Q. BRIDGES, VIRGINIA D’APONTE

and KIMBERLY MURYASZ,

Respondents.

o-—

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

—-— +

RESPONDENTS’ BRIEF IN OPPOSITION

TO WRIT OF CERTIORARI

ox ) —

LAWRENCE SOLOTOF!

Counsel of Record

SoLoToFrF & SOLOTOFF

P.O. Box 4686

Great Neck, New York 11023

(516) 466-5522

Counsel for Respondents

COCKLE LAW BRIEF PRINTING CO, (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

PES GOR SOREN a £503. 6 55 SA ka sk Sens echnns i

TABLE OF CITED AUTHORITIES.................. ii

STATUTORY PROVISIONS INVOLVED............. 1

SIATEMENT OF THE CASE. ...0 2.5.05. 65 050k, 2

I. THE SECOND CIRCUIT PROPERLY FOUND

RESPONDENT BRIDGES A “PREVAILING

PARTY” ENTITLED TO ATTORNEYS’ FEES

AND EXPENSES FULLY CONSISTENT WITH

THIS COURT’S HOLDING IN FARRAR V.

HOBBY, 506 U.S. 103 (1992) AND PRIOR

oe POEs SO EE ET a ee eR 5

A. Bridges Is Entitled To Attorneys’ Fees And

Expenses For Her Pendent Claims........ 6

B. Bridges Was A Prevailing Party For Pur-

poses Of Obtaining An Award Of Attor-

neys’ Fees And Expenses ............... 12

Il. THE SECOND CIRCUIT PROPERLY

AFFIRMED THE DISTRICT COURT'S

ATTORNEYS’ FEE AWARD CONSISTENT

WITH THIS COURT’S HOLDING IN FAR-

RAR V. HOBBY, 506 U.S. 103 (1992) AND

RI EIA 65 covet ae eee ee bl ks ees 19

A. The Second Circuit Considered Respon-

dents’ Overall Success On The Merits Of

Title VII And Pendent State Law Claims 19

B. In Affirming The District Court’s Fee

Award, The Second Circuit Followed Far-

rar v. Hobby And Prior Rulings Of This

SAE es wha beok4 GIR OER ELSES 22

il

TABLE OF CONTENTS - Continued

Page

iil. THIS COURT SHOULD HAVE NO INTEREST

IN GRANTING A WRIT OF CERTIORARI IN

pi. 2 pres re ye me rer ry es 25

CRC LARUE Kivi a curé a caken tats sanuaeeeeneneel 27

ili

TABLE OF AUTHORITIES

Page

CASES

Albright v. Good Shepherd Hosp., 901 F.2d 438 (5th

I ere ee Cre le eels ca haan Mions ccains 16

Aubin v. Fudala, 782 F.2d 287 (1st Cir. 1986)......... 14

Bray v. Alexandria Women’s Health Clinic, 506 U.S.

SER erg ea reer 16

Bridges v. Yourdon, Inc., 102 F.3d 56 (2nd Cir. 1996) ..... 4

Bridges v. Eastman Kodak Co., 91 Civ. 7985, 1996 WL

47304, F.E.P. Cases (S.D.N.Y. Feb. 6, 1996) (Car-

Nt AERP RS RAED he Poiphae Pee 7 Ae Shs Ie ead eR arya Oe i; 2 ie oe

Bridges v. Eastman Kodak Co., 885 F.Supp. 495, 66

F.E.P. Cases 1688 (S.D.N.Y. Jan. 19, 1995) (Carter,

0 EE OREO niente aire een a ow ed ge eae a ee 2

Bridges v. Eastman Kodak Co., 850 F.Supp. 216, 64

F.E.P. Cases 1100 (S.D.N.Y. 1994) (Carter, J.)........ 2

Bridges v. Eastman Kodak Co., 822 F.Supp. 1020, 64

F.E.P. Cases 1093 (S.D.N.Y. 1993) (Carter, J.)........ 2

Bridges v. Eastman Kodak Co., 800 F. Supp. 1172, 61

FE.P. Cases 9 (S.D.N.Y. 1992) (Carter, J.)........... 2

Bridges v. Eastman Kodak Co., 1995 WL 529880, 68

F.E.P. Cases 1587 (S.D.N.Y. Sept. 8, 1995) (Carter,

DCM COE SE Sela cake is pas Fade oss is VEROEC oe ea. 2

Carey & Pints, 455 U.S: 267 (3978) «o.oo 6 cooks. 20

Carrol v. Blinken, 105 F.3d 79 (2d Cir. 1997).......... 22

Cartwright v. Stamper, 7 F.3d 106 (7th Cir. 1993) ..... 17

City of Riverside v. Rivera, 477 U.S. 561 (1986) ....20, 21

Cramblit v. Fiske, 33 F.3d 633 (6th Cir. 1994)......... 17

iv

TABLE OF AUTHORITIES —- Continued

Page

Farrar v. Hobby, 306 US. 103 (199Z}...........-: passim

Gingras v. Lloyd, 740 F.2d 210 (2d Cir. 1984)......... 13

Hanrahan v. Hampton, 446 U.S. 754 (1980)............ 17

Hensley v. Eckerhart, 461 U.S. 424 (1983)......... passim

Hewitt v. Helms, 482 U.S. 755 (1987)...... 10, 11, 13, 19

Jackson v. Galan, 868 F.2d 165 (5th Cir. 1989) ........ 17

Kelly v. City of Leesville, 897 F.2d 172 (5th Cir. 1990) .... 16

Kremer v. Chemical Construction Corp., 456 U.S. 461

PUR ek ck eA Re Her eS Khas sae kaeens kee eek Tea on 8, 9

Mateyko v. Felix, 924 F.2d 824 (9th Cir. 1990), cert.

Reed, TT 45S. Sik TiO R «vos csc cs cue vdvcesaeean 16

McLaughlin v. State, 784 F.Supp. 961 (N.D.N.Y.

DRS SK LARS RARE ORRK DAW Oe OP ORE E SOOT REO ED 16

Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) .... 24

Milton v. Des Moines, 47 F.3d 944 (8th Cir. 1995),

cert. dotted, . US... 336 SA SF Ges) ai ex 17

National Org. For Women v. Operation Rescue, 37

ue OW Tatas Ga By 0 aoe nice bes beeen 6, 15

National Private Truck Council, Inc. v. Oklahoma Tax

(Mame, VS. .2. 4 BAS SAL. 2ORt Caeser ack ss 16

Newman v. Piggie Enterprises, 390 U.S. 400 (1968)....11, 24

New York Gaslight Club, Inc. v. Carey, 447 U.S. 54

4: RRR gee y scre een ae shears ee ener 6, 12, 18

TABLE OF AUTHORITIES - Continued

Page

North Carolina Department of Transportation v.

Crest Street Community Council, Inc., 479 U.S.

D SIRE 65.6 abc ae kaa Tew ee eee ee 7; ake 20

Orchano v. Advanced Recovery, Inc., 107 F.3d 94 (2d

Rh REE ioe hekbeu cases eo eo awa Oo es 22

Pedigo v. P.A.M. Transport, Inc., 98 F.3d 396 (8th Cir.

ie EE Dt Pe See PPT Ee Te ie paper nen ne ad he Ee 17

Pierce v. Underwood, 487 U.S. 552 (1988) ............. 20

Pino v. Locascio, 101 F.3d 235 (2nd Cir. 1996) ........ 22

Rhodes v. Stewart, 488 U.S. 1 (1988)...............05 16

Romberg v. Nichole, 48 F.3d 453 (9th Cir. 1995), cert.

quel, US... , 16 SAL. S79 1988) oe ek 18

Ruggiero v. Krzeminski, 928 F.2d 558 (2d Cir. 1991) .... 14

Slade v. United States Postal Service, 952 F.2d 357

CRWT SAGs RR 5555 os 24 ek pul eee eee eal 16

Song v. Ives Laboratories, Inc., 957 F.2d 1041 (2d Cir.

BUREPN vi 5 Ks eked eck Rv KS ee Dee 8, 9

Terminate Control Corp. v. Horowitz, 28 F.3d 1335

Cee ES APOE ak io a ed 0 aoe Re eae eee 20

Texas State Teachers Ass'n v. Garland Indep. School

District, 489 U.S. 782 (1989)... .c.000s. 9, 10, 13, 14

U.S. Football League v. National Football League, 887

F.2d 408 (2d Cir. 1989), cert. denied, 493 U.S. 1071

OPW ei ak Kew h eda Ae Ord GRE LW S Mi aa eee aA 21

Walker v. Anderson Electrical Connectors, 944 F.2d

841 (11th Cir. 1991), cert. denied, 506 U.S. 1078

(EONS op act cw cen raae See eA ea ees cb edbaeenex enka 16

Webb v. Dyer County Board of Education, 471 USS.

2B, SEA eeprom a yeh Chee ie eR eee 7

Williams v. Thomas, 692 F.2d 1032 (5th Cir. 1982)..... 14

REPRE REE ERO eRe Ee aN

vi

TABLE OF AUTHORITIES —- Continued

Page

STATUTES AND OTHER AUTHORITIES

Civil Rights Attorneys Fees Awards Act of 1976,

42 U.S.C. § 1988 (1988 & Supp. IV)........... passim

Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. § 2000e-5(k).............. passim

New. York State Human Rights Law, 18 McKin-

ney’s N.Y. Executive Law, § 296(1)(a) (1982)... passim

BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

Respondents Susan Q. Bridges, Virginia D’Aponte,

and Kimberly Muryasz respectfully request that this

Court deny Petitioner Yourdon, Inc.’s application for a

writ of certiorari.

RESPONDENTS’ OBJECTIONS

The respondents object to the petitioner’s statement

of the facts and the issues of law.

+

STATUTORY PROVISIONS INVOLVED

The Civil Rights Act of 1964, Title VII, Section 706(k),

42 U.S.C. § 2000e-5(k), provides:

“In any action or proceeding under . . . [Title VII]

the Court, in its discretion, may allow the pre-

vailing party, other than the [Equal Employment

Opportunity] Commission or the United States,

a reasonable attorneys’ fee as part of the costs,

and the Commission and the United States shall

be liable for the costs the same as a private

person.” (Emphasis added)

The Civil Rights Attorneys’ Fees Awards Act of 1976, 42

U.S.C. § 1988 provides:

“In any action or proceeding to enforce a provision

of [42 U.S.C. Title VII] sections 1981, 1982, 1983,

1985, and 1986 of this title, . . . the court, in its

discretion, may allow the prevailing party, other

than the United States, a reasonable attorneys’ fee

as part of the costs.” (Emphasis added)

*

STATEMENT OF THE CASE

This case involved, among other things, the equitable

damages provisions of the Civil Rights Act of 1964, as

amended, [42 U.S.C. § 2000e-5(g), (k)] prior to the adop-

tion of the Civil Rights Act of 1991 (42 U.S.C. § 1981A)

(November 21, 1991) and New York State Law [NYS

Executive Law, § 290 et seq.] which permits a jury award

for compensatery damages for sex discrimination in the

employment context and award of attorneys’ fees [42

U.S.C. § 1988].

In November, 1991, following a one (1) year exhaus-

tion of administrative remedies at the EEOC level

[1990-1991], respondents filed suit under Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et

seq., and the New York Human Rights Law, N.Y. Exec.

Law § 296(1)(a), alleging quid pro quo sexual harassment

and the creation of a hostile work environment. For an

extensive factual and procedural background, see Bridges

v. Eastman Kodak Co., 91 Civ. 7985, 1996 WL 47304

(S.D.N.Y. Feb. 6, 1996) (Carter, J.); Bridges v. Eastman

Kodak Co., 1995 WL 529880, 68 F.E.P. Cases 1587 (S.D.N.Y.

Sept. 8, 1995) (Carter, J.); Bridges v. Eastman Kodak Co., 885

F.Supp. 495, 66 F.E.P. Cases 1688 (S.D.N.Y. Jan. 19, 1995)

(Carter, J.); Bridges v. Eastman Kodak Co., 850 F.Supp. 216,

64 F.E.P. Cases 1100 (S.D.N.Y. 1994) (Carter, J.); Bridges v.

Eastman Kodak Co., 822 F.Supp. 1020, 64 F.E.P. Cases 1093

(S.D.N.Y. 1993) (Carter, J.); Bridges v. Eastman Kodak Co.,

800 F. Supp. 1172, 61 F.E.P. Cases 9 (S.D.N.Y. 1992) (Car-

ter, J.) (Record A-22).!

In January and February, 1995 the respondents tried

their case before a federal jury based on their complaint,

which asserted, that in 1989 and 1990, while respondents

were employed at Yourdon, Inc. (hereinafter “Yourdon”)

(an Eastman Kodak Company subsidiary), they suffered

acts of serious sexual harassment involving penile expo-

sure, urination in waste baskets, and extremely lewd and

offensive comments. This created a sexually hostile work-

ing environment resulting in their constructive discharge

in February and March of 1990. Each respondent corrobo-

rated the sex discrimination claims of the other.

This action was tried before a jury over the course of

two weeks in January and February, 1995, with the jury

rendering a “special verdict” in favor of the respondents

for back pay and emotional injuries on their pendent N.Y.

State Human Rights Law, Executive Law, § 296(1)(a)

(1982) claims awarding a combined $124,110.65 in dam-

ages and interest in this matter.

In February, 1996 the district court awarded the

respondents’ attorneys’ fees and costs following their

successful Title VII (and related state law) action against

Yourdon. See Bridges v. Eastman Kodak Co., No. 91 Civ.

7985, 1996 WL- 43704 (S.D.N.Y. Feb. 6, 1996) (CA-1-7).?

Yourdon appealed to the Second Circuit challenging the

' The reference (Record “A-page”) refers to the Record On

Appeal to the Circuit Court of Appeals for the Second Circuit.

? The reference (Record “CA-page”) refers to the Appendix

annexed to the petition for writ of certiorari.

extent of the fee award as against the amount sought and

specifically challenged Ms. Bridges’ eligibility for attor-

neys’ fees and costs.

On December 10, 1996 the Second Circuit reviewed

the substantial jury award, the specific and overall out-

come of the case [for all three plaintiffs], the district

court’s findings of liability as defined by Title VII and

federal law, and fully affirmed the district court’s award

of attorneys’ fees.

The circuit court, in Bridges v. Yourdon, Inc., 102 F.3d

56 (2nd Cir. 1996) held that the district court did not

abuse its discretion in awarding attorneys’ fees in the

amount that it did based on the substantial outcome, the

representation of all three plaintiffs, and the nature of the

litigation and the defense presented. The circuit court sep-

arately addressed the issue of Ms. Bridges’ eligibility for

attorneys’ fees and costs. In doing so it specifically

addressed this Court’s holding in Farrar v. Hobby, 506 U.S.

103, 109 (1992) and other rulings. The circuit court held

that Ms. Bridges was a “prevailing party” eligible for

attorneys’ fees and costs. Following the appeal, Yourdon

filed the petition for writ of certiorari in March, 1997.

I

THE SECOND CIRCUIT PROPERLY FOUND RESPuw-

DENT BRIDGES A “PREVAILING PARTY” ENTITLED

TO ATTORNEYS’ FEES AND EXPENSES FULLY CON-

SISTENT WITH THIS COURT’S HOLDING IN FAR-

RAR V. HOBBY, 506 U.S. 103 (1992) AND PRIOR

RULINGS

The unanimous opinion of the Second Circuit in this

case, that Ms. Bridges was a “prevailing party,” was

based on the correct application of this Court’s decision

in Farrar v. Hobby, 506 U.S. 103 (1992). The circuit court

properly refused to ignore respondent Bridges’ success

on the essential elements of her federal and state law

claims, which, Yourdon argues this Court should do to

grant the writ of certiorari.

Yourdon argued that this Court must, and should,

refuse to credit all three respondents with having

obtained a large financial recovery and substantial suc-

cess on their state law claims; a sum totalling $124,110.65.

Yourdon’s premise is entirely unsupported by statute or

precedented case law. Petitioner fails to cite reference to a

single case in support of this premise.%

3 Respondents signaled an interest to settle the case at

every phase of the litigation. Kodak and Yourdon simply were

not interested in pursuing a settlement, or, an FRCP Rule 68

Offer of Judgment. (A-130) The award of attorneys’ fees and

expenses represented the services rendered by counsel on behalf of all

the respondents whose claims were intertwined. Attorneys’ fees

would remain the same under these circumstances regardless of

the number of respondents. The respondents would have been

witnesses to each others’ case and would have been deposed

and attended the trial in any event. Yourdon skewed the

respondents’ overall success on the merits by excluding any

The Second Circuit and the district court considered

the entire recovery of $124,110.65 as “substantial” and not

“technical.” It held that the fee and expense award was

justified given the specific facts and experiences of the

parties of this case.

A. Bridges Is Entitled To Attorneys’ Fees And

Expenses For Her Pendent Claims

This Court’s ruling in New York Gaslight Club, Inc. v.

Carey, 447 U.S. 54, 57-58, 100 S.Ct. 2024, 64 L.Ed.2d 723

(1980), has settled, over a decade ago, the issue that a

plaintiff who receives all of her relief under New York

State Law, and whose federal claim has not been rejected,

is entitled to an award of attorneys’ fees in her original

Title VII enforcement action.

An award of attorneys’ fees may properly extend to

related pendent state law claims, if the party also prevails

on her federal civil rights claim. See National Organization

For Women v. Operation Rescue, 37 F.3d 646, 653 (D.C. Cir.

1994), citing reference to Hensley v. Eckerhart, 461 U.S. 424,

434-35, 103 S.Ct. 1933, 1939-40, 76 L.Ed.2d 40 (1983).

In establishing parameters for the application of the

fee shifting statute, 42 U.S.C. § 2000e-5(k), and 42 U.S.C.

§ 1988, the Supreme Court, in New York Gaslight Club, Inc.

v. Carey, 447 U.S. 54, 100 S.Ct. 2024, 64 L.Ed.2d 723 (1980)

had, as early as June, 1980, addressed the issue whether a

reference to the full award achieved. Moreover, Yourdon’s

characterization of the overall results (including state law

awards) as “irrelevant” to the Title VII enforcement action was

rejected by the circuit court as unsupported as a matter of law.

prevailing plaintiff on a discriminatory employment com-

plaint, filed at the New York State administrative level

pursuant to Title VII and applicable NYS Human Rights

Law, Exec. Law § 296, could seek attorneys’ fees for those

proceedings, without an independent federal action filed

under Title VII in federal court. This Court ruled that

Title VII authorized a federal court to award fees in an

action for fees only, without an independent federal

action seeking enforcement of a Title VII claim. In North

Carolina Department of Transportation v. Crest Street Com-

munity Council, Inc., 479 U.S. 6, 12, 107 S.Ct. 336, 93

L.Ed.2d 188 (1986), the Court further held that plaintiffs

in a Title VI claim must seek enforcement of their claims

“in suits,” “through courts,” and by “judicial process”

(citing Webb v. Dyer County Board of Education, 471 U.S.

234, 241, n.16, 105 S.Ct. 1923, 1927-1928, 85 L.Ed.2d 233

(1985)).

These cases are instructive to this case as well. Justice

O’Connor wrote in her majority opinion:

“Moreover, to support its statement that the

‘parties may be considered to have prevailed

when they vindicate rights through a consent

judgment or without formally obtaining relief,’ the

Senate Report cited cases that involved at a

minimum the filing of a judicial complaint. [cita-

tions omitted]. . . . The House Report, even

while it stresses that ‘prevailing party’ is not

intended to be limited to the victor only after

entry of a final judgment following a full trial on

the merits, clearly contemplated that parties

obtaining fees would have initiated civil rights

litigation.” (Emphasis added) North Carolina

Department of Transportation v. Crest Street Com-

munity Council, Inc., 479 U.S. at 12-13 (1986).

This Court had long established, and the circuit court

has recognized, that a federal civil rights claim under

Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. § 2000e et seg., and the NYS Exec. Law § 296, are

“virtually identical.” See for example, Song v. Ives Laborato-

ries, Inc., 957 F.2d 1041, 1048 (2d Cir. 1992), citing refer-

ence to Kremer v. Chemical Construction Corp., 456 U.S. 461,

479-80, 102 S.Ct. 1883, 1896, 72 L.Ed.2d 262 (1982). The

Second Circuit followed Kremer and ruled that:

“In light of New York’s wholesale adoption of

federal standards in discrimination cases under

Executive Law [§ ]296 claims, we find that...,a

district court sitting at equity in a Title VII

action must resolve the Title VII claims in accor-

dance with the jury’s determination on the Exec-

utive Law § 296 claim.” Song v. Ives Laboratories,

Inc., 957 F.2d at 1048.

Yourdon absolutely refused to recognize, and indeed,

has chosen not to mention throughout their argument in

support of a writ of certiorari, the plain and simple fact,

that Ms. Bridges was successful on her backpay Title VII

claim and recovered $20,000 for pain and injuries related

to the violation of her civil rights. It is undisputed that

she and the other respondents succeeded on the merits of

their Title VII claim against petitioner and on their related

New York State Executive Law § 296 claim, both of which

involved:

a“

. a common core of facts or [are] based on

related iegal theories. Much of counsel’s time

will be devoted generally to the litigation as a

whole, making it difficult to divide the hours

expended on a claim-by-claim basis. Such a law-

suit cannot be viewed as a series of discrete claims.

Instead the district court should focus on the signifi-

cance of the overall relief obtained by the plain-

tiff... . ” (Emphasis added) Hensley v. Eckerhart,

461 U.S. 424, 434, 103 S.Ct. 1933, 76 L.Ed.2d 40

(1983). See Song v. Ives Laboratories, Inc., 957 F.2d

1041, 1048 (2d Cir. 1992), citing reference to

Kremer v. Chemical Construction Corp., 456 U.S.

461, 479-80, 102 S.Ct. 1883, 1896, 72 L.Ed.2d 262

(1982).

This Court has held, and it is a matter of settled law,

that a suit seeking relief under both Title VII and a related

State Fair Employment Law is “an action or proceeding”

under Title VII, within the meaning of § 706(k), 42 U.S.C.

§ 2000e-5(k), as amended. The plain meaning of § 706(k),

42 U.S.C. § 2000e-5(k), as amended, is that a plaintiff who

prevails on any claim in that proceeding which is also

covered under Title VII is presumptively entitled to attor-

neys’ fees.

The circuit court, with this Court’s guidance, held

that

‘

‘... A plaintiff prevails when she ‘succeeds’ -

and hence ‘prevails’ — ‘when actual relief on the

merits of [her] claim materially alters the legal

relationship between the parties by modifying

the defendant’s behavior in a way that directly

benefits the plaintiff.’ Farrar, 506 U.S. at 111-12;

see also Texas State Teacher’s Ass'n v. Garland

Indep. Sch. Dist., 489 U.S. 782, 792-93 (1989)

(‘[t]he touchstone of the prevailing party

inquiry must be the material alteration of the

legal relationship of the parties in a manner

10

which Congress sought to promote’); (Cite omit-

ted).”* (CA-4-5)

The circuit court further reasoned that

“Bridges, . . . has not lost on the merits of

her federal claim. Rather, she has secured: (1) a

favorable judgment on the merits but no dam-

ages because of her failure to mitigate under

Title VII; and (2) a favorable judgment on the

merits, and substantial damages, under the New

York State Human Rights Law. We conclude that

this constitutes sufficient success to make

Bridges a ‘prevailing party’ eligible for attor-

neys’ fees and costs under § 2000e-5(k).” (CA-5)

The circuit court found that Ms. Bridges is a “prevail-

ing party” eligible for attorneys’ fees under § 2000e-5(k)

and affirmed the judgment of the district court.

The circuit court followed this Court’s holdings in

Farrar v. Hobby, 506 U.S. 103 (1992), Hensley v. Eckerhart,

461 U.S. 424 (1983) and Texas State Teachers Ass'n v. Gar-

land Indep. School Dist., 489 U.S. 782, 792 (1989) in fully

affirming the district court’s decision that Ms. Bridges

was a “prevailing party” eligible for an attorneys’ fee

award.

Indeed, the circuit court pointedly rejected the peti-

tioner’s argument [“that Bridges did not prevail” or

“recover any monetary relief” (CA-6)] and ruled consis-

tent with the record and this Court’s guidance in Farrar

and Hewitt as applicable to the actual facts in this case.

The circuit court ruled that:

“In arguing that Bridges is not a prevailing

party, Yourdon relies heavily on Farrar’s state-

ment that ‘a judicial pronouncement that the

11

defendant has violated the [plaintiff's rights],

unaccompanied by an enforceable judgment on

the merits, does not render the plaintiff a pre-

vailing party. Of itself, the “moral satisfaction

[that] results from any favorable statement of

law” cannot bestow prevailing party status.’

Farrar, 506 U.S. at 112-13 (quoting Hewitt v.

Helms, 482 U.S. 755, 762 (1987) (alteration in

original)). We find this caution from Hewitt

inapposite. First, Bridges has obtained more than

Hewitt’s ‘interlocutory ruling’ {later lost in the

course of litigation resulting in a judgment

against the plaintiff). See Hewitt, 482 U.S. at 760.

Indeed, she has obtained exactly what the Hewitt

Court called for: an actual favorable judgment

requiring Yourdon to pay damages. Second, neither

Farrar nor Hewitt dealt with a plaintiff who had

achieved substantial success — and a large monetary

award — on pendent state-law claims.” (CA-6)

(Emphasis added)

This Court has long recognized that Congress

intended to make it easier for a plaintiff of limited means

to bring a meritorious suit under Title VII. A civil rights

plaintiff occupies a role that has been termed that of a

“private attorney general” in pursuit of a high priority

policy; such a plaintiff is ordinarily to be awarded attor-

neys’ fees when prevailing, except in a few special cases.

Absent a fee shifting statute, few sex based discrimina-

tion and sexual harassment plaintiffs would have the

means to pursue their cases. Congress intended to

encourage individual plaintiffs faced with discrimination

to seek judicial enforcement and relief. See North Carolina

Department of Transportation v. Crest Street Community

Council, Inc., 479 U.S. 6, 107 S.Ct. 336 (1986); Newman v.

12

Piggie Enterprises, 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d

1263 (1988).

“ ... the purpose of [42 U.S.C. § 2000e-5(k)] to

facilitate the bringing of discrimination com-

plaints, the humanitarian remedial policies of

Title VII, and the statutes structure of coopera-

tion between federal and state enforcement

authorities . . . with proceedings before the

EEOC and in federal courts being supplements

to available state remedies . . . all point to the

conclusion that fee awards are authorized for

work done in state administrative or judicial

proceedings as well as in federal proceedings.”

New York Gaslight Club, Inc. v. Carey, 447 US. at

55.

“It is clear from this scheme of interrelated

and complementary state and federal enforce-

ment that Congress viewed proceedings before

the EEOC and in federal court as supplements

to available state remedies for employment dis-

crimination. Initial resort to state and local

remedies is mandated, and recourse to the fed-

eral forums is appropriate only when the State

does not provide prompt or complete relief.”

New York Gaslight Club, Inc. v. Carey, 447 U.S. at

65.

B. Bridges Was A Prevailing Party For Purposes

Of Obtaining An Award Of Attorneys’ Fees

And Expenses.

Routinely, courts have determined “prevailing party”

status of plaintiffs in civil rights litigation by looking to

the benefits secured, not to the mechanism which secures

those benefits. This Court has ruled that

13

“It is settled law, of course, that relief need not

be judicially decreed in order to justify a fee

award under § 1988. A lawsuit sometimes pro-

duces voluntary action by the defendant that

affords the plaintiff all or some relief he sought

through a judgment - e.g, a monetary settlement

or a change in conduct that redresses the plaintiff's

grievances. .. . In all civil litigation, the judicial

decree is not the end but the means. At the end of

the rainbow lies not a judgment, but some action (or

the cessation of action) by the defendant that the

judgment produces — the payment of damages, or

some specific performance, or the termination of

some conduct. Redress is sought through the

court, but from the defendant. (Emphasis

added) Hewitt v. Helms, 482 U.S. 755, 760-761

(1987).

For plaintiffs to be considered “prevailing parties”

this Court requires that the plaintiffs have to be able to

point to a resolution of a dispute which changes the legal

relationship between the plaintiffs and the defendant on

“any significant issue.” (Emphasis added) See for example,

Texas State Teachers Ass’n v. Garland Indep. School Dist., 489

U.S. 782, 790, 109 S.Ct. 1486, 1493, 103 L.Ed.2d 866 (1989);

Gingras v. Lloyd, 740 F.2d 210, 212 (2d Cir. 1984). Certainly,

when the plaintiffs obtain “an enforceable judgment

against the defendant from whom fees are sought” the

plaintiffs are entitled to be considered “prevailing,” not

only in a “technical sense” but also in a material sense.

The district court noted that the circuit court follows

Supreme Court guidance in this regard. In his February 6,

1996, opinion (A-21, at 24-26) following payment on the

Judgment of April, 1995, Judge Carter stressed that all

three plaintiffs “prevailed” on their Title VII hostile work

14

environment claims against defendant Yourdon. Judge

Carter added that

“The Second Circuit abides by United States

Supreme Court precedent that ‘[a] party who

achieves only partial success in his or her suit

may be considered to be a “prevailing party”

where he or she ‘succeed[s] on any significant

issue in litigation which achieves some of the benefit-

. . . sought in bringing suit.’ (Emphasis added)

Ruggiero v. Krzeminski, 928 F.2d 558, 564 (2d Cir.

1991), quoting Hensley v. Eckerhart, 461 U.S. 424,

433 (1983). Furthermore, ‘success may be

assessed by examining whether plaintiffs can

“point to a resolution of the dispute which

changes the legal relationship between [them]

and the defendant([s].”’ Ruggiero, 928 F.2d at

564, quoting Texas State Teachers Ass'n v. Garland

Indep. School Dist., 489 U.S. 782, 792 (1989).”

The Second Circuit found that:

“Bridges’ federal civil rights claim was heard,

and it was decided in her favor. She also won a

substantial monetary award under her related state-

law claim. That is to say, she obtained ‘relief on

the merits of [her] claim[s]’ which, by compel-

ling Yourdon to pay actual damages, ‘materially

alter[ed] the legal relationship between the par-

ties,’ Farrar, 506 at 111-12, ane through which

she has ‘achieve[d] some of the benefit [she]

sought in bringing suit.’ Id at 109. Bridges is

therefore a ‘prevailing party’ eligible for attor-

neys’ fees and costs. See Aubin v. Fudala, 782

F.2d 287, 290-91 (1st Cir. 1986); Williams v.

Thomas, 692 F.2d 1032, 1036 (5th Cir. 1982).”

(Emphasis added) (CA-6)

|

15

The circuit court found the cases cited by the peti-

tioner for support to be “inapposite.” Indeed, the circuit

court found that the petitioner cited cases that “uniformly

stand for the proposition that a plaintiff may not recover

attorneys’ fees for a losing Title VII claim.” (CA-5)

Petitioner, once again, seeks to refer to these same

losing cases in a strained attempt to ignore Bridges’ suc-

cessful Title VII and state monetary award. Furthermore,

petitioner erroneously treats Bridges’ award as though

she had two entirely separate and distinct lawsuits, one

having absolutely nothing to do with the other. Petitioner

fails to provide any law in support of its argument.

Yourdon makes an unsupported inferential leap in an

attempt to have the Supreme Court ignore the statutory

[42 U.S.C. § 2000e-5(k)] directive that “[i]n any action or

proceeding under . . . [Title VII] the Court .. . may allow the

prevailing party, . . . a reasonable attorneys’ fee...” for

the overall relief respondents obtained. Yourdon’s petition

is based solely on its legally unsupported claim that treats Title

VII as having absolutely no relationship to a New York State

Exec. Law claim and ignores settled Supreme Court decisional

law to the contrary.

Once again, petitioner, inexplicably and erroneously

cites reference to cases in which a plaintiff lost on the

merits of his/her federal claims or had his/her federal

claims dismissed. Those cases are wholly “inapposite” to

the case at bar where the respondents, clearly, and unde-

niably, recovered tens of thousands of dollars on the

essential merits of their Title VII and state law claims.

The petitioner cites the following cases for support,

for example, National Org. for Women v. Operation Rescue,

16

37 F.3d 646, 653-654 (D.C. Cir. 1994) (plaintiffs who lost on

the merits of their federal civil rights claim were not

considered “prevailing parties” for purposes of an award

of attorneys’ fees under 42 U.S.C. § 1988); Bray v. Alex-

andria Women’s Health Clinic, 506 U.S. 263, 113 S.Ct. 753,

122 L.Ed.2d 34 (1993) (plaintiffs who failed to state, and

were not entitled to pursue, a claim for relief under

federal statute [42 U.S.C. § 1985(3)] were not entitled to

any attorneys’ fees and expenses); Mateyko v. Felix, 924

F.2d 824 (9th Cir. 1990), cert. denied, 502 U.S. 814, 112 S.Ct.

65, 116 L.Ed.2d 40 (1991) (plaintiff lost all of his federal

claims on the merits); Rhodes v. Stewart, 488 U.S. 1, 3

(1988) (plaintiffs who either died or released from prison

before favorable judgment mooted any possible benefit to

them not considered prevailing); Albright v. Good Shepherd

Hosp., 901 F.2d 438 (5th Cir. 1990) (plaintiff’s favorable

judgment on his federal claim was reversed); Kelly v. City of

Leesville, 897 F.2d 172 (5th Cir. 1990) (jury found that

plaintiff’s federal rights had not been violated); National

Private Truck Council, Inc. v. Oklahoma Tax Comm'n, __

U.S. __, 115 S.Ct. 2351, 132 L.Ed.2d 509 (1995) (federal

[42 U.S.C. § 1983] relief was unavailable where there was an

adequate [state] legal remedy); McLaughlin v. State, 784

F.Supp. 961, 980 (N.D.N.Y. 1992) (an application for attor-

neys’ fees based on an interlocutory decision in favor of

plaintiff denying a summary motion to dismiss a Title VII

claim and not decided on the merits was deemed prema-

ture); Slade v. United States Postal Service, 952 F.2d 357

(10th Cir. 1991) (interlocutory relief permitting plaintiff to

go forward on the merits is not “some relief on the merits”

of his claims giving rise to entitlement for attorneys’

fees); Walker v. Andesson Elec. Connectors, 944 F.2d 841, 847

17

(11th Cir. 1991), cert. denied, 506 U.S. 1078 (1993) (plaintiff

who failed to recover any damages under Title VII and

pendent state tort claims was not considered prevailing);

Pedigo v. P.A.M. Transport, Inc., 98 F.3d 396 (8th Cir. 1996)

(an Americans with Disabilities Act (ADA) plaintiff who

recovered nothing on only federal claim is not prevailing);

Jackson v. Galan, 868 F.2d 165 (5th Cir. 1989) (plaintiff who

recovered no relief against a specific defendant and

obtained “no alteration” in defendant’s conduct not enti-

tled to attorneys’ fees); Hanrahan v. Hampton, 446 U.S. 754,

757 (1980) (interlocutory denial of a motion in plaintiff's

favor concerning discovery orders not considered pre-

vailing for attorneys’ fees award); Cramblit v. Fiske, 33

F.3d 633 (6th Cir. 1994) (a plaintiff who failed to prove any

actual or compensatory damage under essential federal

statutory or state law claims denied attorneys’ fees).

Likewise, petitioner cites reference to cases which it

purports to be of some guidance, but which have no

factual or legal application to the facts and the law appli-

cable to the success of respondents ($124,110.65) or

Bridges ($20,000.00) in this case.

For example, petitioner cites cases where only a nom-

inal damage ($1.00) or insignificant relief was awarded.

In Milton v. Des Moines, 47 F.3d 944 (8th Cir. 1995), cert.

denied, ___ U.S. __, 116 S. Ct. 87 (1995) (a plaintiff who

recovered $1.00 compensatory award and $1.00 punitive

damage award entitled to $10,000.00 in attorney fees for

violation of 42 U.S.C. § 1983, the right to be free from

cruel and unusual punishment, considered of more sig-

nificance than Farrar’s allegations concerning a business

issue); Cartwright v. Stamper, 7 F.3d 106 (7th Cir. 1993) (a

18

plaintiff's nominal award, failure to establish the signifi-

cance of the legal issues, and lack of public purpose

served by the litigation, warranted a no fee finding);

Romberg v. Nichols, 48 F.3d 453 (9th Cir. 1995) (the plain-

tiffs’ nominal $1.00 award and failure to identify any

nonmonetary success resulting from litigation did not

warrant a fee award).

Indeed, petitioner also misapplies the Supreme

Court’s decision in Farrar v. Hobby, 506 U.S. 103, 113 S.Ct.

566, 121 L.Ed.2d 494 (1992) to the facts in this case.

Bridges [all the respondents] recovered substantial mone-

tary awards on the essential elements of her [their] Title

VII and state law claims. These results are entirely “inap-

posite” to the result in the Farrar case. In Farrar, the

plaintiffs did not recover any damages on their federal

law [42 U.S.C. § 1983] claims and they had no state law

claims. The jury found that the defendant’s conduct was

not a “proximate cause of any damages” suffered by the

plaintiffs. On appeal the Fifth Circuit remanded the case

for entry of a judgment against the defendant for a nomi-

nal damage ($1.00) [considered a “technical victory”].

' It would be anomalous that a court hearing a Title VII

civil rights claim may award attorneys’ fees for time

spent on administrative proceedings to enforce civil

rights claims prior to litigation and not award attorneys’

fees for time spent in a federal judicial proceeding result-

ing in a favorable state law finding and success on the

merits of the federal claim. New York Gaslight Club, Inc. v.

Carey, 447 U.S. 54, 100 S.Ct. 2024, 64 L.Ed.2d 723 (1980);

North Carolina Department of Transportation v. Crest Street

Community Council, Inc., 479 U.S. at 14. cited reference to

19

Carey, [447 U.S. 54]. Bridges’ award of $20,000.00 in com-

pensatory damages awarded in an action or proceeding

seeking to enforce her successful and meritorious Title

VII claims is relevant to her “prevailing party” status and

cannot be ignored.

The Second Circuit, clearly understands the signifi-

cance of the Farrar decision and has properly applied the

Supreme Court’s guidance in Farrar and other cases to

this case establishing that Bridges was a “substantially

successful” and “prevailing party.”

Il

THE SECOND CIRCUIT PROPERLY AFFIRMED THE

DISTRICT COURT’S ATTORNEYS’ FEE AWARD CON-

SISTENT WITH THIS COURT’S HOLDING IN FAR-

RAR v. HOBBY, 506 U.S. 103 (1992) AND PRIOR

RULINGS

A. The Second Circuit Considered Respondents’

Overall Success On The Merits Of Title VII

And Pendent State Law Claims

The Second Circuit fully considered Farrar v. Hobby,

506 U.S. 103 (1992) and prior rulings, and the entire

judgment, in light of the overall success of the respon-

dents on the merits of their Title VII and pendent state

law claims in considering the award of attorneys’ fees

and expenses. Unlike the plaintiffs in Farrar and Hewitt,

the respondents in this case, including Bridges, had

achieved “substantial success” on most of the significant

claims that they and she sought to recover. The award of

legal fees was deemed reasonable in light of the overall

success of the respondents.

20

In Farrar, the plaintiff recovered a nominal ($1.00)

award constituting a “technical victory.” Justice O’Con-

nor reasoned that “[w]Jhen the plaintiff’s success is purely

technical or de minimis, no fees can be awarded.” Farrar,

506 U.S. at 117. But Justice O’Connor added that the

extent of success was not the only measure applied for

consideration. She held that

“It]he difference between the amount recov-

ered and the damages sought is not the only

consideration, however. Carey v. Piphus, 435 U.S.

247, 254 (1978), makes clear that an award of

nominal damages can represent a victory in the

sense of vindicating rights even though no

actual damages are proved. . . . Accordingly, the

courts also must look to other factors. Instead, it

[attorneys’ fees] is a tool that ensures the vindica-

tion of important rights, even when large sums of

money are not at stake, by making attorneys’ fees

available under private attorney general theory.

(Emphasis added)

This Court has provided that a district court’s deter-

mination of the amount of an attorneys’ fee award is

reviewable only for an abuse of discretion. Pierce v. Under-

wood, 487 U.S. 552, 571 (1988). However, request for attor-

neys’ fees should not result in a second major litigation.

Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S. Ct. 1933, 76

L.Ed.2d 40 (1983). See Terminate Control Corp. v. Horowitz,

28 F.3d 1335, 1342 (2d Cir. 1994).

Moreover, the Supreme Court in City of Riverside v.

Rivera, 477 U.S. 561 (1986) held that while the amount of

damages a plaintiff recovers is certainly relevant to the

amount of attorneys’ fees to be awarded, it is, however,

only one of many factors that a court should consider in

sane etareeaarertaiiaaeiaaeiniaesiaiiiaiiiieaieaiiaiieal

21

calculating an award of attorneys’ fees. “We reject the

proposition that fee awards . . . should necessarily be propor-

tionate to the amount of damages a civil rights plaintiff actu-

ally recovers.” City of Riverside, 477 U.S. at 573 (emphasis

added).

It has long been settled law that a “strict propor-

tionality” standard has been rejected by this Court. Your-

don’s argument that the respondents’ attorneys’ fee

award is disproportionate to only one of the respondent's

award of compensatory damages, or to other similar

awards, has been rejected as not a proper basis for deter-

mining appropriate attorneys’ fee awards. Petitioner has

ignored the Supreme Court’s guidance in Hensley v.

Eckerhart, supra, regarding the twelve factors essential for

a fee award and “lodestar” review. These factors, which

were considered by the district court in this case, are a)

time and labor required; b) novelty and difficulty of the

questions; c) the skill requisite to perform the legal ser-

vice properly; d) preclusion of other employment of the

attorney in taking the case; e) customary fee; f) whether

the fee is fixed or contingent; g) time limitations imposed

by the client or the circumstances; h) the amount

involved and the results obtained; i) experience, reputa-

tion, ability of the attorneys; j) the undesirability of the

case; k) nature and length of the professional relationship

with the client; and 1) attorney fee awards in similar

cases. The Second Circuit had applied the Fifth Circuit

approach in U.S. Football League v. National Football

League, 887 F.2d 408, 415 (2d Cir. 1989) cert. denied, 493

U.S. 1071, 107 L.Ed.2d 1022, 110 S. Ct. 1116 (1990) as

guidance in reviewing fee awards.

22

B. In Affirming The District Court’s Fee Award

The Second Circuit Followed Farrar v. Hobby

And Prior Rulings Of This Court

The circuit court’s reasoning in this case is entirely

consistent with Justice O’Connor’s guidance in Farrar v.

Hobby, 506 U.S. at 115. Following the reasoning of Justice

O’Connor in the Farrar decision, that “[i]n the context of

this [Farrar] litigation, the technical . . . nature of [Far-

rar’s] victory is readily apparent: .. . ” Farrar v. Hobby,

506 U.S. at 120, the Second Circuit ruled in Pino v.

Locascio, 101 F.3d 235, 237 (2nd Cir. 1996) that in deter-

mining whether an award of attorneys’ fees is appropri-

ate requires a two-step process. First, the party must be a

“prevailing party” and second, the “most important fac-

tor in determining the reasonableness of a fee is the

degree of success obtained” (citing reference to Farrar).

In the Pino case the Second Circuit ruled that a

[“readily apparent”] nominal damage of $1.00 and a fail-

ure “to prove an essential element of his claim” warrants

“no fee at all.” After its Pino decision, the Second Circuit,

in Carrol v. Blinken, 105 F.3d 79, 81 (2d Cir. 1997) empha-

sized that the Pino case stands for the proposition “that in

determining the reasonableness of a fee award in civil

rights actions the quantity and quality of relief obtained

is a critical factor.” Thereafter, in Orchano v. Advanced

Recovery, Inc., 107 F.3d 94 (2d Cir. 1997) the Second Circuit

provided additional insight into its understanding of the

Supreme Court’s guidance in Farrar which also cited ref-

erence to its decision in Hensley v. Eckerhart, 461 U.S. 424,

436 (1983). In Orchano, 107 F.3d at 98, the Second Circuit

reasoned that Farrar exemplifies those circumstances

23

when an award of attorneys’ fees under special circum-

stances would be “unjust.” Once having determined that

an attorneys’ fee award would “not be unjust,” the dis-

trict court may properly consider the twelve factors the

Supreme Court set out in Hensley that should be followed

in determining what constitutes a “reasonable fee” within

the meaning of § 1988 and other fee-shifting statutes.

Clearly, the circuit court had properly applied Farrar

v. Hobby and the other Supreme Court decisions in

reviewing appeals concerning attorney fee awards. In this

case, the substantial monetary recovery of the respon-

dents ($124,110.65) was “readily apparent” to the circuit

court. It was not a “technical victory” by any means.

Certainly not one which would invite a special consider-

ation to deny a fee award. Moreover, the circuit court

cited reference to Farrar as supporting a full affirmance of

the lower court’s award of attorneys’ fees, while rejecting

Yourdon’s unsupported notion that the pendent state

claim was irrelevant. The circuit court concluded that

Bridges recovered a substantial sum from the petitioner

and Kodak; that her success (as well as the other respon-

dents) was clearly not “technical;” but was indeed “sub-

stantial” on the merits, and affirmed the attorneys’ fee

award as fully

“ . . . justified, however, by the length of this

litigation, the acrimony and vigor with which every

point was contested, and that such cases be brought

as remedies for violations of civil rights.” Bridges v.

24

Eastman Kodak Co., 91 Civ. 7985, 1996 WL 47304,

*12 (S.D.N.Y. Feb. 6, 1996) (Carter, J.).(A-30).

and further, that this case

a

. contributed to Title VII case law and

helped to realize Congress's intent in passing the

Civil Rights Act of 1964. Plaintiffs, and others like

them who suffer from sexual harassment, must have

appropriate remedies available to them or their rights

become meaningless. Attorneys’ fees are one way to

ensure that such avenues remain open. See Newman

v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402

(1968) (affirming that Congress enacted legisla-

tion authorizing fee awards in civil rights cases

in order to enable those whose rights have been

violated to seek redress in the courts).” (Emphasis

added)(A-30).

Indeed, this case involved complex and novel issues

of evolving law spanning the period between Meritor

Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91

L.Ed.2d 49 (1986) and pre- and post-amendments to the

Civil Rights Act of 1964, Title VII, as amended, 42 U.S.C.

§ 2000e et seq. [November 21, 1991, 42 U.S.C § 1981-A

(CRA 1991)]. The outcome in this case gave rise to a

number of decisions that remain the subject of law review

articles, bar association conferences, and precedented

case law.

The circuit court has correctly applied this Court’s

holdings in Farrar v. Hobby, and other rulings in fully

affirming the lower court’s attorneys’ fee award for all

the respondents.

25

Ill

THIS COURT SHOULD HAVE NO INTEREST IN

GRANTING A WRIT OF CERTIORARI IN THIS CASE

This case represents the proper application of this

Court’s holdings regarding the application of the attorney

fee shifting statute in civil rights cases. The civil rights

victim does not have the financial resources to litigate a

claim against a large Fortune 100 company, particularly

one that is prepared to spend seemingly unlimited

resources to frustrate and discourage its employees froin

suing for violation of their rights. These same civil rights

victims often are lower salaried employees who are

required to mitigate damages. Therefore, their potential

recovery may not be as great.

Nevertheless, corporate defendants that refuse to

accept responsibility for the actions of its supervisors and

agents who discriminate against employees because of

their sex in the employment context, and who make no

effort to resolve legitimate claims, and defend at all costs,

must reasonably anticipate that successful plaintiffs will

seek to recover attorneys’ fees. The vast majority of dis-

crimination cases would not be brought, indeed they

would be discouraged as Kodak and Yourdon has

attempted to do, if plaintiff’s counsel could not recover a

reasonable fee for the services rendered. Plaintiff’s coun-

sel cannot, and should not, be compelled to abandon the

client when confronted by overwhelming litigation

defense tactics. Otherwise, wealth and power will dictate

the direction of these high priority public policies and

how effective the civil rights statutes will be applied.

Respondents submit that this appeal, by petition for a

26

writ of certiorari, is an example of petitioner’s tactics in

this case.

This Court and the Second Circuit has recognized

that attorneys’ fees are reflective of the nature of the

outcome in the case as well as the significance and benefit

the public derived from the case, the work performed, the

quality of the services rendered, and the experience of the

plaintiff’s counsel necessary to accomplish a successful

result.

Circuit courts, including the Second Circuit, have

consistently applied Farrar v. Hobby, and refused to allow

attorney fee awards in cases resulting in a purely “techni-

cal” recovery. This case was not such a case.

For this Court to grant the writ of certiorari it must

accept the petitioner’s argument that this Court: (1)

ignore settled law and respondents’ successful and favor-

able jury award and finding based on a Fair Employment

statute supplementing Title VII as deemed relevant to an

attorney fee award, (2) ignore the overall and substantial

monetary results satisfied by Kodak and Yourdon paid to

all the respondents, (3) ignore the settled law against a

“strict proportionality” standard, (4) ignore the Farrar v.

Hobby standard defining who is a “prevailing party”, (5)

ignore the twelve Hensley factors of review applicable to

district courts in awarding reasonable attorneys’ fees, and

(6) ignore the efforts of the defendants to frustrate the

purpose of the civil rights laws while refusing to partici:

pate in resolving the matter throughout the course of

litigation.

The facts in this case were historically unique given

the timing of the case (1990) and the enactment of the

27

Civil Rights Act of 1991 (November 21, 1991) providing

for compensatory relief similar to State Fair Employment

laws. Moreover, the likelihood that a corporate defendant

will be willing to incur attorneys’ fees and costs and not

resolve legitimate civil rights claims brought by

employees should also be rare. For these reasons, and the

reasons argued hereinabove, this Court should have no

interest in granting a writ of certiorari.

*

CONCLUSION

For the reasons discussed above petitioner’s writ for

certiorari in all respects should not be granted.

Respectfully submitted,

LAWRENCE SOLOTOFF

Counsel of Record

SoLoTorF & SOLOTOFF

P.O. Box 4686

Great Neck, New York 11023

(516) 466-5522

Counsel for Respondents

May 1997