Opposition Brief — Tollett v. City of Kemah
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No. 02-89
In the AUG
Supreme Court of the United States
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SANDY G. TOLLETT,
Petitioner,
CITY OF KEMAH, TEXAS
and WILLIAM S. HEFLAND,
Respondents.
ON PETITION FOR A Writ OF CERTIORARI TO THE
UNITED STATES CouRT OF APPEALS FOR THE FIFTH CIRCUIT
BRIEF IN OPPOSITON TO PETITION
FOR WRIT OF CERTIORARI
John J. Hightower Ramon G. Viada, III
Olson & Olson Counsel of Record
Suite 3485 Abrams Scott & Bickley
Three Allen Center 600 Travis
333 Clay Street Suite 6601
Houston, Texas 77002-4004 Houston, Texas 77002-3007
(713) 759-0696 (713) 228-6601
Attorney for Respondent Attorney for Respondent
William S. Hefland City of Kemah, Texas
Curry & TAYLOR @ (202) 393-4141 6 HTTPY/USSCINFO.cCOM
i
TABLE OF CONTENTS
FR OP CITI si vcnicsnesisvsnnsnccteonersnincervenninnninestanusontvsenensevinsbens i
TE OP BETTI osssccisscesssvinssornsonsneosenssanvesscensossnnnenvesivemnannen ii
RESPONSE TO STATEMENT OF JURISDICTION .........s:sssssssereseeseeeeeees 1
RESPONSE TO STATEMENT OF THE CASE..........ssscscssssssseserscsrsreeeeees 1
REASONS FOR DENYING THE WRIT ..........:scscscsssssssscscssceseserssecesees 18
EN ane iisctinsscvinnensanninintonsienttnonionsitieiivtitamainnmanicnetininnvrnets 29
APPENDIX
PLAINTIFF'S, SANDY G. TOLLETT’S, MOTION FOR NEW
PLAINTIFF'S, SANDY G. TOLLETT’S, AMENDED
re i vicecsiccisctnitiinasecnecisiinerniciseskisccavess
ii
TABLE OF AUTHORITIES
CASES
AGOSTINI V. FELTON, 521 SEs: ae Oa a 20
BENNINGFIELD V. CITY OF HOUSTON, 157 F.3D 369 (5TH
AF RID seecensiseciennaatanisiadibdaecn tem iaamel hinisiniihpinaaneinisbidsedicmtciecnes 26
BENNINGFIELD V. NUCHIA, 526 U.S. 1065 (1998) .........0.. nee 26
BURGER V. CENTRAL APARTMENT MANAGEMENT, INC.,
168 F.3D 875 (5TH CIR. 1999) .......ccscsssssesssscssscssessessesessecescsseens 27
CAMPANIELLO IMPORTS, LTD. V. SAPORITI ITALIA S.P.A.,
BET FBO Ca I isa issctacdrecasccirnaierosiehiadninscsinnss 28
DOLLIS V. RUBIN, 77 F.3D 777 (5TH CIR.1995) (PER
FIRST NAT. BANK OF LOUISVILLE V. LUSTIG, 96 F.3D 1554
OE OR. WN voice 22, 24
GEO. P. REINTJES Co., INC. V. RILEY STOKER CorP., 71
FOE CE Ce i rite ae 20, 23
GLEASON V. JANDRUCKO, 860 F.2D 556 (2D C1R.1988),
REV'D IN PART ON OTHER GROUNDS, 869 F.2D 688 (2D
CU REID xcscecvinvscenivesinigeitilipamabinsataaill aegis 25
GRAVES V. WOMEN'S PROF'L RODEO ASS'N, 907 F.2D 71
(UNE CU I isc sisnsssiieinicteetlhpanee ental ae de 25
GREAT COASTAL EXPRESS, INC. V. INTERNATIONAL BHD.
OF TEAMSTERS, 675 F.2D 1349 (4TH CIR. 1982) ...........0.. 23, 25
H.K. PORTER Co. V. GOODYEAR TIRE & RUBBER Co., 536
F.2D 2156 (OC CORD wines. chasiiceaiaaeiadanos 25
tad
iil
HAZEL-ATLAS GLASS CoO. V. HARTFORD-EMPIRE Co., 322
U.S. 238 (1944) ..ccsccssscesssssseseeseeseessessnsesnenensesenenensseneenens 22, 25
KERWIT MEDICAL PRODUCTS, INC. V. N & H
INSTRUMENTS, INC., 616 F.2D 833 (5TH CIR. 1980).........+.+++ 24
LOCAL 59 V. SUPERLINE TRANSPORT CO., 953 F.2D 17
(IST CIR. 1992)......scssssecessssesessssserensneesnssnenssennenennenensensnsessesens 25
MATTERN V. EASTMAN KopaK Co., 104 F.3D 702 (5TH
CIR. 1997) .....cccsessscscessssecesssssesesesenesenssesessensssssesesesenenensnsnenesesess 26
PAGE V. BOLGER, 645 F.2D 227 (4TH CIR.), CERT.
DENIED, 454 U.S 892 (1981) ......::scccsssseeseeseeestseeesetesnenennenenes 26
PORTER V. CHICAGO SCHOOL REFORM BD., 187 F.R.D.
563 (N.D. ILL. 1999)........escceseseseeeeseessssrsesecssseerensnenensnensecesees 22
ROBINSON V. AUDI AKTIENGESELLSCHAFT, 56 F.3D 1259,
(LOTH CIR. 1995) ......sssssssesessesesssssesnsensssnssnsnsseenensensnennenensensesecs 24
SEESE V. VOLKSWAGENWERK, A.G., 679 F.2D 336 (3D CIR.
1982) .....sssccecsssssssssessesscssscsesscsesescsenssnsessnssssnenenenssnensensnsanesseseees 21
SHACKELFORD V. DELOITTE & TOUCHE, LLP, 190 F.3D
398 (BTH CIR. 1999) ......cccesescsesessseesenenensssssnseeeesneseenenenenseserenes 27
STANDARD OIL Co. OF CALIF. V. UNITED STATES, 429
U.S. 17 (1976) .......cscecsscscsssssseseesssenesesenensnsssssseeeeesensnesensensneeess 20
SWITZER V. COAN, 261 F.3D 985 (LOTH CIR.2001)........seseseeseeees 22
TADROS V. COLEMAN, 898 F.2D 10 (2D CIR. 1990)........-eeeeeseeees 26
TRANSAERO, INC. V. LA FUERZA AREA BOLIVIANA, 24
F.3D 457 (2D CIR.1994).......ccscccssessreessesereeereeeer sneennesenssnneenees 22
iv
TRAVELER'S INDEMNITY CoO. V. GORE, 761 F.2D 1549
Fee Sic acessories sibatensaneinsanedepecnaiannhilthdaldeiaiadsliegtliadadaaaibaniias
UNITED STATES V. BEGGERLY, 524 U.S. 38 (1998)............... oe
UNITED STATES V. THROCKMORTON, 98 U.S. (8 OTTO) 61,
Boe Re We 0 MO scrcsccivclasinstoninbinteninthinidamecaneeamamevaniontukiianin
WALLACE V. UNITED STATES, 142 F.2D 240 (2ND CIR.),
CERT. DENIED, 323 U.S. 712 (1944)...........ccc.ccscosrsccsscesssceeseees 28
WILLIAMS V. BRISTOL-MYERS SQUIBB CO., 85 F.3D 270
ge | Re te a ee ve Le Oe 2
WILSON V. JOHN-MANSVILLE SALES CORP., 873 F.2D 869
CRIN SAGs SUT iiancnscsessnsadseciditdspahtsahnanepeeinitacnaniesetiinraneiunisdatineih 2%
STATUTES
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Respondents, the City of Kemah, Texas (the “City”) and
William S. Helfand (“Helfand”) appear to file this brief in
opposition to the peution for certiorari of Petitioner Sandy S
Tollett (“Tollett”).
RESPONSE TO TOLLETT’S
STATEMENT OF JURISDICTION
In the preamble of her petition, Tollett requests this
Court “to review the judgments” — plural not singular — “of the
Fifth Circuit in this case.” In the “Opinions Below” section of
her petition, she then identifies the two Fifth Circuit decisions
she presumably desires the Court to review, the so-called Tollett
I decision, handed down by the Fifth Circuit in September 1999,
and the Tollett I] decision, handed down on March 6, 2002.
Obviously, since Tollett did not file her current petition within
90 days of entry of the Tollett ] judgment, her petiton for review
of that judgment is time-barred. Sup. Ct. R. 13(1).
RESPONSE TO TOLLETT’S
STATEMENT OF THE CASE
A. Tollett’s Underlying Title VII Claim.
As City will discuss below, as one of the prerequisites for
obtaining relief from the judgment under any of the subsections
of Rule 60(b) is a showing of a meritorious claim or defense, the
following statement of facts, not detailed in the Court of
Appeals’ opinion, is offered to support the City’s argument here
that Tollett’s Title VII claim lacks merit as a matter of law and
therefore any retrial of her case would be an exercise in futility.
When the City appointed Tollett to the unpaid position of
reserve officer in August, 1993, she was totally inexperienced in
police work. (9 Tr. 164). The City requested her to work a
minimum of 32 hours per month, or 8 hours per week. (/d., at
169). Although in her petition for certiorari Tollett has described
herself as a “full-time reserve police officer” (id., at 2), in reality
she worked only 40 to 45 hours per month, or approximately 10
9
to 11 hours per week. (9 Tr. 233). The City never paid her any
wage or salary and never provided her any benefits, such as life
or health insurance. (9 Tr. 216).
In her petition for certiorari, Tollett has attempted to
recast the theory of her Title VII claim as a complaint about a
work environment “tainted by sexual animus.” See Tollett’s
Petition, at 2. No claim for a hostile work environment was
pled. Rather, the gravamen of Tollett’s suit was that she was
required to undergo more field training than unidentified
volunteer male reservists.
At trial, Tollett testified that she believed she had
completed field training in July 1994, when the chief of police at
that time, Gary Harter, told her she was “good to go.” (9 Tr. 175
77, 229). She was then assigned to bicycle patrol, as she
requested, until September 1994. (9 Tr. 177).
In September 1994, according to Tollett’s trial testimony:
“I contacted Sergeant Munoz over the telephone and informed
him that I was pregnant and I requested to be taken off the
streets and off of bicycle patrol for my safety as well as my
child's.” (9 Tr. 178). Never thereafter did Tollett work for the
City. (9 Tr. 179-82, 224-26).
Tollett’s child was born in May 1995. When she returned
to the Kemah Police Department expecting to resume her
volunteer patrol duties in July 1995, a subordinate officer, Capt.
Swinney, told her that her she would have to “re-train.” (9 Tr.
230, 233). Tollett admitted at trial that she never took the matter
up with Chief Harter, the decisionmaker in such matters for the
Department. (9 Tr. 234-35, 244-45).
Tollett testified that on a single occasion, the City paid her a small
fee for executing a warrant. However, she did not report the fee on
the federal income tax return she filed jointly with her husband; and
the City had no record of ever paying her any fee. (9 Tr. 216-18).
3
Tollett further admitted that the City never fired her. (9
Tr. 202). To the contrary, she simply decided not to resume her
reservist duties upon being told by Capt. Swinney that she
would need to re-train. (9 Tr. 202, 206, 933-34). Tollett filed a
charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”) in August 1995, almost
eleven months after her last day of work as a part-time
volunteer. (9 Tr. 191).
There is no evidence that all police reservists who
successfully completed field training were appointed to paying
jobs. Nor do Tollett’s pleadings in this case allege that the City
discriminated against her in any hiring decision or that it refused
to offer her any paid job position because of her sex. She
admitted at trial that she never inquired about any of the
openings the City had posted for paid police officer positions,
and she never applied for any such jobs. (9 Tr. 254).
B. The Discovery Order Compelling The Document
Production.
In January 1997, Tollett served the City with
interrogatories and requests for production. (R. 220-37).
Contrary to Tollett’s ~urrent characterization of the document
request as one seeking the production of the personnel files of
officers “similarly situated” to Tollett, it instead called for the
production of the complete files of all city police officers
employed between 1993 and 1996, regardless of whether
comparable in any relevant way to Tollett. (R. 222-23). The City
objected to the request for the production en masse of employee
files. (R. 210-14).
In May 1997, Tollett filed a motion to compel. (R. 248).
The part of her motion addressed to the production of employee
personnel files is vague and appeared concerned only with the
files of “comparative officers.” (R. 241). The motion’s prayer for
relief is equally vague, requesting simply that the motion be
granted “in all parts.” (R. 239).
4
On June 27, 1997, in a cryptic, one-line order no more
specific than Tollett’s motion to compel, the District Court
stated: “The plaintiffs motion to compel answers to
interrogatories and documents (#14) is granted. It is so
Ordered.” (R. 270).
C. The City Secretary's Affidavit.
In her certiorari petition, Tollett states that the Kemah
City Secretary, Kathy Pierce, filed an affidavit “to the effect that”
none of the records Tollett had requested even existed, and that
Pierce, in her affidavit, “knew her statements would mislead the
court.” This assertion is false on several levels.
To begin with, Pierce did not “file” her affidavit in court.
lt was intended as a supplement to Tollett’s document request.
The genesis of it is as follows: On October 6, 1997, at the pretrial
docket call, Tollett’s counsel complained to the District Court
that the City still had not produced employee files for other
officers, to which Mr. Helfand, the city’s trial counsel,
responded:
The Plaintiff has asked for — and the Court
granted a motion to compel for records and
personnel files of employees who were — and I'm
using quoted now because these were their
words — similarly situated, discriminated against
because of a pregnant condition.
We reported that there were no other such
employees. There were no other employees who
during the time that the Plaintiff was employed
even took a leave of absence for a pregnancy
purpose let alone who claimed any
discrimination as a result of being pregnant.
(7 Tr. 9). To address plaintiffs concerns, Mr. Helfand offered to
furnish a no-records affidavit from the city secretary, averring
that the City had never employed any “similarly situated” officer.
ee
5
This proposal, to which plaintiffs counsel offered no objection,
also appeared to satisfy the District Judge, who stated:
“(Pjerhaps | | an affidavit is the appropriate way to deal with it in
light of my motion because the motion is more than simply a
request, it’s an order.” (7 Tr. 11).
On October 20, 1997, Mr. Helfand sent Tollett’s counsel a
no-records affidavit executed by Ms. Pierce. (PX 13, 24).
Contrary to Tollett’s peution for certiorari, Pierce did not “file” it
in court, and it certainly was not used to influence the Court's
ruling on some motion then pending. The Pierce affidavit states
in relevant part:
The City of Kemah has not had an employee or
volunteer who is “similarly situated” as the
Plaintiff, Sandy Tollett, in that the Police
Department has not had any other employee
who was on leave for any reason who had not
completed their field training either prior to
taking leave or who did not agree to successfully
complete the field training program upon their
return from leave. Accordingly, the City has no
records to produce of any employee or volunteer
who is, as described, “similarly situated” to
Sandy Tollett.
(PX 24). There is no evidence that anything stated in this
affidavit is false.”
In footnote 3 of the District Court's March 2000 sanction order, the
Court has labeled the affidavit as “false” .. . “because it fails to
inform the Court about lost or destroyed records that had bearing
on the representation.” (R. 1661). This characterization 1s plainly
wrong since the affidavit does not speak to files of anyone other
officers “similarly situated” to Tollett (as the affidavit defines that
term), and so Pierce's alleged failure to volunteer information in her
affidavit about the files of other employees does not make the
affidavit false or perjurious.
6
D. Helfand’s Statement At Docket Call Concerning
Non-Existence Of Documents.
Helfand’s comments at the October 6 docket cail to the
effect that Virtually all of the employment records kept during
Chief Harter’s administration were lost or missing was an
inadvertent overstatement. Later at trial, as discussed below,
Helfand would discover that a large cache of irrelevant
employee files from Chief Harter’s administration had in fact
been retained. Nevertheless, the training records which the
District Court considered relevant never surfaced, for as the
Court itself noted in its March 2000 sanctions order, the training
records of “most, if not all, of the relevant officers” (R. 1660) —
to the extent such documents ever existed in the first place —
remained missing.’ The same can be said for other categories of
During Tollett’s tenure as an unpaid police officer, the City operated
out of a 1400 square-foot converted residence. (9 Tr. 419; 2 Supp. Tr.
88). The Kemah police chief during Tollett’s tenure, Harter, was the
physical custodian of all of the personnel files of city police officers.
Harter’s successor, Warren, assumed this role when he became chief
on September 29,.1995. He found the files scattered in various
locations throughout the building and in a detached temporary shed
outside. Warren assembled the files, organized them in folders and
placed them in a central location in his office. By the time the case
was tried in March 1998, the police employee files had been moved
to Warren's office in the new, 3000 square-foot Kemah City Hall
building. (9 Tr. 419; 10 Tr. 461; 1 Supp. Tr. 110, 115). As Mumioz
testified at trial, each of these personnel files theoretically should
have contained the officer's job application, state officer
certification, physical fitness records, education records, and
disciplinary records. (9 Tr. 321-22). In actuality, however, as
reflected by the parties’ inventories of the contents of the 63
personnel files Warren brought to the courthouse on the last day of
trial, many of the files were deficient of these materials, most
notably those of officers who had served during Chief Harter’s
administration. (R. 878-1063, 1242-1630; PX 18, 25; DX 1). During
the transition period between chiefs, the chief's office and desk
were unsecured. (1 Supp. Tr. 120). Approximately three months
after Warren became chief, the Kemah mayor and three police
officers informed him that other Kemah officers had entered the
office and destroyed “stuff out of their own files.” (/d.). There is no
evidence of the identities those who allegedly had destroyed
7
documents that the files at least in theory should have
contained. Thus, while it is true that at docket call Helfand
inadvertently misstated the extent to which the files of Harter
era officers could not be accounted for, his comments in this
regard could not have amounted to a_ material
misrepresentation, let alone a misstatement capable of
preventing Tollett from having a fair trial.
E. The Trial.
The case was tried to a jury between March 10 and 13,
1998. Assistant Police Chief Pete Munoz attended as the City’s
trial representative. During Tollett’s tenure Mufioz had served as
a corporal and a field training officer, he did not then have
access to police personnel files. (9 Tr. 320, 356, 381-82; 1 Supp.
Tr. 81). The custodian of the files at that time was Chief Harter,
whom the City had relieved of duties on October 1, 1995, even
before Tollett filed suit. (9 Tr. 356; 10 Tr. 444-46; 1 Supp. Tr. 31-
32; DX 1). Since the parties could not locate Harter during the
Tollett litigation, he was unavailable to testify at trial. (9 Tr. 356-
57). Harter’s second-in-command, Alonso Swinney had resigned
in November 1996. (10 Tr. 450; R. 911). The Kemah chief of
police at the time of trial, Keith Warren, had not been a city
employee when Tollett served. (1 Supp. Tr. 110). Thus, Mufioz
was the highest ranking police officer still in the City’s
employment who had witnessed Tollett’s job performance.°
On March 10, 1998, during presentation of the parties’
motions in limine, Tollett reurged her motion for sanctions,
records, aS no names were ever mentioned. (/d., at 122). Nor does
the record of the sanctions hearing indicate exactly what was
destroyed or why.
Mujioz was not, however, the City’s custodian of police personnel
records - Chief Warren was - and as the trial record abundantly
shows Mujfioz was not the person best qualified to testify about the
contents of those files, particularly those compiled during the time
of Tollett’s employment when Mujioz had no access to any of them.
8
which the Court carried with the case. (8 Tr. 31). In the
discussion that followed, Tollett’s counsel argued that Pierce’s
affidavit certifying no records of similarly situated officers
“modified what we asked for.” (Jd., at 32). Mr. Helfand reminded
the Court that during the October 6 docket call, the Court itself
had indicated that a no-records affidavit of this sort “would
suffice.” The District Judge replied: “Well, that would suffice as
far as the Court is concerned about the effort to comply [with
the discovery order]... .” (/d., at 33).
Apparently, the Court’s greater concern at this point was
the City’s failure to have maintained complete records for all of
its police officers — in the Court’s mind a violation of state law
relevant to the credibility of the City’s witnesses. The Court
would thus permit cross-examination on why such records had
not been preserved. (/d., at 33-36). The effect of this ruling was
to put the City on trial as much for its faulty record-keeping as
for its treatment of Tollett.
To the extent one reads Tollett’s certiorari petition and
the District Court’s sanction order of October 2, 2000 as implying
that Helfand had argued to the jury that the City had lost all of
the personnel files of officers who had served under Chief
Harter, any such implication is unfounded. During opening
statement, Helfand commented only on the absence of relevant
records of sex discrimination against Tollett:
This lady has already admitted, and I think you
will see in the evidence, there is nobody who is
going to testify that decisions related to her were
because she’s a woman, no one. There are no
documents, no memos to suggest that, nothing. .
[I] will prove to you, and she will tell you, if she
testifies consistent with her prior deposition
testimony, no witnesses, no documents,
absolutely nothing but her firmly held belief.
And I don’t mind for a second, and I will tell you
9
this again later, I don’t mind for a second that
she thinks it, but that’s not proof of it and she
won't prove it to you, because she will tell you
that there are no witnesses and no documents,
that anything that happened to her because of
the fact that she’s a woman.
(8 Tr. 143-45).
Now I've got to tell you, Chief Harter, he’s not
the chief anymore. He was a good cop. He wasa
lousy administrator. He didn't do the
administrator work of his job very well, and his
record keeping was dismal. This is a small police
department, as Mr. Griffin correctly told you.
Seven police officers worked here. Yeah, they
have volunteers come in and out from time to
time, but there are seven cops in the entire
department. And Chief Harter did not keep very
good records with respect to those individuals.
But the records are not what this case is about,
because there would be nothing in those records
~ and we have the records as they relate to Ms.
Tollett, but there would be nothing in the
records that would show that Ms. Tollett’s
treatment was because of the fact that she is a
woman. And the fact that we may not have the
records for somebody else has nothing to do
with Ms. Tollett.
(8 Tr. 147-48).
During the trial itself, Helfand made other statements
about various employee “records”. In its October 2, 2000
sanction order, the District Court quoted some of these
statements out of context to create the impression that Helfand,
at one point in the trial, knowingly misrepresented the status of
the City’s police personnel files to the Court, and later, after the
10
Court threatened to send the FBI to City Hall, had dramatically
confessed to having known the true state of the files all along.
The Court’s rendition of these events is as follows:
[Djuring opening statements, attorney Helfand
was confident in telling the jury that there were
no documents or records that supported the
plaintiffs case. When the Court threatened a
criminal investigation, attorney Helfand again
stated to the Court, “They don’t have them.”
Later in the colloquy between the Court and
attorney Helfand, he modified his statement to,
“I don’t have the records.” Finally when the
Court threatened to have federal authorities
search the City’s facilities for such records,
attorney Helfand remarked to the Court, “I will
have the Chief bring those records tomorrow.”
(R. 1662).
For this Court to better understand the strength of the
inferences the District Judge has drawn from Mr. Helfand’s
statements quoted above, it will be necessary here to reconstruct
the actual context of each of these statements, paying close
attention to how the term “records” was used each time and the
particular context in which it was used.
During the trial, it was Mufioz in response to cross
examination — rather than Helfand in response to the Court’s
threat of a criminal investigation — who first disclosed that the
City had in fact been maintaining personnel files of its officers,
including his own. Without hesitation, Mufioz also revealed he
knew where the City had been keeping those files. (9 Tr. 320-
21).
: Later in his testimony Mujfioz clarified that he knew the City was
maintaining the files of its “current officers”; he was unsure what
remained of any of the files of officers who were no longer
employed by the City when Warren became the chief. (9 Tr. 355-66).
11
The focus of cross-examination then shifted to an
entirely different set of “records” - Mufioz’s “field training
records.” These were records Mufioz had made of his
observations of officers training under his supervision (Tollett
being one). Regarding these records, Mufioz testified that he had
made handwritten, contemporaneous notes of the dates and
hours of Tollett’s training sessions. Mufioz testified that he
turned these records over to Captain Swinney, but they were not
in the “employee file” produced by the City in the litigation. (9
Tr. 322-26, 336-37). To this day Tollett's training records
remain missing.
When Mufioz later attempted to testify from memory
about the number of hours per week Tollett customarily
worked, the Court refused to allow it, stating:
THE COURT: I’m not going to let him testify to
those [recollections], because the Best Evidence
Rule says his memory isn’t worth zip unless he
can establish and show where the records are
and why they’re not here before the Court.
MR. HELFAND: I would like to make a record on
this at some point, Judge.
THE COURT: You certainly can. And I’m very
close to asking that there be a criminal
investigation involved in this situation, because
it is totally outrageous that these people are
violating state law and not maintaining records
and then come in here and pretend that they
eon't know where other people’s records are.
MR. HELFAND: Judge, they don’t have them.
We’ve had this discussion with the Court before,
and I don’t disagree with what the Court is
saying. It’s clearly inappropriate.
12
THE COURT: It is a violation of state law and it
is a crime to destroy records when a lawsuit is
implicated. It is against federal law to destroy
records. The implication of all this - and if the
jury was sitting over there and listening to him
testify and he’s on trial for his life, they wouldn’t
believe him, in my opinion, and they would put
him in jail, because they know he’s the man who
created the records and they know that there are
other men who helped maintain and create
records and they know that those men should be
here. This is a crime.
MR. HELFAND: Judge, I’m not disagreeing with
the Court that it may be a crime. I don’t know.
All I’m saying — I don’t disagree, Judge. J don’t
have the records.
(9 Tr. 349-50) (emphasis added).
Viewed in proper context the “records” Helfand was
referring to here were Mufioz’s time records — records which to
this day remain missing. Thus, Helfand’s statements to the
Court that “they” — 7.e., the City officials — “don’t have them”,
meaning time records, and that “I don’t have them”, meaning
time records, were all literally true.
In the next passage, the District Judge referred to “these
records” as among a wider domain of “records” that he believed
his one-line order had commanded the City to produce: “[W]hat I
ordered was the production of these records, and they have not
been produced.” (/d., at 350). The Court then confronted Mufioz
with his earlier testimony that he knew where City was keeping
its police employee files — again, a different set of “records.” The
Court proclaimed: “It is a falsehood, a misrepresentation, to tell
the Court you have no records and then sit up here on the
witness stand and say, ‘I know where they’re stored.” (9 Tr.
351). Mufioz again confirmed: “I know where the employee files
are today.” (Jd., at 351) (emphasis added). This revelation
13
provoked Judge Hoyt to command the City to bring those
records to the courtroom:
THE COURT: Well, you go tell your client —
MR. HELFAND: My client has been told
numerous times —
THE COURT: -I want those records here.
MR. HELFAND: Judge, J don’t haven't [sic]
those records.”
THE COURT: Have those records here tomorrow
morning or you don’t come back. Whoever has
got them, I want them and I want them here at
the courthouse and I want to look at them. And
if I determine that there has been some
impropriety, I am going to ask the FBI to go over
there and turn that office upside down and put
everybody in jail that belongs to be there.
MR. HELFAND: And, Your Honor, so we
understand, so we can comply, is the Court
instructing that the records of officers from that
time period —
THE COURT: I want every personnel record of
every police officer during the relevant period of
time. And I better find some records.
(Id., at 352-53). The Court clarified the “relevant time” as 1993,
1994, and 1995. (/d., at 353-54). Helfand at this point, rather than
“confessing” to having known all along of the existence of these
files, continued to express doubt about whether the City really
had preserved any employee files kept during the Harter
administration. (9 Tr. 355). |
14
On the following morning, March 11, 1998, Chief Warren
delivered to the Court all of the police personnel files then in the
City’s custody, including those of officers who served before
1993 or after 1995. (10 Tr. 458-64).° Tollett then moved for a
mistrial and a continuance to review the files. (10 Tr. 470).
Overruling these motions, the Court announced that Tollett
would be afforded an opportunity to review the files after trial
and further advised that if the files were then found to contain
any probative evidence, the Court would consider it as a basis
both for a new trial, if Tollett then desired one, and for
enhancing sanctions yet to be imposed. (10 Tr. 471).
In the meantime, as a trial sanction the Court forbade
Helfand from arguing to the jury that the City had in fact kept
the personnel records of other officers. Instead, the Court
instructed the jury - and permitted Tollett’s counsel to argue in
closing, as he strenuously did — that the jury could infer from
the City’s failure to produce the employment files of its other
officers that such records contained evidence unfavorable to the
City’s position. (10 Tr. 465-79, 534, 550, 561, 567-69, 602; R. 746).
On March 13, 1998, the jury refused to find that the City
had discriminated against Tollett in violation of Title VII. (R.
738-39). The Court accordingly entered a take-nothing judgment
for the City on March 20, 1998. (R. 754).
F. Tollett’s Rule 59 Motion for New Trial.
On March 30, 1998, Tollett moved for a new trial under
FED. R. CIV. P. 59 citing two grounds: (1) some of the “newly-
discovered evidence” in the files could have affected the
outcome of the trial, and (2) the alleged misstatements at issue
in this proceeding by Helfand and Muvioz constituted a fraud
on the court. See Respondents’ Appendix, Ex. A. The Court
See the inventories summarizing the files which Tollett filed in
connection with the first appeal, showing that Chief Warren
produced files of some 63 employees consisting of 4,874 pages in all.
(R. 1017-39, 1057-63, 1242-1630; PX 25; DX 1).
-
15
denied this motion without explanation on May 18, 1998. (R.
856).
G. Tollett I: The First Appeal.
On June 12, 1998, Tollett appealed from the denial of her
motion for new trial. (R. 868). On July 1, the City cross-appealed
from the $5,000 sanction order (R. 870). In her appellant's brief
in Tollett J, Tollett challenged the District Court’s refusal to grant
her a new trial on the ground of fraud. Although this ground, as
noted above, had been raised in Tollett’s Rule 59 motion for new
trial, on appeal she raised it solely in connection with a second
point of error that complained of the District Court's refusal to
grant her relief from the judgment under Rule 60(b)( 3). (R. 1073-
76, 1082-83). Tollett, however, had not yet filed a Rule 60(b)
motion below. Thus, in Tollett J the Fifth Circuit considered
Tollett’s second point of error premature. See Tollett v. City of
Kemah, No. 98-20547, at p. 4 (5th Cir. September 13, 1999) (R.
1152).
In support of her appeal, Tollett had supplemented the
appellate record with summaries and voluminous excerpts of
the 63 employee files produced by Chief Warren on the last day
of trial. (R. 880-1063). The Tollett I Court, after reviewing those
records, stated: “Tollett has not directed us to, nor have we
found, any evidence that would have changed the outcome of
the trial.” Id. (emphasis added). Accordingly, the Court affirmed
the original take-nothing judgment for the City. (/d.).
H. Proceedings on Remand.
On October 19, 1999, the District Court entered an order
setting a hearing on December 6 and stating that “[o]n remand of
this case, the Court is required to determine reasonable
sanctions for the conduct of the defendants [sic] and/or counsel
in failing to comply with discovery request ordered by the
Court.” (R. 1156). At the December 6 hearing, the District Judge
decided to set the matter for a full evidentiary hearing, having
read Tollett I as “saying I need to make a complete record, it
16
seems to me, and then determine whether sanctions should be
entered or not.” (12 Tr. 9) (emphasis added). Setting the tone for
what was then to follow, Judge Hoyt castigated the City’s
counsel for their successful pursuit of the City’s meritorious
cross-appeal:
I do not intend to walk away from this, because
I'm insulted. I’m angry by the fact that this case
would go up on a simple $5,000 award that was
designed to ameliorate Ms. Tollett’s problem and
counsel's anguish over not getting discovery that
seems to me to bear substantially up on the issue
of whether or not the trial itself — the entirety of
the trial was circumvented. . . . | had hoped that
this would have gone away; and I was
disappointed that the appeal was taken, not so
much, I suppose, by [Tollett’s counsel] Mr.
Griffin, who wanted terribly to set this case
aside, | suppose, and for it to come back, but on
the sanctions part. That part should have
walked away. It should have been dealt with
that day.
(12 Tr. 14-15).
On January 12, 2002, Tollett filed what she styled an
“amended motion for sanctions,” requesting monetary sanctions
under FED. R. CIV. P. 11 and 37 and a new trial under FED. R.
Civ. P. 60(b)(2) and (3). See Respondents’ Appendix, Ex. B.
Tollett’s fraud-on-the-court argument supporting her request for
a new trial under Rule 60(b)(3) was a rehash of the same fraud-
Even before the sanctions hearing, the Court's view of the course
Helfand should have followed was as follows: “Mr. Helfand should
have said, look, you know, this thing is very touchy. It has criminal
implications here. I have lied to the Judge. I have cheated in this
process and I should back off and I should get my client to back off
with me or pay the price for my client having done this.” (12 Tr. 13)
(emphasis added).
17
on-the-court argument the District Court had already
considered, and rejected, in denying Tollett’s Rule 59 motion for
new trial in May 1998.
In addition, although Tollett maintains in her petition for
certiorari that in her renewed motion for new trial, she moved
for a new trial under not only Rule 60(b)(2) and 60(b)(3) but
also under the residual clause of Rule 60(b). However, a fair
reading of the preamble, body, and prayer of that motion will
reveal that Tollett did not move for a new trial under the residual
clause. Only in a footnote of that motion did Tollett refer to a
court’s power to set aside a judgment in an independent action
for “fraud upon the court.” But even there she failed to request
the Court to conduct an independent action for the purposes of
obtaining relief from the judgment. See Respondents’ App. B.
On January 14, 2000, the Court scheduled a hearing to
“determine whether sanctions should be imposed and, if so,
against whom.” (R. 1189-90). Five persons were commanded to
appear — Helfand, Warren, Pierce, Mufioz, and Ms. Rachel
Ziolkowski (a lawyer associate of Helfand’s). All were ordered
to come “prepared to give testimony concerning personnel
records kept by the City of Kemah in light of the Court's pretrial
orders [sic] to provide those records to the plaintiff and her
counsel.” (/d.).
On March 7 and 8, 2000, the District Court held an
evidentiary hearing on Tollett’s amended motion for sanctions.
At the outset of the hearing the Court stated that it did not
consider the evidentiary hearing applicable to Tollett’s Rule
60(b) motion for new trial, since the Court viewed that motion
as sufficiently addressed by the documents and court papers
already on file. (1 Supp. Tr. 4). In this regard the Court stated:
All right. I recognize, Mr. Griffin, that you have
raised — in addition to the question of your
motion, should I say, for sanctions and/or
supplemental motion or amended motion, let's
call it — in addition to that, you have raised a
18
basis, at least in your motion — let's see if it is
contained — yes, in that same motion for
amended sanctions, you have raised a 60(b )
question and whether or not that should apply.
And I believe that the parties — and I say parties
meaning the City of Kemah as well as you —
have adequately addressed that in the
documents and papers. So, J am not going to
focus on that aspect of your motion from an
evidentiary perspective.
Id. (emphasis added). When then asked by the Court if the
parties had any objection to this approach, Tollett’s counsel
stated he had none. /d.
REASONS FOR DENYING THE WRIT
On October 2, 2000, the District Court implicitly denied
Tollett’s Rule 60(b) motion for new trial. In Tollett IT, the Fifth
Circuit affirmed this ruling. Tollett’s petition for certiorari is
confined to those rulings of the lower courts. Tollett has not
challenged the Fifth Circuit's reversal of the inherent power
sanction award against the City and Helfand, and she has not
challenged the Fifth Circuit’s reversal of the factual findings
made by the District Court in support of that sanction.
A. The Mandate Rule Bars Tollett’s Rule 60(b)
Motion.
Tollett’s first two points of error appear to be shades and
phases of the same contention that the Fifth Circuit, in Tollett IJ,
denied Tollett her right to bring a meritorious
claim for relief under the savings clause of Rule
60(b), “fraud on the court”, and denied the
district court its inherent right to raise or review
that claim. The panel failed to recognize that at
the hearing on sanctions following remand, the
district court properly considered not only the
19
mandate from the panel, but also the claim of
fraud on the court, and therefore the district
court's findings and order did not exceed the
scope of the mandate.
Petition, at p.8.
Before turning to the merits of this argument,
Respondents must first rebut the two misstatements of record
which are built into it: First, as noted above, Tollett’s motion for
new trial at issue is not an independent action under the residual
clause of Rule 60(b). The only subsections of Rule 60(b) on
which Tollett moved for relief, in the preamble, body, and prayer
of that motion, are Rules 60(b)(2) and 60(b)(3), which the Court
of Appeals correctly held to be time-barred. See App. B.
Second, Tollett has mischaracterized the nature of the
March 2000 sanctions hearing by treating it as if it were an
independent action under the residual Clause of Rule 60(b). At
no time before or during that hearing did the District Judge take
the view that the matter before him was an independent action
to set aside the judgment. To the contrary, on March 7, 2000,
at the outset of the sanctions hearing, the District Judge stated
expressly on the record that he did not consider the evidentiary
hearing to be applicable to Tollett’s Rule 60(b) motion for new
trial, since the Court viewed that motion as sufficiently
addressed by the briefing and documents already on file. (1
Supp. Tr. 4).
Accordingly, contrary to Tollett’s argument on certiorari,
the Fifth Circuit did not “deny Tollett her right to bring a
meriterious claim for relief under the savings clause of Rule
60(b)” — for she did not bring any such claim. Nor did the Fifth
Circuit deny the District Court “its inherent right to raise or
review” such a claim — for the District Court made it absolutely
clear that the evidentiary hearing in March 2000 was held only to
determine what kind of sanction to impose, if any, and not to
decide Tollett’s motion for new trial.
20
Finally, Tollett’s argument that the mandate rule does
not bar her Rule 60(b) motion, whatever its basis, is also
unavailing. “[Rjelitigation of the legal or factual claims
underlying the original judgment is not permitted in a Rule 60(b)
motion or an appeal therefrom.” Agostini v. Felton, 521 U.S. 203,
257 (1997) (Ginsburg, J., dissenting); 11 Wright, Miller, & Kane,
FED. PRAC. & PROC. 2d § 2863, p. 340 (Rule 60(b) “does not allow
relitigation of issues that have been resolved by the judgment”);
Geo. P. Reintjes Co., Inc. v. Riley Stoker Corp., 71 F.3d 44, 49
(1st Cir 1995) (“Rule 60(b) does not license a party to relitigate,
whether via motion or independent action, any issues that were
made or open to litigation in the former action where he had a
fair opportunity to make his claim or defense.”) (emphasis
added; internal quotations deleted).
As discussed above, after the original judgment in this
case was entered, Tollett moved for a new trial under Rule 59 on
the grounds of fraud on the court and newly discovered
evidence. The District Court denied Tollett’s Rule 59 motion.
Accordingly, subsumed in the original judgment is the District
Court’s refusal to set that judgment aside on the ground of fraud,
and the mandate in Tollett I did not authorize the District Court
to relitigate that same question under the guise of a Rule 60(b)
motion. But Tollett’s Rule 60(b) motion attempts to do just that
— it is a rehash of her Rule 59 motion which the District Court
had already denied, a ruling Tollett could have appealed to the
Fifth Circuit in Tollett I. Rule 60(b) is not an exception to the
doctrine of res judicata once the matter has, as it was in this
case, been fully and fairly litigated in a previous motion for new
trial.
-For this reason, Tollett’s reliance on Standard Oil Co. of
Calif. v. United States, 429 U.S. 17 (1976), is misplaced. It holds
merely that a Rule 60(b) motion may be filed in the district
court, even after the judgment has been affirmed on appeal, but
only where the movant seeks relief from the judgment based on
information not before the district court when it ruled
initially. Id., at 18-19. Tollett’s Rule 60(b) motion was based on
precisely the same information she presented to the District
21
Court in her Rule 59 motion, and the matter was thus includable
in the Tollett I appeal. See Seese v. Volkswagenwerk, A.G., 679
F.2d 336, 337 & n.1 (3d Cir. 1982) (distinguishing Standard Oil
and holding that “[t]he district court is without jurisdiction to
alter the mandate of this court on the basis of matters included
or includable in defendants’ prior appeal”) (emphasis added).
B. Tollett’s Rule 60(b)(2) & (3) Motions Are
Time-Barred.
Alternatively, as the Tollett [J Court further held,
assuming arguendo the grant of a new trial would not have
exceeded the Tollett I mandate, Tollett’s Rule 60(b) motion at
issue here, predicated as it was on Rules 60(b)(2) and (3),
needed to be filed “not more than one year after the judgment...
was entered.” FED. R. CIV. P. 60(b). Since it was filed 24 months
after the original judgment, it was, as Tollett IT correctly holds,
untimely. In her petition for certiorari, Tollett does not
complain of any error in this alternative ground.
C. In Any Event, The District Court Did Not
Abuse Its Discretion In Denying Tollett’s
Motion For New Trial.
Bs Waiver.
As noted above, Tollett’s Rule 60(b) motion for new trial
does not purport to be an independent action under the residual
clause of Rule 60(b). The only subsections of Rule 60(b) on
which Tollett moved for relief, both in the preamble of her
motion and the prayer, are Rules 60(b)(2) and 60(b)(3), which
the Court of Appeals correctly held to be time-barred. See
Respondents’ Ex. B. During the March 7-8 sanctions hearing, the
District Court correctly decided that it would be able to decide
Tollett’s Rule 60(b) motion on the written motion papers
without the need to conduct any trial on the merits of a claim of
fraud on the court, and Tollett did not object to this approach.
22
2. No Fraud On The Court Shown.
Furthermore, even if Tollett had properly preserved her
present argument about the denial of relief under Rule 60(b)’s
residual clause, the District Court can hardly be said to have
abused its discretion in denying such relief. See Switzer v. Coan,
261 F.3d 985, 988 (10th Cir.2001) (appellate court reviews
disposition of action for fraud upon the court under abuse-of-
discretion standard).
Fraud of the type necessary to sustain an independent
action attacking the finality of a judgment — “fraud upon the
court” — is far narrower in scope than that sufficient for relief
by timely motion under Rule 60(b)(3). See Hazel-Atlas Glass Co.
v. Hartford-Empire Co., 322 U.S. 238, 244-46 (1944); First Nat.
Bank of Louisville v. Lustig, 96 F.3d 1554, 1573 (5th Cir. 1996);
Porter v. Chicago School Reform Bd., 187 F.R.D. 563, 565-66
(N.D. Ill. 1999); 12 MOORE’S FEDERAL PRACTICE 3d, at § 60.21[4].
“[F]ar more than an injury to an individual litigant,” it “embraces
‘that species of fraud which does or attempts to defile the court
itself, or is a fraud perpetrated by officers of the court so that
the judicial machinery cannot perform in the usual manner its
impartial task of adjudging cases presented for adjudication.”
Transaero, Inc. v. La Fuerza Area Boliviana, 24 F.3d 457, 460
(2d Cir.1994) (quoting Kupferman v. Consol. Research and Mfg.
Corp., 459 F.2d 1072, 1078 (2d Cir.1972)); see also Wilson v.
John-Mansville Sales Corp., 873 F.2d 869, 872 (5th Cir. 1989).°
This Court has held that an independent action under the
residual clause must, “if Rule 60(b) is to be interpreted as a
coherent whole, be reserved for those cases of ‘injustices which,
in certain instances, are deemed sufficiently gross to demand a
departure’ from rigid adherence to the doctrine of res judicata.”
United States v. Beggerly, 524 U.S. 38, 46 (1998) (quoting
i)
The only similarity between the standard for establishing fraud
under Rule 60(b)(3) and fraud on the court is that both species of
fraud must be proved by clear and convincing evidence. 12 MOoRE’s
FEDERAL PRACTICE § 60.21[4][b] (3d ed. 1999).
————
23
Hazel-Atlas Glass Co., 322 U.S. at 244). Courts and authorities
agree that "fraud upon the court" must be narrowly construed so
that this "otherwise nebulous concept" does not "overwhelm the
specific provision of 60(b)(3) and its time limitation and thereby
subvert the balance of equities contained in the Rule.” Great
Coastal Express, Inc. v. International Bhd. of Teamsters, 675
F.2d 1349, 1356 (4th Cir. 1982) (citing numerous cases). Because
the power to vacate a judgment for fraud upon the court is so
free from procedural limitations, it "is limited to fraud that
‘seriously’ affects the integrity of the normal process of
adjudication," 12 Moore, Moore’s Federal Practice ¥ 60.21([4][a]
(3d ed. 1999). For example, fraud upon the court includes fraud
by bribing a judge, or tampering with a jury, or fraud by an
officer of the court, including an attorney. See id. 44 60.21(4)[(a],
[b].
Fraud between parties, therefore, “is not fraud on [the]
court” even if it involves "[p]erjury by a party or witness." Id. 44
60.21[4]{c]; see also, e.g., United States v. Throckmorton, 98 U.S.
(8 Otto) 61, 66, 25 L.Ed. 93 (1878) ("The doctrine is equally well
settled that the court will not set aside a judgment because it.
was founded.on a fraudulent instrument, or perjured evidence");
Geo. P. Reintjes Co. v. Riley Stoker Corp., 71 F.3d 44, 49 (1st
Cir.1995) ("perjury alone, absent allegation of involvement by an
officer of the court ... has never been sufficient [to constitute
fraud upon the court justifying collateral attack]") (citing
numerous cases).
Moreover, as the Tenth Circuit has stated:
“fraud on the court,” whatever else it embodies,
requires a showing that one has acted with an
intent to deceive or defraud the court. A proper
balance between the interests underlying finality
on the one hand and allowing relief due to
inequitable conduct on the other_makes it
essential that there be a showing of conscious
wrongdoing — what can properly be
characterized as a deliberate scheme to defraud
24
— before relief from a final judgment is
appropriate.... Thus, when there is no intent to
deceive, the fact that misrepresentations were
made to a court is not of itself a sufficient basis
for setting aside a judgment under the guise of
“fraud on the court.”
Robinson v. Audi Aktiengesellschaft, 56 F.3d 1259, 1267 (10th
Cir.1995).
Since Tollett’s allegations do not begin to approach the
demanding standard for setting aside a judgment under the
residual clause of Rule 60(b), the District Court could not have
abused its discretion denying such relief. Tollett’s contention is
simply: (1) the City Secretary signed an affidavit which is
literally true but which, according to Tollet, was “misleading” in
some undefined respect; (2) the City failed to timely produce its
existent employee files in discovery — files which the Fifth
Circuit in Tollett I reviewed and found to be legally irrelevant;
(3) the City’s counsel, Helfand, overstated at docket call that the
City was unable to account for any of its police employee files
(when in fact the City did have possession of numerous
irrelevant files and could not account for numerous others
which were then and remain today lost); (4) Helfand truthfully
argued to the jury that Tollett can point to no documents
establishing that she is a victim of sex discrimination, an
argument which even today remains true; and (5) training
records which have never surfaced in the litigation remain
unaccounted for.
It is well established that allegations of non-disclosure of
documents during pretrial discovery do not constitute grounds
for an independent action under Rule 60(b). First Natl Bank,
96 F.3d at 1573; Wilson, 873 F.2d at 872; Kerwit Medical
Products, Inc. v. N & H Instruments, Inc., 616 F.2d 833, 837
(5th Cir. 1980); 12 MOORE’S FEDERAL PRACTICE 3d, at
§ 60.21[4][c].” Nor do allegations of perjury by a witness.
‘ See also H.K. Porter Co. v. Goodyear Tire & Rubber Co., 536 F.2d
25
Hazel-Atlas, 322 U.S. at 245." Thus, Tollett’s attempt to
bootstrap a discovery dispute into a fraud claim is unavailing.
3. Futility Of A New Trial.
As an “additional requirement,” the party seeking relief
under the residual clause of Rule 60(b) must prove that the
evidence in question “would have changed the outcome of the
original action.” United States v. Beggerly, 524 U.S. at 47 n.4
(citing Pickford v. Talbott, 225 U.S. 651, 657 (1912)). That is, to
merit Rule 60(b) relief of any kind, the movant must make a
threshold showing that she has a meritorious claim or defense
— “that vacating the judgment will not be an empty exercise.” 12
MOORE’S FEDERAL PRACTICE 3d § 60.24[1], at 60-77 (quoting
Local 59 v. Superline Transport Co., 953 F.2d 17, 20 (1st oe.
1992)).
Accordingly, the District Court could not have abused its
discretion in denying such relief because, as a matter of law,
Tollett cannot prevail on the merits of her Title VII claim. Any
retrial of this case would be futile for at least the following two
reasons.
First, Tollett was not an “employee” within the meaning
of Title VII, 42 U.S.C. §§ 2000e(f). Her volunteer status was part-
time, without pay or benefits. See Graves v. Women's Prof'l
Rodeo Ass'n, 907 F.2d 71, 73 (8th Cir.1990) (compensation is an
1115, 1118 (6th Cir.1976); Traveler's Indemnity Co. v. Gore, 761
F.2d 1549, 1551-52 (11th Cir.1985) (failure to disclose documents
during discovery).
a See also Great Coastal Express, Inc. v. International Brotherhood
of Teamsters, 675 F.2d 1349, 1357 (4th Cir.1982) (“[pJerjury and
fabricated evidence are evils that can and should be exposed at trial,
and the legal system encourages and expects litigants to root them
out as early as possible”), cert. denied, 459 U.S. 1128 (1983);Gleason
v. Jandrucko, 860 F.2d 556, 559 (2d Cir.1988) (after discovered
_ evidence of perjury does not support finding of fraud on the court),
rev'd in part on other grounds, 869 F.2d 688 (2d Cir.1989).
26
“essential condition to the existence of an employer-employee
relationship”); Tadros v. Coleman, 898 F.2d 10, 11 (2d Cir.1990)
(upholding the dismissal of Title VII claims of volunteer member
of college faculty; since defendant did not both control his work
and pay him, plaintiff was not an employee). She had unilateral
power to decide when or whether to leave for health reasons,
and it was she who dictated when, if ever, she would return.
Second, even if Tollett could be regarded a prospective
“employee” within the meaning of Title VII when she returned
from her ten-month leave of absence to have a baby, the City did
not take any “ultimate employment action” cognizable under
Title VII. Title VI jurisprudence makes an important distinction
between (1) “ultimate employment decisions” and (2) mere
“interlocutory or mediate decisions” which have no immediate
effect upon employment conditions, but which might lead to an
ultimate decision. The former can be actionable under Title VII,
while the latter cannot, regardless of motivation. See Mattern v.
Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir.1997); Dollis v.
Rubin, 77 F.3d 777, 781-82 (5th Cir.1995) (per curiam); Page v.
Bolger, 645 F.2d 227, 233 (4th Cir.), cert. denied, 454 U.S 892
(1981). See also Burlington Indus., Inc. v. Ellerth, 524, U.S. 742,
761 (1998) (noting, in a sexual harassment case, that “a tangible
employment action constitutes a significant change in
employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits.”).
“Ultimate employment decisions’ include acts ‘such as
hiring, granting leave, discharging, promoting, and
compensating.” Mattern, 104 F.3d at 707 (citations omitted). On
the other hand, changing an employee’s work schedule, hours,
or increasing an employee’s workload are merely administrative
decisions and do not constitute the type of ultimate employment
decisions contemplated by Title VII. See Benningfield v. City of
Houston, 157 F.3d 369, 377 (5th Cir.1998), cert. denied sub nom.
Benningfield v. Nuchia, 526 U.S. 1065 (1999). Other examples
of non-actionable, interlocutory decisions include purely lateral
transfers. See Burger v. Central Apartment Management, Inc.,
27
168 F.3d 875, 879 (5th Cir.1999). “A transfer involving no
reduction in pay and no more than a minor change in working
conditions will not do, either.” Jd. (quoting Williams v. Bristol-
Myers Squibb Co., 85 F.3d 270, 274 (7th Cir.1996) (Posner, J.)).
In the present case, when Tollett returned to work after a
ten-month self-imposed absence, two of her supervisors
allegedly expected her to resume field training. Although it is
disputed whether Tollett had already completed her field
training when she left her job due to her pregnancy, that dispute
is immaterial. Chief Harter, the official decisionmaker, never
advised her that she would be required to re-train in order to
resume her duties as a reservist, and she never mentioned to
Chief Harter that her supervisors insisted that she re-train.
Thus, there is no proof that the City — the Title VII “employer”
— took any position with respect to her training status.
Furthermore, and more fundamentally, regardless of
whether Tollett was required to re-train upon returning to work,
such a requirement — that an employee undergo more training
than what may be required for others — does not by itself tend to
affect the terms and conditions of employment in a way that
violates Title VII. Cf. Shackelford v. DeLoitte & Touche, LLP,
190 F.3d 398, 407 (5th Cir. 1999) (holding that denial of training
that does not tend to result in a change of employment status,
benefits or responsibilities is not an adverse employment action
covered by Title VII). No evidence exists to show that Tollett
would have received any tangible employment benefit if the City
had deemed her training complete. For even as a fully trained
reserve officer, Tollett’s pay and benefits would have remained
the same: zero. Nor is there any evidence of any qualitative
difference between Tollett’s responsibilities as a trainee and
what her responsibilities would have been as a reservist who
had completed her training. Although in her brief she labels
reservist trainees as “probationary employees,” thereby
suggesting the existence of some material distinction in status
between trainees and non-trainees, there is no basis in the
record for it.
28
4. Untimeliness.
Although an independent action under the residual
clause of Rule 60(b) is not subject to the absolute one-year time
limit imposed on Rule 60(b)(3) fraud motions, all Rule 60(b)
motions, even those filed under the residual clause, must be
“made within reasonable time.” FED. R. CIv. P. 60(b). Tollett, of
course, had ample time to submit a Rule 60(b)(3) motion before
the one-year deadline since all of the evidence on which she
based her present fraud claim was available to her at the time of
trial.
It is fundamental that equity will not grant relief from a
judgment if the complaining party, by exercising proper
diligence, would have had an adequate remedy at law. As
discussed above, Tollett’s Rule 60(b) motion is a rehash of the
Rule 59 motion she timely filed in 1998, and which the District
Court and the Fifth Circuit rejected. If it is Tollett’s position that
her Rule 60(b) motion presents new arguments not addressed in
her Rule 59 motion, she certainly made no effort to explain why
she could not have presented them in a timely Rule 60(b)(3)
motion. Accordingly, having failed to take advantage of the
adequate remedy at law offered by Rule 60(b)(3), Tollett may not
now seek relief in equity under the residual clause. Campaniello
Imports, Ltd. v. Saporiti Italia S.p.A., 117 F.3d 655, 662-63 (2d
Cir.1997); Wallace v. United States, 142 F.2d 240, 244 (2nd Cir.)
(“[o]bviously it cannot have been intended that what may be
done within six months, pursuant to the body of Rule 60(b) may
also be done thereafter, under the exception contained in its last
sentence”) (referring to predecessor to current Rule), cert.
denied, 323 U.S. 712 (1944).
* * %* *
29
CONCLUSION
Accordingly, this Court should deny Tollett’s petition for
certiorari.
Respectfully submitted,
Ramon G. Viada, Ill
Counsel of Record
Abrams Scott & Bickley
600 Travis
Suite 6601
Houston, Texas 77002-3007
(713) 228-6601
Attorney for Respondent
City of Kemah, Texas
John J. Hightower
Olson & Olson
Suite 3485
Three Allen Center
333 Clay Street
Houston, Texas 77002-4004
(713) 759-0696
Attorney for Respondent
William S. Hefland
la
(Any footnotes trail the end of each document. )
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SRST SEY Be TERAS
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MAR 39 1898
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CIVIL ACTION NO. H-96-3131
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
SANDY G. TOLLETT,
Plaintiff,
V.
THE CITY OF KEMAH,
Defendant
PLAINTIFF'S, SANDY G. TOLLETT’S,
MOTION FOR NEW TRIAL
Plaintiff, Sandy G. Tollett, files this her Motion for New Trial
consistent with the dictates of Rule 59, Federal Rules of Civil
Procedure and Rule 4, Federal Rules of Appellate Procedure.
Plaintiff would show unto the Court as follows:
GROUNDS FOR NEW TRIAL
1) Suppression of Evidence: A new trial in this should be
granted in light of the proven suppression of evidence in this
matter. If the Court remembers, the Plaintiff has previously
filed a motion to compel and a motion for sanctions. The
Defendant's counsel has failed to file a written response to
any of the filings, but previously stated orally to the Court
that no documents exist, The Defendant’s counsei has also
stated:
2a
A. In opening statement, the Defendant's counsel
asserted to the jury that no files existed for any of the other
officers, and that the only file that existed was the file of the
Plaintiff.
B. When the Defendant’s witness was cross-examined on
the point of no files existing, the witness feigned ignorance,
stated that he had no personal knowledge, and informed the
Court that the files were destroyed by former Chief Hartner.
When this counsel questioned as to the Defendant’s counsel
statements made in opening statement, an objection was
stated, "I didn’t make that statement,” and a speaking
objection followed, “those files have nothing to do with
discrimination,”
C. When the Court pressed, outside the presence of the
jury, as to the existence of the employment files, the
Defendant's counsel took a number of positions; i) that the
files didn’t exist; ii) that the Court had somehow modified its
order; iii) that it would produce only the files from a certain
period (after 1995) (period related to after former Chief
Hartner had gone from the Department). This last statement
was made by the Defendant’s witness and in essence was the
perjury of the witness Munoz. The defense lawyer at no point
in time sought to correct the record, supported the
contention of the Defendant, no matter which way the wind
blew and participated fully in muddling the record before the
jury, and/or in any presentation to the Court. It wasn't until
the Court threatened counsel with the intervention of the
Federal Bureau of Investigation did he agree to produce the
files. The Court’s position was taken on March 11, 1998. The
next day, March 12, 1998, the Defendant’s counsel showed up
with files of employees who were full-time paid and full-time
non-paid officers. At no time during this sad rendition of total
disobedience of the Court’s order did the Plaintiff have
access to the comparable files of other officers.
2) A Fair Trial Was Denied by Virtue of the Trial
Counsel's Support of Perjury and the Intentional Misleading
of the Court. The absence of the relevant and ordered
3a
materials worked to deprive the Plaintiff of a fair trial. First,
all available ordered information was not produced to the
Plaintiff. Secondly, the Plaintiffs lawyer was required to try
its case on a fiction and not allowed to bring out that
counsel/City of Kemah actually lied about the documents not
existing. The jury was allowed to assume that counsel for the
Defendant was honorable and/or the City of Kemah was
honorable and could be trusted.
The Fifth Circuit in defining the standard of review in the
grant or denial of motions for new trials explained, in Massey
v. Gulf Oil Corp., 508 F.2d 92, 94 (1975), the district court's
role thusly: “{i}n this circuit the ruling of a trial judge in either
granting or denying a motion for new trial is reviewable
under an abuse oi discretion standard. United States for use
of Weyerhaeuser Co. v. Bacon Construction Co., 430 F.2d 420
(CA5, 1970) ; Telfair v. Zim Israel Navigation Co., 428 F.2d 127
(CA5, 1970), cert. denied, 400 U.S. 1009, 91 S.Ct. 568, 27
L.Ed.2d 6232 (1971); Willitt v. Purvis, 276 F.2d 129 (CA5
1960); Marsh v. Illinois Central R. Co., 175 F.2d 498 (CA5
1949). Although the trial judge’s discretion is broad with
respect to the granting of a new trial, the granting of a new
trial constitutes reversible error under certain circumstances.
See 6A Moore's Federal Practice 59.08({5}, at 59-162-63.”
The perjured testimony, misconduct of trial counsel and the
suppression of evidence worked to deprive the Plaintiff of a
fair trial. In light of the district court’s findings in the grant of
sanctions, a new trial should be granted in this matter,
particularly in light of the prejudice associated with the
misconduct of the attorney. Angelo v. Armstrong World
Industries, Inc., 11 F.3d 957, 962 (10th Cir. 1993). Plaintiff did
not wait until the verdict was rendered in this matter.
Counsel for Plaintiff requested a continuance to review the
documents, ask that a mistrial be granted in light of the late
production of the documents, and informed the Court that he
thought that the current status of the record provided ample
opportunity for the jury to be confused and render an
improper verdict for the Defendant. The jury never knew of
the documents’ existence/availability. The jury never knew
4a
that the statements with respect to the former Chief Hartner
were an actual lie. And finally, the jury never knew that
Officer Munoz’s statements as to his not having anything to
do with the files were actual misstatements of testimony
presented to the Court (outside the jury’s presence) and
testimony taken by the Court from others brought forward at
the Court’s request.
3) The Jury Disregarded the Court’s Instruction; When the
jury read its verdict, it also read a personal note to the City of
Kemah. The personal note criticized the City of Kemah for
not keeping records. The sad irony of this note is the position
that Plaintiff found herself in.
First, Plaintiff discovered that the City, and _ its
representatives1 actually lied about the documents.
Secondly, the Plaintiff had to proceed forward with trial,
request a continuance or ask for a mistrial.
Thirdly, once, the Plaintiff requested a continuance and/or
mistrial, and the same denied, the Defendant could lie and
wait for a verdict. First, the jury could assume that the
Defendant, its current representatives and its lawyer were
innocent bystanders and not part of the old regime, thus the
personal note. In fact, when the Court questioned Officer
Swinney about the records, not before the jury, Officer
Swinney admitted that the records were tendered to him by
Chief Hartner and that he had stored the files in the file
cabinet.
4) The newly discovered evidence is material and of such a
character that a new trial with such evidence will probably
. produce a different result. In Marshall's U.S. Auto Supply v.
Cashman, “{a} motion for new trial on the ground of newly
discovered evidence must show that the evidence was
discovered since the trial; must show facts from which the
court may infer reasonable diligence on the part of the
movant; must show that the evidence is not merely
cumulative or impeaching; must show that it is material; and
5a
must show that it is of such a character that on a new trial
such evidence will probably produce a different result.
Prisament v. United States, 5 Cir., 96 F.2d 865.” Marshall at
111 F.2d 140, 142.
Currently, the Plaintiff is reviewing the documents in
question. In fact, since the trial, one of Plaintiff's counsel
(Terry Weir) has reviewed the employee files once and on the
date of this motion is scheduled to review the documents a
second time (March 30, 1998). The employee files to this date
have not been copied and provided to the Plaintiff. Plaintiff
has filed with the Court a Motion providing for the security of
the sealed records, for the copying of the employee files at
the Defendant’s costs and the ultimate production of the
documents.
Evidence is not cumulative: The employees’ files are clearly
not cumulative in light of the fact they were never produced.
The defendant's stated position, before the Court and the
jury, were the documents didn’t exist. The statements of
defense counsel serve as a representative of the City's
position. Since the grant of the Motion for Sanction, the
Defendant has sought to file a response to the Motion for
Sanction (untimely under the Local Rules and Federal Rules
of Civil - Procedure) feigning ignorance and. a
misunderstanding of the Court’s previous rulings. It is
impossible for the materials to represent cumulative evidence
when the Defendant’s agents, employees, assigns and
attorneys were all part of the suppression of the evidence in
this case.
Evidence is material: First, the importance of employment
files cannot be understated. Thoughtful study of the
employment files would reveal:
- who and what persons were comparable in context of time
with the department, training, promotion, and field service.
- the information of comparable officers would allow the
Plaintiff to engage in adequate discovery and the taking of
6a
depositions to determine how other officers were assigned
their hours for field service training.
- the employment files of other officers will reveal the
employment history, evaluations, and how those other
officers were treated. A material issue in the trial related to
the unsigned employment evaluations of police officers, other
than the Plaintiff. The question still exists A) whether other
employment evaluations were in existence, B) whether the
evaluations were signed by the employees. More importantly,
the Plaintiff would be able to call to trial witnesses with
knowledge of relevant information rather than moving
through an examination without any knowledge of relevant
impeachment evidence available.
Information that has been to date from review is found under
the Exhibit "1," wherein the affidavit of Terry Weir is
attached.
CONCLUSION
Clearly, the motion for new trial should be granted in light of
“a miscarriage of justice would result if the verdict were to
stand." This is particularly true in light of the suppressed
evidence, the perjured testimony and the misstatement of
trial counsel. If the current factual history were to become
the rule of practice in the Southern District, there exists no
detriment to trial counsels and their clients in seeking a
verdict by lying, hiding documents, ignoring the Court's
order, challenging the Court as to the availability of
documents. Sanctions of five thousand dollars and court
costs do not work as a deterrent to the miscarriage of justice
mentioned herein.
Dated 30 March, 1998
Respectfully submitted,
Anthony P. Griffin
Attorney-in-charge
State Bar No. 08455300
f Federal Admissions No. 4736
Terry L. Weir
State Bar No.
Federal Admissions No.
Anthony P. Griffin, Inc.
Lawyers
1115 Moody
Galveston, Texas 77550
409/763-0386
1/800/750-5034
Facsimile No. 409/763-4102
Attorneys for the Plaintiff
Sandy G. Tollett
7a
8a
‘ Rint NITED Wei na COURTS
“ Soe Heche. eat wey 3 TEXAS
PX FS ie
MAR 30 T°
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Qu DISTRICT
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SOUTRETEXAS Gichari f. Utloy, Care of Cour
CIVIL ACTION NO. H-96 -3131
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
SANDY G. TOLLETT,
Plaintiff,
V.
THE CITY OF KEMAH,
Defendant
ORDER
The Plaintiff's Motion -for New Trial, is granted. DONE AT
HOUSTON, TEXAS on this the __ day of 1998.
KENNETH HOYT
UNITED STATES DISTRICT JUDGE
4
CIVIL ACTION NO. H-96-3131
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
SANDY G. TOLLETT,
Plaintiff,
V.
THE CITY OF KEMAH,
Defendant
PLAINTIFF'S, SANDY G. TOLLETT'S, AMENDED
MOTION FOR SANCTIONS
ANTHONY P. GRIFFIN
ANTHONY P. GRIFFIN, INC.
LAWYERS
1115 MOODY
GALVESTON, TEXAS 77550
409/763-0386
1/800/750-5034
FACSIMILE NO. 409/763-4102
ATTORNEYS FOR PLAINTIFF
SANDY G. TOLLETT
10a
TABLE OF CONTENTS
I, PROCEDURAL HIBTOB? cevnesisovcosnnnssssoestitonnnssinentoneoncictis 2
II. CONDUCT OP CE a i saiesisssinsscenticonin-ncapovennniensenitnliceae 3
A. TREAL, CONDE vcsiiscsrssvosincesseontaninnintieenenintinasteitisennntotiiesin 5
B. HOW FRAUD AFFECTED THE EXAMINATION
OF THE WITNESSES.......0..ccrssecsesssersessevssosooveseseubontovnees 7
III. HISTORY OF THE CASE AFTER PRODUCTION OF RECORDS 11
IV. WHY THE SECRETING OF RECORDS RAISES
TO THE LEVEL OF FRAUD ON THE COURT...............0+: 13
A. HOW THE APPLICATION APPLIES TO RULE
GOL 0S). .-00+020002s0rsnnnnsunensnynensastinininrmiensnindilanntemisitian 13
B. RULE 60(b)(2) AND ITS APPLICATION .................0000 16
V. CONCLIISION 000 scecsersssesoiscccsenisnsecdnunnenisnebinbnnsnontamaisiniantnn 21
VI. CERTIFICATE OF SRRVICEL...........c..cccessseoressvessvessorsosessones 23
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Tinted Saemae
— re
JAN 12 2009
Michael N. Miby, Cie
CIVIL ACTION NO. H - 96 - 3131
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
SANDY G. TOLLETT,
Plaintiff,
¥.
THE CITY OF KEMAH,
Defendant
PLAINTIFF'S, SANDY G. TOLLETT’S AMENDED
MOTION FOR SANCTIONS
Plaintiff files this her Amended Motion for Sanctions,
pursuant to Rules 11 & 37, and under the dictates of Rule 60
(b) (2) (3) (fraud on the court). fnl For good cause, the
Plaintiff would show unto the Court as follows, to-wit:
Procedural History
1) This case was filed on September 26, 1996. The
Plaintiff brought suit: contending that her employment with
the Defendant City of Kemah was tainted by sexual animus
that affected her relationship with her fellow employees, her
training and ultimate recognition as a police Officer with the
defendant City. Plaintiff's suit was brought under Title VII, 42
U.S.C. section 2000e.
12a
On May 13, 1997, the Plaintiff filed a Motion to Compel full
answers to her Request for the Production of Documents and
First Set of Interrogatories, pursuant to Rule 37, Federal
Rules of Civil Procedure. A response by the City of Kemah
was filed on or about June 2, 1997. This Court granted the
motion to compel on June 27, 1997 and ordered full and
complete answers to the Plaintiff's First Set of Interrogatories
and the production of relevant documents.
On October 9, 1997, the Plaintiff filed her Motion for
Sanctions in that the Defendant refused to comply with the
Court’s order. The motion was carried along at the time of
trial.
This matter was tried on March 10 - March 13, 1998.
Conduct of Counsel
2) The element of fraud was established early. At the docket
call in this matter, counsel for the Defendant, William
Helfand, held out the following:
I think we're simply at a point where the Plaintiff believes
there are documents, and my client doesn’t have documents
(Tr. at Docket Call (unnumbered volume) at 7, lines 19-22)
(emphasis added).
I represent a police department that when it went through a
change of chiefs of police literally lost all the records that
were under the prior administration/ And so, while I agree
with Mr. Griffin that those records should exist in the
management of a good city, good police department, they
simply don’t exist; and I don't have them to give (Tr. at
Docket, Call, id. at 7, line 25; 8, lines 1-6) (emphasis added).
Defense counsel then out-right misrepresented to this Court
as he purported to read from the Plaintiff's Motion to Compel.
The words of Defendant’s counsel is more telling - “What they
had asked for were - let me find the motion. The Plaintiff had
_asked for -.- and the Court granted a motion to compel for
13a
records and personnel files of employees who were - and I’m
using quotes now because these were their words - similarly
situated discriminated against because of a pregnant
condition." (Tr. at Docket Call (unnumbered transcript) at 9,
lines 21-25).
Defense counsel doesn’t stop at that point though:
“The COURT: What records are, in fact, missing though? Are
they just plain personnel files or what?
Mr. HELFAND: Yes, sir. That’s the other problem. Practically
all of the personnel FILES to the extent that they ever
existedlonger with the City of Kemah.
And there's some question, when I asked my clients, whether
they were ever created and then were simply removed or
destroyed or whether they simply weren't created.
There's some allegations that the former chief of police didn’t
keep records that he should have kept; and then there are
other people who are of a camp that he kept records but then
destroyed them or somehow removed them when he was
removed from office (Tr. at Docket Call, id. at 9, lines 19-25;
10, lines 1-6) (emphasis added). fn2
After the docket call, the Defendant submitted the affidavit of
the City Secretary seeking to adopt the similarly situated
pregnant employee defense. After receipt at the affidavit, the
undersigned forwarded a fax to defense counsel stating,
“{wjith respect to the Affidavit forwarded from the City
Secretary's Office, it does not speak to the concerns of the
Motion to Compel. You answer previously that certain
document(s) existed. You also have produced some
documents for Tollett - it is only logical that you/your client
would have document(s) for other employees that form the
basis for our request. To use code words, "similarly situated",
ignored the Plaintiff requests.” (facsimile attached to the
original Motion for Sanction; filed 10/9/97; Doc. 34).
l4a
A. Trial Conduct. The Plaintiff's Motion for Sanction was
carried along with the trial (Tr. at Vol. I at 31-33). The Court
ordered that the question related to the existence or
nonexistence of the employment files was properly the
subject of cross-examination (Tr. at Vol. I at 33, lines 16-25;
34, lines 1-10). During the opening statement of defense
counsel, the benefit to the defense with respect to the absent
documents became clear;
Mr. Helfand;
I would submit to you it’s the problem with discrimination
cases. This lady has already admitted, and I think you will see
in the evidence, there’s nobody who is going to testify that
decisions related to her were because she’s a woman, no one.
There are no documents , no memos that suggest that,
nothing.
Two, I will prove to you, and she will tell you, if she testifies
consistent with her prior deposition testimony, no witnesses,
no documents, absolutely nothing, but her firmly held belief.
And I don't mind for a second, and I will tell you again later, I
don’t mind for a second that she thinks it, but that's not proof
of it and she won't prove it to you, because she will tell you
there are no witnesses and no documents, that anything
happened to her because of the fact that she’s a woman.
She will not - - although her lawyer says she will, she cannot
tell you, to the point that we can identify somebody, any man
who is treated differently. Remember, her claim is that this
happenéd because she’s a woman. Oh, she will say, “There’s a
fellow named Charlie. I don’t know his last name.
So. you can’t find him, Bill. He's just named Charlie. And I
think what happened to him was he went out and he got to
come back, and I don’t know whether it was the same as me.”
And I think when you hear that, you're going to see that’s not
evidence of a man being treated any differently.
15a
(Tr. at Vol. I (opening statement of Defendant's counsel) at
144, lines 3-8, 23-25; 145, lines 1-16) (emphasis added)).
Later in the opening statement, defense counsel holds out
that Plaintiff had her records, but the records for other
officers simply didn’t exist (Tr. at Vol. I at 147, lines 15-25;
148, lines 1-5). Defense counsel’s theme would reverberate
throughout the trial proceedings.
B. How fraud affected the examination of the witnesses.
As seen in the examination of Plaintiff; Defense counsel
inquired to whether the Plaintiff had any evidence or
documents showing that she was removed from the Field
Training Program (Tr. at Vol. if at 239, lines 7-11). This form
of examination was consistent with the defense counsel’s
posture that no documents existed to support the Plaintiff's
cause.
In addition, the defendant’s counsel inquired of the Plaintiff
as to the name of another other officer that was accorded
special privileges with respect to the officer’s physical
condition and not being required to go back in the training
program. Plaintiff answered the question only with the first
name of the officer because of the lack of documents. The
documents were in the sole control of the Defendant and
subject of the Plaintiff's discovery request (see examination
at Tr. at Vol. Il at 250, lines 21-25; 251, lines 1-2). The
importance of this ingiiry is clear: interrogatories submitted
sought the name, addresses and telephone numbers of former
officers. The document production supported the
interrogatories in question. Documents were not produced.
Defense counsel knew the answer would only be the first
name of the officer and benefited from his disregard of the
Court’s order (Tr. at Vol. II at 255, lines 13-21 255, lines 16-21).
The examination of the City’s chief witness (Munoz:
This witness was the City's representative during the trial and
his name was listed as the person providing the answers to
the interrogatories the subject of the debate. The witness
l6a
provided that he certified that the files were not available, but
claimed ignorance as to the files existence (Tr. at Vol. II at
317, lines 9-24). When the witness was asked about the City’s
lawyer’s position that the only employment file that was
available was the employment file of Plaintiff and that no
other files were available, counsel (Bill Helfand) objected and
stated, “I never said that.” (Tr. at Vol. II at 320, lines 14-18).
After the witness admitted that he had a personnel file (Tr. at
Vol. II at 321, lines 12-25; 322, lines 12-25), the jury was
removed by the Court.
When the jury returned Mr. Munoz affirmed that his file
contained evaluations, psychological testing, time sheets,
criminal history check documents, fingerprint cards and that
all were required to be in an officer's file by the State of
Texas (Tr. at Vol. II at 326, lines 22-25; 327, lines 1-25; 328,
lines 12-15, 17-19).
After Munoz admitting to evaluating the Plaintiff, but not
providing her a copy of any such undated evaluations and
denied keeping the Plaintiffs time as her Field Training
Officer (Tr. at Vol. II at 329, lines 1-8, 17-19; 330, lines 1-25;
335, lines 1-15), this Court understood the unlikely and highly
unusual defense that was being taken. This Court then
threatened a criminal investigation (Tr. at vol. II at 349, lines
21-25). Defense counsel then responded, "They don't have
them" (emphasis added) (Tr. at vol. II at 350, lines 1-5). After
defense counsel’s statement, the Court again emphasized the
federal and state law governing law enforcement officers’
files (Tr. at Vol. II at 350, lines 6-25) . The defense lawyer then
slightly modified his statement, "I records” (emphasis added).
This Court then informed defense counsel that he would have
the FBI go over and turn the police station upside down and
put everyone in jail (Tr. at Vol. II at 353, lines 1-5).
The examination of the City Secretary, Kathy Pierce: This
witness admitted that she possessed files for full-time police
officers between years 1993-1996. The witness then “did not
recall” whether she informed the court that Tollett’s was the
only employment file available. (Tr. at Vol. II at 408, Lines 18-
17a
25; 415, lines 1-9; 416, lines 20-25; 417, lines 12-15). The
admission by the witness begs the question: then why weren't
the records produced when requested? In addition, the
admission is totally contrary to the position taken by the
defense lawyer before the jury and the statement that was
made by defense counsel prior to her appearance in Court
that “they don’t have the records.”
The witness also provided that she did not remember the
request for information and that she did not recall being told
to produce records (Tr. at Vol. II at 423, lines 1-6; 424, lines 1-
16; 425, lines 1-6) . After this devastating admission takes
place, defense counsel falls back on his similarly situated
defense and contends that the Court only ordered only
similarly situated officer's files. The Court rightly rejected the
argument and then for the first time, without pulse, defense
counsel utters, “I will have the Chief bring those records
tomorrow.” (Tr. at Vol. II at 431-433; see counsel’s comments
at 433, lines 1-14) + It should be noted that defense counsel,
without conferring with any witness, city representative or
his co-counsel, informed the Court that the records would be
made available. The acts of counsel reveals knowledge on the
lawyer’s part in the fraud and the active use of fraud to
prevail in the litigation.
History of the Case After Production of Records
3) Defense counsel was true to his word, the next
morning defense counsel appeared with two file drawers of
employment files, containing both full-time, non-paid and full-
time, paid officers. When the files arrived, defense counsel
expressed grave concerns with respect to the jury now
having been misled and the condition of the record (Tr. at
Vol. II at 438, lines 1-13). The Court, in response, requested
the location of Captain Swinney and ordered that the witness
appear as part of the Court’s independent investigation with
respect to the pending motion for sanctions.
18a
Examination of Captain Swinney: Swinney Provided that he
was the Assistant Chief at the time and was required to
maintain records for non-paid officers, including the officer's
time sheets (Tr. at Vol. III at 444, lines 1-18). Swinney also
explained that if a person completed the field training
program, he and the training officer would go the Chief and
explain the successful completion (Tr. at Vol. III at 449, lines
1-11). -Swinney explained that if a Trainee failed the training
process a note would be placed in the employee’s file (Tr. at
Vol. Ill at 454, lines 21-25; 455, lines 1-21). The witness
affirmatively stated that no employment files were destroyed
(Tr. at Vol. III at 450, lines 16-19; 452, lines 1-24; 454, lines 1-7;
456, lines 1-11)
Clearly, the witness revealed a willful disregard of the Court’s
order by defense counsel. More importantly, the testimony
reveals that the counsel and his client were actively engaging
in fraud on the court and jury in order to prevail in the
litigation.
Testimony of Police Chief Keith Warren: As part of the court’s
hearing, the current police chief was called. In the Chief's
explanation of why the documents were not provided, the
following is revealed, to-wit: :
Back in July when I met with Mr. Helfand, I think I got the
wrong impression. I thought he wanted the record for
everyone that was here from X date to X date, fn3 and that’s
what we produced. fn4
I’ve had most of the files ever since I came in October of 1995
after I put them together. They were in about three or four
different file cabinets, in a desk drawer, and I compiled
everything into one central location. And when Helfand
called me last night, I said, “There’s no problem. I boxed
everything up, and we'll be there first thing in the morning.”
(Tr. at Vol. III at 461, lines 22-25)
19a
Why the Secreting of Records Raises
to the Level of Fraud on the Court
4) How the application applies to Rule 60(b) (3). First, fraud
is seen by the differing story the witnesses/defense took
outside the presence of the jury and the story told before the
jury. The jury never knew of defense counsel’s and Pete
Munoz’s statement that Chief Hartner had destroyed the
documents was actually a lie. The jury never knew the Officer
Munoz’ statement as to his not having anything to do with the
files was actually different than what he told the Court
outside the jury's presence and contradicted by other
witnesses. In addition, the jury would never hear Officer
Swinney explain that the records were retained, stored and
the notion of destruction of the records was simply folly.fn5
The documents secreted by the Defendant and their counsel
consisted of some 4,874 pages (summary and documents will
be labeled and admitted as Exhibit “25” at the hearing on
sanctions). The Fifth Circuit in Rozier v. Ford Motor Co. 573
F.2d 1332, 1339 (5th Cir. 1978) explained that “although Rule
60(b) (38) applies to misconduct in withholding information
called for by discovery, . . . it does not require that the
information withheld be of such nature as to alter the results
in the case.” Clearly, the evidence in this case is laden with
proof associated with misconduct and fraud in the discovery
process. Defendant’s counsel initial reaction to the discovery
sought was to contend that the information was privileged.
After the Court granted the Plaintiff's motion to compel, the
Defendant simply ignored the Court’s order and failed to
produce the materials. As the trial in this matter approached,
Defendant sought to restyle the Court’s order and had the
City Secretary swear to an affidavit (see Order granting
sanctions, Doc. 54) as a request for “similarly situated
employees.” In fact, at the docket call, the defense counsel
intentionally misstated the history of the case and pretended
to read “similarly situated” in the discovery request when no
such words existed in the motion (emphasis added). Even
after a letter (facsimile) was forwarded from the Plaintiff's
counsel reminding Defendant’s counsel of the actual wording
20a
of the request and order, the Defendant's counsel and his —
client failed to produce the documents. At trial the conduct
only got worse.
One could argue that justice is served by the reinstatement of
the $5,000.00 sanction against the City Defendant, but the
same ignores the true history of this case. Defense counsel’s
and defendant City would gladly pay a mere five thousand
dollar money judgment to avoid liability under the Civil
Rights Act. To tolerate counsel’s acts, the conduct of the
defendant and defendant’s agent would encourage further
disrespect for our judicial system. In Rozier v. Ford Motor,
supra at 1346, the Fifth Circuit stated that the granting of
relief under Rule 60 (b) (3) is within the discretion of the trial ©
court. In addition, the Court explained that the rule is
remedial and should be liberally construed.
Relief under 60(b) (3) should be granted.
5) Rule 60 (b) (2) and its application. Under Rule 60 (b) (2),
the moving party must show that the newly discovered
evidence is "such that a new trial would probably produce a
new result.” Ag Pro, Inc. v. Sakraida, 512 F.2d 141, 143 (5th
Cir. 1975). Even under Rule 60(b) (2) a new trial should be
granted.
As related to the files produced no training records in the file
for the following officers: Stephanie S. Armstrong, Paul
Armand, Barry Balthrop, William Wayne Belotte, Robert Dale
Boulet, Daniel J. Cantu, Lonny Carney, Anthony Robert
Cartwright, Larry Caswell, Christopher Cordary, Mark D.
Cruse, William Clareke Dubose, Thomas Lee Fowler, Gary
Hartner, David Haynes, and Pauline Hepler. The absence of
_, the training records is critical in context of Texas law
‘requiring the game. In addition, the absence of training
records supports the Plaintiffs position that her file not
containing records relieving her from the Field Training
Procedure is consistent with other files not containing any
such information and the . officers having successfully
completed the Field Training Program.
|
LPI Ie ON RE EI NCR TC" IRRITATION RRR CS mp ee Om ~ gt -
ee
“ ve
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Training records exist in some officers’ file, including Gary
Dean Harwell (reflecting the following notation; “I am unable
to give you a set schedule, because I am unable to work
without Sgt. Munoz." This statement is consistent with
Tollett’s testimony that she couldn’t volunteer time. This
information is contrary to the City's position at trial and
contrary to Officer Young's testimony that one only had to
volunteer time to get off the FTO program. Young being the
Plaintiffs comparable was fast-tracked (treated differently)
contrary to the Plaintiff's treatment). Also reference to
Officer Barry Penland's records which contains counseling
forms for reporting to work when training officer not present.
The competence of the Plaintiff is enhanced by negative
information contained in other officers files, even though
those officers were considered full-time officers.
* Peter Munoz arrested and charged on or about July 28; 1994
with the office of theft by check. On October 28, 1998, the
Texas Commission on Law Enforcement reprimanded Munoz
(copying the City of Kemah) for the failure to report the
criminal offense. This information is not contained in the
records produced by the City of Kemah, but the facts came to
the Plaintiff's attention after the trial (to be labeled as Exhibit
“26”, sanctions hearing exhibit).
* Paul Young (the comparable at trial). Personal history
questionnaire stated, “I had experimented with marijuana a
few times under peer pressure.” Young ¢ame—into the
department at the same time as Plaintiff, was given training
hours while the Plaintiff was not but also had adverse
information in file that the Plaintiff did not. At trial, the
Defendant’s witnesses stated that no such records for Young
existed. The importance of these records is seen in context of
the comparison to the Plaintiff's complaint that she could not
get the training hours as Officer Young. The training records
for Officer Young is telling {Job Interview Documents -
Recommendation to hire (“Subject will needs lots at training
could make a good officer”; “Mr. Young seems knowledge in
Police Procedures. Needs FTO Programs but I feel he would
22a
wake a good officer”; “ . with training in our procedures will _
probably make a good officer. He is worth a try”; “Young
needs training”; “Appears eager to learn. Experience limited
which shows in difficulty in answering some not very difficult
questions.”
* Eric Baumgart. Previous criminal history (criminal
conviction/Nebraska (1989); criminal charge, Liberty County
(1988).
* Michael Heath Butchee - TCLEOSE document reflecting
terroristic threat and personal history document reflecting
marijuana use (twice) ).
* Lonny Carney assaults, multiple reprimands in file.
* Sean P. Friebele - terminated from FTO program for City of
League City, but hired by the City of Kemah and placed in
FTO program even with past failure .
* John Patrick Kruger - application reveals used marijuana 5
times, driver under the influence of alcohol 4 times.
* Patrick Edwards Zollard. The only officer that sheets are
contained in the file. The issue of record keeping time
records is important in context of discovery and ultimate
cross-examination of the government’s witnesses.
* Gerald Franklin Witt. Hired as a full time officer; previous
resignation 2/18/91 for incident not reported in file. No FTO
documents in the tile. No TCLEOSE Summary Documents in
file. One of the issues at trial related to the opportunity given
the Plaintiff. Witt would become a comparative person.
And finally reference to the file of David Haynes is important.
Contained in the records is a memorandum from Pete Munoz
dated 1/8/96 which request Officer Haynes to “compile the
total hours for each non-paid for the months of November
and December.” This memorandum flies directly in the face
of the trial testimony of Munoz and the verbal position taken
23a
by the Defendant’s counsel. The memorandum also support
the fraud on the Court allegations.
The Court should grant relief under Rule 60(b) (2).
6) Rule 37 (b) (2) provides, “{i}f a party or an officer
director, or managing agent of a party or a person designated
under Rule 30(b) (6) or 31(a) to testify on behalf of a party
fails to obey an order to provide or permit discovery,
including an order made under subdivision (a) of this rule, or
Rule 35, or if a party fails to obey an order entered under Rule
26 (f), the court in which the action is pending may make
such orders in regard to the failure as are just. Coupled with
the relief sought under Rule 60 (b) (2) (3) (new trial), the
Plaintiff seeks a sanction amount of $150,000.00 (Rule 37 and
Rule 11) and attorney fees in the amount of $75,000.00 under
the provisions of Rule 37.
The attorney fees are reaSonable and necessary in context of
the discovery malfeasance and all matters related to same.
With respect to billing discretion, the following matters were
excluded and/or not billed, to-wit:
a) fees for time on appeal to the Fifth Circuit
(approximately 100 hours);
b) fee associated with associate time surrounding review
of employment records (approximately twenty hours); and
c) paralegal time that would be duplicative of work
performed and/or billed for associate time and/or attorneys
time (30 hours).
CONCLUSION
It is prayed that this motion be granted in all parts and that a
finding of fraud on the court be entered under Rule 60 (b) (3).
Such findings, after hearing, should be directed against both
the Defendant City and the Defendant’s former counsel,
24a
William Helfand, Magenheim, Bateman, Robinson, |
Wrotenbery & Helfand.
It is prayed alternatively that the court find that the newly
discovered evidence meets the standard set out herein within
with respect to Rule 60 (b) (2) . It is prayed that any such
finding, after hearing, be directed against both the City of
Kemah and the Defendant’s former counsel, William Helfand,
Magenheim, Bateman, Robinson, Wrotenbery & Helfand.
It is prayed that sanctions be entered in the amount of
$150,000.00 and such sanctions be entered against both the
Defendant City and the Defendant's former counsel, William
Helfand, Magenheim, Bateman, Robinson, Wrotenbery &
Helfand.
It is prayed that attorney fees be entered in this
matter in the amount of $75,000.00.
After all the above is said and done, a new trial should be
granted to the Plaintiff in this matter and/or part and parcel of
any such new trial, the striking of the Defendant’s pleadings
and the entering of judgment for the Plaintiff. No further
insult of the federal judiciary should take place but for the
conduct of the Defendant and its counsel.
DATE: JANUARY 12, 2000.
Respectfully submitted
ANTHONY p. GRIFFIN
ATTORNEY- IN-CHARGE
STATE BAR NO. 08455300
FEDERAL ADMISSIONS NO. 4736
ANTHONY P. GRIFFIN, INC.
LAWYERS
1115 MOODY
GALVESTON, TEXAS 77550
409/763-0386
1/800/750-5034
FACSIMILE NO. 409/763-4102
ATTORNEYS FOR PLAINTIFF
SANDY G. TOLLETT
Footnotes
fnl Rule 60 (b) (2) & Rule 60 (b) (3), Federal Rules of Civil
Procedure provides, “{o}n motion and upon such terms as are
just, the court may relieve a party or a party’s legal
representative from a final judgment, order, or proceeding for
the following reasons: (2) newly discovered evidence which
by due diligence could not have been discovered in time to
move for a new trial under Rule 59(b); (3) fraud (whether
heretofore denominated intrinsic or extrinsic),
misrepresentations, or other misconduct of an adverse party.”
The rule also provides that the motion shall be made within a
reasonable time, and for reasons (1), (2), and (3) not more
than one year after the judgment, order, or proceedings was
entered or taken, The final judgment in this matter was
entered on March 20, 1998. The appeal to the Fifth Circuit
Court of Appeals was taken on June 12, 1998 and affirmed by
the Court on September 13, 1999. The Fifth Circuit refused to
address the Rule 60 (b) complaint saying that “because this
claim was raised for the first time on appeal, we shall not
address it. See Shanks v. Allied Signal, Inc., 169 F.3d 988, 993
n. 6 (5th Cir, 1999).”
Even if it is deemed that the Rule 60 (b) (3) complaint herein
is untimely (intervening appeal), Rule 60 also provides that
"{t}his rule does not limit the power of a court to entertain an
independent action to relieve a party from judgment, order,
or proceeding, or to grant relief to a defendant not actually
personally notified as provided in Title 28, U.S.C. section
1655, or to set aside a judgment for fraud upon the court.”
(emphasis added) Hazel-Atlas Glass Co. v. Hartford Empire
Co., 322 U.S. 238 (1944) (rule expressly does not limit the
power of the court, when fraud has been perpetrated upon it,
to give relief under the saving clause).
26a
fn2 The Defendant's counsel does tell who makes the
“allegations” with respect to the record(s) location, but
simply floats a number of trial balloons as to why the
documents do not exist.
fn3 If this is true, then why weren’t these records produced?
Why does defense counsel only produce Tollett’s records and
no others and then tell the Court and the jury that it only had
the records for the Plaintiff? How can defense counsel stand
before the Court on one occasion and say that his client does
not have the records and then on another occasion state “I
don’t have the records?"
fn4 Clearly, the witness conveys that the records were
produced in July. If the witness’ statements are true, it would
appear that the records were secreted by defense counsel.
fn5 The Defendant stated in discovery that it did not know
the location of Officer Swinney. When the Court inquired,
outside the presence of the jury, Officer Swinney’s current
employment was immediately tendered. The importance of
Swinney’s testimony is readily seen.
27a
CIVIL ACTION NO. H - 96 - 3131
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
SANDY G. TOLLETT,
Plaintiff,
V.
THE CITY OF KEMAH,
Defendant
ORDER
On this the 7th day of March, 2000 came on to be heard the
Plaintiffs Amended Motion for Sanctions. The Court
previously entered sanctions against the City of Kemah,
without hearing. The Fifth Circuit Court of Appeals remanded
this matter for a hearing for a redetermination and
assessment of reasonable attorney's fees and costs under
Rule 37. The hearing herein is also based upon Rule 60(b) (3)
and Rule 60(b) (2), FED.R.CIV. PROC. and Rule 11,
FED.R.CIV. PROC.
After consideration of the testimony taken in the hearing in
question, review of the previous trial transcript it is the
opinion of the Court that the following order is appropriate in
this case, to-wit:
1. The Plaintiff is awarded a new trial in this matter. The
trial date shall be set for __ 2000;
2. The Plaintiff is awarded $150,000.00 in sanctions for
the conduct of the Defendant and the Defendant’s former
counsel, William Helfand and the firm of Magenheim,
Bateman, Robinson, Wrotenbery & Helfand;
28a
3. The Plaintiff is awarded $75,000.00 in reasonable and |
necessary attorneys fees associated with the Court’s finding
of fraud on the court. Such fees are taxed jointly and
severably against both the City of Kemah and William Helfand
and the firm of Magenheim, Bateman, Robinson, Wrotenbery
and Helfand;
4, It is the finding of this Court the defendant City of
Kemah and Defendant’s former counsel, William Helfand and
the firm of Magenheim, Bateman, Robinson, Wrotenbery and
Helfand have engaged in fraud on the court and such fraud
was intentional, without regard to truth and designed to
stymie the intent of the federal rules of discovery.
DONE AT HOUSTON, TEXAS on this the___ day of ___ 2000.
HONORABLE KENNETH HOYT
UNITED STATES DISTRICT JUDGE
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.