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PAUL v. FANNIE MAE

October 13, 1988

LUCILLE PAUL, Plaintiff,
v.
FEDERAL NATIONAL MORTGAGE ASSOCIATION, Defendant



The opinion of the court was delivered by: LAMBERTH

 ROYCE C. LAMBERTH, UNITED STATES DISTRICT JUDGE

 In this action, brought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000 e et seq., the plaintiff, Lucille Paul, alleges that her former employer, the defendant Federal National Mortgage Association ("FNMA"), discriminated against her on the basis of race, gender, and national origin by denying her training, denying her promotions, giving her a false performance evaluation, and involuntarily transferring her to another position within FNMA. Further, plaintiff alleges that her employment was terminated in retaliation for commencing grievance proceedings regarding the involuntary transfer. Defendant has pending three motions: a motion in limine to resolve several evidentiary matters before trial, a motion for attorney's fees, and a motion for summary judgment.

 I. FACTUAL SUMMARY

 Plaintiff is a black female, who emigrated to the United States from Grenada, West Indies in 1968, and who was employed by defendant FNMA from April 9, 1973 until her termination on March 27, 1985. Between 1973 and early 1984, plaintiff consistently received above average performance evaluations from her superiors at FNMA, and had been promoted several times from her entry level position of Keypunch Operator (Level 14) to her selection as an Accounting Technician (Level 20) in the Payroll Unit in June 1981.

 Subsequent to her selection as an Accounting Technician, plaintiff unsuccessfully applied for nine more promotions during the period 1982 through 1985. Plaintiff does not challenge the qualifications of those selected for the positions, and either was not herself qualified for the positions or was not as qualified as the persons selected. Furthermore, of the persons selected in lieu of plaintiff, the vast majority were black and/or female, and the selecting officials included black, female, and minority supervisors.

 As an Accounting Technician, plaintiff's primary responsibility involved the preparation of biweekly payrolls for the FNMA Home Office. Until 1984, much of the inputs were done manually. In early 1984, the Payroll Unit converted to a computerized payroll system. Each of the Payroll Technicians was observed operating the new keying system, and the employee who most quickly mastered the keying techniques, and who happened to be the newest member of the Payroll Unit and hence most easily spared, was selected for special training and to assist the computer consultants in the conversion. Notably, the employee selected was a white female. While plaintiff was not selected to assist in the conversion, she did later receive the same computer training, and concedes that she received not only all of the training necessary to perform her duties, but also received special training and educational assistance from the defendant.

 In the latter half of 1984, plaintiff's superiors noticed that her duty performance was markedly declining. She was making more errors and needing more overtime to do the same job. Even after her superiors transferred part of her workload to a new Accounting Technician, plaintiff's overtime hours did not decrease appreciably. Plaintiff's superiors concluded that plaintiff's declining performance was attributable to job fatigue and burnout, notwithstanding plaintiff's denial that she was "burnt out." Plaintiff's 1984 performance evaluation, with inputs from three superiors, including a white female, a white male, and a black male, expressed dissatisfaction with the following aspects of her job performance: the quantity and frequency of her errors, her failure to develop or implement a self-check to minimize those errors, the time required to complete her assigned tasks, her failure to reduce her overtime hours despite a substantial reduction in her workload, and her repeated failures to follow departmental rules regarding overtime, to wit, obtaining approval in advance and having a supervisor present during overtime. As a result of this rating, plaintiff was laterally transferred to another position with the same job title and rate of pay, but located in the Accounts Payable Unit of the Corporate Accounting Department. Plaintiff objected to the transfer, and filed an employee grievance, alleging that her lateral transfer was based on her race, sex and/or national origin. FNMA's internal investigation of plaintiff's grievance concluded that the transfer was not discriminatory, and plaintiff was ordered to accept the reassignment. Plaintiff adamantly refused to accept the transfer, and was fired for insubordination on March 27, 1985. The day before her termination, and amended subsequently, plaintiff filed an administrative charge with the Equal Employment Opportunity Commission (EEOC), making the same allegations as in the present Complaint. Following an investigation, on October 10, 1986, the EEOC determined "that there is not reasonable cause to believe that this allegation is true."

 II. PROCEDURAL POSTURE

 Plaintiff filed this action on January 9, 1987. On February 18, 1987, the Court entered a pretrial schedule agreed to by the parties, closing pretrial discovery on July 31, 1987 and setting the matter for trial on November 9, 1987. As the trial was about to begin on November 9, 1987, and without any advance notice to the Court or opposing party, plaintiff stood and announced to the Court that she was dissatisfied with her counsel and would like a delay to seek replacement counsel. The Court attempted to resolve what appeared to be a minor dispute between plaintiff and her counsel about the calling of two previously undisclosed witnesses to testify on plaintiff's behalf. However, plaintiff persisted in her request for a delay, albeit acknowledging that by doing so she could become liable for defendant's attorney's fees and costs, then estimated to exceed $ 20,000. The Court granted plaintiff's request, but expressly left open the possibility of a later award for fees and costs against plaintiff. Following defendant's Motion for Summary Judgment, the Court sua sponte vacated the rescheduled trial date of September 13, 1988 and set a motions hearing on the following day.

 III. DEFENDANT'S MOTION IN LIMINE

 On October 27, 1987, defendant filed a motion in limine to simplify and abbreviate the trial by disposing of several evidentiary matters prior to the scheduled November 9, 1987 trial. Because of the Court's disposition herein of defendant's Motion for Summary Judgment, it is not necessary to consider further defendant's Motion in Limine.

 IV. DEFENDANT'S MOTION FOR COSTS AND ATTORNEY'S FEES

 On November 24, 1987, defendant moved for plaintiff and/or her attorney to be ordered to pay the reasonable expenses, including costs and attorney's fees, incurred by the defendant in preparing for the November 9, 1987 trial as well as the instant motion. Defendant notes that it expended "considerable time and effort preparing for a trial that was postponed ten months due to plaintiff's eleventh hour dissatisfaction with her counsel and lack of preparation for trial." In response, plaintiff has neither attempted to explain nor excuse her egregious delay in moving to discharge her counsel, but instead relies on the assertion that "the right to an attorney of one ['s] choice is so engraved [sic] into our judicial system as to be beyound [sic] question." Even assuming plaintiff is correct, however, it still does not insulate her from the imposition of sanctions for engaging in dilatory tactics.

 The imposition of sanctions against litigants and counsel for employing dilatory tactics to perpetuate litigation is implicitly allowed by Rule 11 of the Federal Rules of Civil Procedure, and expressly permitted by 28 U.S.C. § 1927 (1983). Johnson v. Secretary, Dept. of H. & H. Services, 587 F. Supp. 1117, 1121 (D.D.C. 1984) (court has discretion to impose sanctions on attorney who causes needless delay); EEOC v. Appleton Electric Co., 586 F. Supp. 1108 (N.D. Ill. 1984) (imposing sanctions against defendant for unnecessary delays in administrative investigation). The Federal Rules Advisory Committee notes that Rule 11, as amended, "build[s] and expand[s] the equitable doctrine permitting the court to award expenses, including attorney's fees, to a litigant whose opponent acts in bad faith in instituting or conducting litigation." Fed. R. Civ. P. 11, advisory committee notes. Judges in this Circuit have also held that the litigant, as well as or in lieu of counsel, may be liable for fees and costs, where it is the litigant that causes the unnecessary delay. Lipsig v. National Student Marketing Corp., 663 F.2d 178 (D.C. Cir. 1980); Johnson v. Secretary, Dept. of H. & H. Services, 587 F. Supp. at 1121. Other jurisdictions are in accord, where there is a finding that the delay was in bad faith. See e.g., Caspe v. Aaacon Auto Transport, Inc., 658 F.2d 613, 617-18 (8th Cir. 1981) (where party acted in uncooperative and dilatory fashion, including making numerous requests for continuances that prolonged proceedings, court properly assessed attorney's fees against it); Ryan v. Hatfield, 578 F.2d 275 (10th Cir. 1978) (power to award attorney's fees recognized in equity jurisprudence where opponent acts in bad faith, vexatiously or wantonly following dismissal of action for failure to prosecute); Kinnear-Weed Corp. v. Humble Oil & Refining Co., 441 F.2d 631, 637 (5th Cir.), cert. denied, 404 U.S. 941, 92 S. Ct. 285, 30 L. Ed. 2d 255 (where plaintiff's actions were sufficiently dilatory and vexatious to constitute bad faith and that litigation was for purpose of delay and where plaintiff had repeatedly failed to participate in litigation, defendant was entitled to attorney's fees); Flora v. Moore, 461 F. Supp. 1104 (N.D. Miss. 1978), aff'd 631 F.2d 730 (5th Cir. 1980), reh. denied, 636 F.2d 314 (5th Cir. 1981) (meritless employment discrimination action which was pursued in bad faith or for oppressive reasons was properly subject to imposition of attorney's fees); EEOC v. Datapoint Corp., 457 F. Supp. 62 (W.D. Tex. 1978) (court assessed attorney's fees against EEOC as vast majority of defendant's time and expense was spent before trial in preparation of a defense to claims that were frivolous and that the EEOC ultimately abandoned).

 Significantly, however the defendant here has not shown that plaintiff's request for a delay in order to secure new counsel was made in bad faith. Indeed, had Judge Sporkin of this Court -- to whom this case was then assigned -- considered the request to have been made in bad faith, he could not have ...


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