701 F.2d 397 (5th Cir. 1983), 81-2482, Trevino v. Celanese Corp.

Docket Nº:81-2482.
Citation:701 F.2d 397
Party Name:Israel TREVINO, Plaintiff-Appellant, and Texas Rural Legal Aid, Inc., Movant-Appellant, v. CELANESE CORPORATION, Celanese Chemical Company and Arthur Brothers, Inc., Defendants-Appellees.
Case Date:March 28, 1983
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 397

701 F.2d 397 (5th Cir. 1983)

Israel TREVINO, Plaintiff-Appellant,

and

Texas Rural Legal Aid, Inc., Movant-Appellant,

v.

CELANESE CORPORATION, Celanese Chemical Company and Arthur

Brothers, Inc., Defendants-Appellees.

No. 81-2482.

United States Court of Appeals, Fifth Circuit

March 28, 1983

Page 398

David Horton, Texas Rural Legal Aid, Inc., Edinburg, Tex., for movant-appellant.

Page 399

Lidia Serrata, Victoria, Tex., George P. Powell, McAllen, Tex., for trevino.

Linda Hanten, Acting Gen. Counsel, Washington, D.C., for amicus Legal Services Corp.

Michael Kendrick, Jr., Corpus Christi, Tex., for Celanese Corp. and Celanese Chemical Co.

Philip J. Pfeiffer, Paul E. Sexton, Jr., San Antonio, Tex., for Arthur Bros.

Appeal from the United States District Court for the Southern District of Texas.

Before CLARK, Chief Judge, THORNBERRY and POLITZ, Circuit Judges.

THORNBERRY, Circuit Judge:

Introduction

Israel Trevino appeals from the district court's grant of summary judgment to defendants Celanese Corporation, Celanese Chemical Company, 1 and Arthur Brothers, Inc. (ABI) on his Title VII claim, and from the court's award of attorney's fees against him based on its finding that his action was frivolous, unreasonable and without foundation. Texas Rural Legal Aid, Inc. (TRLA) appeals the award of attorney's fees against it for what the court found was an abuse of legal process. Careful review of the record leads us to conclude that summary judgment was inappropriate on the facts before the district court, and that Trevino's suit was neither frivolous, unreasonable, baseless, nor an abuse of legal process. Accordingly, we reverse and remand for a new trial, and vacate the award of attorney's fees against both Trevino and TRLA.

I. FACTS AND DISPOSITION BELOW

Trevino, a forty-two-year-old Mexican-American, was employed by ABI intermittently from 1970 to 1975 at Celanese's chemical plant in Bishop, Texas, and has been steadily employed by ABI since then. Celanese is a major chemical manufacturer. ABI is a Texas corporation that provides maintenance and operating employees to Celanese. Historically, ABI personnel have transferred in significant numbers to the regular Celanese workforce. At the time Trevino initiated suit, 20%-25% of the regular Celanese workforce was composed of former ABI personnel. Because Celanese offered greater job security and opportunity for promotion than ABI, Trevino began making applications for employment with it as early as 1972, and continued to do so from time to time until shortly before suit was filed. All of his efforts to obtain employment with Celanese proved futile, however.

On May 23, 1975, following another in a series of lay-offs by ABI, Trevino and a number of other Mexican-American employees filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC). The charge alleged discrimination by ABI on the basis of national origin with regard to hiring, discharge, lay-off, recall, assignments, recruitment, training, promotion, wages, seniority and fringe benefits. As a basis for these allegations, the charge cited the frequency with which the Mexican-American employees were being laid off, while Anglo employees originally hired by ABI were apparently protected from lay-offs by means of lateral transfers to Celanese. After filing the charge and discussing the matter with several lawyers in private practice, plaintiffs were referred to the Kingsville, Texas office of TRLA, which undertook to represent them. After receiving notice of right to sue from the EEOC, the group filed a class action in the district court in October, 1976 against ABI, alleging a systemic pattern and practice of employment discrimination on the basis of national origin in violation of Title VII, 42 U.S.C. Sec. 2000 et seq. See Mireles v. Arthur Brothers, Inc., No. C-76-134 (S.D.Tex. filed Oct. 28, 1976). 2

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Extensive discovery in the Mireles litigation revealed that ABI had not been acting alone in its employment decisions regarding ABI workers. It appears that Celanese managers and supervisors on numerous occasions authorized lay-offs, recalls, promotions and transfers of ABI employees to Celanese. The record in this case contains over one hundred personnel documents cataloguing the promotions and pay increases of ABI employees which bear the signatures of various Celanese managers purportedly acting as "General Foreman" or "Foreman" for ABI. 3

While discovery in Mireles went forward, Trevino continued his efforts to obtain employment with Celanese. On one occasion, he was told by Celanese that his application had been denied because his brother worked for Celanese, and the company "had a policy where relatives couldn't work for Celanese." However, Trevino soon learned that related Anglos did in fact work for Celanese, and began to suspect that the "no relative" policy cited to justify the denial of his job application was merely an excuse for not hiring him.

In light of these developments, Trevino and his counsel, TRLA, took two actions in the fall of 1979. On October 15, 1979 they filed a motion pursuant to Rule 19(a) to join Celanese as a party defendant in the Mireles case, in which Trevino was one of the named plaintiffs. Then, on November 4, 1979, Trevino filed with the EEOC a second charge of employment discrimination, naming both ABI and Celanese as respondents. This charge alleged in general terms a continuing violation of Trevino's Title VII rights by ABI and Celanese under their shared promotion and transfer system. The charge also alleged that Celanese had retaliated against Trevino for his having filed a previous charge with the EEOC against ABI.

On November 6, 1979, the EEOC received Trevino's charge, the Mireles court denied the joinder of Celanese as a party defendant in the Mireles suit, and Trevino filed an application with Celanese for a job as a boilermaker. Celanese had had no openings in this position for several years. TRLA neither reviewed this application, nor assisted in its preparation. Celanese apparently never acted on this application. The EEOC issued its notices as to Celanese and ABI on January 31, 1980 and April 1, 1980, respectively. The present suit was filed as a class action on April 30, 1980. At the time he filed his complaint, Trevino moved to consolidate the case with Mireles.

In his complaint, Trevino made no mention of his most recent unsuccessful job application, but instead alleged, on behalf of himself and the class of all Mexican-American workers similarly situated, a continuing

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pattern and practice of discrimination by Celanese and ABI. 4

In response to Trevino's discovery requests, Celanese filed a motion for a protective order on June 18, 1980, asking that the court limit discovery to the two year period preceding the filing of this suit in order to spare Celanese undue expense. The court on June 20, 1980 granted the motion. In its order, the court limited the scope of discovery both by restricting the relevant time frame to the two year period preceding the initiation of this action and by prohibiting access to documents relevant to the existence of a joint Celanese-ABI promotion system governing transfers from ABI to Celanese.

On August 1, 1980, the court denied Trevino's motion to consolidate this case with Mireles. 5 Finally, on December 15, 1980, the court granted summary judgment for Celanese. Narrowing its focus to Trevino's most recent job application, the court chose to view Trevino's action as a simple failure-to-hire claim, and under that theory quite properly determined that Trevino had failed to make out the elements of a prima facie case. Having narrowly circumscribed the scope of discovery, the court did not address Trevino's challenge to the joint Celanese-ABI promotion procedures alleged in the complaint as a continuing violation of his Title VII rights. The court further held that there was no genuine issue of material fact with respect to the claim that Celanese and ABI were joint employers, or that they operated an integrated business or enterprise. A similar order granting summary judgment for ABI was entered on January 12, 1981. At the same time, and by a separate order, the court dismissed all claims raised by Trevino on behalf of the class he claimed to represent.

Trevino then filed a motion to vacate the summary judgments, supported by numerous records and documents obtained in the related Mireles litigation that showed Celanese's involvement in ABI personnel decisions. The court denied the motion and entered final judgment for Celanese and ABI on October 20, 1981. In its order, the

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court awarded defendants $24,541 in attorney's fees, ten percent to be paid by Trevino, and ninety percent by TRLA. The court concluded that since there were no openings in the position for which Trevino had applied, his claim was frivolous. The court further determined that TRLA had set about fabricating the Trevino suit solely to circumvent the court's previous order denying consolidation of this case with the Mireles case, and concluded that this amounted to nothing less than an abuse of legal process.

II. ANALYSIS

On appeal, Trevino contends that the district court failed to consider the legal theory under which he sought to recover. The court early on in the litigation evinced its reluctance to entertain the notion of a continuing pattern of discrimination by means of a post-employment promotion and selection system. The court's protective order of June 20, 1980 reflects its view that the case merely involved a failure to hire. We must therefore begin our inquiry by ascertaining whether the theory upon which Trevino sought to proceed was a valid one.

  1. Continuing...

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