Witzsche v. Jaeger & Haines, Inc.

• Decision Date: 01 February 1989
• Docket Number: Civ. No. 88-5061.
• Citation: 707 F. Supp. 407
• Parties: Diane WITZSCHE, Plaintiff, v. JAEGER & HAINES, INC., Defendant.
• Court: U.S. District Court — Western District of Arkansas

707 F. Supp. 407

Diane WITZSCHE, Plaintiff, v. JAEGER & HAINES, INC., Defendant.

Civ. No. 88-5061.

United States District Court, W.D. Arkansas, Fayetteville Division.

February 1, 1989.

Lanny K. Solloway, Fayetteville, Ark., for plaintiff.

W.W. Bassett, Jr., Angie Doss, Fayetteville, Ark., for defendant.

MEMORANDUM OPINION

H. FRANKLIN WATERS, Chief Judge.

This case was brought by plaintiff under the provisions of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e). The court has jurisdiction under the provisions of that statute and 28 U.S.C. § 1331.

Plaintiff was employed by defendant between August 5, 1986, and September 24, 1987, when she was terminated. She says that she became pregnant between December 5, and December 10, 1986, and that she told her supervisor on January 12, 1987. Within a week of her termination she was employed by her present attorney, Lanny K. Solloway. On April 14, 1987, with Mr. Solloway's aid, she prepared and filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), claiming that she was terminated because of her pregnancy.

Apparently after an investigation, the Little Rock area office of the EEOC, acting through W.P. Brown, Director, notified plaintiff that:

Examination of the evidence indicates: that Charging Party was discharged because of a poor attendance record, falling asleep at work, and unauthorized usage of the company's vehicle. Based on this analysis, I have determined that the evidence obtained during the investigation does not establish a violation of the statute.

In spite of this finding, plaintiff, through her attorney, on May 13, 1988, filed the complaint instituting this action. The complaint was signed by Mr. Solloway in her behalf. The case was tried to the court on November 18, 1988, and, at the conclusion of the evidence, the court ruled from the bench that plaintiff had failed to meet her burden of proving that her pregnancy was a motivating factor in defendant's decision to terminate her employment.

Defendant then moved the court for an allowance of attorney's fees and costs in the total amount of $9,454.36. Plaintiff has responded and both parties have briefed the issues. The court is now prepared to rule.

MERITS OF THE CASE

At the close of the evidence in this case, the court ruled orally from the bench that plaintiff had not produced "one whit of evidence" or "even a smidgen of evidence" from which a reasonable person could conclude that her termination was in any way a result of her pregnancy, a pregnancy of less than one month at the time she notified her supervisor of it, and of barely two months when she was terminated. In this respect, in addition to her own testimony, plaintiff called four witnesses. Not one of these witnesses came even close to testifying to any facts from which the court could conclude that her pregnancy had anything to do with the employment decisions made by her employer. In fact, based on the evidence which Ms. Witzsche and Mr. Solloway were able to produce at the trial, the court has a great deal of difficulty understanding why this lawsuit was initially filed, and why it was pursued by them to its conclusion by trial. In view of the quality of the evidence adduced by them, it appears that, for one to truly believe that the pregnancy had anything to do with the employment decision, would require a certain amount of paranoia.

In this respect, the court has noted with some alarm over the last few years that it sees more frivolous Title VII cases than any other type filed in this court. It appears that many persons who are not as successful in their employment as they desire to be, automatically believe, or pretend to believe, that their lack of success must have been due to the discrimination of someone. The court hastens to say that it recognizes that these provisions of the Civil Rights Act of 1964 had a laudable purpose, and in the proper case, still do. However, the court sees far too many cases in which the best advice that a lawyer could give to his client during the first conference, or at least after the facts are discovered, is that, "you have no case — forget about it and get on with your life."

It is obvious to the court that that is exactly the advice that Mr. Solloway should have given Ms. Witzsche in this case. While it is recognized that an adverse determination by the EEOC does not necessarily mean that the charging party has no Title VII case in every instance, the explicit finding of the commission in this case should have at least caused Ms. Witzsche and Mr. Solloway to "wonder" and should have been a warning to Mr. Solloway that he should, before a lawsuit was filed, carefully investigate the "facts" as they were apparently related to him by his client. The decision of the commission was January 29, 1988, and the lawsuit was filed on May 13, 1988, so he certainly had ample time to do so.

It is apparent from the file in this case that no such investigation was performed or it was woefully inadequate. A blatant example of this is the allegations of plaintiff and her attorney in relation to the expected testimony of Terry Sauls, a co-worker who was, on the date of the trial, still employed by defendant. In the complaint filed on May 13, 1988, it is alleged that this co-worker warned plaintiff not to tell her supervisor about her pregnancy because the supervisor "had given women who were pregnant a `hard time'". Then, in the pretrial conference information sheet filed almost six months after the complaint, and less than two weeks before the trial, Mr. Solloway says:

During the first part of December, 1986, the Plaintiff became pregnant. During the week of January 5, 1987, the Plaintiff had a conversation with Terry Sauls, a co-worker, at which time the Plaintiff told Terry Sauls that she was pregnant. Terry Sauls told the Plaintiff not to tell Gloria Taylor until it was absolutely necessary because Gloria Taylor would give the Plaintiff a `hard time'. At that time Terry Sauls told the Plaintiff that other girls who had become pregnant in the past had been harassed by Gloria Taylor.

Plaintiff called Ms. Sauls as a witness at the trial and she did not testify to that, or anything remotely similar. Upon questioning by Mr. Solloway, she was asked:

Q. Did you tell Diane Witzsche that she should try to conceal her pregnancy for as long as possible before letting Gloria Taylor know because she might give the girls a hard time?

A. No sir, I told her that she should wait until she knew for sure she was pregnant before she told her supervisor.

Q. And why was that?

A. Well I didn't see any point in telling her she thought she was pregnant unless she knew she was.

She also specifically denied that she had told Ms. Witzsche that Gloria Taylor had given various other pregnant employees a "hard time" because of their pregnancy.

As indicated, plaintiff and her attorney were alleging as early as the filing of the complaint that Ms. Witzsche had been told that by Ms. Sauls. Ms. Sauls was employed by the defendant during that period and was obviously available for deposition, sworn statement, or a simple interview. It defies logic that such rudimentary trial preparation was not engaged in. If it had been, Mr. Solloway would have known long before the trial, and probably would have known long before the filing of the complaint, that Ms. Sauls would not support Ms. Witzsche's story. The court finds it incredible that this was apparently learned by both Mr. Solloway and Ms. Witzsche during the trial of the case and not before.

The only other witnesses called in behalf of Ms. Witzsche were her husband, who did not even claim to have any knowledge about the reasons for her termination, and, one of the owners of the defendant business, Larry Haines, and her supervisor, Gloria Taylor. Obviously neither Mr. Haines nor Ms. Taylor supported her position nor could they be expected to.

Certain statements made in plaintiff's response to the motion for attorney's fees, in the court's view, rather than supporting her position, show or should have shown to anyone, including plaintiff and her attorney, the weakness of her case. Mr. Solloway says in that filing: "Plaintiff's counsel truly believed that a bona fide case existed and that this was justiciable cause of action. Plaintiff's counsel believed that what Diane Witzsche had stated was correct and had no reason to disbelieve her." The court knows Mr. Solloway, and does not doubt his sincerity, but questions his judgment in respect to total reliance on claims made by clients without the slightest investigation to confirm such statements.

In support of his belief that plaintiff had a "justiciable cause of action", he says that:

The fact that Jaeger & Haines employed some 20 to 30 females and that there was no written policy for pregnancy and maternity leave, certainly raise questions in counsel's mind. Moreover, the fact that seven females within a two year period terminated their employment with Jaeger & Haines, following their becoming pregnant, further supported a reasonable inference of discrimination.

Even if it is assumed that plaintiff's attorney could show those "facts", which he was not able to do in most respects, the court still asks how those alleged facts support an inference of discrimination? In respect to the lack of a written policy, the law does not require that a policy be in writing, but, instead, only that employers not discriminate against employees because of their pregnancy. He seems to believe that the fact, if it is a fact, that seven employees terminated their employment after becoming pregnant supports "a reasonable inference of discrimination". Why is that true and why would a reasonable person believe that it is true? He does not claim that those seven females were terminated because of their pregnancy, but just that they "terminated their employment". He had absolutely no evidence at the trial that...