                                                                                        ACCEPTED
                                                                                     01-14-00417-cv
                                                                         FIRST COURT OF APPEALS
                                                                                 HOUSTON, TEXAS
                                                                                6/5/2015 4:38:36 PM
                                                                              CHRISTOPHER PRINE
                                                                                             CLERK


                  NO. 01-14-00417-CV
                                                                   FILED IN
                                                            1st COURT OF APPEALS
                                                                HOUSTON, TEXAS
               IN THE FIRST COURT OF APPEALS                6/5/2015 4:38:36 PM
                      HOUSTON, TEXAS                        CHRISTOPHER A. PRINE
                                                                    Clerk


NICK YEH, INDIVIDUALLY, ASHDON INC. D/B/A IMPRESSION BRIDAL, AND
                        EMME BRIDAL, INC.,
                                        Appellants/Cross-Appellees,

                                    v.

                           ELLEN CHESLOFF,
                                                 Appellee/Cross-Appellant.


             On Appeal from the 268th Judicial District Court,
              Fort Bend County, Texas, No. 09-DCV-174184



           APPELLEE’S/CROSS-APPELLANT’S BRIEF


        Thad D. Spalding                          Ronald M. Estefan
      State Bar No. 00791708                    State Bar No. 00785851
  tspalding@texasappeals.com                   ron@ronestefanlaw.com
          Peter M. Kelly                        THE ESTEFAN FIRM, P.C.
      State Bar No. 00791011                      2306 Mason Street
    pkelly@texasappeals.com                     Houston, Texas 77006
 KELLY, DURHAM & PITTARD, LLP                       (713) 333-1100
          PO Box 224626                          (713) 333-1101 (Fax)
         Dallas, TX 75222
   (214) 946-8000 (Telephone)            COUNSEL FOR APPELLEE/CROSS-
    (214) 946-8433 (Facsimile)           APPELLANT

                  ORAL ARGUMENT REQUESTED*
                 STATEMENT REGARDING ORAL ARGUMENT

     Appellants do not request oral argument and claim that it is not

necessary to the issue presented by their appeal. Appellee/Cross-Appellant

agrees that Appellants’ “jurisdictional” argument is straightforward, albeit

not for the reasons they present. This Court can dispose of that argument

and affirm the judgment on Appellee’s sexual harassment claims without

the need for much discussion.

     Appellee/Cross-Appellant, however, believes that this Court can

benefit from oral argument with respect to the points she raises on cross-

appeal. The issues of back pay and attorney’s fees in the civil rights context

are somewhat less straightforward and more complicated than the single

issue raised by Appellant and, accordingly, the undersigned believes that

oral argument on those issues could be helpful.




                                      ii
                                           TABLE OF CONTENTS

                                                                                                              PAGE

STATEMENT REGARDING ORAL ARGUMENT ........................................................... ii

TABLE OF AUTHORITIES ............................................................................................ v

STATEMENT OF THE CASE ..........................................................................................x

ISSUES PRESENTED ................................................................................................. xiii

RECORD ON APPEAL .............................................................................................. xiii

I.       STATEMENT OF FACTS ..................................................................................... 2

         A.       Chesloff’s request for back pay ........................................................ 2

         B.       Chesloff’s request for attorney’s fees .............................................. 3

II.      SUMMARY OF THE ARGUMENT........................................................................ 5

III.     ARGUMENT AND AUTHORITIES ...................................................................... 6

         A.       Chesloff was entitled to judgment on her sexual
                  harassment claims .............................................................................. 6

                  1.       Standard of review – legal sufficiency .................................. 6

                  2.       Chesloff’s charge of discrimination related
                           back to her timely-filed intake questionnaire ...................... 8

         B.       The trial court abused its discretion when it denied
                  Chesloff her back pay ...................................................................... 13

                  1.       Standard of review – abuse of discretion ........................... 14

                                                          iii
                                                                                                               PAGE

                 2.       The trial court abused its discretion when it
                          excluded evidence of Chesloff’s back pay.......................... 15

                 3.       This Court should render judgment in
                          Chesloff’s favor on her claim for back pay......................... 16

        C.       The trial court abused its discretion when it
                 drastically reduced the attorney’s fees to which
                 Chesloff was entitled........................................................................ 17

                 1.       Standard of review – abuse of discretion ........................... 17

                 2.       Proving fees under the TCHRA ........................................... 18

                 3.       The hourly rate charged by Chesloff’s counsel
                          was reasonable........................................................................ 20

                 4.       The hours spent by Chesloff’s counsel were
                          reasonable ................................................................................ 21

                 5.       The relevant factors do not warrant a reduction
                          in Chesloff’s segregated attorney’s fees.............................. 23

IV.     CONCLUSION & PRAYER ............................................................................... 29

CERTIFICATE OF COMPLIANCE ................................................................................ 33

CERTIFICATE OF SERVICE ......................................................................................... 33




                                                         iv
                                       TABLE OF AUTHORITIES

CASES                                                                                                  PAGES

Arthur Andersen & Co. v. Perry Equip. Co.,
 945 S.W.2d 812 (Tex. 1997) ................................................................................19

Autozone, Inc. v. Reyes,
 272 S.W.3d 644 (Tex. App.—Corpus Christi 2006), rev’d on other grounds,
 272 S.W.3d 588 (Tex. 2008) ................................................................................17

Black v. SettlePou, P.C.,
  732 F.3d 492 (5th Cir. 2013) .................................................................. 18, 26, 30

BMC Software Belgium, N.V. v. Marchand,
 83 S.W.3d 789 (Tex. 2002) ....................................................................................7

City of Keller v. Wilson,
 168 S.W.3d 802 (Tex. 2005) ..................................................................................8

City of La Joya v. Ortiz,
 No. 13-06-401-CV,
 2007 WL 293019 (Tex. App.—Corpus Christi Feb. 1, 2007, no pet.) ...........12

City of Riverside v. Rivera,
 477 U.S. 561 (1986)................................................................................. 26, 27, 28

City of Sugar Land v. Kaplan,
 449 S.W.3d 577 (Tex. App.—Houston [14th Dist.] 2014, no pet.) ...............12

Clark v. Craft Foods, Inc.,
 18 F.3d 1278 (5th Cir. 1994) ................................................................................10

Dallas County Sw. Inst. of Forensic Sci. & Med. Exam’r Dep’t v. Ray,
 400 S.W.3d 219 (Tex. App.—Dallas 2013, pet. denied).................................11



                                                       v
                                TABLE OF AUTHORITIES (CONT'D)

CASES (CONT'D)                                                                                         PAGES

Dubai Petroleum Co. v. Kazi,
 12 S.W.3d 71 (Tex. 2000) ......................................................................................7

Edwards v. Aaron Rents, Inc.,
 482 F. Supp. 2d 803 (W.D. Tex. 2006) ..............................................................16

El Apple I, Ltd. v. Olivas,
  370 S.W.3d 757 (Tex. 2012) ....................................................................... passim

Green v. Administrators of the Tulane Educ. Fund,
 284 F.3d 642 (5th Cir. 2002) ...............................................................................26

Griffin v. City of Dallas,
 26 F.3d 610 (5th Cir. 1994) ...................................................................................9

Hamer v. Ewing Constr. Co.,
 No. C-07-93, 2007 WL 1231681 (S.D. Tex. Apr. 24, 2007) .............................12

Hansen v. AON Risk Servs. of Tex., Inc.,
 No. Civ. A. H-05-3437, 2006 WL 846363 (S.D. Tex. Mar. 31, 2006) .............12

Hennigan v. I.P. Petroleum Co., Inc.,
 858 S.W.2d 371 (Tex. 1993) ......................................................................... 10, 11

Jackson v. Host Int’l, Inc.,
  426 Fed. App’x 215 (5th Cir. 2011) ...................................................... 18, 29, 30

Johnson v. Georgia Highway Express, Inc.,
  488 F.2d 714 (5th Cir.1974) ......................................................................... 19, 25

Lewallen v. City of Beaumont,
  394 Fed. App’x 38 (5th Cir. 2010) .............................................................. 26, 28


                                                       vi
Perdue v. Kenny A. ex. rel. Winn,
 559 U.S. 542 (2010)....................................................................................... 18, 29

Prairie View A&M Univ. v. Chatha,
 381 S.W.3d 500 (Tex. 2012) ..................................................................................7

Price v. Southwestern Bell Tele. Co.,
 687 F.2d 74 (5th Cir. 1982) .................................................................................10

Santi v. Univ. of Tex. Health Sci. Ctr. at Houston,
  312 S.W.3d 800 (Tex. App.—Houston [1st Dist.] 2009, no pet.) ..................13

Specialty Retailers, Inc. v. DeMoranville,
 933 S.W.3d 490 (Tex. 1996) ..................................................................................9

State v. Cent. Expressway Sign Assocs.,
  302 S.W.3d 866 (Tex. 2009) ................................................................................15

Tex. Dep’t of Public Safety v. Alexander,
 300 S.W.3d 62 (Tex. App.—Austin 2009, pet. denied) ................... 7, 8, 10, 11

Texas Parks & Wildlife Dep’t v. Miranda,
 133 S.W.3d 217 (Tex. 2004) ..................................................................................7

Tollett v. City of Kemah,
 285 F.3d 357 (5th Cir. 2002) ...............................................................................21

Tony Gullo Motors I, L.P. v. Chapa,
 212 S.W.3d 299 (Tex. 2006) ................................................................................22

U-Haul Int’l, Inc. v. Waldrip,
 380 S.W.3d 118 (Tex. 2012) ................................................................................14

Wal-Mart Stores, Inc. v. Canchola,
 64 S.W.3d 524 (Tex. App.—Corpus Christi 2001) .........................................12



                                                       vii
                                 TABLE OF AUTHORITIES (CONT'D)

CASES (CONT'D)                                                                                              PAGES

West v. Nabors Drilling USA, Inc.,
 330 F.3d 379 (5th Cir. 2003) ...............................................................................26

Williams v. Vought,
 68 S.W.3d 102 (Tex. App.—Dallas 2001, no pet.) ............................................9

Williams-Pyro, Inc. v. Barbour,
 408 S.W.3d 467 (Tex. App.—Dallas 2013, pet. denied).................................23

STATUTES & REGULATIONS

29 C.F.R. § 1601.12(b) ............................................................................................11

40 Tex. Admin. Code § 819.41(g) ........................................................................11

Tex. Labor Code § 21.201 .............................................................................. 10, 11

Tex. Labor Code § 21.202(a) ...................................................................................9

Tex. Labor Code § 21.259(a) .................................................................................17

RULES

Tex. R. App. P. 43.3 ...............................................................................................17

OTHER AUTHORITIES

State Bar of Texas, Texas Pattern Jury Charges: Business, Consumer, Insurance
  & Employment PJC 115.30 (2014) ......................................................................15




                                                        viii
                                                               STATEMENT OF THE CASE

Nature of the Case. This case arises out of a pervasive culture of sexual
harassment created by Nick and Mike Yeh and their bridal dress and formal
gown companies, Ashdon, Inc. d/b/a Impression Bridal (“Impression”) and
Emme Bridal, Inc. (“Emme”). Ellen Chesloff worked for Impression and
Emme from January 2006 until she ultimately had to resign in June 2009
because of the sexual harassment she was forced to endure. Almost
immediately, Nik Yeh sued Chesloff for slander per se and Impression and
Emme sued Chesloff for breach of fiduciary duty and, later, business
disparagement and negligence. (1 CR 12-24; 4 CR 1265-66). Chesloff, after
filing an intake questionnaire and charge of discrimination with the EEOC
and receiving her “right to sue” letter, counterclaimed for sexual
discrimination and harassment, retaliation, and for intentional infliction of
emotional distress. (1 CR 28-29). Yeh, Impression, and Emme filed a plea to
the jurisdiction, arguing that Chesloff’s charge of discrimination was
untimely and, therefore, her claims under the Texas Commission on Human
Rights Act (“TCHRA”) were barred. (1 CR 83-113).

Trial Court. The Honorable Brady Elliott, Presiding Judge, and the
Honorable Larry Wagenbach, Visiting Judge, 268th Judicial District Court,
Fort Bend County, Texas.1

Trial Court’s Disposition. The trial court denied Yeh, Impression, and
Emme’s plea to the jurisdiction. (2 RR 20).

      Following a seven day trial, and in response to a 76-page, 67-question
jury charge, the jury returned its verdict, rejecting every single one of the
claims by Yeh, Impression, and Emme. (4 CR 1339-95). Instead, the jury
found in favor of Chesloff and awarded her damages on her sexual
harassment claims against both Impression and Emme, and on her
intentional infliction of emotional distress claim against Emme. (4 CR 1396-



                                                            
1   Judge Wagenbach presided over the last four days of trial.

                                                                        ix
99, 1408-9). The jury rejected Chesloff’s claim of retaliation.2 (4 CR 1400,
1402).

      Chesloff moved for entry of judgment on the verdict, and Yeh,
Impression, and Emme filed a motion for judgment notwithstanding the
verdict, again claiming that Chesloff’s sexual harassment claims were
barred, but also challenging the intentional infliction of emotional distress
claim. (4 CR 1561-68). The trial court denied the challenge to Chesloff’s
sexual harassment verdict, but granted judgment notwithstanding the
verdict on the intentional infliction of emotional distress claim.3 (15 RR 13).

      Chesloff also moved for attorney’s fees and costs under the TCHRA.
(5 CR 1693). Chesloff asked for approximately $300,000 in litigation
attorney’s fees and approximately $100,000 in conditional appellate fees. (5
CR 1702-3).

      On April 25, 2014, the trial court signed a final judgment in Chesloff’s
favor, but reduced the requested trial attorney’s fees and the conditional
appellate fees by approximately two-thirds. (5 CR 1810-11).4 Yeh,

                                                            
2Contrary to Appellants’ prediction in their brief, see Appellants’ Brief at 58-64, Chesloff
does not appeal the jury’s failure to find retaliation.

3 Chesloff does not appeal the trial court’s judgment notwithstanding the verdict on her
intentional infliction of emotional distress claim either.

4The trial court initially dated the Final Judgment “April 20, 2014,” which was a Sunday.
(5 CR 1901-2). The trial court attempted to correct that error by simply handwriting in
the correct date, April 25, 2014. (5 CR 1812, 1901). Apparently concerned about handling
this clerical error in this manner, the trial court—on its own motion—entered an “Order
for Judgment Nunc Pro Tunc,” ordering that a corrected Final Judgment be submitted for
entry. (5 CR 1901). On May 12, 2014, a “Judgment Nunc Pro Tunc” was signed that is
identical in content to the Final Judgment.

 The “Judgment Nunc Pro Tunc,” however, does not appear in the Clerk’s Record.
Although it has no impact on the timeliness of any post-judgment motions or the parties’
notices of appeal, in the interest of having a complete record before this Court, the
undersigned will ask—in conjunction with the filing of this brief—that a Supplemental
Record be filed in this appeal to include the May 12, 2014 “Judgment Nunc Pro Tunc.”
                                             x
Impression, and Emme noticed their appeal of the judgment, and Chesloff
cross-noticed her appeal. (5 CR 1906, 1923).

                              ISSUES PRESENTED

Restatement of Appellants’ Issue:

1.     Jurisdiction. Did the trial court have authority to enter judgment in
Ellen Chesloff’s favor on her sexual harassment claims where Chesloff’s
intake questionnaire to the EEOC was timely filed within 180 days of the
date Chesloff resigned and the last date of alleged sexual harassment, and
her formal charge of discrimination filed one month later relates back to the
filing of the intake questionnaire?

Cross-Appeal Points:

1.    Back pay. Did the trial court abuse its discretion in excluding evidence
of, and ultimately refusing to enter judgment in Chesloff’s favor on, her
claim of back pay where all of the evidence supporting her claim was timely
disclosed in discovery?

2.     Attorney’s Fees. Did the trial court abuse its discretion in reducing the
trial and appellate attorney’s fees that, using the lodestar method, Chesloff’s
counsel proved were reasonable?

                             RECORD ON APPEAL

      Clerk’s Record. This appeal consists of a five-volume, consecutively-
paginated Clerk’s Record. Documents referenced in the Clerk’s Record will
be cited by volume and page number as “(__ CR __).”

     Reporter’s Record. This appeal also consists of a 17-volume Reporter’s
Record. The Reporter’s Record is made up of the following:

      Volume 1:         Master index.

      Volume 2:         Hearing on Appellants’ Plea to the Jurisdiction

                                        xi
     Volume 3:        Pretrial matters.

     Volume 4:        Pretrial matters and voir dire.

     Volumes 5-14:    Trial on the merits.

     Volume 15:       Hearing on post-trial motions, including Appellants’
                      Motion for Judgment Notwithstanding the Verdict
                      and Appellee’s Motion on Attorney’s Fees.

     Volume 16:       Second hearing on post-trial motions, including
                      Appellee’s Motion on Attorney’s Fees.

     Volume 17:       Exhibits.

      Citations to the Reporter’s Record will be by volume and page number
as “(___ RR ___).”

    Appendix. Any references to record items that are also in the
Appendix will be cited as “(App. Tab ___).”




                                    xii
                      NO. 01-14-00417-CV

                   IN THE FIRST COURT OF APPEALS
                          HOUSTON, TEXAS


   NICK YEH, INDIVIDUALLY, ASHDON INC. D/B/A IMPRESSION BRIDAL, AND
                           EMME BRIDAL, INC.,
                                           Appellants/Cross-Appellees,

                                        v.

                               ELLEN CHESLOFF,
                                                     Appellee/Cross-Appellant.


                 On Appeal from the 268th Judicial District Court,
                  Fort Bend County, Texas, No. 09-DCV-174184



               APPELLEE’S/CROSS-APPELLANT’S BRIEF


      Appellee/Cross-Appellant Ellen Chesloff files this Brief to respond to

the “jurisdictional” argument raised by the Appellants, and to present cross-

issues regarding: (1) the trial court’s exclusion of evidence regarding, and

corresponding refusal to award, back pay; and (2) the trial court’s drastic

reduction of the attorney’s fees to be paid to Chesloff’s counsel for trial and

appeal.




                                        1
                         I.    STATEMENT OF FACTS

      In large measure, Appellants accurately state the facts relevant to this

appeal. And, although they understate the numerous incidents of sexual

harassment, Appellants do not challenge the jury’s findings of sexual

harassment (other than to argue that the trial court did not have jurisdiction

to enter judgment on those findings) making rehashing that evidence and

those incidents here unnecessary.

      Chesloff, however, raises two points on cross appeal regarding the trial

court’s exclusion of evidence of, and subsequent refusal to award, back pay,

and the trial court’s drastic reduction of the attorney’s fees Chesloff

requested. Understandably, facts related to those issues were not addressed

by Appellants’ brief, so they will be addressed here.

A.   Chesloff’s request for back pay.

      As part of her sexual discrimination and harassment claims under the

Texas Commission on Human Rights Act (“TCHRA”), Chesloff requested

back pay. (1 CR 30). In her September 1, 2010 deposition, Appellants’

counsel questioned Chesloff regarding that claim. (5 CR 1920 [153:8-154:16]).

Chesloff explained that she was making an annual salary of $60,000 when

she resigned, and—at least at the time of her deposition—was making only


                                      2
$48,000 with a new company, and was therefore seeking to recover the

difference in what she was making now versus what she was making when

she was forced to resign. (5 CR 1920 [153:19-154:7]).

     At trial, Chesloff attempted to present this same testimony, but

Appellants’ counsel objected, claiming that Chesloff’s back pay damages

had never been disclosed in response to requests for disclosure. (12 RR

196:12-16). In response, Chesloff’s counsel argued that the information had

been provided at her deposition. (12 RR 197:2-4). The trial court sustained

Appellants’ objection and excluded Chesloff’s back pay testimony. (12 RR

197:5). Chesloff made an offer of proof at trial which closely mirrored her

deposition testimony, (13 RR 4-7), and re-urged the issue in her Motion for

New Trial and Motion to Modify Judgment. (5 CR 1913-15).

B.   Chesloff’s request for attorney’s fees.

     Following her success at trial on the sexual harassment claims against

both Impression and Emme, Chesloff filed a motion asking that she be

awarded her attorney’s fees and costs pursuant to the TCHRA. (5 CR 1693-




                                      3
1704).5 That motion was supported by the affidavits of Chesloff’s trial

counsel, Ron Estefan and Gene Shioda, who each submitted billing records

detailing their time spent on the case from its inception. (5 CR 1705-61).

Estefan’s and Shioda’s time, on a case that was four-and-a-half years old,

totaled 721 hours.6 (5 CR 1702-3).

              Estefan’s and Shioda’s affidavits, as well as the affidavits of two other

experienced employment attorneys, Trang Tran and Margaret Harris, also

testified to a reasonable hourly rate of $400 per hour. (5 CR 1742 at ¶4; 1760

at ¶4; 1762 at ¶¶4, 6; 1765 at ¶¶ 6, 8). So, Chesloff requested litigation

attorney’s fees totaling approximately $304,400.7 (5 CR 1425-26). Following

an April 24, 2015 hearing on Chesloff’s motion, the trial court took the fees

issue under advisement. (16 RR 13). The next day, the trial court signed a

final judgment in favor of Chesloff on her sexual harassment claims, but

                                                            
5 Chesloff amended her motion following a March 21, 2014 hearing based on the trial
court’s request that Chesloff resubmit her claim for fees, but segregate fees related to her
sexual harassment claims from all of the other claims. (15 RR 17-18).

6 This total represented a 32% reduction from the total time documented in Chesloff’s
original motion for attorney’s fees based on Estefan and Shioda’s segregation of fees
related just to the harassment claims. Compare (4 CR 1425-26) with (5 CR 1702-3).

7 Chesloff also requested conditional appellate fees of: (1) $68,000 for an appeal to the
court of appeals; (2) $25,500 for an appeal to the Texas Supreme Court; (3) $42,500 in the
event the Texas Supreme Court asked for full briefing on the merits; and (4) $34,000 in
the event the Texas Supreme Court asked for oral argument. (5 CR 1703).


                                                               4
drastically reduced Chesloff’s litigation attorney’s fees and conditional

appellate fees by two-thirds. (5 CR 1810-11).

                    II.   SUMMARY OF THE ARGUMENT

      Appellants concede the jury’s findings of sexual harassment. They

have not challenged those substantive findings here. Rather, Appellants’

sole point is that the trial court was without jurisdiction to enter judgment

on Ellen Chesloff’s claims for, and the jury’s findings of, sexual harassment

because Chesloff did not timely file her charge of discrimination, as required

by the Texas Commission on Human Rights Act (“TCHRA”). Appellants

are wrong, since Chesloff’s intake questionnaire to the EEOC was filed

timely, and, as a matter of law, any subsequent, more formal charge of

discrimination related back to that questionnaire.         Chesloff’s EEOC

complaint was therefore timely and the trial court had the authority to enter

judgment in Chesloff’s favor.

      The trial court did, however, commit error with respect to Chesloff’s

claims for back pay and attorney’s fees. The trial court effectively denied

Chesloff any recovery for back pay when it excluded her testimony on the

subject based on the mistaken belief that her testimony had not been

disclosed in discovery. Because Chesloff’s testimony had been disclosed in

                                      5
her deposition testimony three-and-a-half years before trial, the trial court

abused its discretion in excluding the testimony at trial and that exclusion

was harmful because it effectively precluded any recovery of back pay.

              The trial court also abused its discretion when it drastically reduced

the litigation and conditional appellate attorney’s fees Chesloff was entitled

to recover. Using the lodestar method, Chesloff’s counsel established by

affidavit and detailed billing records the reasonable rate for her counsel’s

time and the reasonable hours related to the sexual harassment claims.

Without stating its reasons for doing so, and without any valid basis for

doing so, the trial court reduced the requested fees by two-thirds. This was

error too that warrants correction here.

                                                  III.         ARGUMENT AND AUTHORITIES

A.            Chesloff was entitled to judgment on her sexual harassment claims.

              1.             Standard of review – legal sufficiency

              Impression and Emme’s challenge to the timeliness of Chesloff’s EEOC

complaint is a challenge to the existence of facts sufficient to support

Chesloff’s exhaustion of her administrative remedies.8 See Tex. Dep’t of Public

                                                            
8 Appellants label this a jurisdictional issue. Although a number of courts still refer to
the failure to exhaust administrative remedies as an issue of “jurisdiction,” the Texas
Supreme Court indicates that this is incorrect and that, when the claims involve private


                                                                        6
Safety v. Alexander, 300 S.W.3d 62, 71-72 (Tex. App.—Austin 2009, pet.

denied). The trial court was therefore required to consider the relevant

evidence submitted by the parties and resolve Appellants’ challenge based

on undisputed facts or its own fact findings. See Texas Parks & Wildlife Dep’t

v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004). Where, as here, the trial court

did not issue findings of fact and denied Appellants’ plea, this Court must

presume that the trial court made a factual finding that Chesloff timely filed

her complaint. See Alexander, 300 S.W.3d at 72.

              On appeal, the trial court’s fact findings—including implied ones—

may be challenged for legal sufficiency. See id. (citing BMC Software Belgium,

N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002)). By challenging the trial

court’s implied finding that Chesloff’s complaint was timely filed,

Appellants challenge the legal sufficiency of that finding. See id. To prevail

on its challenge, Appellants are required to establish that there is no

evidence to support the trial court’s implied finding that Chesloff timely

filed a proper complaint. See id.

                                                            
litigants, the exhaustion of administrative remedies is simply a mandatory “statutory
prerequisite” to suit. See Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500, 510-11 (Tex.
2012) (noting, based on its earlier decision in Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76
(Tex. 2000), the failure to comply with statutory prerequisites to suit will not deprive a
trial court of jurisdiction over a statutory cause of action).


                                                               7
      A legal sufficiency or “no evidence” challenge can only be sustained

where the records shows:

      1.    the complete absence of evidence of a vital fact;

      2.    that the court is barred by the rules of law or evidence from
            giving weight to the only evidence offered to prove a vital fact;

      3.    that the evidence offered to prove a vital fact is no more than a
            scintilla; or

      4.    that the evidence establishes conclusively the opposite of a vital
            fact.

See id. (citing City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005)).

Evidence is to be reviewed in the light most favorable to the finding,

crediting favorable evidence if a reasonable fact-finder could and

disregarding contrary evidence unless a reasonable fact-finder could not. Id.

(citing City of Keller, 168 S.W.3d at 807).

      2.    Chesloff’s charge of discrimination related back to her timely-
            filed intake questionnaire.

      Appellants spend a great deal of time citing and discussing cases that

hold simply that before filing suit on a TCHRA claim, a complaint must be

filed with the Texas Workforce Commission, or the EEOC, within 180 days

of the alleged discriminatory action. See Appellants’ Brief at 22-33. Chesloff

does not dispute this general rule. Appellants’ focus however is misplaced


                                         8
because it centers exclusively on the date that Chesloff’s formal charge of

discrimination was filed with the EEOC on October 30, 2009.9                            See

Appellants’ Brief at 35. Chesloff’s formal charge, however, relates back to

the intake questionnaire that Chesloff timely filed on September 24, 2009, 174

days after March 30, 2009, the date even Appellants argue was the last date

of sexual harassment.

              To bring a claim of employment discrimination under the TCHRA, as

Chesloff did here, Chesloff was required to file a sworn, written complaint

within 180 days of the alleged discriminatory act. See Tex. Labor Code §

21.202(a). The timely filing of an administrative complaint is a mandatory

prerequisite to filing suit. Specialty Retailers, Inc. v. DeMoranville, 933 S.W.3d

490, 492 (Tex. 1996).

              To constitute a valid complaint, the document must: (1) be in writing;

(2) be made under oath; (3) state that an unlawful employment practice was


                                                            
9 Pursuant to a work-sharing agreement between the EEOC and the TCHR, whenever the
EEOC receives a charge of discrimination, “the TCHR, for all legal and practical purposes,
received the complaint.” Griffin v. City of Dallas, 26 F.3d 610, 612-13 (5th Cir. 1994); see
also Williams v. Vought, 68 S.W.3d 102, 108 (Tex. App.—Dallas 2001, no pet.) (complaint
filed with the EEOC satisfies the requirements of the TCHRA); 40 Tex. Admin. Code §
819.41(c). Thus, when Chesloff submitted her intake questionnaire and charge of
discrimination to the EEOC, the EEOC accepted those documents not only for its own
purposes but also for the purposes of the TCHR.



                                                               9
committed; (4) contain the facts on which the complaint is based, including

the date, place, and circumstances of the alleged unlawful employment

practice; and (5) include facts sufficient to enable the commission to identify

the respondent. See Alexander, 300 S.W.3d at 70 (citing Tex. Labor Code §

21.201). Appellants do not complain about the sufficiency of Chesloff’s

complaint. Appellants only question the timeliness of Chesloff’s complaint

based on the timing of the formal charge of discrimination. See Appellants’

Brief at 34-36.

      While the formal charge was received by the EEOC outside the 180-

day period, that charge relates back to Chesloff’s intake questionnaire that

was timely filed. Under both Texas and federal law, a sworn charge of

discrimination relates back to the date on which a plaintiff files her intake

questionnaire. See Hennigan v. I.P. Petroleum Co., Inc., 858 S.W.2d 371, 372

(Tex. 1993); Price v. Southwestern Bell Tele. Co., 687 F.2d 74, 78 (5th Cir. 1982).

      The rationale for this relation-back rule is sound.            Employment

discrimination charges are to be construed “with the ‘utmost liberality,’

bearing in mind that such charges are generally prepared by laymen

untutored in the rules of pleading.” Price, 687 F.2d at 78; see also Clark v. Craft

Foods, Inc., 18 F.3d 1278, 1280 n. 7 (5th Cir. 1994). Accordingly, both Texas

                                        10
and federal law allow for liberal amendment of a charge “to cure technical

defects or omissions, including a failure to verify the complaint or to clarify

and amplify an allegation made in the complaint” and expressly provide

that such amendments “relate[] back to the date the complaint was first

received by the commission.” Tex. Labor Code § 21.201(e), (f); see also 40 Tex.

Admin. Code § 819.41(g) (2014) (Texas Workforce Comm’n Civil Rights Div.,

Filing a Complaint); 29 C.F.R. § 1601.12(b) (2015).

      The clear intent of the statute is that “employees … who initially filed

technically deficient complaints within the 180 days be entitled to amend the

complaints outside the 180 days and still take advantage of all the remedies

of the Act, including the right to bring a civil action for enforcement of the

Act.” Dallas County Sw. Inst. of Forensic Sci. & Med. Exam’r Dep’t v. Ray, 400

S.W.3d 219, 224 (Tex. App.—Dallas 2013, pet. denied). In light of the statute’s

intent and liberal amendment policy, a charge of discrimination filed outside

the limitation period relates back to a timely-filed intake questionnaire and

is, thus, timely itself. See Hennigan, 858 S.W.2d at 372; Ray, 400 S.W.3d at

222 (noting that amended complaint related back to unsworn intake

questionnaire filed 174 days after termination); Alexander, 300 S.W.3d at 73

(noting that timely filed intake questionnaires can sometimes be used to

                                      11
satisfy the timeliness requirement under the TCHRA); City of La Joya v. Ortiz,

No. 13-06-401-CV, 2007 WL 293019, at *3 n. 4 (Tex. App.—Corpus Christi

Feb. 1, 2007, no pet.) (mem. op.) (verified charge of discrimination related

back to, and satisfied any deficiencies in, unverified intake questionnaire);

Wal-Mart Stores, Inc. v. Canchola, 64 S.W.3d 524, 535 (Tex. App.—Corpus

Christi 2001), rev’d on other grounds, 121 S.W.3d 735 (Tex. 2003) (“a verified

complaint relates back to and satisfies any deficiencies in an unverified

questionnaire filed within the applicable time limit).10

              Here, Appellants admit and the documents confirm that, at the very

least, the last act of discrimination took place on March 30, 2009.11 See

                                                            
10 See also City of Sugar Land v. Kaplan, 449 S.W.3d 577, 582 (Tex. App.—Houston [14th
Dist.] 2014, no pet.) (noting that “the Third Court of Appeals has recognized that a timely
filed intake questionnaire can sometimes be used to satisfy the Act’s exhaustion
requirement,” but not deciding the issue absent evidence of the intake questionnaire
itself); Hamer v. Ewing Constr. Co., No. C-07-93, 2007 WL 1231681, at *3-4 (S.D. Tex. Apr.
24, 2007) (finding that formal, but untimely, charge of discrimination, related back to
intake questionnaire received before the 180 day limit expired); Hansen v. AON Risk Servs.
of Tex., Inc., No. Civ. A. H-05-3437, 2006 WL 846363, at *5 (S.D. Tex. Mar. 31, 2006) (finding
that sworn charge of discrimination related back to date on which plaintiff filed his intake
questionnaire).

11 In the trial court, the parties focused more on whether the lawsuit the Appellants filed
against Chesloff on August 18, 2009, constituted a “continuing violation” of Appellants’
sexual harassment of Chesloff that began in January 2009 and extended through March
30, 2009. (1 CR 209-212). The continuing violation doctrine is an exception to the 180-day
limitation period and requires a showing of an organized scheme leading to and
including a present violation, so that it is the cumulative effect of the discriminatory
practice, rather than any discrete occurrence, that gives rise to the causes of action and
triggers the 180-day limitations period. See Santi v. Univ. of Tex. Health Sci. Ctr. at Houston,


                                                               12
Appellants’ Brief at 35-36; (1 CR 120-124, 127); (17 RR Plaintiffs’ Ex. 1).

Assuming, as Appellant do, that March 30, 2009, was the last date of

discrimination, then Chesloff was required to file with the EEOC within 180

days, or by September 26, 2009. Chesloff signed the intake questionnaire on

September 21, 2009, and the intake questionnaire indicates it was received

by the EEOC on September 24, 2009. (1 CR 120, 124). Accordingly, the intake

questionnaire was timely filed and the subsequently-filed, more formal

charge of discrimination, filed a month later (1 CR 127), related back and was

therefore timely. Chesloff satisfied her statutory prerequisite to bringing her

sexual harassment claims and the trial court’s judgment on those claims

should be, in all things, affirmed.

B.            The trial court abused its discretion when it denied Chesloff her
              back pay.

              The TCHRA allows a trial court to award back pay. See Tex. Labor

                                                            
312 S.W.3d 800, 804-5 (Tex. App.—Houston [1st Dist.] 2009, no pet.). Chesloff argued that
Appellants’ conduct in June and their subsequent lawsuit against her for slander and
breach of fiduciary duty was simply a continuation of the sexual harassment and hostile
work environment Appellants created months earlier. (1 CR 209-12). Since that
continuing conduct did not effectively end until Appellants filed suit against Chesloff,
Chesloff argued that doing so extended accrual of the 180-day limitation period and
made even her October 30, 2009 formal charge of discrimination timely. Chesloff does
not concede that defense here, but simply acknowledges that the argument is rendered
largely academic in light of the fact that, even based on Appellants’ version of the facts,
the intake questionnaire was timely filed, making the formal charge—which relates back
to the intake questionnaire—timely as well.


                                                               13
Code § 21.258(a). Here, however, the trial court refused to award Chesloff

any back pay based on its mistaken belief that Chesloff did not properly

disclose the amount of back pay she was claiming in response to written

discovery requests. (12 RR 196:12-197:5). That ruling was error, and either

a modified judgment should be rendered in Chesloff’s favor for the amount

of back pay she disclosed in deposition and proved at trial or Chesloff’s

claim should be remanded to the trial court for entry of judgment consistent

with Chesloff’s proof.

      1.    Standard of review – abuse of discretion

      The denial of back pay to Chesloff stemmed from the trial court’s

refusal to allow Chesloff to testify to the amount of back pay to which she

was entitled. (12 RR 197:5). The decision to exclude testimony is reviewed

for abuse of discretion. U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex.

2012) (per curiam). A trial court abuses its discretion when its ruling is

arbitrary, unreasonable or without reference to any guiding rules or legal

principles. See id.

      To be reversible error, the exclusion of evidence must also be harmful.

See id. If erroneously excluded evidence was crucial to a key issue, the error

is likely harmful. State v. Cent. Expressway Sign Assocs., 302 S.W.3d 866, 874

                                       14
(Tex. 2009).

      2.       The trial court abused its discretion when it excluded evidence
               of Chesloff’s back pay.

      Essential to any claim for back pay is proof of what Chesloff was

earning with Impression and Emme, how long she was out of work

following her resignation, and what she was earning when she went to work

for Venus Bridal. According to the Pattern Jury Charges,

      “Back pay” is that amount of wages and employment benefits
      that Paul Payne would have earned if he had not been subjected
      to his employer’s unlawful conduct less any wages,
      unemployment       compensation      benefits     or  workers’
      compensation benefits he received in the interim.

State Bar of Texas, Texas Pattern Jury Charges: Business, Consumer, Insurance

& Employment PJC 115.30 (2014).

      The trial court excluded the only testimony regarding back pay when

it excluded Chesloff’s testimony on the subject. (12 RR 196-197). Since this

was the only testimony regarding back pay, its exclusion was certainly

harmful.

      It was also an abuse of the trial court’s discretion. The trial court

refused to allow Chesloff to testify as to the amount of her lost back pay

because it believed that she did not supplement her written discovery



                                       15
responses to quantify the amounts she sought to recover. (12 RR 196-197).

But, Chesloff was not required to supplement her written discovery to

provide this information because she had already provided it at her

September 1, 2010 deposition, three-and-a-half years before trial.

Specifically, according to Texas Rule of Civil Procedure 193.5(a)(2), a party

is only required to amend or supplement written discovery responses if the

information has not been otherwise “made known to the other parties in

writing, on the record at a deposition, or through other discovery responses.”

(emphasis added).       Since Chesloff provided this information at her

deposition, (5 CR 1920 at 153:8-154:16), the trial court abused its discretion

when it excluded her testimony.

      3.    This Court should render judgment in Chesloff’s favor on her
            claim for back pay.

      Chesloff’s testimony establishes that she was entitled to back pay in

the amount of $24,000. (13 RR 4-7; 5 CR 1920 at 153:8-154:16). Although the

issue of back pay may certainly be submitted to a jury, back pay is an

equitable issue that is properly left to the sound discretion of the trial court.

See Edwards v. Aaron Rents, Inc., 482 F. Supp. 2d 803, 816 (W.D. Tex. 2006)

(noting that submitting back to the jury is merely advisory); see also Autozone,



                                       16
Inc. v. Reyes, 272 S.W.3d 644, 658-59 (Tex. App.—Corpus Christi 2006), rev’d

on other grounds, 272 S.W.3d 588 (Tex. 2008) (while issue of back pay is

consistently submitted to juries, court may order back pay).

      Here, Chesloff’s excluded testimony proved that she is entitled to

$24,000 in back pay. Accordingly, in reversing the trial court’s exclusion of

evidence and failure to award Chesloff her back pay, this Court should

render judgment and award Chesloff the relief the trial court should have--

$24,000 in back pay. See Tex. R. App. P. 43.3. Alternatively, this Court

should remand this case so that the trial court can consider this testimony

and award Chesloff her back pay.

C.   The trial court abused its discretion when it drastically reduced the
     attorney’s fees to which Chesloff was entitled.

      The TCHRA also allows a trial court to award attorney’s fees to a

prevailing party. See Tex. Labor Code § 21.259(a). Here, although the trial

court awarded Chesloff some attorney’s fees, it reduced the amount of

litigation fees and conditional appellate fees by two-thirds, without any real

explanation for doing so. (5 CR 1810-11). That was error.

      1.    Standard of review – abuse of discretion

      An award of attorney’s fees under the TCHRA is reviewed for abuse



                                      17
of discretion. El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 761 (Tex. 2012); Jackson

v. Host Int’l, Inc., 426 Fed. App’x 215, 225 (5th Cir. 2011). Determining a

reasonable fee is a matter committed to the sound discretion of the trial

judge, but the judge’s discretion is not unlimited. Jackson, 426 Fed. App’x at

225 (quoting Perdue v. Kenny A. ex. rel. Winn, 559 U.S. 542, 558 (2010)).

      It is essential that the judge provide a reasonably specific
      explanation for all aspects of a fee determination, including any
      award of an enhancement. Unless such an explanation is given,
      adequate appellate review is not feasible, and without such
      review, widely disparate awards may be made, and awards may
      be influenced (or at least, may appear to be influenced) by a
      judge's subjective opinion regarding particular attorneys or the
      importance of the case.

Perdue, 559 U.S. at 558. Thus, a trial court abuses its discretion when it

awards attorney’s fees without “a reasonably specific explanation for all

aspects of a fee determination, including any award of an enhancement,”

and, necessarily, any reduction. Jackson, 426 Fed. App’x at 225 (quoting

Perdue, 559 U.S. at 558); see also Black v. SettlePou, P.C., 732 F.3d 492, 502 (5th

Cir. 2013) (under abuse of discretion standard, a court of appeals is to inspect

the trial court’s lodestar analysis to determine if the court sufficiently

considered the proper criteria).

      Here, the trial court provided no explanation for its award of fees. As



                                        18
will be shown below, this failure—in light of the evidence presented—was

an abuse of discretion and this Court should render judgment in the amount

proven by Chesloff or remand this case to the trial court to determine the

proper amount of fees, considering the proper guiding rules and principles.

              2.             Proving fees under the TCHRA.

              Because the remedies available under the TCHRA mirror those

available under Title VII of the federal Civil Rights Act, Texas courts look to

federal law in applying the state statute, including section 21.259(a) of the

TCHRA. See El Apple I, Ltd., 370 S.W.3d at 760. And, because federal courts

use the lodestar method in awarding fees in Title VII cases, Texas courts do

too under Section 21.259(a) of the TCHRA. Id.

              Under the lodestar method, a determination of what constitutes a

reasonable attorney’s fee involves two steps:

              1.             the trial court is to calculate the lodestar itself by multiplying the
                             reasonable hours spent by counsel in the case by the reasonable
                             hourly rate for such work; and

              2.             the trial court can adjust the base lodestar up or down (apply a
                             multiplier) if relevant factors12 indicate an adjustment is
                             necessary to reach a reasonable fee in the case.
                                                            
12These factors are commonly referred to as the Johnson factors in federal court, based on
Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). In state court, the relevant
factors are found in Texas Disciplinary Rule of Professional Conduct 1.04(b) and Arthur
Andersen & Co. v. Perry Equip. Co., 945 S.W.2d 812 (Tex. 1997).


                                                               19
Id. Here, Chesloff’s counsel proved that their hourly rates ($400/hour) were

reasonable, and the hours spent in prosecuting the harassment claims (761

hours) were reasonable. (5 CR 1693-1765).

      3.    The hourly rate charged by Chesloff’s counsel was reasonable.

      Chesloff’s counsel, Ron Estefan and Gene Shioda, each testified by

affidavit that their hourly rates were reasonable for a plaintiffs’ trial lawyer

with 20 and 18 years of experience, respectively, in employment cases like

this one. (5 CR 1742, 1760). Chesloff also submitted the affidavits of two

other attorneys, Trang Tran and Margaret Harris, who regularly represent

employees in employment-related litigation. (5 CR 1762 at ¶2, 1764 at ¶2).

Both confirmed that the $400 hourly rate charged by Chesloff’s counsel was

reasonable given their experience and the work being performed, and was

reasonable in Fort Bend County. (5 CR 1762 at ¶4, 6; 1765 at ¶6, 8).

      Appellants did not object to these affidavits or otherwise contest the

hourly rate proven by Chesloff’s counsel. Instead, Appellants cited to a

three-year-old State Bar of Texas hourly survey to claim that “a reasonable

hourly rate would probably be about $275 per hour.” (5 CR 1783, 1786).

While such surveys can be considered, the reasonable hourly rate for a



                                      20
particular community is more appropriately established through the

affidavits of other attorneys. See Tollett v. City of Kemah, 285 F.3d 357, 368

(5th Cir. 2002). Chesloff presented such proof. Appellants did not, nor did

they object to Chesloff’s proof. Accordingly, the hourly rate of $400 per hour

should have been conclusively established as reasonable. See Tollett, 285 F.3d

at 369 (approving requested hourly rate based on counsel’s affidavit and

absence of any contest by the opposing party).

      4.    The hours spent by Chesloff’s counsel were reasonable.

      In her original motion for attorney’s fees and costs, Chesloff’s counsel

documented, through detailed billing records, 1,120 hours spent in

defending Appellants’ claims against her and in prosecuting Chesloff’s

claims under the TCHRA. (4 CR 1417-78). “To establish the number of hours

reasonably spent on the case, the fee application and record must include

proof documenting the performance of specific tasks, the time required for

those tasks, the person who performed the work, and his or her specific

rate.” El Apple I, Ltd., 370 S.W.3d at 765. Chesloff’s counsel satisfied her

burden of proof.

      Appellants only real issue with the hours spent was that they were not

segregated from the time spent defending Appellants’ slander, breach of

                                      21
fiduciary duty, and business disparagement claims.             (4 CR 1627-40).

Accordingly, and following a March 21, 2014 hearing in which Appellants

argued a need to segregate and the trial court allowed Chesloff’s counsel to

resubmit a segregated claim for attorney’s fees, Chesloff’s counsel

segregated its fees between those asserted by Appellants and the harassment

claims upon which Chesloff prevailed. (5 CR 1693-1765). Upon doing so,

Chesloff submitted 761 hours, which were reasonably related to the

harassment claims. (5 CR 1702-3). This was a reduction of approximately

32%.

       To meet a party’s burden to segregate its attorney’s fees, it is sufficient

to submit testimony from a party’s attorney concerning the percentage of

hours that related solely to the claim for which fees are recoverable. See Tony

Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 314 (Tex. 2006). Chesloff’s

attorneys did this. Other than calling for a greater reduction, (5 CR 1786),

Appellants do not seriously dispute the percentage by which Chesloff’s

attorneys segregated their fees. Accordingly, the 761 hours proven by

Estafan and Chioda’s affidavits and billing records is, for purposes of

establishing the lodestar, reasonable.




                                         22
      5.    The relevant factors do not warrant a reduction in Chesloff’s
            segregated attorney’s fees.

      The Texas Supreme Court “accept[s] the premise that lodestar

presumptively produces a reasonable fee.” El Apple I, Ltd., 370 S.W.3d at 765.

The lodestar here, and thus the presumptively reasonable fee to which

Chesloff is entitled, is the 761 hours established by Chesloff’s fee application

times the $400 hourly rate proved by the affidavits and declarations

submitted by Chesloff’s counsel and experts, for a total lodestar fee of

$304,400.00.

      Once the base lodestar has been calculated, a court may raise or lower

the lodestar amount if certain relevant factors indicate an adjustment is

necessary. Williams-Pyro, Inc. v. Barbour, 408 S.W.3d 467, 483 (Tex. App.—

Dallas 2013, pet. denied); see also El Apple I, 370 S.W.3d at 765 (“exceptional

circumstances may justify enhancements to the base lodestar.”).           Here,

Chesloff did not ask for enhancement of the fee. Appellants, however, asked

for and were granted, a reduction of the fee. That reduction was arbitrary,

not based on any guiding rules and principles and, as such, constituted an

abuse of discretion.

      In their response to Chesloff’s request for fees, Appellants speculated



                                      23
that “probably less than 40% of [the attorney’s] time was spent on sexual

harassment claims” which “would reduce the amount of hours to 448

hours.” (5 CR 1786). Of course, this argument was wild speculation as

Appellants could articulate no concrete basis for such a contention.13 (5 CR

1774).

              Otherwise, the basis for this two-thirds reduction is unclear. By all

indications, it is not tied to any of the other factors the trial court could

consider:

              (1)            the time and labor required, the novelty and difficulty of the
                             questions involved, and the skill requisite to perform the legal
                             service properly;

              (2)            the likelihood, if apparent to the client, that the acceptance of the
                             particular employment will preclude other employment by the
                             lawyer;

              (3)            the fee customarily charged in the locality for similar legal
                             services;

              (4)            the amount involved and the results obtained;

              (5)            the time limitations imposed by the client or by the
                             circumstances;
                                                            
13 By contrast, in segregating her attorney’s fees, Chesloff’s attorneys assigned a
percentage to each and every line item on their detailed billing records so that the trial
court and Appellants’ counsel could see exactly which tasks were segregated and the
degree to which a particular task involved the sexual harassment claim versus any of the
other claims at issue. (5 CR 1705-40, 1744-58).



                                                               24
              (6)            the nature and length of the professional relationship with the
                             client;

              (7)            the experience, reputation, and ability of the lawyer or lawyers
                             performing the services; and

              (8)            whether the fee is fixed or contingent on results obtained or
                             uncertainty of collection before the legal services have been
                             rendered.

El Apple I, Ltd., 370 S.W.3d at 761.14

              At best, the two-thirds reduction can be linked to Appellants’

argument that the fees should be reduced because Chesloff “only prevailed

on 1/3 of her sexual harassment claims.” (5 CR 1786). The trial court

apparently agreed, at least to some degree, reducing the lodestar fee by two-

thirds to $100,000.00 ($50,000.00 from Impression Bridal and $50,000.00 from

Emme Bridal).15 (5 CR 1810-11). In short, the argument for reduction is tied

directly and exclusively to the results obtained in this litigation. (5 CR 1783-

84). This was error.

              Certainly, the amount of damages a plaintiff recovers is relevant to the


                                                            
14As stated earlier, these factors mirror those set out by the Fifth Circuit in Johnson v.
Georgia Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir.1974).

15The trial court also reduced the conditional appellate fees to which Chesloff was
entitled by a nearly identical, two-thirds amount. (5 CR 1811).


                                                               25
amount of attorney’s fees to be awarded. See City of Riverside v. Rivera, 477

U.S. 561, 574 (1986). But, that is only one of many factors a court should

consider in calculating an award of attorney’s fees. Id. In fact, the U.S.

Supreme Court has expressly rejected a proposition that fee awards under

civil rights statutes need to be proportionate to the amount of damages the

plaintiff actually recovers. Id.; see also Lewallen v. City of Beaumont, 394 Fed.

App’x 38, 46-47 (5th Cir. 2010) (“There is no strict rule or maximum limit on

the permissible ratio of fees to damages.”); West v. Nabors Drilling USA, Inc.,

330 F.3d 379, 395 (5th Cir. 2003); Green v. Administrators of the Tulane Educ.

Fund, 284 F.3d 642, 663 (5th Cir. 2002) (finding argument that reduction of

fees award was warranted because plaintiff “was not completely successful

because all of her claims against [her supervisor] were dismissed, as well as

her claims of intentional infliction of emotional distress and respondeat

superior against Tulane” to be “without merit.”). Thus, it is an abuse of

discretion for the trial court to reduce an attorney’s fees award based solely

on the results obtained. See Black, 732 F.3d at 503.

      Civil rights cases like this one are unique in that, unlike most private

tort litigants, the “civil rights plaintiff seeks to vindicate important civil and

constitutional rights that cannot be valued solely in monetary terms.” City

                                       26
of Riverside, 477 U.S. at 574. “[A] successful civil rights plaintiff often secures

important social benefits that are not reflected in nominal or relatively small

damages awards.” Id. The damages she recovers serve as an important

deterrent to future civil rights violations and, as Congress has recognized,

the plaintiff who obtains such relief “does so not for [her]self alone but also

as a ‘private attorney general,’ vindicating a policy that Congress considered

of the highest importance.” Id. Since damages awards in these kinds of cases

do not fully reflect the public benefit advanced by the civil rights litigation,

Congress never intended for fees in these cases to depend on obtaining

substantial monetary recovery. Id.

      More importantly, however, a rule like the one Appellants asserted in

the trial court that limits attorney’s fees in civil rights cases to a proportion

of the damages awarded would, as City of Riverside noted, seriously

undermine the purpose of civil rights statutes. See id. at 576. Civil rights

victims “ordinarily cannot afford to purchase legal services at the rates set

by the private market” and contingency fee arrangements like the one here

between Chesloff and her counsel “that make legal services available to

many victims of Congress’ personal injuries would often not encourage

lawyers to accept civil rights cases, which frequently involve substantial

                                        27
expenditures of time and effort but produce only small monetary

recoveries.” Id. at 577. A rule like the one Appellants argue for here, and

the trial court seems to have applied, “would make it difficult, if not

impossible, for individuals with meritorious civil rights claims but relatively

small potential damages to obtain redress from the courts.” Id. at 578.

              For this reason, it is not uncommon for courts to approve

proportionately large attorney’s fees awards. In City of Riverside, the U.S.

Supreme Court affirmed an award of approximately $245,000 in attorney’s

fees where only $33,000 in actual damages were awarded. See id. at 564-65.

In Lewallen, the Fifth Circuit approved an award of approximately $445,000

in attorney’s fees and costs where actual damages of $50,000 were awarded

by the jury. See Lewallen, 394 Fed. App’x at 46-47 (“Under the totality of the

circumstances of this protracted and hard-fought litigation, the facially

disproportionate ration of compensatory damages to attorneys fees and

costs is neither surprising nor unreasonable.”). Here, there was no rational

basis upon which to reduce the attorney’s fees award based solely on the

damages or degree of success.16 By doing so, the trial court abused its


                                                            
16At the second hearing on Chesloff’s motion for attorney’s fees, the trial court expressed
concern with what he perceived to be duplicative billing by Mr. Shioda. (16 RR 9-10). In


                                                               28
discretion.

              To the extent the trial court’s reduction was based on some other

factor, the trial court’s failure to explain the basis for its reduction constitutes

an abuse of discretion in and of itself. See Jackson, 426 Fed. App’x at 225

(quoting Perdue, 559 U.S. at 558). Accordingly, the trial court erred in

reducing the segregated fees established by Chesloff and Chesloff requests

that this Court either render the judgment for attorney’s fees that the trial

court should have, or remand the issue of attorney’s fees to the trial court for

a determination of the proper amount to be awarded, consistent with

Chesloff’s arguments and this Court’s ultimate opinion.

                                                          IV.   CONCLUSION & PRAYER

              Chesloff’s EEOC complaint was timely, she properly exhausted here

administrative remedies, and the trial court properly entered judgment on

her behalf. Appellants’ “jurisdictional” challenge was properly rejected

below and should be rejected here.

              The trial court did not, however, properly handle Chesloff’s claims for

                                                            
their briefing in the trial court, Appellants noted approximately 4.5 hours of time they
claim was duplicated by Mr. Shioda. (5 CR 1776-78). While duplicative billing is a factor
the trial court can consider in calculating the initial lodestar amount—specifically, the
reasonable hours spent on the matter—there was no evidence or argument that
duplicative billing warranted a two-third reduction in Chesloff’s fees.


                                                                      29
back pay and attorney’s fees. Chesloff’s evidence of back pay was properly

disclosed years before trial, and it was harmful error for the trial court to

exclude that testimony from trial. The trial court’s drastic reduction of

Chesloff’s requested attorney’s fees was also error. By all indications, the

reduction was arbitrary, as the trial court did not explain its reasons for

doing so. This was an abuse of discretion. See Jackson, 426 Fed. App’x at 225.

Notwithstanding this omission, the only conceivable basis for a two-thirds

reduction in litigation and appellate attorney’s fees was the damage awards

to Chesloff. But, it is an abuse of discretion for a trial court to reduce an

attorney’s fees award based solely on the results obtained, see Black, 732 F.3d

at 503, and thus the trial court abused its discretion here too.

      For   these   reasons,    Appellee/Cross-Appellant       Ellen   Chesloff

respectfully requests that this Court affirm the judgment on her sexual

harassment claims, and reverse the judgment to the extent it refused to

award her back pay and improperly reduced her attorney’s fees award.

Chesloff further requests that this Court render judgment in her favor and

against Appellants Ashdon, Inc. d/b/a Impression Bridal and Emme Bridal,

Inc. on her claim for back pay and attorney’s fees in the following amounts:

       $24,000.00 in back pay; and

                                       30
      $304,400.00 for attorney’s fees incurred in the trial court;

         $68,000.00 for attorney’s fees in the event of an unsuccessful appeal
         to this Court by Appellants;

      $25,500 for attorney’s fees in the event a petition for review is filed
       in the Texas Supreme Court;

      $42,500.00 for attorney’s fees in the event full briefing is requested
       by the Texas Supreme Court; and

      $24,000.00 for attorney’s fees in the event oral argument is granted
       on a petition filed in the Texas Supreme Court.

Alternatively, and in the event this Court is unable to render judgment as

requested, Chesloff requests that this Court remand those issues to the trial

court for determination. Chesloff further requests such other relief to which

she may be justly and equitably entitled.




                                      31
     Respectfully submitted,

By: /s/ Thad D. Spalding
    Thad D. Spalding
    State Bar No. 00791708
    tspalding@texasappeals.com
    Peter M. Kelly
    State Bar No. 00791011
    pkelly@texasappeals.com
    KELLY, DURHAM & PITTARD, LLP
    PO Box 224626
    Dallas, TX 75222
    Telephone: 214.946.8000
    Facsimile: 214.946.8433

     and

     Ronald M. Estefan
     State Bar No. 00785851
     ron@ronestefanlaw.com
     THE ESTEFAN FIRM, P.C.
     2306 Mason Street
     Houston, Texas 77006
     (713) 333-1100
     (713) 333-1101 (Fax)

     COUNSEL FOR
     APPELLEE/CROSS-APPELLANT




32
                       CERTIFICATE OF COMPLIANCE
 
       This document complies with the typeface requirements of Texas Rule
of Appellate Procedure 9.4(e) because it has been prepared in a conventional
typeface no smaller than 14-point for text and 12-point for footnotes. This
document also complies with the word-count limitations of Rule 9.4(i)(2)(B)
because it contains 6,379 words, excluding any parts exempted by Rule
9.4(i)(1).

                                   /s/ Thad D. Spalding
                                   Thad D. Spalding


                          CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of this Appellee’s/Cross-
Appellant’s Brief has been forwarded to the following counsel of record on
this 5th day of June 2015, pursuant to Texas Rule of Appellate Procedure
9.5(b)(1).

     Barham Lewis, Barham.Lewis@ogletreedeakins.com
     Angela N. Prince, Angela.Prince@ogletreedeakins.com
     OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
     One Allen Center
     500 Dallas Street, Suite 3000
     Houston, Texas 77002
                                      /s/ Thad D. Spalding
                                      Thad D. Spalding




 




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