IN THE UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

Cause No. 1:01cv111 

Judge Herman J. Weber 

CYNTHIA K. PAYNE, 

 

 Plaintiff, 

 

vs. 

 

GLAXOSMITHKLINE, 

 

 Defendant. 

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PLAINTIFF’S MEMORANDUM IN 

OPPOSITION TO DEFENDANT’S 

MOTION FOR PARTIAL 

ATTORNEYS’ FEES 

Introduction

GSK in its Memorandum for Partial Attorneys’ Fees (“PAF”) is now asking 

recovery of “partial attorneys’ fees” for having to respond to Plaintiff’s “frivolity.” Inter 

alia it is seeking recovery for it’s St. Louis counsel Gay Gallagher’s time drafting a 

“Memorandum in Support of Motion for Summary Judgment” on October 30, 2001, a 

month and a half before any documents were produced by GSK.1

 Interestingly, since we 

have shown elsewhere that incomplete list of documents and incomplete documents 

themselves, were supplied by Gallagher’s office December 18, and 28, 2001, respectively, 

 

1 For the full chronology of discovery through year-end 2001, see Exhibit “A” attached to Doc. No. 34, 

filed June 27, 2002. To complete the record we also file as Exhibit “A” herein the Gaynell Gallagher letter 

to the undersigned dated November 29, 2001, referred to in the earlier Doc. No. 34 Exhibit “A.”

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these time sheet show that GSK’s counsel was drafting summary judgment materials before

herself knowing what documents were in her own case. 

“With Reasonable Inquiry” 

GSK argues that Plaintiff’s claims of “contract, disability, fraud, and outrage” 

were/are “frivolous, unreasonable or without foundation.” (GSK PAF Memorandum at 5, 

lns. 2-3): 

Plaintiff and her counsel should have known, with reasonable 

inquiry, that her contract, disability, fraud, and outrage claims were 

wholly devoid of merit under the law. (Id. at lns. 3-5; emphasis added) 

Reading further in GSK’s PAF Memorandum, we see that it’s theory is if the plaintiff’s 

own version of the facts, coupled with a basic examination of the law, reveals that 

plaintiff’s claims are unsupportable, the case must be frivolous. (Id. at lns. 14-16) 

GSK is estopped by its own conduct from making the above “reasonable inquiry” 

(or lack thereof) argument. 

The record will show that initially (before Notice to Sue Letter from EEOC) we 

filed the case narrowly. (Complaint: Doc. No. 1; Breach of Contract, Negligence) But, as 

we have detailed in earlier filings, e.g. Plaintiff’s Memorandum in Support of Award of 

Attorney Fees, Doc. No. 110, GSK failed to produce the documents of this case under Rule 

26(a)(1) and otherwise thwarted any “reasonable inquiry.” 

Breach of Contract

GSK’s argument/presentation – its entire argument -- that our breach of contract 

claim was “frivolous” is contained in one short sentence: 

Plaintiff never had a contract with GSK, so GSK could not have 

breached a contract. (GSK PAF Memorandum at 5, lns. 16-17) 

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Such bare argument implies, we assume, that when one is dismissed on a count in 

summary judgment the winning party is ipso facto entitled to its attorney fees. 

This court found (Order, Doc. No. 60; January 27, 2003) that there was no contract 

claim. The court did not even hint that the claim was frivolous. We relied on the Angotti

case, Angotti, v. State Farm, 1991 U.S. App. LEXIS 28187 (6th Cir. 1991), factually on all 

fours and which found a contract in an insurance training situation in the teeth of a signed 

document stating that the employment was at will only. The only meaning of the one-page 

agreement promising to score 85%, (Testing Requirements – Regular Force Sheet Signed 

by Cynthia Payne Dated 3/31/00; Jt. Exh. IV), the court will remember was focused on by 

both sides at trial, is that GSK had a duty to “know” its own testing materials and to 

administer the test fairly. Otherwise Plaintiff’s employment with GSK was merely a 

lottery ticket on a job. 

Disability

We had a disability case when we amended our complaint after our EEOC Notice to 

Sue letter in the spring of 2001, but we did not after the subsequent decision of the U.S. 

Supreme Court in Toyota Motor Mfg., Kentucky, Inc. v. Williams, 122 S.Ct 681 (2002). 

GSK’s implicit argument here is that if one does not immediately dismiss a count the day 

the case law changes he owes attorney fees to the opponent. 

Plaintiff asked for an accommodation – retaking the test -- for slow learning due to 

chemotherapy after breast cancer, during the termination interview, and was denied. GSK 

points out that the record in the case shows that the company had terminated Plaintiff 

before the latter had informed it of the disability. But if this disability cause of action had 

remained in the case we would have proved that the papers signed August 2, 2000, were 

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not final until executed by the home office in Philadelphia and therefore GSK knew of the 

disability “prior to” final termination and should have accommodated her by giving her the 

test again under fair conditions. 

GSK must know its claim for partial attorney fees is frivolous. Indeed, attached 

hereto as Exhibit “B” is a fax sent by the undersigned to Gay Gallagher October 23, 2001, 

enclosing the case of McKinney v. New Process Geardivision of New Venture Gear, Inc, 

2000 U.S. Dist. LEXIS 9787, discussing this concept of disclosure during or after 

termination. 

Fraud

Also attached hereto as Exhibit “C” is the deposition testimony of Plaintiff on the 

issue of fraud. At this time we had not taken the depositions at the home office which 

showed that the promises made to Plaintiff upon hiring her were arguably fraudulent, 

although the undersigned suspected that “something was up” when Sheldon Thomas was 

“guided” through his deposition by Gay Gallagher October 4, 2001. 

For fraud we relied on Ohio law and also Hyman v International Business 

Machines Corporation, 2000 U.S. Dist. LEXIS 15136, (U.S.D.C.S.D.N.Y. 2000) where 

individuals claimed that they were fraudulently induced to leave their jobs at 

International Business Machines Corp. ("IBM") and join its subsidiary, Employment 

Solutions Corp., by false factual representations of the existence of a specific five-year 

contract between the two companies. Based on those allegations the court denied IBM’s 

motion to dismiss. (Plaintiff’s Memorandum in Opposition to GSK’s Motion for 

Summary Judgment; Doc. No. 27 at 17; filed June 18, 2002.) 

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Prior to summary judgment we staked our position on fraud with the following 

proposition: the false representation of GSK (known to be false when Plaintiff was 

offered the job in March 2000) was that there was a valid training program in place and 

valid testing would result with real people having knowledge of training materials, 

evaluating Plaintiff, whereby the 85% rule would determine as a threshold who would 

succeed and who would not (barring reductions in force and the like). (Id.) 

Although Plaintiff did not mention this in her deposition early on, it was because of 

the utterly unlikely testimony of Sheldon Thomas October 4, 2001, it appeared to the 

undersigned that that fraud in the inducement was a likely theory. His answers – bolstered, 

discussed infra., by Gay Gallagher’s clearly-improper “talking objections” tipping him off -

- were patently odd – denying knowledge at that late date that any new materials had been 

sent to the sales reps the week of July 27th 2000 -- that a broader cover-up appeared likely, 

and we thus amended our complaint to add fraud. The continued evasive actions of GSK in 

discovery plus the total lack of knowledge at the home office (despite their “boning-up” for 

trial in July of 2003) reinforced our belief that GSK was fraudulent from the outset in 

presenting the homestudy course. 

In our Memorandum in Opposition [to Summary Judgment], supra. at 4-7, we 

spelled out many indicia of fraud. For example Massaro testified in deposition that when he 

took his short-lived job of “Avandia Trainer” in April 2000 he was unaware of the 

existence of the prior Avandia Homestudy Workbook and did not become so aware until 

early 2002 in answering interrogatory requests. Since by trial time Masarro was “the 

expert” on Avandia (Tench testimony at trial) and he testified at trial that the design of the 

training materials was done by a third-party vendor, the company therefore knew when it 

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hired Plaintiff in March 2000 that no one was in any position to analyze the meaning of the 

questions and the effect that the wrong workbook would have on the sales reps. All they 

could do was analyze the “most-missed” questions and give relief if they involved “sales 

aid” materials that had changed. 

We early on researched the issue of misconduct by a party in discovery as a 

separate indicia of fraud and could find only cases in the patent law area. See Tanashin 

Denki Co., Ltd., v. Thomson Multimedia,Inc., 2002 U.S. Dist. LEXIS 14598 (S.D. Ind. 

2002). In patent law discovery delay demonstrably benefits the infringer since he reaps 

profits during the delay. In the present case the same inference is not so strong. There may 

be many reasons for the hiding of documents (hiding internally by GSK as well as GSK 

hiding from the undersigned opposing counsel) and the failure to make narrative internal 

memos implies broad “hiding.” One human explanation is merely to keep knowledge from

one’s superior to keep one’s job, which does not necessarily mean fraud against Plaintiff in 

the first instance, etc. 

Outrage

We believed from the outset that the circumstances of humiliation and firing, 

focusing on the plea for help due to disability conditions, constituted outrage. The court 

limited us to the Title VII cause of action and at trial we didn’t even hint at this disability 

concern so as not to prejudice the jury by such inflammable and unrelated testimony. In its 

summary judgment order of January 27, 2002, and in chambers, this court hinted at 

possible frivolity on our part regarding outrage, but not to the point of sanctions. 

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Basic Inquiry with One’s Own Client

GSK, as noted infra., argues if the Plaintiff’s own version of the facts, coupled with 

a basic examination of the law, reveals that Plaintiff’s claims are unsupportable, the case 

must be frivolous. (GSK PAF Memorandum at 5, lns. 14-16) We, of course, disagree. As 

it has done throughout the case (see discussion in our Memorandum in Support of Award 

of Attorney Fees, Doc. No. 110, filed August 25, 2003), GSK, while withholding its own 

documents, merely holds a “mirror” up to facts as “seen” by Plaintiff. GSK trots out 

Plaintiff’s deposition taken in January and February 2002, when some GSK materials (what 

Plaintiff herself had returned) had been sent to us but clearly before all of the GSK 

materials had been sent/found. To “freeze” the Plaintiff’s case and declare it frivolous as 

of this moment in time, as GSK does, makes no sense. 

Conclusion

For the foregoing reasons and for good cause this court should deny GSK’s 

Motion for Partial Attorneys’ Fees. 

Respectfully submitted, 

/s/ F. Bruce Abel 

 __________________

F. Bruce Abel (0021883) 

Trial Attorney for Plaintiff

885 Greenville Avenue 

 Cincinnati, OH 45246

513 772 1045 

513 772 7991 fax 

 email: babel2@fuse.net

 

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CERTIFICATE OF SERVICE

I hereby certify that on September 23, 2003, I electronically filed the foregoing 

with the Clerk of the Court using the CM/ECF system which will send notification of

such filing to the following: 

Mark J. Stepaniak 

Taft, Stettinius & Hollister 

1800 Firstar Tower 

425 Walnut Street 

Cincinnati, Ohio 45202-3957 

Ph: (513) 381 2838 

email: stepaniak@taftlaw.com

Joseph E. Guffey 

Husch & Eppenberger 

190 Carondelet Plaza, Suite 600 

St. Louis, Missouri 63105-3441 

Ph: (314) 480 1500 

email: joe.guffey@husch.com

Counsel for Defendant 

 

 

/s/ F. Bruce Abel 

_______________________ 

F. Bruce Abel 

Attorney for Plaintiff 

885 Greenville Avenue 

Cincinnati OH 45246 

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