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IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Cause No. C-1-01-111

Judge Herman J. Weber

CYNTHIA K. PAYNE,

Plaintiff,

vs.

GLAXOSMITHKLINE,

Defendant.

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DEFENDANT’S REPLY TO

PLAINTIFF’S MEMORANDUM IN

OPPOSITION TO DEFENDANT’S

MOTION FOR PARTIAL

ATTORNEYS’FEES

I. INTRODUCTION

GlaxoSmithKline (“GSK”) filed its Motion for Partial Recovery of Attorneys’ Fees

because Cynthia Payne (“Plaintiff”) and her counsel knew or should have known that her claims

for breach of contract, disability discrimination, fraud, and outrage were frivolous.

In her response, Plaintiff missed the point. Plaintiff complains: about how she should not

be sanctioned simply because she ultimately could not prove her claims; about what she did and

did not discover during the case; and about claimed changes in the law.

What Plaintiff does not address is the fact that she and/or her counsel, without regard for

the facts or the law, asserted in this case multiple claims which never had any reasonable basis.

Plaintiff and her counsel knew or should have known from the beginning that: Plaintiff had no

basis for a breach of contract claim because there was no agreement, written or oral; Plaintiff had

no basis for a disability discrimination claim because she was not disabled and GSK did not learn

about her alleged condition until after it decided to terminate her employment; Plaintiff had no

basis for her fraud claim because she admitted GSK did not knowingly make any false promise to

her; and Plaintiff had no basis for her tort of outrage claim because Ohio law makes clear the facts

as alleged are not actionable.

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II. ARGUMENT

A defendant may recover the attorneys’ fees it incurs defending against claims which are

frivolous, unreasonable or without foundation. 28 U.S.C. §1927; 42 U.S.C. §12117(a); F.R.C.P.

11. In this case, Plaintiff and her counsel knew or should have known that her contract,

disability, fraud, and outrage claims completely lacked merit under the applicable facts and law.

A. Plaintiff’s Breach of Contract Claim Was Frivolous.

The frivolity of Plaintiff’s breach of contract claim does not, as she suggests, arise from

the fact that she ultimately failed to show a breach. What makes Plaintiff’s claim frivolous is

that she could not even demonstrate a contract which could have been breached.

In order to maintain a breach of contract claim, a plaintiff must first be able to show the

existence of a contract or promise which established or altered the terms on which she could be

discharged. (See January 27, 2003 Order, Dkt. #60). Plaintiff and her counsel, however, knew

or should have known that she was an at-will employee who could be terminated with or without

reason. Moreover, Plaintiff and her counsel knew or should have known that nothing in the

documents upon which they relied stated anything which altered the terms of her discharge.

(Id.).

The fact that Plaintiff actually argued in her Opposition to GSK’s summary judgment

motion that she had an indefinite right to employment so long as she passed her tests

demonstrates the basic flaw in her theory. (Dkt. #27, p. 14). Plaintiff’s counsel apparently

believes, as he expressed in both Plaintiff’s Opposition to GSK’s summary judgment motion

(Dkt. #27, p. 12) and his Opposition to GSK’s attorneys’ fees motion (Dkt. #120, p. 3), that a

situation in which an employer may terminate an employment relationship without cause would

be a mere “lottery ticket on a job”. But, in effect, that is precisely the longstanding state of the

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law. Plaintiff’s counsel’s dislike of Ohio law does not change the fact that Plaintiff had no

contractual right to remain employed. Plaintiff’s breach of contract claim was frivolous and

should be sanctioned.

B. Plaintiff’s Fraudulent Inducement Claim Was Frivolous

Plaintiff’s fraudulent inducement claim was also wholly devoid of merit.

Under Ohio law, a claim of fraudulent inducement requires a plaintiff to demonstrate that

the defendant knowingly made a false representation with the intent to mislead her. (See January

27, 2003 Order, Dkt. #60). Plaintiff’s fraudulent inducement claim was based on her allegation

that GSK represented it had a valid training and testing program in place. (Id.).

Plaintiff admitted, however, during her deposition testimony that she had no information

that GSK knowingly made any false statement about its training program, and further that she

had no information that GSK intended to mislead her. (Id.). In other words, Plaintiff brought a

claim which she knew had no basis.

In her brief in opposition to GSK's motion for attorneys' fees, Plaintiff continues to

complain about GSK’s training program, about its witnesses’ testimony, and about alleged

discovery misconduct. (Dkt. #120, pp. 5-6). None of the foregoing, however, changes the fact

that Plaintiff has never had any basis to assert that GSK knowingly made a false statement to her

or intended to mislead her.

C. Plaintiff’s Disability Claims Were Frivolous

Plaintiff’s two disability claims were also made without any legal basis.

First, Plaintiff admitted that she did not inform GSK about her alleged condition until

after GSK had already decided to terminate her employment. (See Memorandum in Support of

Defendant’s Motion for Partial Recovery of Attorneys’ Fees, Dkt. #109, Ex. A). Obviously, an

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employer cannot discriminate on the basis of a disability about which it has no knowledge.

Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 884 (6th Cir. 1996). Indeed, Plaintiff

admitted she had no facts to support her claim she was terminated because of a disability. (See

Memorandum in Support of Defendant’s Motion for Partial Recovery of Attorneys’ Fees, Dkt.

#109, Ex. A).

Second, Plaintiff admitted during her deposition that, despite her alleged learning

disability, she remained an average learner. (Id.). Accordingly, Plaintiff knew facts which made

clear she was not a qualified person with a disability. A person is not learning disabled if she is

no more disadvantaged in learning than the average person. Gonzales v. Nat’l Bd. of Medical

Examiners, 225 F.3d 620, 632 (6th Cir. 2000). In other words, Plaintiff brought disability claims

which were unsupportable.

Equally unsupportable is Plaintiff’s disingenuous argument that she dismissed her

disability claims because of the Supreme Court’s decision in Toyota Motor Manufacturing,

Kentucky, Inc., v. Williams, 534 U.S. 184 (2002). Plaintiff wrongly implies that her disability

claims were valid before Toyota, but suddenly became invalid after Toyota. Plaintiff ignores

that the reasons her claims were invalid, as set forth in Kocsis and Gonzalez, were the law in this

Circuit long before Toyota.

Indeed, while the general discussion of disability law in Toyota is consistent with Kocsis

and Gonzalez, nothing in the Toyota decision changed the law governing Plaintiff’s claims. The

holding in Toyota has nothing to do with Plaintiff’s case. The Toyota Court held simply that, in

assessing whether a limitation on the ability to perform manual tasks is disabling under the ADA,

the appropriate inquiry should be focused on whether the plaintiff is able to perform the manual

tasks central to most people’s lives, and not on whether the plaintiff is able to perform the tasks

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associated with her specific job. 534 U.S. at 199-202. Manual tasks were not an issue in

Plaintiff’s case.

D. Plaintiff’s Outrage Claim Was Frivolous

As Plaintiff reminds the Court, this Court has already indicated that Plaintiff’s tort of

outrage claim was frivolous. (See Plaintiff’s Opposition to Defendant’s Motion for Partial Fees,

Dkt. #120, p. 6). Indeed, it was.

This entire case arose from the fact Plaintiff was terminated after having failed a

knowledge assessment test. From that factual premise, without any evidence, Plaintiff’s tort of

outrage claim asserted the equivalent of a claim for intentional infliction of emotional distress.

(See January 27, 2003 Order, Dkt. #60). Not only did Plaintiff present no evidence to support

such a claim, Plaintiff could not present any evidence to support any of its elements. (Id.).

Plaintiff presented no evidence that GSK intended to cause her emotional distress, that GSK’s

conduct was so extreme as to go “beyond all possible bounds of decency”, or that GSK caused

Plaintiff psychic injury so serious that “no reasonable man could be expected to endure it.” (Id.).

Plaintiff’s claim was, by any reasonable measure, frivolous.

III. CONCLUSION

Indeed, a basic inquiry into the facts and law, and/or pure commonsense, would have

revealed that Plaintiff’s contract, disability, fraud, and outrage claims were all frivolous. Instead,

Plaintiff simply filed claims and allegations against GSK without regard to whether they had any

basis in fact or law. Such cavalier abuse of the legal system and GSK should be sanctioned.

For all the foregoing reasons, and those set forth in its Memorandum in Support,

Defendant GlaxoSmithKline’s Motion for Partial Recovery of Attorneys’ Fees should be

granted.

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Respectfully submitted,

HUSCH & EPPENBERGER, LLC

By: ______/s/ Joseph H. Guffey___________

Joseph H. Guffey (admitted pro hac vice)

190 Carondelet Plaza, Suite 600

St. Louis, MO 63105

(314) 480-1500

Facsimile: (314) 480-1505

e-mail: joe.guffey@husch.com

and

TAFT, STETTINIUS & HOLLISTER

Mark J. Stepaniak (0007758)

425 Walnut Street, Suite 1800

Cincinnati, Ohio 45202-3957

(513) 381-2838

Facsimile: (513) 381-0205

e-mail: Stepaniak@taftlaw.com

Attorneys for Defendant GlaxoSmithKline

CERTIFICATE OF SERVICE

I hereby certify that on this _2d_ day of October, 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:

F. Bruce Abel, Esq.

885 Greenville Ave.

Cincinnati, OH 45246

Attorney for Plaintiff

______/s/ Joseph H. Guffey___________

Joseph H. Guffey (admitted pro hac vice)

HUSCH & EPPENBERGER, LLC

Attorney for Defendant GlaxoSmithKline

190 Carondelet Plaza, Suite 600

St. Louis, MO 63105

(314) 480-1500

Facsimile: (314) 480-1505

e-mail: joe.guffey@husch.com

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