Chytka v. Wright Tree Service, Inc.

Filing 485

ORDER denying 469 Motion in opposition to Strike I the Pro Se Plaintiff having to pay Attorney Fees, granting in part and denying in part 473 Motion for Attorneys' Fees, denying 474 Motion in opposition to Strike Defendant's Motion for I the Pro Se Plaintiff having to pay Attorney Fees, and denying 476 Plaintiffs Motion In Opposition To Strike the Defendants MotionTo Have I the Pro Se Plaintiff Pay Attorney Fees. Entered by Judge Robert E. Blackburn on 9/21/2015. (cpear)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 11-cv-00968-REB-KLM
KATHLEEN CHYTKA,
Plaintiff,
v.
WRIGHT TREE SERVICE, INC.,
Defendant.
_____________________________________________________________________
ORDER CONCERNING MOTION FOR ATTORNEY FEES
Blackburn, J.
This matter is before me on the Motion for Attorneys’ Fees [#473]1 filed by the
defendant on October 7, 2014. The plaintiff filed two documents which are docketed as
motions [#469 & #474], but which I read as responses to the motion for attorney fees.
The defendant filed a reply [#475].
In addition, the plaintiff filed Plaintiffs Motion In Opposition To Strike the
Defendants Motion To Have I the Pro Se Plaintiff pay Attorney Fees [#476] filed
November 3, 2014. The defendant filed a response [#477], and the plaintiff filed a reply
[#478].
Ms. Chytka is proceeding pro se. Thus, I have construed her pleadings and other
filings more liberally and held them to a less stringent standard than formal pleadings
drafted by lawyers. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Andrews v.
1

“[#473]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991).
I grant the defendant’s motion for attorney fees in part. I deny the plaintiff’s
motion to strike.
I. BACKGROUND
The plaintiff, Kathleen Chytka, is a former employee of the defendant, Wright
Tree Service, Inc. Wright Tree terminated the employment of Ms. Chytka, and she filed
this employment discrimination lawsuit on April 12, 2011. Initially, Ms. Chytka acted
through counsel in this case. On August 19, 2011, counsel for Ms. Chytka was
permitted to withdraw. From that point forward, Ms. Chytka acted pro se. She
continued to pursue all ten of the claims asserted by her quondam counsel in the
amended complaint [#13] filed by counsel on June 27, 2011.
United States Magistrate Judge Kristin L. Mix held scheduling conference on
October 27, 2011. At that conference, she provided Ms. Chytka with a form “Letter to
Pro Se Litigants,” effective December 1, 2009. Minute Order [#24], attachment [#24-1].
In the letter, Ms. Chytka was informed, inter alia, of the following:
Before you file any motion, you must call the attorneys for the other parties
and ask them whether they agree or disagree with what you want to do.
Once you have talked to the lawyers for the other parties, you must tell the
Judge in writing whether they agree or disagree with what you want to do,
at the beginning of your written motion. Failure to do this will result in your
motion being denied.
Unless your case or personal circumstances are very unusual, the Judge
cannot appoint an attorney to represent you in your case.
The Judge and her law clerks are not allowed to give you legal advice.

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There are two sets of formal rules that apply to cases in this Court: (1) the
Federal Rules of Civil Procedure and (2) the Local Rules for the United
States District Court for the District of Colorado. Copies of both are
available in the Clerk’s office on the first floor of the Alfred A. Arraj United
States Courthouse, 901 19th St., Denver CO 80294.
Even though you don’t have a lawyer representing you in your case, you
are required to follow the Rules . . . . Failure to follow the rules and/or
failure to follow Court orders may result in the judge ordering you to pay
money to the other parties or dismissing your case.
Id.
Immediately after this letter was delivered to Ms. Chytka, she began repeatedly
to violate the applicable rules. In an order issued December 1, 2011, the magistrate
judge outlined those violations and again explained the requirements outlined in the
letter. Order [#36].
The parties then began to file dispositive motions. Ms. Chytka attempted to file
numerous motions for summary judgment and refused to comply with rules and orders
relating to page limitations and briefing restrictions. See, e.g. [#81, #96, #98, #101,
#118, #120, #124, #129, #141, #142]. In its response [#117] to the initial motion [#81]
of Ms. Chytka, the defendant outlined some of the ways in which Ms. Chytka continued
to defy the basic rules which had been emphasized and outlined to her repeatedly.
On November 13, 2012, the magistrate judge issued a recommendation [#146]
recommending that summary judgment enter against the plaintiff on all but one of her
claims. On February 15, 2013, I entered an order [#197] approving and adopting the
recommendation. Ms. Chytka had not come forward with any evidence showing a
genuine dispute as to any material fact concerning any of her claims, save her claim of
discriminatory failure to train based on gender.
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Between the time of the recommendation [#146] on November 13, 2012, any my
order [#197] on February 15, 2013, Ms. Chytka made numerous verbose, repetitive,
baseless, and improper filings. Filings [#162, #163, #164, #165, #166, #171, #173,
#180, #181, #182, #185, #186, #187, #191, #194, #195]. Repeatedly, Ms. Chytka
demanded from Wright Tree a settlement of not less than one million dollars.
With one claim remaining, the parties began to prepare for trial. Ms. Chytka
continued to file motions seeking to relitigate the claims on which summary judgment
had been granted, to reopen discovery, to shift the burden of proof to Wright Tree, to
demand exhibits which had been provided to her, and to have this case reassigned to
Chief United States District Judge Marcia Krieger. Repeatedly, Ms. Chytka failed to
confer with the defendant before filing motions, sought reconsideration of issues
previously resolved, and failed to provide factual or legal authority for the relief she
sought. Repeatedly, Ms. Chytka was told by the court that her motions were baseless
and often improper. See, e.g., orders [#267, #300, #302, #308]. Consistent with the
pattern she exhibited throughout this case, Ms. Chytka essentially ignored these orders.
At a status conference held on October 9, 2013, Magistrate Judge Mix attempted
to address the issues raised in the motions and other filings of Ms. Chytka and
otherwise to curb the abusive litigation conduct of Ms. Chytka. Transcript, Oct. 9, 2013,
hearing [#473-1]. Rather than follow the requirements patiently explained by Magistrate
Judge Mix, Ms. Chytka continued to file numerous “petitions” and other documents
directed at Chief Judge Krieger, a judge who has never been assigned to this case, as
well as demands for reinstatement and/or summary judgment in favor of Ms. Chytka on
the dismissed claims.
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The parties proceeded to trial on the one, remaining claim. Ms. Chytka failed to
provide reasonable cooperation with counsel for Wright Tree during preparations for
trial. At trial, Ms. Chytka did not present evidence sufficient to establish a prima facie
case of discriminatory failure to train. At the close of all of the evidence, I granted the
motion of Wright Tree for entry of judgment as a matter of law under Fed. R. Civ. P.
50(a)(1). Minutes [#454], p. 3. Ms. Chytka appealed the summary judgment and Rule
50(a)(1) rulings of the court to the United States Court of Appeals for the Tenth Circuit.
The tenth circuit upheld the dismissal of each of the claims. Chytka v Wright Tree
Service, Inc., 2015 WL 1320241, at *1 (10th Cir. 2015).
Repeatedly, Ms. Chytka made baseless assertions that Wright Tree is
responsible for other wrongs she says she has suffered, beyond the loss of her job with
Wright Tree Service. One of many examples of such assertions is contained in her
filing [#478] filed December 4, 2014. This filing is captioned as follows:

Plaintiffs Response To Defendants Response November 24 2014 Filing
Document #477. Defendants motion should be stricken to have Female
Pro Se Plaintiff Pay attorney Fees to multi million dollar company that
feels women should not have the same rights as the male. And are
Female Children Should be raped by 34 year old males at the age or 15.
Response [#478], p. 1 (punctuation, capitalization, and syntax in original). In this
response, Ms. Chytka says:
On the Grounds that so many rules and laws have been violated for over 3
years against I Kathleen Chytka in the court of law. Laws that were that
were set up and put in Place to Protect I a Single mother and any female
from the Devastation and intent to harm, rape of a minor child, starvation,
homelessness and Not Limited to that the Defendant and the court system
did to I Kathleen Chytka and my family. Which totally show intent to harm
negligence on the Defendants part and the Court System. So Again the
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Defendant is stated 14 years of intent to harm is not enough punishment
for a s single mother and a minor Child. Is the Defendant stating that all
women and children should be tortured this way for years on end?
Id., pp. 1 - 2 (punctuation, capitalization, and syntax in original). Periodically in her
filings, Ms. Chytka has asserted or implied that Wright Tree service somehow is
responsible for the alleged rape of the 15 year old daughter of Ms. Chytka. That claim
is not a basis for any of the claims asserted in her complaint, and she never has
provided a scintilla of evidence to support this claim.
II. STANDARD OF REVIEW
Wright Tree seeks an award of attorney fees against Ms. Chytka on four legal
bases. First, as a prevailing defendant in a case under Title VII, Wright Tree seeks an
award of attorney fees under 42 U.S.C. § 2000e-5(k). Under that statutory provision, a
district court may exercise discretion to award attorney’s fees to a prevailing defendant
in a Title VII case on a finding that the case brought by the plaintiff was unreasonable,
frivolous, meritless, or vexatious, even if not brought in bad faith. Christiansburg
Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412 (1978).
A claim is meritless if it is groundless or without foundation. Id. at 421. Attorney fees to
a prevailing defendant should be awarded “not routinely, not simply because he
succeeds.” Id. When a district court awards attorney fees to a prevailing plaintiff, it is
an award against a violator of federal law. The important policy considerations which
support an award of attorney fees to a prevailing plaintiff are not present in the case of a
prevailing defendant. Id. Thus, in the case of a prevailing defendant, the court must
concern itself with the potential chilling effect an award of attorney fees could have on

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the private enforcement of Title VII. Id. at 422.
Second, based on a claim asserted by Ms. Chytka under the Employee
Retirement Income and Security Act (ERISA), 29 U.S.C. §§ 1001 - 1461, Wright Tree
seeks an award of attorney fees under 29 U.S.C. § 1132(g). That statue permits a
“court in its discretion [to] allow a reasonable attorney's fee . . . to either party.” 29 USC
§ 1132(g).
Third, Wright Tree invokes the inherent authority of the court to assess attorney
fees as a fine for wilful disobedience of a court order or when a losing party has “acted
in bad faith, vexatiously, wantonly or for oppressive reasons.” See Alyeska Pipeline
Co. v. Wilderness Society, 421 U.S. 240, 258-59 (1975). This exception to the
American rule governing attorney fees also applies to bad faith in the conduct of the
litigation. Roadway Exp., Inc. v. Piper, 447 U.S. 752, 766 (1980).
Fourth, Wright Tree asserts the relevant provisions of Rule 11 of the Federal
Rules of Civil Procedure as a basis for an award of attorney fees.
III. ANALYSIS
A. Basis for Attorney Fee Award
Initially, Ms. Chytka brought this case through counsel. It was counsel who
authored the allegations in the amended complaint [#13] and the ten legal claims
asserted there. Ms. Chytka is not a lawyer, and, initially, it was reasonable for her to
rely on the factual allegations and claims asserted by her counsel in the amended
complaint [#13]. However, shortly after her counsel was permitted to withdraw, many of
the actions of Ms. Chytka in this case became unreasonable and vexatious. On

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October 27, 2011, Ms. Chytka was informed of the basic rules applicable to all litigants
in this court. Immediately and incessantly, she began to violate those rules. In a court
order issued December 1, 2011, Ms. Chytka was informed by the court of the nature of
her violations. Order [#36].
In her own motions for summary judgment and in response to the motion for
summary judgment of Wright Tree, Ms. Chytka had ample opportunity to present
evidence in support of her claims. The magistrate judge detailed in her
recommendation [#146] the reasons why Wright Tree was entitled to summary
judgment on all but one of the claims of Ms. Chytka. After de novo review, I approved
an adopted that recommendation.
Ms. Chytka continuously and contumaciously ignored the factual, evidentiary,
and legal bases cited by this court in various rulings. Instead, she made numerous
verbose, repetitive, baseless, and improper filings. Many of those filings required a
response from Wright Tree. At the trial on her sole remaining claim, Ms. Chytka was
given a full and complete opportunity to present evidence, but failed to present any
evidence to support her sole remaining claim.
There is no specific point in this case when the actions of Ms. Chytka moved
from a good faith pursuit of claims which, ultimately, were not winners to pursuit of such
claims in a manner that was patently unreasonable, frivolous, meritless, or vexatious.
However, it is clear to this court that many of the actions of Ms. Chytka in this case were
unreasonable, frivolous, meritless, and vexatious. For the purpose of resolving the
motion for attorney fees, I need not determine precisely which of the actions of Ms.
Chytka were unreasonable, frivolous, meritless, or vexatious and which were not.
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Rather, in resolving the motion, I must provide a reasonable measure of justice on the
issues presented in the motion.
I view the record in this case with substantial deference to the pro se status of
Ms. Chytka. Taking that view, I conclude that many of the actions of Ms. Chytka up to
November 13, 2012, can be viewed as facially reasonable. November 13, 2012, is the
date on which the recommendation [#146] was issued detailing why all but one of the
claims of Ms. Chytka are baseless. Up to this time, Ms. Chytka sought to pursue claims
first pled by her counsel, claims she conceivably could view as reasonable. However,
not all of her actions up to this point in time were reasonable. As noted above, after her
counsel withdrew and she was informed of the rules of this court, Ms. Chytka frequently
violated those rules and was informed of those violations.
After the recommendation [#146], Ms. Chytka had more than fair notice of the
fatal flaws in all but one of her claims. That notice became even more clarion when the
recommendation [#146] was approved and adopted as an order of this court. Order
[#197]. However, after the recommendation [#146] and after the order [#197], Ms.
Chytka continued to make repeated and often repetitious filings in which she continued
to assert the validity of the dismissed claims. No doubt, Ms. Chytka was entitled to
object to the recommendation, but her filings concerning her dismissed claims went far
beyond an objection to the recommendation. Rather, such filings occupy numerous
docket entries in this case. After the recommendation [#146], Ms. Chytka continued
unabated to violate the orders and rules of this court. Reminders, warnings, and further
orders did nothing to dissuade Ms. Chytka. Such recusant conduct by Ms. Chytka is
inherently unreasonable, frivolous, meritless, and vexatious.
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As trial on her sole remaining claim approached, Ms. Chytka failed to provide
reasonable cooperation with counsel for Wright Tree to accomplish routine trial
preparations. At trial, Ms. Chytka did not present evidence sufficient to establish even a
prima facie case of discriminatory failure to train. Her sole remaining claim, like her
other claims, proved to be baseless.
It is not necessarily unreasonable, frivolous, meritless, or vexatious to pursue a
claim to trial and lose. However, I find and conclude that it was unreasonable, frivolous,
meritless, and vexatious for Ms. Chytka to pursue her claim discriminatory failure to
train based on gender to trial in the manner she pursued that claim. She pursued this
claim not by focusing on evidence to support her claim, but by making repeated
frivolous filings that had little or nothing to do with the factual and legal basis for her
claim. Each such filing required the attention of the defendants and, often, a response
from the defendants. However, those filings did nothing to advance the final remaining
claim to a fair resolution. Pursuit of a factually baseless claim through the use of such
litigation tactics is, without question, unreasonable, frivolous, meritless, or vexatious.
Although the record in this case is peppered with examples of unreasonable,
frivolous, meritless, or vexatious actions by Ms. Chytka, not all of her actions fit that
description. As a reasonable measure of justice, I find and conclude that Wright Tree is
entitled to an award of attorney fees for fees incurred by Wright Tree after November
30, 2012. As of November 30, 2012, Ms. Chytka had an opportunity to review the
recommendation [#146] of the magistrate judge detailing why all but one of the claims of
Ms. Chytka are baseless. After that date, Ms. Chytka continued to assert those claims
and to pursue various vexatious litigation tactics in pursuit of her sole remaining claim.
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In addition, I find and conclude that Wright Tree is entitled to an award of attorney fees
for a portion of the fees it incurred in filing its motion for summary judgment and
responding to the motions for summary judgment of Ms. Chytka. The motion for
summary judgment of Wright Tree and responses to the motions for summary judgment
of Ms. Chytka revealed in detail the fact that the claims of Ms. Chytka were factually and
legally baseless. An award on these bases will provide to Wright Tree compensation
for the vast bulk of fees incurred as a result of the unreasonable, frivolous, meritless, or
vexatious actions of Ms. Chytka without also penalizing Ms. Chytka for arguably
reasonable actions taken in pursuit of her claims.
The unreasonable, frivolous, meritless, and vexatious actions of Ms. Chytka
justify an award of attorney fees to Wright Tree under 42 U.S.C. § 2000e-5(k), 29
U.S.C. § 1132(g), and under the standard applicable to the inherent authority of the
court to assess attorney fees as a fine for wilful disobedience of a court order or when a
losing party has “acted in bad faith, vexatiously, wantonly or for oppressive reasons.”
See Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 258-59 (1975).
Given this context, I decline to consider the request for an award of attorney fees under
Fed. R. Civ. P. 11.
Finally, I find and conclude that an award of attorney fees in this case will not
have an undue chilling effect on other plaintiffs who may consider filing a lawsuit to
enforce Title VII. This is true because the award in this case is focused on the
unreasonable, frivolous, meritless, or vexatious actions of Ms. Chytka. An award with
that focus will not chill others who have plausible Title VII claims from pursuing those
claims in a reasonable fashion.
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B. Amount of Fee Award
Any determination of reasonable attorneys fees starts with a calculation of the
“lodestar” amount. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The lodestar
amount is “the number of hours reasonably expended on the litigation multiplied by a
reasonable hourly rate.” Hensley, 461 U.S. at 433. The Tenth Circuit Court of Appeals
has recognized the lodestar amount as presumptively reasonable. Homeward Bound,
Inc. v. Hissom Memorial Ctr., 963 F.2d 1352, 1355 (10th Cir. 1992). A “reasonable
rate” is defined as the prevailing market rate in the community in question for an
attorney of similar experience. Blum v. Stenson, 465 U.S. 886, 895 (1984). A party
seeking an award of attorney fees must establish the reasonableness of each dollar and
each hour for which the party seeks an award. Jane L. v. Bangerter, 61 F.3d 1505,
1510 (10th Cir. 1995).
Ms. Chytka does not challenge the reasonableness of the hourly rates charged
by counsel for Wright Tree. I conclude that the hourly rates charged by counsel are
reasonable. Ms. Chytka does not challenge the reasonableness of the time spent by
counsel for Wright Tree defending against the claims of Ms. Chytka. Having reviewed
the billing records [#473-2] of counsel for Wright Tree, I conclude that the time spent by
counsel is reasonable. For the period from November 30, 2012, to the date of the
motion for an award of attorney fees, I award to Wright Tree the amount of 85,633
dollars. In addition, for the fees incurred by Wright Tree in proceedings on its motion for
summary judgment and its response to the motions for summary judgment of Ms.
Chytka, I award to Wright Tree the amount of 10,000 dollars.

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IV. CONCLUSION & ORDERS
As to all claims asserted in this case, Wright Tree is the prevailing party. In the
end, all of the claims of Ms. Chytka, including her claims under Title VII, proved to be
without any factual or legal basis. Most important, as this case proceeded, Ms. Chytka
ignored the fact that she could not develop evidence to support her claims. Rather, she
continued to pursue her claims by often filing motions and responses that were
unreasonable, frivolous, and meritless. She frequently violated the orders and rules of
this court despite frequent reminders about those rules and orders Under these
circumstances, Wright Tree is entitled to an award of attorney fees under 42 U.S.C. §
2000e-5(k), 29 U.S.C. § 1132(g), and based on the inherent authority of the court to
address such abusive litigation. On the bases described in this order, I award to Wright
Tree attorney fees in the total amount of 95,633 dollars. In addition, I note, the clerk of
the court awarded costs [#466] to Wright Tree in the amount of 4,233.21 dollars. An
amended judgment should enter to reflect this award of attorney fees and costs.
THEREFORE, IT IS ORDERED as follows:
1. That the Motion for Attorneys’ Fees [#473] filed October 7, 2014, is granted
in part;
2. That the defendant, Wright Tree Service, Inc., is awarded 95,633 dollars in
attorney fees to be paid by the plaintiff, Kathleen Chytka;
3. That costs in the amount of 4,233.21 dollars are taxed against the plaintiff,
Kathleen Chytka, and awarded to the defendant, Wright Tree Service, Inc.;
4. That within 60 calendar days of the date of this order, the plaintiff, Kathleen

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Chytka, shall pay to the defendant, Wright Tree Service, Inc., the full amount of the
attorney fees and costs awarded in this order;
5. That otherwise, the Motion for Attorneys’ Fees [#473] filed October 7, 2014,
is denied;
6. That the Motion in opposition to Strike I the Pro Se Plaintiff having to pay
Attorney Fees [#469] filed October 6, 2014, to the extent this document properly is
read as a motion, is denied;
7. That the Motion in opposition to Strike Defendant’s Motion for I the Pro
Se Plaintiff having to pay Attorney Fees [#474] filed October 6, 2014, to the extent
this document properly is read as a motion, is denied;
8. That the Plaintiffs Motion In Opposition To Strike the Defendants Motion
To Have I the Pro Se Plaintiff Pay Attorney Fees [#476] filed November 3, 2014, is
denied; and
9. That an amended judgment shall enter in favor of defendant, Wright Tree
Service, Inc., and against the plaintiff, Kathleen Chytka, to shall include an award of
attorney fees in the amount of 95,633 dollars and costs in the amount of 4,233.21
dollars, in favor of Wright Tree Service, Inc. and payable by the plaintiff, Kathleen
Chytka.
Dated September 21, 2015, at Denver, Colorado.
BY THE COURT:

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