Wilson-Simmons v. Lake Cnty Sheriff

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0104P (6th Cir.) File Name: 00a0104p.06

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________

;  TRUDY WILSON-SIMMONS,  Plaintiff-Appellant,   No. 98-3553 JOSEPH R. COMPOLI, JR.;  JAMES R. GOODLUCK, > Appellants,     v.   LAKE COUNTY SHERIFF’S DEPARTMENT; DANIEL A.   Defendants-Appellees.  DUNLAP,

 1 Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 96-02359—Donald C. Nugent, District Judge. Argued: December 6, 1999 Decided and Filed: March 24, 2000 Before: RYAN and SUHRHEINRICH, Circuit Judges; BELL,* District Judge.

* The Honorable Robert Holmes Bell, United States District Judge for the Western District of Michigan, sitting by designation.

2 Wilson-Simmons v. Lake No. 98-3553 County Sheriff’s Dep’t, et al.

_________________ COUNSEL ARGUED: Stephen W. Gard, Cleveland, Ohio, for Appellants. Michael P. Brown, LAKE COUNTY PROSECUTOR’S OFFICE, Painesville, Ohio, for Appellees. ON BRIEF: Joseph R. Compoli, Jr., Cleveland, Ohio, for Appellants. Michael P. Brown, LAKE COUNTY PROSECUTOR’S OFFICE, Painesville, Ohio, for Appellees. Mark S. Telich, Cleveland, Ohio, for Amicus Curiae. _________________ OPINION _________________ BELL, District Judge. The Plaintiff, Trudy Wilson- Simmons, and her attorneys, Joseph R. Compoli, Jr., and James R. Goodluck, (hereinafter collectively referred to as the "Appellants") appeal the order of the district court awarding attorney fees against Wilson-Simmons and sanctioning her attorneys by holding them jointly and severally liable for the award on the grounds that the Plaintiff's racial discrimination and retaliation claims were frivolous, unreasonable and without foundation. We affirm. I. Wilson-Simmons has been employed as a corrections officer at the Lake County Sheriff's Department since 1990. On February 7, 1995, she complained to her supervisor, Frank Leonbruno, that she had been told by another co-worker that a corrections officer had sent a racist electronic mail ("e- mail") about her to another corrections officer. Wilson-Simmons refused to identify the co-worker who had given her this information. She requested to view the e-mail generated by every officer in the Lake County Detention Facility for the month of January. Leonbruno informed her that the e-mail records were not readily available and that they

10 Wilson-Simmons v. Lake No. 98-3553 No. 98-3553 Wilson-Simmons v. Lake 3 County Sheriff’s Dep’t, et al. County Sheriff’s Dep’t, et al.

Bad faith is not required to support a sanction under § 1927. would need to be reconstructed. That day, Leonbruno posted Jones, 789 F.2d at 1230. a notice to all employees prohibiting racial statements in e- mails. In the absence of further details from Having reviewed the record, we concur with the district Wilson-Simmons, Leonbruno was unable to investigate the court that it should have been patently obvious to Plaintiff's allegation. The next day, Wilson-Simmons submitted a counsel that the facts alleged did not, as a matter of law, written request to view the e-mail of five corrections officers support a retaliation claim. The district court did not abuse its for the month of January. She was advised that it would take discretion by imposing sanctions upon counsel for pursuing the Lake County Sheriff's Department's computer specialist an action based on a disgruntled employee's motley one hundred forty hours to reconstruct the requested e-mail assortment of grievances and perceived mistreatment. and that she would be responsible for the $2,500 cost. For the reasons stated herein, we AFFIRM the judgment of In October 1996, Wilson-Simmons commenced this action the district court awarding attorney fees against Wilson- against the Defendants, the Lake County Sheriff's Department Simmons pursuant to § 1988 and imposing joint and several and Daniel A. Dunlap, the Lake County Sheriff, alleging liability for that award upon her counsel as a sanction racial discrimination and retaliation in violation of 42 U.S.C. pursuant to § 1927. § 1981, § 1983, § 2000e-2(a), § 2000e-3(a) and Ohio state law. The complaint alleged that the Defendants discriminated against her because the fee to view the e-mail should have been $3.00, the price of a public record, and because the Defendants failed to investigate the alleged racial slur. The complaint further alleged that following Wilson-Simmons' complaint and request for access to the alleged racist e-mail, the Defendants retaliated against her by: (1) assigning her to the fourth floor which housed maximum security inmates; (2) losing her overtime paperwork, requiring her to refile it; (3) administering a written disciplinary warning for failing to make a door check during her shift and for using white out on her log report; (4) instructing her to rewrite her explanations of these events because her response was insubordinate; and (5) giving her a disciplinary warning for using office equipment to advertise her Tupperware party. Wilson- Simmons alleges that she suffered severe clinical depression as a result of these incidents. The Defendants thereafter moved for summary judgment. On October 22, 1997, the district court granted the motion. With respect to Wilson-Simmons' racial discrimination claim, the district court set forth the burden shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct.

4 Wilson-Simmons v. Lake No. 98-3553 No. 98-3553 Wilson-Simmons v. Lake 9 County Sheriff’s Dep’t, et al. County Sheriff’s Dep’t, et al.

1817, 36 L.Ed. 2d 668 (1973). The court first noted that the that the district court rejected the magistrate judge's Plaintiff had no evidence that the allegedly racist e-mail recommendation that the court impose attorney fees on existed. She had learned of it from a co-worker who was told Plaintiff's counsel pursuant to § 1927 and/or the court's by another corrections officer that still another corrections inherent authority because the court only cited § 1988 as officers was responsible. The court further found that authority in its opinion and adopted the magistrate judge's Wilson-Simmons had failed to show an adverse employment report "as modified." action related to her discrimination claims and that she had proffered no evidence to suggest that she was treated worse We reject such a tortured reading of the district court's than similarly situated, non-protected employees. The court opinion. There is no text in the district court's opinion to concluded that the Defendants were entitled to summary support Appellants' claim that the court rejected the judgment because she had failed to demonstrate a prima facie magistrate judge's recommendation that counsel be sanctioned case of disparate treatment. pursuant to § 1927. Although the order imposing sanctions does not specifically cite § 1927 as authority, both the district The district court next reviewed each alleged incident with court's order to show cause and the underlying report and respect to her retaliation claim. The court clarified that her recommendation adopted by the court do. Reading the order assignment to the fourth floor with maximum security as a whole, it is evident that the district court relied upon inmates was part of her duties and that she had presented no § 1927 as the basis for imposing sanctions against counsel. evidence to demonstrate that she was singled out and given a disproportionate number of assignments to this area. The We further conclude that the district court's order imposing court noted that other officers, including members of a sanctions upon Plaintiff's counsel was a proper exercise of its protected class, were assigned to this duty more frequently discretion. Sanctions under § 1927 are warranted "when an than she was. The court concluded that the loss of her attorney has engaged in some sort of conduct that, from an overtime sheet was a single, isolated event that was nothing objective standpoint, 'falls short of the obligations owed by a more than a clerical oversight. As to the allegations that she member of the bar to the court and which, as a result, causes was unfairly reprimanded, the evidence revealed that she had additional expense to the opposing party.'" Holmes v. City of not been disciplined but had merely received requests from Massillon, Ohio, 78 F.3d 1041, 1049 (6th Cir.) (quoting In re management to explain certain conduct. The court Ruben, 825 F.2d 977, 984 (6th Cir. 1987), cert. denied, 485 accordingly determined that she had failed to demonstrate that U.S. 934, 108 S.Ct. 1108, 99 L.Ed.2d 269 (1988)), cert. she suffered adverse employment action in retaliation for her denied, 519 U.S. 935, 117 S.Ct. 312, 136 L.Ed.2d 228 (1996). protected activity. Wilson-Simmons did not appeal the order "An attorney's ethical obligation of zealous advocacy on of the court granting summary judgment. behalf of his or her client does not amount to carte blanche to burden the federal courts by pursuing claims that are frivolous On November 6, 1997, the Defendants moved for attorney on the merits . . . . Accordingly . . . when an attorney knows fees and costs against Wilson-Simmons pursuant to 42 U.S.C. or reasonably should know that a claim pursued is frivolous, § 1988. The district court referred the motion to a magistrate or that his or her litigation tactics will needlessly obstruct the judge. On January 14, 1998, the magistrate judge litigation of nonfrivolous claims, a trial court does not err by recommended that attorney fees be awarded against Wilson- assessing fees attributable to such actions against the Simmons and that the district court issue an order to counsel attorney." In re Ruben, 825 F.2d at 984 (quoting Jones v. to show cause why sanctions should not be imposed against Continental Corp., 789 F.2d 1225, 1230 (6th Cir. 1986)).

8 Wilson-Simmons v. Lake No. 98-3553 No. 98-3553 Wilson-Simmons v. Lake 5 County Sheriff’s Dep’t, et al. County Sheriff’s Dep’t, et al.

argument is a red herring. She presented no evidence that she them pursuant to 28 U.S.C. § 19271 and/or the court's should have been charged the fee for a public record of $3.00 inherent authority. According to the magistrate judge, the rather than the $2,500 cost of reconstructing the files. Neither complete lack of substance and merit should have been so did she present any evidence that the cost was in any way patent to Plaintiff's counsel that their failure to either advise racially based. Furthermore, the district court found that there her against pursuing the empty claims or terminate the action was no evidence to indicate that any of the five co-workers when its futility should have been obvious called for them to she had identified were involved or that the alleged e-mail "share the burden of the Plaintiff's folly." (J.A. 26). even existed. Wilson-Simmons proffered no evidence regarding when the e-mail had been sent, who had sent it, The district court issued an order directing Plaintiff's who it was sent to, or whether her name was even mentioned. counsel to show cause, in writing, why sanctions should not be imposed against them pursuant to 28 U.S.C. § 1927. The With respect to Wilson-Simmons' claim that the Defendants Plaintiff filed an objection to the magistrate's report and failed to investigate, the district court concluded that the recommendation and brief in opposition to sanctions. On evidence demonstrated that the Defendants took her April 7, 1998, the court awarded attorney fees of $17,131.95 complaint seriously and responded promptly by issuing a to the Defendants against the Plaintiff and held that the memorandum to all personnel prohibiting using e-mail to Plaintiff's attorneys were jointly and severally liable for the make racial statements. The court further found that her award. In its order, the court incorporated its summary claims for retaliation were without factual foundation. After judgment by reference and adopted the magistrate judge's viewing the allegations and the evidence, the district court report and recommendation as modified. This appeal determined that Wilson-Simmons had failed to set forth a followed. prima facie case of racial discrimination or retaliation and that her claims were without foundation from the outset. We II. agree with the district court's well reasoned analysis and conclude that the court did not abuse its discretion in A. awarding attorney fees against Wilson-Simmons pursuant to § 1988. The remedial action was prompt and appropriate, see We first consider the Appellants' contention that the district Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir. 1999), court improperly imposed monetary sanctions upon them especially given that the Plaintiff refused to cooperate in her without conducting a hearing. employer's attempt to investigate the matter. See Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1014-15 (7th Cir. 1997). Moreover, the memorandum was apparently effective. The Plaintiff does not claim that she ever saw, or heard rumors 1 about, racist e-mails following the circulation of the memo. Section 1927 provides:

C. Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case We next consider the Appellants' claim that the district unreasonably and vexatiously may be required by the court was not authorized to impose attorney fees against court to satisfy personally the excess costs, expenses Plaintiff's counsel pursuant to 42 U.S.C. § 1988. They argue and attorneys' fees reasonably incurred because of such conduct.

6 Wilson-Simmons v. Lake No. 98-3553 No. 98-3553 Wilson-Simmons v. Lake 7 County Sheriff’s Dep’t, et al. County Sheriff’s Dep’t, et al.

In this circuit, there is no requirement that a full evidentiary We review a district court's award of attorneys fees under hearing be held before imposing sanctions. Cook v. 42 U.S.C. § 1988 based on an abuse of discretion standard. American S.S. Co., 134 F.3d 771, 774 (6th Cir. 1998). "What Reed v. Rhodes, 179 F.3d 453, 469 n.2 (6th Cir. 1999). "In is required, however, is that before the imposition of light of a district court's superior understanding of the sanctions, the attorney must be given notice and an litigation and the desirability of avoiding frequent appellate opportunity to be heard. . . . An order to show cause, along review of what essentially are factual matters, an award of with an opportunity to respond to said order, can be sufficient, attorneys' fees under § 1988 is entitled to substantial in certain circumstances, to provide the necessary procedural deference." Id. (quoting Hensley v. Eckerhart, 461 U.S. 424, safeguards . . . ." Id. at 775 (citation omitted). 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983)) (internal quotation marks omitted). As a preliminary matter, we note that no due process concerns are present in this case. Both the magistrate judge's Under 42 U.S.C. § 1988, a district court may in its report and recommendation and the district court's show cause discretion award attorney fees to a prevailing defendant upon order clearly put the Appellants on notice that the court was a finding that "the plaintiff's action was frivolous, considering imposing monetary sanctions upon both Wilson- unreasonable, or without foundation, even though not brought Simmons and her attorneys. in subjective bad faith." Wayne v. Village of Sebring, 36 F.3d 517, 530 (6th Cir. 1994) (quoting Christiansburg Garment "It is within the discretion of the district court to determine Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 whether an evidentiary hearing would assist the court in its L.Ed.2d 648 (1978)) (internal quotation marks omitted), cert. decision." Id. The magistrate judge reviewed Wilson- denied, 514 U.S. 1127, 115 S.Ct. 2000, 131 L.Ed.2d 1001 Simmons' entire 361 page deposition testimony in preparing (1995). "[A] district court must resist the urge to engage in his report and recommendation. The district court had before post hoc reasoning and the hindsight logic of concluding a it the magistrate judge's report and recommendation, the suit is without foundation because the plaintiff ultimately Appellants' brief in opposition and response to the show cause does not prevail." Smith v. Smythe-Cramer Co., 754 F.2d order, and the court's opinion granting summary judgment. 180, 183 (6th Cir.) (quoting Christiansburg Garment Co., 434 The district court was familiar with the Plaintiff's allegations U.S. at 421-22, 98 S.Ct. at 700), cert. denied, 473 U.S. 906, and demonstrated a thorough knowledge of the factual and 105 S.Ct. 3530, 87 L.Ed.2d 654 (1985). A "plaintiff should legal issues in the case. Because nothing in the record not be assessed his opponent's attorney fees unless the court indicates that a hearing was needed to assist the court in finds the claim was groundless at the outset or 'that the determining whether sanctions were warranted, we hold that plaintiff continued to litigate after it clearly became so.'" the district court did not abuse its discretion in not conducting Smythe-Cramer Co., 33 F.3d at 183. This "requires inquiry an evidentiary hearing. into the plaintiff's basis for filing suit. Awards to prevailing defendants will depend on the factual circumstances of each B. case." Id. We next consider the Appellants' claim that the district The district court properly applied this standard. As court improperly awarded attorney fees against Wilson- support for her race discrimination claim, Wilson-Simmons Simmons pursuant to 42 U.S.C. § 1988 because her claims offered as evidence the fact that she would have to pay for the were not frivolous, unreasonable, or without foundation. costs associated with reconstructing the e-mail files. This