Petition for Writ of Certiorari — Swan v. Ruben

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In The ,

Supreme Court of the United ~States—!

October Term, 1987

CATHERINE 0. SWAN) HENRY J. ANGELO,

WILLARD T. RUBIN, RAYMOND J. TESNER

and MARY MILHEIM,

Petitioners, -

Vs.

ALAN MILES RUBEN and JEANNE RATHBUN,

Respondents.

ray

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

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Means, BicHIMER, BURKHOLDER

& Baxer Co., L.P.A.

Attorneys at Law

Craic D. Leister

Counsel of Record

14th Floor

Forty-Two East Gay Street

Columbus, Ohio 438215

(614) 221-3135

Attorneys for Individual School

Board Member Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2831

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QUESTIONS PRESENTED FOR REVIEW

1. Whether a district judge properly exercises dis-

cretion in awarding attorney fees against a civil rights

plaintiff and her attorney and in favor of certain indi-

vidual defendants based upon findings that the case was

frivolous, unreasonable and without foundation, and that

it was prosecuted by counsel in bad faith where there has

been no probable cause finding of discrimination against

such individual defendants; there has been inadequate

preparation for trial; there has been a failure to timely

file a pretrial brief and lists of exhibits and witnesses in

accordance with court rules; there has been a frivolous

motion to disqualify defense counsel; there has been a

letter proposing settlement and blatantly threatening bur-

densome depositions none of which were ever taken; and

there has been absolutely no evidence adduced at trial

that such individual defendants were actively engaged

in or even remotely responsible for acts of discrimination.

2. Whether, in reviewing the discretion of a district

judge in awarding attorney fees, the court of appeals has

the responsibility to uphold the district judge if there is

some basis in the record to support the findings, as op-

posed to conducting a search of the record for some basis

on which to negate the findings.

3. Whether a district judge properly exercises dis-

cretion in utilizing the federal judiciary’s inherent power

to award attorney fees against an attorney of record at

the culmination of the litigation on the merits on the basis

of an aggregation of multiple acts of misconduct where

the judge does not explicitly warn the attorney in terms of

sanctions at the time of each act or omission.

4. Whether a district judge properly exercises dis-

cretion in awarding attorney fees against a civil rights

plaintiff and counsel under the federal judiciary’s inher-

ent power or 28 U.S.C. § 1927 or 42 U.S.C. § 2000e-5(k)

where the judge focuses on the cumulative shortcomings

of the entire proceeding rather than on the impact upon

defendants of discrete acts of misconduct.

5. Whether the acceptance by a district judge of the

late filing of pretrial briefs and lists of witnesses and ex-

hibits without imposing a sanction at the time of filing

during trial precludes the court from later sanctioning

counsel for such delinquency, where the judge did in fact

explicitly admonish counsel concerning the delinquency

prior to commencement of trial.

6. Whether an imposition of attorney fees against

an unsuccessful plaintiff in a frivolous civil rights case is

an abuse of the discretion of a district judge for the sole

reason that the attorneys representing the plaintiff at the

sanction hearing were themselves the subject of the sanc-

tion hearing.

7. Whether a district judge properly exercises dis-

cretion in awarding attorney fees against an unsuccessful

civil rights plaintiff and her counsel without attempting

to allocate wrongdoing between plaintiff and her counsel

where the judge finds that the case was frivolous, unrea-

sonable and without foundation and that it was prose-

cuted by counsel in bad faith.

8. Whether negligence or inadvertence as opposed to

intentional misconduct will support a sanction under 28

U.S.C. § 1927.

lil

LIST OF PARTIES

Catherine O. Swan, Henry J. Angelo, Willard T. Ku-

bin, Raymond J. Tesner, Mary Milheim, Board of Eduea-

tion of the Warren (Ohio) City School District, Robert

L. Pegues, Anthony Berarducci, Nicholas Angelo, Bart

Wilson, William Haas.

Jeanne Rathbun, Alan Miles Ruben.

TABLE OF CONTENTS

Pages

Questions Presented for Review ................. i

Fe | RARER nee, URE ili

Table of Authorities vi

Opinions Below 1

Jurisdiction 2

| ee ee eo ere 2

Statement of the Case .... 3

Reasons for Granting the Writ:

| #

Il.

III.

IV.

Conclusion

The Decision Below Is In Conflict With Appli-

cable Decisions Of This Court. ............. *

The Decision Below Decides Numerous eons

tant Questions Of Federal Law Which Have Not

Been, But Should Be, Settled By This Court.

The Decision Below Is In Conflict With The De-

cision Of The Seventh Circuit On The Issue As

To Whether Negligence As Opposed To Inten-

tional Misconduct Will Support A Sanction Un-

Gt 2e ee 0 Se

The Decision Below So Far Departs From The

Accepted And Usual Course Of Judicial Proceed-

ings As To Call For An Exercise Of This Court’s

Power Of Supervision.

Appendix:

Appendix A Opinion of the United States Court

of Appeals for the Sixth Circuit in

In Re: Alan Miles Ruben (Case

No. 85-3987) and Jeanne Rathbun

vs. Warren City Schools, et al.,

(Case No. 85-3986) . App.

TABLE OF CONTENTS—Continued

Pages

Appendix B Opinion of the United States Dis-

trict Court Northern District of

Ohio, Eastern Division in Jeanne

eo Rathbun vs. City of Warren Board

of Education, et al., (Case No. C80-

| RC Sa App. 31

Appendix C Findings of Fact and Conclusions

of Law rendered by the United

States District Court, Northern

District of Ohio, Eastern Division

in Jeannne Rathbun vs, City of

Warren Board of Education, et al.,

(Case No. C80-1914-Y) ................ App. 63

Appendix D Judgment of the United States

Court of Appeals for the Sixth

Circuit in In Re: Alan Miles Ru-

ben (Case No. 85-3987) and Jeanne

Rathbun vs. Warren City Schools,

et al., (Case No. 85-3986) _... App. 73

TABLE OF AUTHORITIES

Pages

CASES:

Anderson v. Bessemer City, 470 U.S. 564 (1985) WW. 29

Christiansburg Garment Company v. Equal Em-

ployment Opportunity Commission, 434 U.S. 412

CIID iniediscnsicpiisshoncnsbine tacitiestaiehisaacasscadaadiaeasel 17, 18, 19, 20, 27

City of Riverside v. Rivera, — U.S. —, 106 S.Ct.

2686 (1986), at 2701, n.4 ' 29

Hensley v. Eckerhart, 461 U.S. 424 (1983) 0 27, 28

Roadway Express, Inc. v. Piper, 447 U.S. 752

(1980) ............ suns DO, 21, 22, 24, 25, 29

Westinghouse Electric Corporation v. National.

Labor Relations Board, 809 F.2d 419 (7th Cir.

1987) . sisisseeiiliniasssaliliacgmiasisieadiccel 26

STATUTES:

BO TE Fae ST wecectnieersiteinininesisicinnitcninrnaiiniitasestitialjaibasiaeed passim

42D U.S.C. § ZOO, ct See nn nnccceeccncessnnneennnnernee . 4

4D UGC. § DOOD SB ( he) nnn secant 2, 12, 29

CEN. GMS whtcintnttenetisneieninetindienins 3, 4, 17

O.R.C. § BBVB4T onc accccceene vincaiestiiaccaek mea

Rule 41(b), Federal Rules of Civil Procedure 9

Rule 18, Loeal Rules of the Sixth Cireuit 20000000

Oruer AUTHORITIES:

126 Cong. Ree. 22,125, Conference Report, H.R.

Rep. No. 1234, 96th Cong., 2d Sess. 8 (1980) 00021

The petitioners, Catherine O. Swan, Henry J. Angelo,

Willard T. Rubin, Raymond J. Tesner, and Mary Milheim,

respectfully pray that a writ of certiorari issue to review

the judgment of the United States Court of Appeals for

the Sixth Circuit made in this proceeding on July 30, 1987.

—

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Sixth Circuit in In Re: Alan Miles Ruben (Case No.

85-3987) and Jeanne Rathbun v. Warren City Schools,

et al. (Case No. 85-3986), filed July 30, 1987, is reported

at 825 F.2d 977 (6th Cir. 1987) and is printed in Appendix

A hereto, at App. 1, infra.

The opinion of the United States District Court,

Northern District of Ohio, Eastern Division in Jeanne

Rathbun v. City of Warren Board of Education, et al.,

(Case No. C80-1914-Y), filed October 22, 1985, is unre-

ported but is printed in Appendix B hereto, at App. 31,

infra.

The findings of fact and conclusions of law rendered

on the underlying merits of these proceedings by the

United States District Court, Northern District of Ohio,

Eastern Division in Jeanne Rathbun v. City of Warren

Board of Education, et al., (Case No. C80-1914-Y) on July

6, 1984, are unreported but are printed in Appendix C

hereto, at App. 63, infra.

JURISDICTION

The judgment of the United States Court of Appeals

for the Sixth Circuit was entered on July 30, 1987, and this

petition for writ of certiorari is timely filed. Jurisdiction

to review the judgment in question by writ of certiorari

is conferred on this Court by 28 U.S.C. § 1254(1).

STATUTES INVOLVED

The following provisions of the United States Code

and the Ohio Revised Code are involved in the questions

presented for review:

UNITED STATES CODE

28 U.S.C. § 1927:

Any attorney or other person admitted to conduct

eases in any court of the United States or any Terri-

tory thereof who so multiplies the proceedings in any

ease unreasonably and vexatiously may be required

by the court to satisfy personally the excess costs, ex-

penses, and attorneys’ fees reasonably incurred be-

cause of such conduct.

42 U.S.C. § 2000e-5(k)

In any action or proceeding under this subchapter the

court, in its discretion, may allow the prevailing party,

other than the Commission or the United States, a

reasonable attorney’s fee as part of the costs, and

the Commission and the United States shall be liable

for costs the same as a private person.

OHIO REVISED CODE

O.R.C. § 3313.17

The board of education of each school district shall be

a body politic and corporate, and, as such, capable of

suing and being sued, contracting and being con-

tracted with, acquiring, holding, possessing, and dis-

posing of real and personal property, and taking and

holding in trust for the use and benefit of such dis-

trict, any grant or devise of land and any donation

or bequest of money or other personal property.

O.R.C.-4 3313.47

Each city, exempted village, or local board of educa-

tion shall have the management and control of all of

the public schools of whatever name or character in its

respective district. If the board has adopted an an-

nual appropriation resolution, it may, by general reso-

lution, authorize the superintendent or other officer

to appoint janitors, superintendents of buildings, and

such other employees as are provided for in such an-

nual appropriation resolution.

“yy

STATEMENT OF THE CASE

Petitioners Catherine O. Swan, Henry J. Angelo, Wil-

lard T. Rubin, Raymond J. Tesner, and Mary Milheim

were named as defendants in an action brought in the

United States District Court for the Northern District of

Ohio, Eastern Division, in which respondent Jeanne Rath-

bun alleged a violation of Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e, et seq. (‘‘Title VII’’). Re-

spondent Rathbun had been employed as a janitor by the

Warren (Ohio) City School District Board of Education

(‘‘Board of Education’’).

Respondent Rathbun alleged that she had been dis-

criminated against in connection with her employment on

the basis of her sex and French national origin. The five

individuals named in the preceding paragraph as peti-

tioners were the elected members of the Board of Educa-

tion at the time of the commencement of this litigation.

For convenience of reference they will be referred to as

the ‘‘individual school board member petitioners.’’ The

employing corporate Board of Education, which under

Ohio law (O.R.C. § 3313.17) is a body politic and corporate

capable of suing and being sued, was named as a defendant

as were numerous other employees of the Board of Edu-

cation. Thessecond amended complaint alleged unlawful

acts on the part of defendants individually and collective-

ly, and specific allegations were made with respect to the

school board member defendants. As determined by the

district judge, the individual school board member peti-

tioners ‘‘were named in their individual capacity.’’ See

App. B, at App. 31.

The individual school board member petitioners had

not been named by Respondent Rathbun in her charge of

discrimination with the Equal Employment Opportunity

Commission (‘‘E.E.0.C.’’) and the Ohio Civil Rights Com-

ission (‘‘O.C.R.C.’’), and neither the E.E.0.C. nor the

O.C.R.C. made probable cause findings against the indi-

vidual school board member petitioners. See App. A, at

App. 2-3, 18. (On behalf of the five individual schoo] board

member petitioners, a motion for summary judgment was

filed in the district court seeking to dispose of the litiga-

tion with respect to those individuals. That motion was

vigorously opposed in terms which left no doubt that plain-

tiff in fact regarded the individual school board members

as defendants in addition to the corporate Board of Edu-

cation. On January 24, 1983, that motion and many others

were perfunctorily overruled by the second of three

judges assigned to this case just two days before the case

was assigned to the judge who presided over the trial and

the subsequent attorney fee motions. A motion to dismiss

the individual school board member petitioners for lack of

jurisdiction over the subject matter was also perfunctorily

overruled on January 21, 1982.)

On January 25, 1982, respondent Alan Miles Ruben

entered his appearance as ‘‘additional counsel’’ on behalf

of Respondent Rathbun. Shortly thereafter, Respondent

Rathbun’s attorneys sent a letter dated March 15, 1982

(signed by an attorney other than Respondent Ruben),

making a settlement demand of $54,000. That letter

threatened the defendants with the prospects of a ‘‘fif-

teen day trial, seventeen or more despositions”’ and ‘‘total

additional legal costs . . . estimated at well over One-

hundred Thousand Dollars (sic).’’ The letter went on to

list twenty-two indi¥flluals to be deposed in Cleveland

with depositions ‘‘expected to last eight hours per day

per person.’’ In fact, no depositions were ever conducted

in these proceedings by respondents. See App. B, at

App. 50.

On January 5, 1983, Respondent Rathbun moved to

disqualify all of the attorneys representing the various

defendants in this proceeding. Although that motion was

signed by counsel other than Respondent Ruben, he was

consulted on the motion during its preparation. That mo-

tion asserted that the various defense counsel had a con-

flict of interest because of their alleged multiple repre-

sentation of defendants. See App. B, at App. 37.

The district court in its opinion filed on October 22,

1985, considered the motion to disqualify counsel in per-

tinent part as follows:

Specifically, the plaintiff alleged as follows:

In the ease at bar there exists an overwhelm-

ing blatant apnearance of conflicting interests

between both the Defendant Board and the Board

Member Defendants and as such Defendant’s

counsel should not only be disqualified, but should

have been alert to these conflicting interests and

declined multiple representation of said De-

fendants. [Emphasis added by the Court.]

This statement is singularly inaccurate factually and

plaintiff’s counsel should have been aware of the

inaccuracy at the time the motion was filed.

The alleged dual representation of defense counsel of

both the Warren Board of Education and the indi-

vidual board members had no factual basis whatso-

ever. The record reflects that these defendants were

represented by separate counsel. Thus, factually, the

alleged conflict in representation asserted by the

plaintiff simply did not exist at the time the motion

was filed. All counsel involved in this action should

have been aware of the actual representation of each

defendant by simply reviewing the pleadings in the

record.

See App. B, at App. 37-38.

The next pertinent development in the case emanated

from the district court’s trial notice issued on March 29,

1984. Accompanying that notice was an order requiring

counsel to submit the following to the court two days prior

to trial: proposed witness lists, pre-marked exhibits, pro-

posed findings of fact and conclusions of law, and trial

briefs. Although counsel for petitioners complied with

that order in every respect, neither Respondent Ruben nor

any other of Respondent Rathbun’s attorneys complied in

any regard prior to trial, nor did respondents request

leave to comply until admonished by the district judge on

the first day of trial. See App. B, at App. 51.

The first of four days of trial commenced in the dis-

trict court on June 26, 1984. The trial proceedings were

delayed that day because of the late arrival of Respondent

Rathbun’s counsel. When her counsel did arrive, the

. proceedings were further delayed while the district judge

inquired as to the failure of Respondent Ruben and his

co-counsel to have complied with the pretrial order. Final-

ly, the district judge granted respondents’ request for

leave to file all pretrial submissions the following day.

Trial then commenced with Respondent Ruben in attend-

ance. Thereafter, Respondent Ruben was not in attend-

ance at trial, although he never withdrew as counsel for

Respondent Rathbun nor did he ever explain his absence.

See App. B, at App. 52.

On the second day of trial Respondent Rathbun

through her counsel filed the pretrial submissions which

contained a witness list of twenty-one people. That list in-

cluded the name of one man who had recently undergone

a serious heart operation and was advised by his physi-

cian to remain bed-ridden. Another name on the list was

that of an individual who had died approximately eleven

months prior to trial, and whose death was made part of

the record in this case on September 12, 1983. See App. B,

at App. 51-52.

On the third day of trial, respondents did not produce

witnesses sufficient in number to occupy the district

court’s daily schedule, even though respondents had pre-

viously been made aware by the district judge that he ex-

pected respondents to schedule witnesses to fill that

schedule. The only -witnesses to have testified at that

point were Respondent Rathbun, her husband, a personal

friend, and a representative of the Board of Education

who was monitoring the trial. Respondent Ruben’s co-

counsel acknowledged to the district court that none of the

other witnesses on Respondent Rathbun’s witness list had

been subpoenaed or even notified that they might be called

as witnesses. See App. B, at App. 52.

The fourth and final day of trial was summarized by

the district court in its opinion filed on October 22, 1985,

as follows:

The next day, [one of plaintiff’s attorneys] called six

witnesses who were the plaintiff’s co-workers and who

had been issued subpoenas the previous evening. Sev-

eral of these witnesses testified that they knew noth-

ing concerning the subject matter of this litigation,

and all testified that they had very limited contact

with the plaintiff. None of these witnesses had been

deposed or even interviewed by plaintiff’s counsel

prior to testifying at trial. In fact, much of the evi-

dence presented through these witnesses and through

earlier witnesses offered by the plaintiff contrasted

sharply with the testimony offered by the plaintiff

herself.

See App. B, at App. 52-53.

At the conclusion of the testimony of her witnesses,

Respondent Rathbun rested. The individual school board

member petitioners as well as all other defendants then

moved for judgment under Rule 41(b) of the Federal

Rules of Civil Procedure. Those motions were granted.

The district judge then filed findings of facts and conclu-

sions of law. See App. C, at App. 63.

Respondent Rathbun filed a notice of appeal on the

merits of her claim on August 6, 1984. On September 24,

1984, the United States Court of Appeals for the Sixth

Circuit dismissed that appeal for want of prosecution un-

der Rule 18 of the Local Rules of the Sixth Cireuit. A cer-

tified copy of that order was filed in the trial court en

October 19, 1984. See App. B, at App. 31, 35.

The individual school board member petitioners then

filed a motion for an award of attorney fees in the dis-

trict court on October 30, 1987. That motion was sup-

ported by an affidavit of counsel and an itemized account-

ing. A second motion for attorney fees was subsequently

filed on behalf of the Board of Education and other em-

ployee-defendants. The district court afforded an oppor-

tunity for briefing and conducted an oral hearing on

March 15, 1985. All counsel for Respondent Rathbun in-

cluding Respondent Ruben were present at that hearing.

Respondent Rathbun was not present, although a brief

was filed on her behalf. On October 22, 1985, the district

court issued its order granting both motions for attorney

fees. See App. B, at App. 31.

In the order granting fees, the district court directed

the fees on behalf of the individual school board member

petitioners to be paid as follows:

Respondent Rathbun $8,321.17

Respondent Ruben 2,500.00

Attorney Elliott Lester 2,000.00

Attorney Keith Weiner 150.00

The Board of Education and other individual de-

fendants were awarded fees to be paid as follows:

Respondent Rathbun $27,838.04

Respondent Ruben 2,500.00

Attorney Elliott Lester 2,500.00

Attorney Keith Weiner 350.00

In supporting its award of fees, the district court

wrote thirty-three pages reviewing the facts and analyz-

ing the pertinent case law and statutory authority. The

opinion of the district court stated in part as follows:

In essence, both of plaintiff’s attorneys’ prepara-

tion and performance at trial were less than profes-

sional, to say the least. Although the plaintiff

brought this action against five individual school

board members and several individual employees of

the school systems, the record is totally devoid of any

evidence involving these people. In fact most of the —

individual defendants’ names, identities, employment

or official positions were never mentioned by any wit-

ness including the plaintiff, nor do these defendants’

names appear in any exhibit offered by the plaintiff.

Instead, the record establishes only that these indi-

vidual defendants had the misfortune of being so

named and were therefore forced to defend this law-

suit. It is clear to the court that under the facts and

circumstances found in the record, the filing and

prosecution of this action against all of the individual

defendants was a frivolous and unwarranted act as

defined in Christiansburg. Further, this court can

only reach one conclusion regarding the purpose of

this filing and prosecution by the plaintiff and her

counsel as it relates to the individual defendants.

That conclusion is that the nvlaintiff, from the incep-

tion of this action and her counsel from the time they

entered appearances in this case, acted with the intent

to extract some monetary settlement from several in-

dividuals associated with the school system beeause of

the threat of defending and expense of litigating this

action, even though the plaintiff had no evidence

either direct or circumstantial of any wrongdoing or

liability on the part of these individual defendants.

The actions on the part of Mrs. Rathbun, Mr. Lester

and Mr. Ruben of bringing and prosecuting unfounded

charges of intentional discrimination against the in-

nocent individual defendants are totally contradictory

to the legislative purpose of Title VII and the other

civil rights laws of this country. Under such circum-

stances, as heretofore described, the court finds that

the plaintiff, Mr. Lester and Mr. Ruben have all acted

without requisite good faith by charging and prose-

cuting the individual defendants when they neither

had nor produced a single thread of evidence against

these defendants. Further, the testimony of the plain-

tiff herself clearly demonstrated that she had no evi-

dence whatsoever which would indicate any discrim-

inatory or unlawful action on the part of those indi-

viduals.

The activities of counsel previously described,

together with the posture taken by plaintiff herself,

present an unparalleled example of an abusive use of

the system of justice in the civil rights area. Such an

abuse of Title VII and conduct of counsel can not be

id 12

tolerated by this court. Hence, this court shall award

appropriate fees against each of the parties involved.

See App. B, at App. 53-56.

The district court relied upon 42 U.S.C. § 2000e-5(k)

and its inherent power in awarding fees against Respon-

dent Rathbun. It relied upon its inherent power and argu-

ably 28 U.S.C. § 1927 in awarding fees against Respondent

Ruben.

Respondent Rathbun and Respondent Ruben appealed

the award of attorney fees against them to the United

States Court of Appeals for the Sixth Circuit. Respondent

Rathbun’s other attorneys who were subject to the award

of fees did not appeal. With regard to Respondent Rath-

bun, the court of appeals reversed the award of attorney

fees and remanded to the district court for further pro-

ceedings with respect to her liability for ‘‘defendants’

costs.’’ With regard to Respondent Ruben, the court of

appeals reversed and remanded to the district court to

‘‘require defendants’ attorneys to amend their motions

to identify the claimed misconduct by Ruben and the extra

efforts required by them as a result.’? See App. A, at

App. 30.

The court of appeals found that the standard for its

review was ‘‘whether the district judge abused his discre-

tion in awarding attorneys’ fees.’’ See App. A, at App.

14. However, the court of appeals then proceeded to con-

duct what can only be categorized as a de novo review, sub-

stituting its analysis of the record for that of the district

judge rather than reviewing the record to determine

whether there was any basis to support the conclusions

of the district judge.

On the issue of attorney fees with regard to Respon-

dent Rathbun, the court of appeals acknowledged that

briefs were filed in the district court on that issue in her

behalf and that her counsel attended the hearing. Never-

theless, the court of appeals procedurally held that:

The imposition of attorneys’ fees against Rathbun

must be reversed if only because she never had an ade-

quate opportunity for a hearing on the record.

See App. A, at App. 15.

In its analysis of the substantive aspects of the attor-

ney fees issue with regard to Respondent Rathbun, the

court of appeals chose to inquire as to whether there was

any basis to support Respondent Rathbun’s subjective

belief in her case as opposed to whether there was any ba-

sis to support the exercise of the discretion of the district

judge. The court of appeals reasoned in pertinent part as

follows:

Rathbun was not completely unjustified in believing

she was the subject of discrimination and a sexually

harassing and abusive work environment. There is

no evidence that Rathbun knew that the individual

school board members... could not be held liable for

acts of discrimination. ...

~aee

As discussed above, here there is no evidence that

Rathbun was aware that the individual school board

members—again, assuming she sued them in their in-

cividual capacity, an assumption on which the district

judge proceeded—could not be held legally respon-

sible for conduct of her fellow employees. She had

some foundation for believing that she had been dis-

criminated against either on the basis of her sex or

French origin. Combined with the advice of her

original attorneys that she had a claim against the

individual school board members and the subsequent

encouragement by an attorney and law professor to

pursue these claims further, Rathbun certainly had a

sufficient basis for continuing her claims against the

individual defendants.

See App. A, at App. 17, 19.

Although the court of appeals acknowledged that there

had been no probable cause finding issued by the Ohio

Civil Rights Commission against the individual school

board member petitioners, it did not give any consideration

in its opinion to the district court’s finding that the record

was ‘‘totally devoid of any evidence’’ involving the indi-

vidual school board member petitioners. See App. A, at

App. 18; App. B, at App. 53.

The court of appeals then focused on the award of at-

torney fees against Respondent Ruben, a law professor at

Cleveland State University. The court of appeals held as

follows:

The probable cause finding of the [Ohio Civil Rights

Commission] also precludes a finding that Ruben

entered the action in bad faith. *** To the contrary,

Rathbun’s statements were corroborated by the

OCRC’s finding that other evidence supported a dis-

crimination action. Ruben, like Rathbun, was justi-

fied in relying on this fact.

See App. A, at App. 21. ‘

On this point the court of appeals did not take into

account the fact that no probable cause finding was made

by the Ohio Civil Rights Commission against the indi-

vidual school board member petitioners.

The court of appeals then reasoned circuitously as

follows:

The school board members later moved for summary

judgment on the ground that they were not ‘‘employ-

ers’’ under Title VII and that the district court lacked

jurisdiction over them because Rathbun failed to

name them in the EEOC charge. These motions were

denied in January of 1983.

The denial of the motions for summary judg-

ment precludes a sanction on the ground that the

claims against them were legally insufficient.

Since none of the above motions was predicated on

the underlying facts, the denial of the motions did

not preclude the district judge from imposing sanc-

tions if the case was factually frivolous. The order

imposing sanctions makes it clear, in fact, that it was

not the legal insufficiency of the complaint that lead

to the sanctions but the lack of factual support for the

ease. We have, however, already rejected a factual

predicate for sanctioning Ruben.

See App. A, at App. 22-24.

The reference by the court of appeals to its prior re-

jection of the factual predicate for sanctioning Respon-

dent Ruben is to the previously quoted portion of the

opinion in which the court of appeals held that Respon-

dent Ruben was entitled to rely on the probable cause

finding of the Ohio Civil Rights Commission. However,

no such finding was ever made pertaining to the indi-

vidual school board member petitioners. See App. A, at

App. 18.

As to the issue of whether Respondent Ruben engaged

in bad faith misconduct in the cours®-sf the litigation, the

court of appeals remanded to the district court for recon-

sideration in accordance with various legal standards an-

nounced by the court of appeals. Those standards, which

significantly impact upon the discretion of the district

court, consist of the following:

Proceeding to trial upon inadequate evidence may

lead to a sanction under 28 U.S.C. § 1927. However,

while an attorney may be sanctioned for not acquiring

facts necessary to rebut his good faith belief that the

ease warranted prosecution, inadequate pretrial

preparation by itself (contrary to the district judge’s

suggestion) cannot justify a conclusion that Ruben

pursued the case in bad faith. [Citations omitted. ]

See App. A, at App. 26, footnote 11.

See

As an attorney of record, Ruben could be held account-

able for failure to take discovery or comply with pre-

trial orders. However, we think that the district

judge’s willingness to accept trial materials one day

later, without imposing a sanction at the time, pre-

cluded him from later sanctioning Ruben for this

delinquency. [Citations omitted.]

App. A, at App. 26-27, footnote 12.

A district judge should not await the aggregation of

what he considers multiple acts of misconduct and

then levy an aggregated sanction without at least

warning the attorneys at the time of each act or re-

serving decision upon timely requests by opposing

counsel.

See App. A, at App. 28.

Finally, the Court of Appeals imposed the exact same

grounds for sanctions under both the inherent power of the

federal judiciary and 28 U.S.C. § 1927:

Discrete acts of vexatious conduct should be identified

and a determination made whether they were done in

bad faith or, even if bad faith was not present,

whether they multiplied the proceedings pursuant to

28 U.S.C. § 1927. Because the district judge did not

analyze the impact upon defendants of discrete acts

of claimed misconduet, remand is necessary to allow

the district judge to make such a determination.

See App. A, at App. 28.

In arriving at its decision, the court of appeals did

not review the record to determine whether there was any

basis to support the exercise of the district judge’s dis-

cretion in awarding sanctions. Rather, the court of ap-

_— 17

peals reviewed the record with a view toward seeking to

identify some basis for concluding that the case was

neither frivolous nor conducted in bad faith. It is from

this decision that the individual school board member peti-

tioners pray for the issuance of a writ of certiorari.

REASONS FOR GRANTING WRIT

I. The Decision Below Is In Conflict With Ap-

plicable Decisions Of This Court.

The decision of the United States Court of Appeals

for the Sixth Cireuit in reversing the award of attorney

fees in favor of the five individual school board member

petitioners and against Respondent Rathbun and her

counsel, Respondent Ruben, cannot be reconciled with the

previous decisions of this Court in Christiansburg Gar-

ment Company v. Equal Employment Opportunity Com-

mission, 434 U.S. 412 (1978) and Roadway Express, Inc.

v. Piper, 447 U.S. 752 (1980).

The individual school board member petitioners hap-

pened to be the elected members of the corporate Board of

Education at the time of the commencement of this litiga-

tion. Under Ohio law, Respondent Rathbun’s contract of

employment was with the corporate Board of Education,

not the individual school board member petitioners. The

corporate Board of Education was a separate legal entity

capable of being sued. O.R.C. §§ 3313.17, 3313.47.

It is critical to note that Respondent Rathbun never

mentioned any of the names of the individual school board

member petitioners in her entire testimony at trial, oceupy-

ing 500 pages of the record. Respondent Rathbun did not

produce even a scintilla of evidence of discrimination per-

taining to the individual school board member petitioners.

Indeed, no effort was made to establish when these indi-

vidual school board members served on the Board of Edu

cation so as to link them even tangentially to events abou

which Respondent Rathbun complained.

Against that backdrop, the district judge analyzec

this Court’s decision in Christiansburg Garment and it:

progeny. After devoting a considerable portion of hi:

thirty-three page opinion to the facts of the case, the dis

trict judge made a specific finding that the filing anc

prosecution of the action against the individual schoo

board members was frivolous and unwarranted as de-

fined in Christiansburg Garment. See App. B, at App. 53

The district court also went further to expressly find that

Respondent Rathbun and Respondent Ruben ‘‘acted with-

out requisite good faith by charging and prosecuting the

individual defendants when they neither had nor produceé

a single thread of evidence against these defendants. ’’

In Christiansburg Garment this Court opined in perti.

nent part as follows:

A fair adversary process presupposes both a vigorous

prosecution and a vigorous defense. It cannot be

lightly assumed that in enacting § 706(k), Congress in.

tended to distort that process by giving the private

plaintiff substantial incentives to sue, while foreclos-

ing to the defendant the possibility of recovering his

expenses in resisting even a groundless action unless he

can show it was brought in bad faith.

If anything can be gleaned from these fragments of

legislative history, it is that while Congress wanted

to clear the way for suits to be brought under the

Act, it also wanted to protect defendants from bur-

densome litigation having no legal or factual basis.

*e#e

In sum, a district court may in its discretion award

attorney’s fees to a prevailing defendant in a Title

VII case upon a finding that the plaintiff’s action

was frivolous, unreasonable, or without foundation,

even though not brought in subjective bad faith. [Em-

phasis added. ]

And, needless to say, if a plaintiff is found to have

brought or continued such a claim in bad faith, there

will be an even stronger basis for charging him with

the attorney’s fees incurred by the defense.

Id., at 419-422.

Given the fact that there was no evidence offered by

respondents to indicate any discriminatory or unlawful

action on the part of the individual school board member

petitioners, it is astounding that the court of appeals

could have ignored that fact and reversed the district court

pertaining to these petitioners in light of Christiansburg

Garment. Nevertheless that is precisely what happened.

Instead of properly focusing on the inquiry as to

whether there was any basis in the record to support the

district judge’s finding that the case was frivolous against

the individual school board member petitioners, the court

of appeals engaged in a subjective boostrap analysis as to

what Respondent Rathbun was entitled to believe:

As discussed above, here there is no evidence that

Rathbun was aware that the individual school board

members... could not be held legally responsible for

conduct of her fellow employees. She had some foun-

dation for believing that she had been discriminated

against either on the basis of her sex or French origin.

Combined with the advice of her original attorneys

that she had a claim against the individual school

board members and the subsequent encouragement by

an attorney and law professor to pursue these claims

further, Rathbun certainly had a sufficient basis for

continuing her claims against the individual defen-

dants.

See App. A, at App. 19-20.

This Court’s decision in Christiansburg Garment

stands for the proposition that the plaintiff’s subjective

bad faith is not controlling under 42 U.S.C. § 2000e-5(k).

The proper analysis is whether the case in fact was frivo-

lous, unreasonable, or without foundation, not whether the

plaintiff regarded the case as meritorious.

Simply put, the court of appeals analysis cannot pass

muster under the standard espoused in Christiansburg

Garment.

The court of appeals decision in this case also con-

flicts with this Court’s analysis of the inherent power of

the federal judiciary to assess attorney fees as a sanction

against counsel. In Roadway Express, supra, at 766-767,

this Court held:

The power of a court over members of its bar is at

least as great as its authority over litigants. If a

court may tax counsel fees against a party who has

litigated in bad faith, it certainly may assess those

expenses against counsel who willfully abuse judicial

processes. Like other sanctions, attorney’s fees cer-

tainly should not be assessed lightly or without fair

notice and an opportunity for a hearing on the record.

But in a proper case, such sanctions are within a

court’s powers.

eee

Similarly, the trial court did not make a. specific

finding as to whether counsel’s conduct in this case

constituted or was tantamount to bad faith, a finding

that would have to precede any sanction under the

court’s inherent powers.

[Citations and footnotes omitted. ]

The district judge im this instance did make a spe-

cific finding that Respondent Ruben acted in bad faith.

See App. B, at App. 54. The judge recited at length the

areas of counsel misconduct for which Respondent Ruben

was responsible as an attorney of record, and as previ-

ouslyneted_he-emphasized that no evidence was presented

against the individual school board member petitioners.

The district judge completely satisfied the standard

espoused in Roadway Express in the discretionary exer-

cise of the district court’s inherent power. Yet the court

of appeals chose to apply its own standard in requiring

separate warnings by the district judge as a condition pre-

cedent to the imposition of sanctions. See App. A, at

App. 28.

This Court did not require any such warnings in

Roadway Express. In addition, and at least equally as im-

portant, when 28 U.S.C. § 1927 was amended in response

to Roadway Express so as to specifically include attorney

fees, the Congress specifically rejected any such warning

requirement:

The amendment to section 1927 is one of several

measures taken in this legislation to deter unneces-

sary delays in litigation. The purpose of deterring

delay would be more effectively achieved if judges

warn attorneys in anticipation of a violation of sec-

tion 1927 rather than simply waiting for violations

to occur and imposing the sanctions provided. How-

ever, the managers decided not to require a warning

as a matter of law because a violation might not nec-

essarily be committed in the presence of the judge and

because such a requirement might be viewed as license

to engage in dilatory conduct until such warning 1s

given. Such a requirement would thus have a coun-

terproductive effect. [Emphasis added.]

126 Cong. Ree. 22,125, Conference Report,

H.R. Rep. No. 1234, 96th Cong., 2d Sess. 8 (1980).

The court of appeals also held that the district judge

could not impose sanctions under this court’s inherent

power without examining whether discrete acts were done

in bad faith and analyzing the impact of such discrete

acts upon the defendants. See App. A, at App. 28. Here

again, the court of appeals is requiring more than the

standard set forth in Roadway Express.

Moreover, the court of appeals ignores the finding

by the district court that because there was no evidence

against the individual school board member petitioners,

respondents’ actions as to them were ‘‘without requisite

good faith’’ from the ‘‘inception of this action’’ with re-

gard to Respondent Rathbun and from the time he en-

tered his appearance with regard to Respondent Ruben.

See App. A, at App. 53-54. The court of appeals rejected

the notion that Respondent Ruben could be sanctioned

because the case was factually frivolous, relving on the

finding of probable cause by the O.C.R.C. However, that

finding was never made with respect to the individual

school board member petitioners. See App. A, at App. 18.

The district court decision is consistent with Roadway

Express. The court of appeals decision is not.

II. The Decision Below Decides Numerous Im-

portant Questions Of Federal Law Which

Have Not Been, But Should Be, Settled By

This Court.

This case directly presents at least four important

issues which have not been addressed previously by this

Court. The resolution of these issues is important not

only for the interests of the litigants in the case at bar

but also for the proper functioning of the federal judiciary

in the administration of the courts throughout the Nation.

First, the court of appeals would limit the discretion-

ary exercise of the inherent power of a district judge by

requiring an analysis of the financial impact of attorney

misconduct upon the opposing party. See App. A, at App.

28-29. Such a requirement is untenable and should not

pass unquestioned by this Court.

For instance, in some circumstances, the blatant dis-

regard of court rules by counsel and the totally inadequate

preparation for trial could actually result in a favorable

financial impact on the opposing party. Yet who could

seriously doubt the inherent power of the district judge

to impose sanctions so as to preserve the integrity of and

foster respect for the judicial process.

Second, the court of appeals held that:

A district judge should not await the aggregation of

what he considers multiple acts of misconduct and

then levy an aggregated sanction without at least

warning the attorney at the time of each act or re-

serving decision upon timely requests by opposing

counsel.

See App. A, at App. 28.

However, as previously discussed herein, a warning

requirement has never been imposed by this Court, and

the Congress has expressly rejected the concept. Indeed,

in addition to the problems previously noted, an appellate

court is seldom in a position to be aware of each dialogue

between the bench and the bar during the course of a legal

proceeding. Those exchanges are frequently not made

on the record. Prudence dictates the wisdom of admon-

ishing counsel off the record in many litigation settings.

A warning requirement is unworkable, counterpro-

ductive and should not pass unquestioned by this Court.

Third, counsel is unaware of any occasion which this

Court has had to previously consider the implications of

an attorney fees sanction hearing at which a litigant and

the litigant’s counsel are both parties against whom sanc-

tions are sought. The court of appeals held that precise-

ly because of that fact, Respondent Rathbun ‘‘never had

an adequate opportunity for a hearing on the record.’’

The precedent relied on was this Court’s decision in Road-

way Express. See App. A, at App. 15. The court of ap-

peals reached this holding albeit acknowledging that briefs

were filed on Respondent Rathbun’s behalf.

Not only do the facts contradict the court of appeals

holding on this issue, but it is quite doubtful that any dis-

trict court should be reversed for having failed to advise

a litigant in Respondent Rathbun’s position to seek sep-

arate counsel for a sanction hearing.

It is submitted that Respondent Rathbun did have an

opportunity to be heard. Like any litigant, she must be

responsible for her own choices and decisions in the liti-

gation proceeding. Like any litigant in her position, she

had the right to choose as to whether she personally ap-

peared at the hearing and whether she retained indepen-

dent counsel. That choice is not within the control or in-

fluence of the district court or opposing parties.

The holding in this case that Respondent Rathbun

did not have an adequate opportunity for a hearing with-

out articulating any further guidance sets a very dan-

gerous precedent in an area where this Court has not

spoken.

Fourth, this case presents an issue as to the proper

standard for allocating an award of attorney fees against

a litigant and several co-counsel where the requisite find-

ings under Christiansburg Garment and Roadway Ex-

press have been made. Here again, the court of appeals

would afford little or no discretion to the district judge

who lived with the case and was most familiar with the

proceedings. Instead, the court of appeals would require

the district court to inquire into discrete acts of miscon-

duct by Respondent Ruben and measure the impact of

each act on the opposing litigant.

It is respectfully submitted that the standard set forth

by the court of appeals simply will not work where there

are multiple counsel of record representing the same liti-

gant. For instance, it will be impossible to attach a spe-

cific percentage of responsibility to Respondent Ruben

for his role in the discrete act of failing to produce even

a scintilla of evidence against these individual school board

member petitioners.

There are times when a judge must exercise discre-

tion in making a judgment call. Precision of measurement

may not be possible. In cases such as this involving sanc-

tions against multiple counsel and their client, the judicial

system must put its faith in the discretion of the trial judge

who is in the best position to make that call. This Court

should take this opportunity to so hold.

III. The Decision Below Is In Conflict With The

Decision Of The Seventh Circuit On The Is-

sue As To Whether Negligence As Opposed

To Intentional Misconduct Will Support A

Sanction Under 28 U.S.C. § 1927.

In the case at bar, the Sixth Circuit reaffirmed that

‘‘simple inadvertence or negligence that frustrates the

trial judge will not support a sanction under section 1927.’’

See App. A, at App. 13. However, the United States Court

of Appeals for the Seventh Circuit has indicated a will-

ingness-to impose sanctions under 28 U.S.C. § 1927 where

only negligence was present.

In Westinghouse Electric Corporation v. National

Labor Relations Board, 809 F.2d 419 (7th Cir. 1987), at-

torneys violated the pertinent rules governing margin and

spacing specifications for typed briefs so as to acecom-

modate the limitation on the brief length. The Seventh

Circuit awarded a sanction premised as follows:

We cannot exclude the possibility that all of this was

simply negligent inattention to the appellate rules.

... Even if only negligence was at work, counsel must

learn to be alert. The offense here ‘‘multipled the

proceedings’’ by requiring the judges and counsel for

the Board to examine two sets of briefs for West-

inghouse. We accordingly use our power under 28

U.S.C. § 1927 and impose a penalty of $1,000. Counsel

may not pass this penalty on to Westinghouse.

Id., at 425.

IV. The Decision Below So Far Departs From

The Accepted And Usual Course Of Judicial

Proceedings As To Call For An Exercise Of

This Court’s Power of Supervision.

It is respectfully submitted that the district judge

painstakingly exercised his discretion in analyzing the

facts of the case and the misconduct of counsel, and made

the requisite findings under the applicable case law hand-

ed down by this Court. Yet although the court of appeals

gave lip service to an abuse of discretion standard for

review, the district court was afforded absolutely no de-

ference and allowed no discretion.

The court of appeals should have reviewed the rec-

ord to see if there was any basis upon which to uphold

the findings of the district judge. Certainly that is the

accepted and usual course for judicial proceedings where

abuse of discretion is the standard for review. Instead

the court of appeals substituted its judgment for that of

the district court. The reviewing court searched the rec-

ord to attempt to find some basis to vindicate the respon-

dents. That endeavor is abhorent to the dignity and wis-

dom of the federal trial bar and insulting to those partici-

pants in the process who breathed life into the record.

This case is ripe for the corrective, supervisory pow-

ers of this Court. It is clear that this Court intends for

decisions regarding attorney fee sanctions to be made

in the sound discretion of the district judge on the basis

of certain express findings. Christiansburg Garment, su-

pra, at 421. To permit the court of appeals in this case

to reverse and remand for further proceedings without

ever expressly finding an abuse of discretion will be to

encourage further appeals in attorney fees cases across

the Nation.

The matter was strikingly articulated in a separate

opinion of four of the Justices in Hensley v. Eckerhart,

461 U.S. 424, 442 (1983) as follows:

Vacating a fee award such as this and remanding for

further explanation can serve only as an invitation

to losing defendants to engage in what must be one

of the least socially productive types of litigation

imaginable: appeals from awards of attorney’s fees,

after the merits of a case have been concluded, when

the appeals are not likely to affect the amount of

the final fee. Such appeals, which greatly increase

the costs to plaintiffs of vindicating their rights, frus-

trate the purposes of 41988. Where, as here, a dis-

trict court has awarded a fee that comes within the

range of possible fees that the facts, history, and re-

sults of the case permit, the appellate court has a

duty to affirm the award promptly.

The foregoing quotation applies with equal force to suc-

cessful defendants in frivolous cases prosecuted and con-

ducted in bad faith who are awarded fees by district courts

under any applicable authority.

The same separate opinion in Hensley, id., at 454-

455, goes on to state:

To remain faithful to the legislative objectives

of § 1988, appellate courts, including this Court, should

hesitate to prolong litigation over attorney’s fees

after the merits of a case have been concluded. .. .

Paragraph-by-paragraph scrutiny of the explanations

for specific exercises of the district courts’ broad dis-

cretion under $1988 serves no produetive purpose,

vindicates no one’s civil rights, and exacerbates the

myriad problems of crowded appellate dockets.

If a district court has articulated a fair explana-

tion for its fee award in a given case, the court of

appeals should not reverse or remand the judgment

unless the award is so low as to provide clearly in-

adequate compensation to the attorneys on the case

or so high as to constitute an unmistakable windfall.

... More exacting review, for which there is no clear

mandate in the statute or its legislative history, frus-

trates rather than advances the policies of § 1988.

In systematic terms, attorney’s fee appeals take up

lawyers’ and judges’ time that could more profitably

be devoted to other cases. .. . Regular appellate seru-

tiny of issues like those in this case also generates a

steady stream of opinions each requiring yet another

to harmonize it with the one before or the one after.

Ultimately, § 1988’s straightforward command is re-

placed by a vast body of artificial, judge-made doc-

trine, with its own arcane procedures, which like a

Frankenstein’s monster meanders its well-intentional

way through the legal landscape leaving waste and

confusion (not to mention circuit splits) in its wake.

[Citations and footnotes omitted.]

The court of appeals decision in the case at bar pre-

sents the same deviant judicial behavior and policy con-

cerns expressed above relative to 28 U.S.C. § 1927, 42

U.S.C. § 2000e-5(k) and the inherent power of the federal

courts. A reviewing court cannot reverse the findings of

the trier of fact simply because it is convinced it would

have decided the matter differently. Anderson v. Lesse-

mer City, 470 U.S. 564 (1985).

The district court in this case made the requisite legal

findings to support the award of attorney fees and ex-

plained the factual basis for those findings in detail. The

failure of the court of appeals to defer to the district

judge’s sound exercise of discretion in this case will tip

the all too delicately balanced federal scales of justice in

this Nation in favor of frivolous claims brought solely to

exact monetary settlements and fee awards.

This Court has recognized the congressional intent to

encourage suits by victims of discrimination while deter-

ring frivolous litigation. Roadway Express, supra, at

762. If this case is permitted to become law, that con-

gressional purpose will have been frustrated. At least in

the Sixth Circuit, plaintiff’s counsel will be able to defy

court rules and present absolutely no evidence against

various parties irresponsibly named as defendants; and

yet there will be no fear of being sanctioned for having

prosecuted a frivolous case or for having acted in bad

faith.

The dockets of the federal courts in this Nation are

already crowded with cases. The filings of civil rights cases

are on the rise. City of Riverside v. Rivera, — U.S. —, 106

S.Ct. 2686 (1986), at 2701, n.4. Cases without merit are

abundant in numbers, making it difficult for the federal

courts to give timely consideration to those cases with

merit. ‘‘The glacial pace of such litigation breeds frus-

tration with the federal courts and, ultimately, disrespect

for the law.’’ Roadway Express, supra, at 757, n. 4.

It is respectfully submitted that this Court should ex-

ercise its supervisory power to correct the misguided

course charted by the court of appeals in this case.

—

CONCLUSION

For the foregoing reasons, a writ of certiorari should

issue to review the judgment and opinion of the United

States Court of Appeals for the Sixth Circuit.

Respectfully submitted,

Means, Bicuimer, BuRKHOLDER

& Baker Co., L.P.A.

/s/ Craig D. Leister

Craic D. Leister

/s/ Richard W. Ross

Ricuarp W. Ross

42 E. Gay St., 14th Floor

Columbus, Ohio 43215

(614) 221-3135

Attorneys for Individual School

Board Member Petitioners

App. 1

APPENDIX A

Nos. 85-3986/3987

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Iw rE: ALAN Mites Rusen,

Attorney-Appellant, (85-3987)

On Appzga from the

United States Dis-

trict Court for the

Northern District

of Ohio.

JEANNE RatHBuUN,

Plaintiff-Appellant, (85-3986)

Warren City Scuoots, Roserr L.

Pecuges, CarHerine O. Swan,

Henry J. Anceto, Wruarp T.

Rusin, Raymonp J. Tesner,

Mary Mituem, AntrHony R.

Berarpucci, Nicno.as J. ANGELO,

Bart Witson, Witi1am Haas,

Sreve Hupock, and

Bernie Wison,

ee ee et ee ee ee ee ee ee ee ee ee

Defendants-A ppellees.

Decided and Filed July 30, 1987

Before: WELLFORD and NORRIS, Circuit Judges;

and COHN, District Judge.*

*Honorable Avern Cohn, United States District Court for the

Eastern District of Michigan sitting by designation.

App. 2

COHN, District Judge. This appeal raises question:

about the propriety of sanctions against a plaintiff and one

of her attorneys arising out of a sex and national origit

discrimination case filed under Title VII of the Civi

Rights Act of 1964, 42 U.S.C. § 2000e et seq. For the rea

sons that follow, we reverse the sanctions against plaintif:

and her attorney and taxation of costs against plaintiff

and remand the case for further consideration by the dis

trict judge.

I. STATEMENT OF THE CASE

Plaintiff, Jeanne Rathbun, is a naturalized citizen o:

the United States of French origin. She worked as a jani

tor at several school buildings in the Warren, Ohio publi

school system from 1973 to the time she filed the under.

lying action in 1980, including East Junior High Schoo

(‘‘Kast’’), Warren G. Harding High School (‘‘ Harding’’)

and Devon Elementary School (‘‘Devon’’). Throughout

this period, she alleged that she was denied overtime equa

to male janitors and was subjected to physical and verba

abuse and disparate workloads. She claimed a retaliatory

transfer from East to Harding in September of 1974 anc

a retaliatory transfer again in May of 1978 to Devon or

account of her complaints of discrimination.

Rathbun filed a charge with the Ohio Civil Rights

Commission (‘‘OCRC’’) in September of 1978, alleging

sex discrimination against ‘‘Warren City Schools’’ only

and mentioning acts by Bart Wilson, a foreman of cus.

todians and janitors; William Haas, head custodian of the

1Defendant’s proper name appears to be Warren City Schoo

District Board of Education.

App. 3

school system; and Steve Hudock, assistant head custodian

of the school system. Rathbun also filed a charge with the

Equal Employment Opportunity Commission (‘‘KEOC’’)

in October of 1978, again alleging sex discrimination by

‘‘Warren City Schools’’ only. The EEOC charge likewise

mentioned Wilson, Haas, and, additionally Nicholas An-

gelo, athletic director and then supervisor of business op-

erations for the school system, but it did not mention Hud-

ock. (Rathbun did not complain in the EEOC charge about

her time at East Junior High, and there is only an oblique

reference to this period in the OCRC charge.)

In March of 1979, the OCRC found probable cause that

Rathbun’s allegations established a case of sex and na-

tional origin discrimination at each of the three buildings

she had worked at. The finding was accompanied by a

four-page summary of evidence based largely on inter-

views with Rathbun’s co-workers. The EEOC declined to

pursue Rathbun’s charge and issued a right-to-sue letter

in July of 1980. On the basis of the OCRC’s attempts at

conciliation, the Warren school board offered to allow

Rathbun to transfer to any one of twenty-two job sites,

including return to Harding. Rathbun refused to work

elsewhere, and she declined the jobs offered at Harding

in the belief that the jobs would be more strenuous than

her old job. In declining the conciliation offers, Rathbun

relied on the advice of her then attorneys—Shenyey, Ber-

man & Abakumov.

Shenyey, Berman & Abakumov filed this case on

October 16, 1980, within ninety days after Rathbun re-

ceived the EEOC’s right-to-sue letter. The individual de-

fendants named were: the superintendent of the Warren

App. 4

City School District at the time of suit (Robert Pegues) ;

the assistant superintendent at the time of suit (Anthony

Berarducci); the five members of Warren City School

District Board of Education (‘‘the school board defen-

dants’’) at the time of suit (Catherine Swan, Henry An-

gelo, Willard Rubin, Raymond Tesner, and Mary Mil-

heim), named in their ‘‘representative capacity’’; Nich-

olas Angelo; Bart Wilson; Haas; Hudock; and a fellow

janitor, Bernie Wilson.

Shenyey, Berman & Abakumov withdrew from the

ease in 1981. Defendants do not dispute that the with-

drawal was unrelated to the merits of the case. Attorney

Elliott Lester substituted as Rathbun’s attorney and pur-

sued the case through trial. Because of Lester’s inexperi-

ence in Title VII cases, in January of 1982 he sought the

assistance of appellant Alan Miles Ruben, a law professor

from Cleveland Marshall College of Law. Ruben entered

his appearance as ‘‘additional counsel’’ and, according to

Lester, provided academic guidance only. The record re-

flects, however, that Ruben’s role was actually more ex-

tensive. Lester also used a newly licensed associate, Keith

Weiner, on the case for a year beginning in September of

1982.

After Rathbun’s presentation of her case-in-chief over

four days of trial, the district judge granted defendants’

motion to dismiss on June 29, 1984. Fed. R. Civ. P. 41(b).

Findings of facts and conclusions of law? were filed July

2The district judge’s findings of fact and conclusions of law,

Fed. R. Civ. P. 52(a), total 11 pages. While he determined that

Rathbun’s case lacked factual and legal support, he did not

characterize her case as “frivolous” or intimate that it was in-

stituted or prosecuted in bad faith.

App. 5

6, 1984; the order of dismissal was entered July 10, 1984.

Rathbun filed a notice of appeal on August 6, 1984; the

appeal was dismissed for want of prosecution on Septem-

ber 24, 1984. The mandate was filed with the district

court on October 19, 1984.

The school board defendants filed a motion for attor-

neys’ fees from Rathbun and her attorneys on various

legal grounds on October 30, 1984. The other defendants

filed a similar motion on January 9, 1985. The district

judge held a hearing on the motions on March 15, 1985,

at which Lester, Weiner, and defendants’ attorneys argued.

Ruben was present at the hearing; an attorney argued on

his behalf. Although briefs were filed on Rathbun’s be-

half in opposition to the motions,’ no one argued her posi-

tion at the March 15 hearing.

On October 22, 1985, the district judge entered an

order and opinion granting defendants’ motions. Weiner

was sanctioned $500 under Federal Rule of Civil Proce-

dure 11 for filing a motion not well grounded in fact; he

does not appeal. Lester was sanctioned $5,000; he also

does not appeal.* Ruben likewise was sanctioned $5,000.

While the district judge’s opinion does not clearly deline-

ate the legal grounds for sanctioning Ruben, his opinion

mentions Federal Rule of Civil Procedure 11, 28 U.S.C.

§ 1927, and a judge’s inherent power to punish bad faith

3While the opinion awarding attorneys’ fees states that no

briefs were filed on Rathbun’s behalf (Order at 2), the record

contradicts this statement (see R. 123, 124).

‘It appears from the record that Lester is no longer a mem-

ber of the Ohio bar.

App. 6

conduct during litigation. See Roadway Express, Inc. v.

Piper, 447 U.S. 752, 765-67 (1980). The bulk of the sane-

tion—$36,159.21—fell on Rathbun. Again, while the dis-

trict judge did not clearly delineate the legal grounds for

sanctioning Rathbun, the opinion offers alternative

grounds. Like Ruben’s sanction, the first ground cited

for the sanction against Rathbun in the inherent power

to punish bad faith litigation. The second ground de-

scribed by the judge was that Rathbun’s case was ‘‘friv-

olous, unreasonable, or without foundation, .. .’’ Chris-

tiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978)

(interpreting § 706(k) of Title VII, 42 U.S.C. 2000e-5(k) ).

The district judge also taxed costs against Rathbun.

Il. TIMELINESS OF THE MOTIONS FOR

ATTORNEYS’ FEES

The school board defendants filed their motion almost

four months after the district judge’s findings of fact and

conclusions of law and almost three months after the no-

tice of appeal. The motion followed the dismissal of the

appeal by less than two weeks. ‘The other defendants

filed their motion little more than two months later. There

is no local rule in the Northern District of Ohio limiting

the time period for the filing of a motion for attorneys’

fees. The parties agree that instead of a strict time meas-

ure, the test is one of ‘‘reasonableness.’’ They dispute the

proper milestone for measuring the period and whether

the motions here were filed within a ‘‘reasonable’’ time.

The district judge considered the timeliness issue in

granting the motions, relying primarily on White v. New

Hampshire Dep’t of Employment Sec., 455 U.S. 445 (1982).

There, the Supreme Court upheld an award of attorney’s

4 App. 7

fees under 42 U.S.C. § 1988 where the motion for attor-

ney’s fees was filed four-and-one-half months after the

entry of final judgment. The Supreme Court held that the

entertainment of such a motion is within the discretion

of the district court, which should consider unfair sur-

prise or prejudice to the affected party and the policy of

avoiding piecemeal appeals. 445 U.S. at 454.

Ruben argues that the district judge lacked jurisdic-

tion to consider the attorneys’ fee motions after Rath-

bun’s appeal was dismissed, relying primarily on Overnite

Transp. Co. v. Chicago Indus, Tire Co., 697 F.2d 789 (7th

Cir. 1983). There, a motion for attorneys’ fees under 28

U.S.C. § 1927 filed eight months after dismissal and two

months after affirmance was held to be untimely. The

Overnite court did not, however, overrule or limit two

earlier cases requiring the filing of such a motion only

within a ‘‘reasonable’’ time and, if there is an appeal on

the merits, before or during the pendency of the appeal.

Loctite Corp. v. Fel-Pro, Inc., 667 F.2d 577 (7th Cir. 1981) ;

Terket v. Lund, 623 F.2d 29 (7th Cir. 1980).

The district judge properly rejected Ruben’s reliance

on Overnite. Unlike the appeal in Overnite, the appeal here

was pending for only a brief time before it was dismissed

due to inaction by Rathbun and her attorneys. Cf. In re Itel

Sec, Litig., 791 F.2d 672 (9th Cir. 1986) (attorney cannot

destroy district court’s jurisdiction to impose sanctions by

withdrawing from case before appeal perfected or while

appeal pending), cert. denied sub nom. Bader v. Itel Corp.,

107 S. Ct. 880 (1987). The district judge noted that the

attorneys’ fee motions should not have surprised Rath-

bun and her attorneys in light of the course of the discov-

ery and trial proceedings. Finally, finding that the mo-

A .

App. 8

tions here were timely filed does not result in piecemeal

appeals, since this is the only appeal perfected in this

case. We are not asked to reconstruct a case previously

reviewed in detail. There is no prejudice to Rathbun and

Ruben because the litigation is not being renewed after an

appeal on the merits that could have been consolidated

with the appeals of the sanctions. See Obin v. Dist. No. 9

of Intern. Ass’n of Machinists & Aerospace Workers, 651

F.2d 574, 583-84 (8th Cir. 1981). Ruben’s claimed fail-

ure to be apprised of the status of the appeal on the merits

must be disregarded as his failure to be aware of the

actions of Lester, his co-counsel. See Shea v. Donohoe

Constr. Co., Inc., 795 F.2d 1071, 1074 n.3 (D.C. Cir. 1986).

We also find support for holding the motions were

timely filed in Fulps v. City of Springfield, Tenn., 715

F.2d 1088 (6th Cir. 1983). Discussing both White and

Obin, there we allowed a party to seek attorneys’ fees

eight months after the entry of judgment by the district

court if the delay did not prejudice the opposing party,

thus requiring an equitable bar on the ground of laches.

Id. at 1095-96. While Ruben argues that he was preju-

diced, the delay here was shorter than that allowed in

Fulps, and Ruben does not show that he changed his posi-

tion or detrimentally relied upon the delay in the filing

of the motions.

Ruben also argues that White is inapplicable because

the only statutory basis for an award of attorneys’ fees

against him is section 1927, whereas section 1988 was the

relevant statute in White. We reject this argument. Ru-

ben should have known that defendants, as the prevailing

parties, could seek recovery of their attorneys’ fees under

Been

Ca aS

App. 9

42 U.S.C. § 2000e-5(k), the language of which parallels

section 1988 and therefore falls within the White rationale.

To require a defendant to seek attorneys’ fees from an

attorney immediately after judgment, but allow additional

time under White to seek recovery of attorneys’ fees from

a plaintiff, would only exacerbate the problem of piece-

meal appeals.

As the Supreme Court noted in White, 455 U.S. at 454

& n.16 and 456 (Blackmun, J., concurring), the issue of

timeliness of a motion for attorneys’ fees can be avoided

by the adoption of a local rule establishing a timeliness

standard. We have previously encouraged the adoption

of such local rules. See Fulps, supra, 715 F.2d at 1096.

See Local Rule 17(n) of the Eastern District of Michigan.

Ill. STANDARDS FOR SANCTIONS

A. Standards for District Judges

The district judge recited four grounds in sanction-

ing plaintiff and her attorneys: (1) inherent power; (2)

28 U.S.C. § 1927; (3) Federal Rule of Civil Procedure 11;

and (4) 42 U.S.C. § 2000e-5(k). An elaborate discussion

of the standard for each of these grounds is not necessary.

A good discussion of the first three grounds appears in

Oliveri v. Thompson, 803 F.2d 1265, 1271-75 (2d Cir.

1986), cert. denied sub nom. County of Suffolk v. Graseck,

107 S. Ct. 1373 (1987). See generally Johnson & Cassady,

Frivolous Lawsuits and Defensive Responses to Them—

5To the extent we disagree with the Oliveri court’s “bad

faith’ requirement for sanctions under 28 U.S.C. § 1927, we

discuss below the standard for such determinations in this

circuit.

App. 10

What Relief is Available?, 36 Ala. L. Rev. 927 (1985) ;

Comment, Courts Are No Place for Fun and Frivolty: A

Warning to Vexatious Litigante and Over-Zealous Attor-

neys, 20 Williamette L. Rev. 441 (1984).

As the Oliveri court noted, the different grounds for

awarding sanctions and shifting attorneys’ fees are dis-

tinct and require a close and careful analysis. Although

the district judge mentioned the various grounds, it is

just not clear which of the various grounds was the basis

of the sanction against Rathbun and Ruben. We therefore

consider each of the grounds advanced by the district judge

and briefly set forth the differences between them.

1. ‘*Bad Faith’’

A district judge has inherent equitable power to award

attorneys’ fees for ‘‘bad faith’’ or frivolous conduct of a

ease. See, e.g., Roadway Express, supra, 447 U.S. at 765-

67 (citing Browning Debenture Holders’ Committee v.

DASA Corp., 560 F.2d 1078, 1088 (2d Cir. 1977)). This

power extends to parties as well as attorneys. Oliveri,

supra, 803 F.2d at 1272; Jones v. Continental Corp., 789

F.2d 1225, 1229 (6th Cir. 1986). We have discussed the

‘‘had faith’’ rule at length in Shimman v. International

Union of Operating Eng’rs, Local 18, 744 F.2d 1226, 1228-

30 & nn. 5, 6 (6th Cir. 1984) (collecting cases), cert. denied,

469 U.S. 1215 (1985).

There are only two aspects of the ‘‘bad faith’’ rule

implicated by the district judge’s opinion imposing sanc-

tions here—‘‘(1) bad faith occurring during the course of

the litigation; [and] (2) bad faith in bringing[the] action

or causing [the] action to be brought. ...’’ Shimman, 744

App. 11

F.2d at 1230. The district judge did not clearly delineate

which of these two grounds supported the sanctions

against Rathbun and Ruben, respectively. As we note be-

low, however, the only plausible ground for a bad faith

finding under the circumstances of this case must be found

in the conduct of the litigation and not in bringing it.

2. 28 U.S.C. § 1927

Section 1927 of Title 28 provides for an award of

attorneys’ fees where an attorney ‘‘multiplies the proceed-

ings in any case unreasonably and vexatiously....’’ As

explained in the legislative history of the 1980 amend-

ment to section 1927, the section is designed as a sanction

against dilatory litigation practices and is intended to re-

quire an attorney to satisfy personally the excess costs

attributable to his misconduct. See H.R. Rep. No. 1234,

96th Cong., 2d Sess. 8, reprinted in 1980 U.S. Code Cong.

& Ad. News 2781, 2782. See generally Annotation, What

Conduct Constitutes Multiplying Proceedings Unreason-

ably and Vexatiously so as to Warrant Imposition of Li-

ability on Counsel Under 28 USCS § 1927 for Excess Costs,

Expenses, and Attorney Fees, 81 A.L.R. Fed. 36 (1987).

In United States v. Ross, 535 F.2d 346 (6th Cir. 1976),

we initially defined ‘‘unreasonably and vexatiously’’ to

mean ‘‘an intentional departure from proper conduct, or,

at a minimum, ... a reckless disregard of the duty owed

by counsel to the court,’’ Jd. at 349. We stated in Ross

that unintended, inadvertent, and negligent acts will not

support an award under section 1927, id. at 349-50, even if

significant costs are incurred by the court and opposing

parties as a result thereof. As explained in Colucci v.

App. 12

New York Times Co., 533 F. Supp. 1011, 1013-14 (S.D.N.Y.

1982), care must be taken in assessing attorneys’ fees un-

der section 1927 lest attorneys be deterred from their duty

to ‘‘represent [a] client zealously. ... Model Code of Pro-

fessional Responsibility EC 7-1 (1980).

More recently, we have noted a relaxed standard ap-

plicable to section 1927 determinations. In In Re: Jaques,

761 F.2d 302 (6th Cir. 1985), cert. denied, 106 S. Ct. 1259

(1986), the majority opinion suggested that intent is no

longer relevant to such determinations, 7/7. at 306, although

a majority of the panel could not agree on this rule. How-

ever, a similar concept was explicated in Jones, supra, as

follows:

28 U.S.C. § 1927 authorizes a court to assess fees

against an attorney for ‘‘unreasonable and vexatious”’

multiplication of litigation despite the absence of any

conscious impropriety. An attorney’s ethical obliga-

tion of zealous advocacy on behalf of his or her client

does not amount to carte blanche to burden the fed-

eral courts by pursuing claims that are frivolous on

the merits, or by pursuing nonfrivolous claims through

the use of multiplicative litigation tactics that are

harassing, dilatory, or otherwise ‘‘unreasonable and

vexatious.’’ Accordingly, at least when an attorney

knows or reasonably should know that a claim pur-

sued is frivolous, or that his or her litigation tacties

will needlessly obstruct the litigation of nonfrivolous

claims, a trial court does not err by assessing fees

attributable to such actions against the attorney.

789 F.2d at 1230 (emphasis added). Jones makes clear that

the standard for section 1927 determinations in this cir-

cuit is an objective one, entirely different from determina-

tions under the bad faith rule. See Haynie v. Ross Gear

App. 13

Div. of TRW, Inc., 799 F.2d 237, 243 (6th Cir. 1986), cert.

dismissed, 107 S. Ct. 2475 (1987).

Nevertheless, we do not read these subsequent cases

as overruling the thrust of Ross, to wit, that simple inad-

vertence or negligence that frustrates the trial judge will

not support a sanction under section 1927. There must be

some conduct on the part of the subject attorney that trial

judges, applying the collective wisdom of their experience

on the bench, could agree falls short of the obligations

owed by a member of the bar to the court and which, as a

result, causes additional expense to the opposing party.

While this ideal may be difficult to implement, judges

faced with motions under section 1927 should be mindful

that their individual perturbations will not alone justify

a sanction.

As we discuss below, section 1927 may support a sanc-

tion against Ruben for discrete acts of misconduct.

3. Federal Rule of Civil Procedure 11

Rule 11 was the basis of the unappealed sanction

against Weiner and was again mentioned by the district

judge in sanctioning Ruben. Rule 11, however, does not

support the sanctions imposed in this case. Rule 11 is con-

cerned with the signing of frivolous pleadings and other

papers. Oliveri, supra, 803 F.2d at 1274. Because Ruben

did not sign any of the pleadings or papers filed in the

district court, Rule 11 simply cannot support the sanction

against him. Although the language of Rule 11 also allows

a sanction against a party, the district judge did not rely

upon it in assessing the sanction against Rathbun.

App. 14

4. 42 U.S.C. § 2000e-5(k)

In Christiansburg, supra, the Supreme Court described

the test for awarding attorney’s fees under 42 U.S.C.

§ 2000e-5(k) to a prevailing defendant in a Title VII case.

The Supreme Court stated: ‘‘In sum, a district court may

in its discretion award attorney’s fees to a prevailing de-

fendant in a Title VII case upon a finding that the plain-

tiff’s action was frivolous, unreasonable, or without foun-

dation, even though not brought in subjective bad faith.’’

434 U.S. at 421. As will be described, we conclude that this

standard does not support an award of attorneys’ fees

against Rathbun.

B. Standard of Review

The standard for our review is whether the district

judge abused his discretion in awarding attorneys’ fees.

E.g. Jones, supra, 789 F.2d at 1227, 1233; Smith v. Smythe-

Cramer Co., 754 F.2d 180, 185 (6th Cir.), cert. denied, 473

U.S. 906 (1985) ; Tarter v. Raybuck, 742 F.2d 977, 986 (6th

Cir. 1984), cert. denied, 470 U.S. 1051 (1985). We must

review the record to determine whether it will support the

district judge’s factual findings. See Jones, 789 F.2d at

1230-31; Smith, 754 F.2d at 185; Tarter, 742 F.2d at 986.

Rathbun accepts the ‘‘abuse of discretion’’ standard.

On the other hand, Ruben conclusorily argues for a de novo

review of the district judge’s conclusion, relying on Zaldi-

var v. City of Los Angeles, 780 F.2d 823, 828 (9th Cir.

1986). Zaldivar was a Rule 11 ease, which, as we have

noted, does not apply to Ruben. Further, the Zaldivar

court itself noted in a subsequent case that the standard

for review of sanctions premised on bad faith and frivol-

App. 15

ousness is ‘‘abuse of discretion.’’ Mitchell v. Office of

Los Angeles County Sup’t of Schools, 805 F.2d 844, 846

(9th Cir. 1986) (citing Jones v. Giles, 741 F.2d 245, 250

(9th Cir. 1984)).

IV. THE SANCTION AGAINST RATHBUN

A. Attorneys’ Fees

The imposition of attorneys’ fees against Rathbun

must be reversed if only because she never had an ade-

quate opportunity for a hearing on the record. Roadway

Express, supra, 447 U.S. at 767. While briefs were filed

on Rathbun’s behalf, she was clearly abandoned by her

attorneys at the hearing itself. This points out an inherent

problem in a sanction hearing addressed to both a plaintiff

and her attorneys, where the plaintiff and attorneys are

not separately represented. See Michigan Nat’l Bank v.

Kroger Co., 619 F. Supp. 1149, 1162 (E.D. Mich. 1985). In

this case, although Rathbun’s attorneys advanced no argu-

ments for her at the hearing, at least their positions were

essentially similar, to wit, that the litigation was factually

justified. The attorneys did not attempt to blame plain-

tiff; instead, Lester graciously tried to accept all respon-

sibility for any problems with the case. Thus, while we

express no opinion on the exact circumstances in which a

party should be represented separately from her attorneys

upon the consideration of sanctions, we nevertheless note

that this a problem to which district judges should be alert.

1. Bad Faith

Even if Rathbun had been represented at the sanction

hearing, she simply cannot be sanctioned under the circum.

App. 16

stances here for bad faith either in the filing of the case

or its prosecution.

a. Institution of the Action

Rathbun testified at trial about the use of derogatory

language toward her based on her sex and national origin

that she made known to her superiors and the school board.

She described two attacks on her, one sexual. There was

various testimony that Rathbun’s superiors considered cer-

tain work that she was capable of doing ‘‘man’s work.”’

There was evidence that went toward the issue of retalia-

tory transfer, even if it was legally insufficient. While

Rathbun’s attorneys did not do a good job of presenting

testimony from witnesses favorable to her, neither did the

basis for her case rest entirely on her own testimony.

The school board defendants concede that the OCRC’s

finding of probable cause is some evidence justifying Rath-

bun’s case, but they argue that the findings should be given

little weight. See Bowers v. Kraft Foods Corp., 606 F.2d

816, 818 (8th Cir. 1979). The district judge’s sanction

opinion did not even consider the fact that the OCRC had

issued a probable cause finding against the school board

that implicated some of the non-school board defendants.°®

®As to the school board defendants, the initial complaint

as well as the amended complaints clearly established (contrary

to the district judge’s statements) that they were joined only

in their representative capacity. Thus, it is not clear why they

thought it necessary to retain separate counsel. The papers

in the appendix are ambiguous on this point. The record re-

flects that Rathbun moved to default the individual board mem-

bers in January of 1983. This could not have been the motivat-

(Continued on following page)

App. 17

The probable cause finding of the OCRC, though not dis-

positive, lends support for Rathbun’s belief that she had

a legal claim of discrimination and did not pursue her ac-

tion in bad faith. See Mitchell, supra, 805 F.2d at 847 (re-

versing an award of attorneys’ fees to defendants on

grounds of bad faith and frivolousness following Rule

41(b) dismissal of Title VII action where EEOC had issued

probable cause determination); Badillo v. Central Steel

& Wire Co., 717 F.2d 1160, 1165 (7th Cir. 1983) (upholding

denial of an award of attorneys’ fees to prevailing de-

fendant in Title VII case where plaintiff put misplaced

reliance on EEOC probable cause determination) ; see also

Bowers, supra (reversing an award of attorneys’ fees to

defendants on grounds of frivolousness where EEOC had

issued right-to-sue letter).

Rathbun was not. completely unjustified in believing

she was the subject of discrimination and a sexually harass-

ing and abusive work environment. There is no evidence

that Rathbun knew that the individual school board mem-

bers (even assuming she did sue them in their individual

capacity) could not be held liable for acts of discrimination,

whether she informed them of the acts or not. See Jonves,

supra (abuse of discretion to award attorneys’ fees under

(Continued from previous page)

ing factor behind their retaining separate counsel, however,

since they had already retained separate counsel by September

of 1982, when the record suggests they were at risk only in

their representative capacity. A motion could have resolved

this ambiguity and, perhaps, avoided the need for two attor-

neys to represent defendants throughout this lengthy litiga-

tion. While there may, at times, be reasons why defendants

do not make dispositive motions, see Kroger, supra, 619 F. Supp.

at 1154, we can conceive of no legitimate.reason why this par-

ticular issu~ was not addressed forthrightly early in the case.

App. 18

section 1988 or inherent power in race discrimination case

in which employee failed to communicate alleged mistreat-

ment to employer and joined individual defendants as

‘‘agents’’ of employer); cf. Turner, supra, 742 F.2d at

987.88 (abuse of discretion to award attorneys’ fees under

section 1988 where only parts of plaintiff’s case without

merit). Combining the OCRC finding with Rathbun’s

testimony and her attorneys’ advice, it was clearly erro-

neous to find that Rathbun brought her discrimination

claim in bad faith. See Haynie, supra, 799 F.2d at 242.

b. Conduct of the Litigation

As for possible bad faith by Rathbun in the conduct of

the litigation, there is simply no evidence in the record

suggesting that she acted in bad faith or contributed in

any way to the manner in which this case was handled. If

there was any fault in this regard, it lay with the attorneys

and she should not be penalized for their misdeeds, if any.

Cf. Shea, supra (sins of attorneys should not be visited

upon plaintiff where attendant costs to defendants can be

remedicd by assessing defendants’ attorneys’ fees against

Plaintiff’s attorneys, especially where judge has not pre-

viously warned plaintiff of derelictions of her attorneys) ;

Carter v. City of Memphis, Tenn., 636 F.2d 159 (6th Cir.

1980) (per curiam) (expressing same concept).

2. Frivolousness Under Christiansburg

The individual school board members point out that, as

to them, there was no probable cause finding. Less weight

may be given to Rathbun’s reliance on an administrative

finding of probable cause since she included in her action

App. 19

claims against defendants not considered by the OCRC.

See Badillo, 717 F.2d at 1164.

The Supreme Court in Christiansburg illuminated the

standard it announced with the following pertinent lan-

guage:

In applying these criteria, it is important that a dis-

trict court resist the understandable temptation to

engage in post hoc reasoning by concluding that, be-

cause a plaintiff did not ultimately prevail, his action

must have been unreasonable or without foundation.

This kind of hindsight logic could discourage all but

the most airtight claims, for seldom can a a prospec-

tive plaintiff be sure of ultimate success. No mat-

ter how honest one’s belief that he has been the victim

of discrimination, no matter sow meritorious one’s

claim may appear at the outset, the course of litiga-

tion is rarely predictable. Decisive facts may not

emerge until discovery or trial. The law may change

or clarify in the midst of litigation. Even when the

law or the facts appear questionable or unfavorable

at the outset, a party may have an entirely reasonable

ground for bringing suit.

434 U.S. at 421-22.

As discussed above, here there is no evidence that

Rathbun was aware that the individual school board mem-

bers—again, assuming she sued them in their individual

capacity, an assumption on which the district judge pro-

ceeded—could not be held legally responsible for conduct

of her fellow employees. She had some foundation for be-

lieving that she had been discriminated against either on

the basis of her sex or French origin. Combined with the

advice of her original attorneys that she had a claim against

the individual school board members and the subsequent

encouragement by an attorney and law professor to pur-

App. 20

sue these claims further, Rathbun certainly had a sufficient

basis for continuing her claims against the individual de-

fendants. See Badillo, supra, 717 F.2d at 1165; see also

Smith, supra. 754 F.2d at 185 (abuse of discretion to im-

pose sanction under section 1988 in race discrimination

ease where couple had some reason to believe they had

been discriminated against in housing). The adding of

some meritless claims does not make the whole case frivo-

lous. See Haynie, supra, 799 F.2d at 242; Tarter, supra,

742 F.2d at 987-88; Badillo, 717 F.2d at 1164. Under the

circumstances, a sanction against Rathbun under the Chris-

tiansburg standard was improper.

B. Costs

While the district judge had discretion not to tax costs

against Rathbun, his doing so was not clearly an abuse of

discretion since Rathbun’s case lacked merit. See Jones,

supra, 789 F.2d at 1233. However, under the circum-

stances, the issue of costs must be remanded for a deter-

mination of whether Rathbun is capable of paying the

rather sizeable costs claimed by defendants (over $3,000).

See Badilla, supra, 717 F.2d at 1165. For example, in Hill

v. BASF Wyandotte Corp., 547 F.Supp. 348, 355-56 (E.D.

Mich. 1982), the trial judge awarded $3,000 in attorney

fees in an employment discrimination case, but there was

evidence in that case showing plaintiff’s income to be

$24,610. See also Piljan v. Michigan Dep’t of Social Serv-

ices, 585 F.Supp. 1579, 1583 (E.D. Mich. 1984) (awarding

$3,000 in attorney fees as appropriate to deter frivolous

Title VII claims). Ordinarily, while an assessment of

costs will not be reversed on the basis of indigency, district

judges are encouraged to consider the question of indigency

App. 21

fully for the record. Jones, id. Although Rathbun raises

the indigency issue for the first time on this appeal, be-

cause of the manner in which she was denied the opportu-

nity to present her position at the hearing before the dis-

trict judge, he should consider her indigency claim on re-

mand. See Haynie, supra, 799 F.2d at 243 (remanding

for indigency determination as to fees and costs).

V. THE SANCTION AGAINST RUBEN

Since Rathbun’s case was instituted and prosecuted by

several attorneys before Ruben entered an appearance, he

cannot be sanctioned for ‘‘bad faith in bringing an action

or causing an action to be brought.’’ Shimman, supra.

The probable cause finding of the OCRC also precludes

a finding that Ruben entered the action in bad faith. While

the district judge ultimately discredited Rathbun’s testi-

mony, this alone is not a sufficient basis for sanctioning

her attorneys on grounds of bad faith where no evidence

clearly contradicted their client’s statements at the time

the attorney undertook representation. See Oliveri, supra,

803 F.2d at 1277-78. To the contrary, Rathbun’s state-

ments were corroborated by the OCRC’s finding that other

evidence supported a discrimination action. Ruben, like

Rathbun, was justified in relying on this fact.

The real issue is whether Ruben continued to pursue

the case in bad faith after some discrete moment in its

history. See Christiansburg, 434 U.S. at 422. A deter-

mination of whether the sanction against Ruben was ap-

propriate depends, then, on the paper trail in the district

court and the extent of Ruben’s involvement in the alleged

misconduct of Rathbun’s attorneys. See Shimman, supra.

App. 22

A. Bad Faith in Continuing the Case Against the

Individual Defendants

Soon after the case was filed, all defendants except

Haas, Hudock and Bernie Wilson’ moved to dismiss for

lack of subject matter jurisdiction on the ground that the

complaint indicated on its face that Rathbun filed her ac-

tion one day after the statutory ninety-day period. Rathbun

subsequently amended the complaint twice, establishing

that she filed within ninety days of receipt of the right-to-

sue letter. The school board members later moved for

summary judgment on the ground that they were not ‘‘em-

ployers’’ under Title VII and that the district court lacked

jurisdiction over them because Rathbun failed to name

them in the EEOC charge. These motions were denied in

January of 1983. Bernie Wilson was subsequently dis-

missed because of his death. Defendants Pegues, Berar-

ducci, and Nicholas Angelo also moved for summary judg-

ment on the ground that they were not named in the EEOC

charge. Pegues and Berarducci were granted summary

judgment on this ground in June of 1984, twenty days be-

fore trial. Nicholas Angelo was mentioned in the EEOC

charge and, thus, was not granted summary judgment.

Ruben argues that denial of the above motions pre-

cluded the district judge from later imposing a sanction,

since the denials gave him reason to believe that the case

had merit. See Jones, supra, 789 F.2d at 1231 n.4 (sug-

gesting sanction precluded where district court failed to

grant individual employees’ motion to dismiss on legal

The record does not reflect any participation in the liti-

gation by these three defendants until after Rathbun moved

in January of 1983 for a default judgment against them. Their

subsequent motions to file answers were granted.

App. 23

grounds). The school board members, however, continue

to argue on appeal that there was no legal justification

for naming them as defendants. They argue that under

Ohio law they were not Rathbun’s ‘‘employers’’ so as to

create liability under Title VII. They also reassert that

they were not named in the EEOC charge.

The denial of the motions for summary judgment pre-

cludes a sanction on the ground that the claims against

them were legally insufficient. Where a complaint con-

tains ‘‘glaring legal deficiencies,’’ the deficiencies and

any ambiguities can be so easily resolved by motion that

it is not unduly burdensome to defend. See Jones, supra,

789 F.2d at 1231-32. A sanction is generally improper

where a successful motion could have avoided any addi-

tional legal expenses by defendants. Oliveri, supra, 803

F.2d at 1280; Obin, supra, 651 F.2d at 588 & n.15; Brown-

ing, supra, 560 F.2d at 1088. Such motions were filed and

denied.’ To the extent defendants now argue Rathbun

included legally groundless claims of mental anguish, emo-

tional distress, and medical treatment, their failure to

promptly file a motion to dismiss these prayers for relief

8This appeal does not address the correctness of the de-

nial of defendants’ motions, but only the imposition of the

sanctions. (Three district judges presided over this case at

various times. The bulk of the dispositive motions mentioned

above were perfunctorily decided on two days in late January

of 1983 by the second judge involved with the case, before the

case was reassigned to the judge who presided over the trial

and fee motions that are the subject of this appeal.) Thus, we

must accept as correct the district court’s refusal to dismiss most

of the defendants on /egal grounds. While Pegues and Berar-

ducci were dismissed on legal grounds, the district judge’s sanc-

tion opinion does not differentiate them from Rathbun’s joining

other individual defendants whose motions were denied.

App. 24

precludes a determination that Ruben acted in bad faith

in joining the prosecution of the complaint as a whole.

Since none of the above motions was predicated on the

underlying facts, the denial of the motions did not preclude

the district judge from imposing sanctions if the case was

factually frivolous. The order imposing sanctions makes it

clear, in fact, that it was not the legal insufficiency of the

complaint that led to the sanctions but the laek of factual

support for the case. We have, however, already rejected

a factual predicate for sanctioning Ruben.

B. Bad Faith Misconduct in the Course of the Litigation

The only possible rationale for finding ‘‘bad faith’’ by

Ruben lies in his conduct during the course of the litigation.

The record shows that Ruben’s involvement was more sig-

uficant than he admits. Ruben revised a brief in opposi-

tion to a motion, and he attended a pretrial conference, a

discovery meeting, Rathbun’s deposition (the only one

taken), and the opening day of trial. Although Ruben

claims he served without compensation, in a telephone call

to one of defendants’ lawyers it was represented that Rath-

bun had retained Ruben at a rate of $150 an hour. Ruben

wrote a letter to defendants’ attorneys asking he be served

with copies of all pleadings, although it appears that, with

one exception, none was sent him. This involvement was

not insignificant, especially considering the apparently

minimal preparation put forth by Lester. We find rea-

sonable the district judge’s conclusion that, given the dif-

fering levels of experience between Lester and Ruben,

Ruben played an influential role in the case.

PP ar Nay Cee, ee

App. 25

In March of 1982, Lester sent to James Ries, the assist-

ant city law director originally defending the case, a letter

threatening a burdensome deposition schedule if defen-

dants did not settle. The offer was refused, yet no one

was deposed. (In fact, other than some interrogatories,

Rathbun’s attorneys conducted no discovery.) The dis-

trict judge relied on this fact in levying the sanctions.’

Ruben relies on Lester’s assertion at the sanction hearing

that Ries encouraged him (Lester) to file a settlement offer

that compared the expected costs of litigation if the case

went to trial. Ruben also argues that he was not involved

in the sending of the threatening letter and that, in any

case, there is no showing it in any way multiplied the pro-

ceedings or prejudiced defendants.

A second event also figuring prominently in the dis-

trict judge’s imposition of sanctions was a motion filed by

Weiner on Lester’s behalf to disqualify defendants’ attor-

neys on the mistaken grounds of conflict of interest.’? A

discrete sanction had already been levied against Weiner

for the filing of the motion. Ruben argues that the motion

was filed in a good faith mistaken belief of the facts. Sec-

ond, he argues that, although the motion itself was not

withdrawn, the motion was promptly ‘‘rectified’’ by Rath-

bun’s reply brief on the motion, which removed the name

of one of defendant’s attorneys. Third, Ruben argues that

%Combined with other “bad faith’ tactics, a threat of nu-

merous depositions may be the basis of a bad faith award against

an attorney. See Browning, supra, 560 F.2d at 1089.

1A groundless motion to disqualify opposing counsel may

support a sanction under 28 U.S.C. § 1927. See Wold v. Min-

erals Eng’g Co., 575 F.Supp. 166 (D.Colo. 1983).

there was, in fact, a conflict. This last argument is con-

tradicted by Weiner’s concession at the sanction hearing

that there was no factual foundation for the motion.

Fourth, despite evidence that Ruben participated in the

filing of the motion, he argues that his input was minimal

and strictly academic.

Many, if not most, of the problems that arose in the

case are attributable to inadequate pretrial conduct by

Rathbun’s attorneys. Discovery by Rathbun was almost

nil. Lester and Ruben failed to file a trial brief and list

of exhibits and witnesses before trial." On the first day

of trial, they were granted leave to file their papers the

following day, which they did. The district judge recited

these facts as evidence of bad faith and the cause of addi-

tional expense to defendants, although he did not state

specifically what effect the delay had on defendants.

Ruben argues that there was no prejudice to defendants in

the one-day delay in filing the trial materials." In seeking

Proceeding to trial upon inadequate evidence may lead

to a sanction under 28 U.S.C. § 1927. See Lewis v. Brown &

Root, Inc., 722 F.2d 299 (5th Cir.), cert. denied, 467 U.S. 1231

(1984). However, while an attorney may be sanctioned for not

acquiring facts necessary to rebut his good faith belief that

the case warranted prosecution, inadequate pretrial prepara-

tion by itself (contrary to the district judge’s suggestion) cannot

justify a conclusion that Ruben pursued the case in bad faith.

See Fisher v. Fashion Institute of Technology, 491 F.Supp. 879,

890 (S.D.N.Y. 1980).

12As an attorney of record, Ruben could be held account-

able for failure to take discovery or comply with pretrial orders.

See Jones, supra, 789 F.2d at 1232; Lipsig v. National Student

Mktg. Corp., 663 F.2d 178 (D.C. Cir.1980). However, we think

that the district judge’s willingness to accept the trial materials

one day later, without imposing a sanction at the time, pre-

(Continued on following page)

App. 27

to uphold the sanctions, defendants also point out that

Lester and Ruben were late the first day of trial and failed

to have enough witnesses present on the third day of trial

to occupy the day. Ruben also failed to appear at trial

after the first day. The district judge recited this as fur-

ther evidence of his unprofessionalism." Ruben argues

in response that he did not appear after the first day be-

cause his role was ancillary and there was no need for him

to be there.

As we have noted, the basis for the district judge’s

sanction against Ruben is not clearly delineated. The

district judge apparently sanctioned Ruben under his in-

herent powers, rather than 28 U.S.C. § 1927, because he

considered the cumulative nature of the facts to constitute

gross unprofessional conduct for an attorney of record.

(Continued from previous page)

cluded him from later sanctioning Ruben for this delinquency.

Cf. Potlatch v. United States, 679 F.2d 153 (9th Cir. 1982) (dis-

trict court abused discretion in excluding documentary and wit-

ness evidence because of late filing, where party complied as

well as possible, no intent not to comply with court’s deadline,

no prejudice to opposing party, and court expressed willingness

to generally extend discovery deadlines and accept late filing

if certain condition satisfied); Vac-Air, Inc. v. John Mohr & Sons,

Inc., 471 F.2d 231 (7th Cir. 1973) (while not condoning attor-

ney’s failures, including failure to timely answer interrogatories

court reversed sanction of default where interrogatories were

answered shortly after due and attorney had already paid fine

for conduct that was partial basis for default).

While failure to appear for trial may, in a proper case, re-

sult in a sanction under 28 U.S.C. § 1927, see In Re: Jacques,

supra; see also Coston v. Detroit Edison Co., 789 F.2d 377 (6th

Cir. 1986), non-appearance for a court proceeding does not

appear to be punishable where co-counsel is present in lieu

of the subject attorney. See United States v. Delahanty, 488

F.2d 396, 399-400 (6th Cir. 1973).

App. 28

Ruben argues that because he did not control the litiga-

tion, it was improper to sanction him.'* While Ruben’s

ancillary role could not entirely protect him, it would per-

haps have been better for the district judge to advise him

to either withdraw from the case or take over its manage-

ment when it first became apparent that the ease had

severe problems.

That portion of the sanction attributable to Ruben’s

alleged misconduct must be reconsidered by the district

judge with more exacting scrutiny. A district judge should

not await the aggregation of what he considers multiple

acts of misconduct and then levy an aggregated sanction

without at least warning the attorneys at the time of each

act or reserving decision upon timely requests by opposing

counsel. Diserete acts of vexatious conduct should be

identified and a determination made whether they were

done in bad faith or, even if bad faith was not present,

whether they multiplied the proceedings pursuant to 28

U.S.C. § 1927. Because the district judge did not analyze

the impact upon defendants of discrete acts of claimed

misconduct, remand is necessary to allow the district judge

to make such a determination. As the Court of Appeals

for the Second Cireuit noted in Browning, supra:

[Ijn an action not itself brought in bad faith, an

award of attorneys’ fees [against a plaintiff's attor-

ney] should be limited to those expenses reasonably

incurred to meet the other party’s groundless, bad

faith procedural moves. No attempt was made below

to relate claimed expenses, costs, and fees to particu-

lar bad faith maneuvers. See In re Boston & Provi-

14See Conley v. KFC Corp., 622 F.Supp. 767 (W.D.Ky. 1985).

i i a =

SELL A CTR A ADE eR NN Ki tT tt,

App. 29

dence R.R. Corp., 501 F.2d 545, 550 (1st Cir. 1974).

Accordingly, we remand for more specific findings as

to those procedural motions or other actions, under-

taken in bad faith, without justification or for an im-

proper purpose, such as harassment or delay, and as

to the expenses, costs, and attorneys’ fees reasonably

incurred by the opposing party or parties in meeting

such improper motions, actions, or delays.

560 F.2d at 1089.

The extent to which Ruben’s misfeasance, if any,

caused defendants to incur additional expenses should be

explored on remand.'® While we endorse the view that

sanction proceedings should not be allowed to bloom into

protracted satellite litigation, see Westmoreland v. CBS,

Inc., 770 F.2d 1168, 1179 (D.C. Cir. 1985); Advisory Com-

mittee Notes to 1983 Amendment to Rule 11, 97 F.R.D.

198, 201 (1983), a district judge faced with a sanction mo-

tion must make certain findings in determining that an

award is appropriate. Careful analysis and discrete find-

ings are required, no matter how exasperating the case.

The grounds for sanctions explored here are designed to

improve the litigation process, but improvement cannot

come at the expense of vigorous advocacy. District courts

must strike a delicate balance between protecting the ad-

Ruben argues that the district judge improperly sanctioned

him the same amount as Lester—for every alleged act of mis-

conduct from the inception of Rathbun’s case—even though

he (Ruben) did not join the litigation until much later. Ruben

also argues that he never received an affidavit of hours from

one of defendants’ attorneys. We need not address these

claims since, on remand, both defense attorneys will be re-

quired to file affidavits setting forth with specificity the time

pein incurred defending against claimed vexatious acts by Ruben

only.

App. 30

versary system and not allowing attorneys to exploit the

system for their own purposes.

For the foregoing reasons, we REVERSE the sanc-

tions as to Rathbun and REMAND for proceedings not in-

consistent with this opinion as to Rathbun’s liability for

defendants’ costs and Ruben’s liability under the district

judge’s inherent power of 28 U.S.C. ¢ 1927. On remand,

we contemplate that the district judge will require defen-

dants’ attorneys to amend their motions to identify the

claimed misconduct by Ruben and the extra efforts re-

quired by them as a result. The district judge can then

proceed to consider their motions anew.

App. 31

APPENDIX B

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

JEANNE RATHBUN ) CASE NO.

) C80-1914-Y

Plaintiff )

) JUDGE

4 ) SAM H. BELL

)

CITY OF WARREN BOARD ) ORDER

OF EDUCATION, et al. )

) (Fited October

Defendant ) 22, 1985)

On October 16, 1980, the plaintiff Jeanne Rathbun filed

the above-entitled action against her employer, the War-

ren City School District Board of Education. Also named

as defendants were several members of the board of edu-

cation and various employees of the school system all of

whom were named in their individual capacity. On June

26, 1984, a four day trial to the court commenced, and

at the conclusion of the plaintiff’s evidence, the court

granted all of the defendants’ motions for dismissal pur-

suant to Rule 41(b) of the Federal Rules of Civil Proce-

dure. Thereafter, on July 6, 1984, the court issued formal

Findings of Fact and Conclusions of Law in accordance

with Rule 52(a) of the Federal Rules of Civil Procedure.

An appeal of this judgment was timely filed by the plain-

tiff. On September 24, 1984, the Sixth Cireuit Court of

Appeals dismissed the appeal for want of prosecution un-

der Rule 18(d) of the Rules of the Sixth Circuit.

App. 32

Presently before the court are two motions for an

award of attorney fees. The first was filed by Craig Lei-

ster, counsel for the individual board members, and the

second by Charles Richards, counsel for the Warren Board

of Education and the employees of the school system. All

of the defendants are seeking an award of fees from the

plaintiff, and from three of the attorneys who represented

her throughout these proceedings, Elliot Lester, Alan

Miles Ruben and Keith Weiner. Mr. Lester and Mr.

Weiner are attorneys presently engaged in the private

practice of law, while Mr. Ruben is a professor at the

Cleveland Marshall College of Law at Cleveland State

University. Mr. Ruben’s participation in the action, how-

ever, was in his capacity as a private attorney and not as

a representative of the College of Law or Cleveland State

University. All three men are admitted to the bar of the

United States District Court for the Northern District of

Ohio and are currently in good standing in that court.

On March 15, 1985, the court conducted a hearing on

the defendants’ motions for an award of attorney fees. At

that hearing Mr. Ruben was represented by counsel while

Mr. Weiner and Mr. Lester appeared on their own behalf.

Presumably, all three men were continuing to represent the

plaintiff since they have not withdrawn from representing

her nor have they requested leave to do so. Singularly,

it should be noted that no argument or briefs were ad-

vanced on Mrs. Rathbun’s behalf by any of the attorneys.

Instead, each of them advanced positions on behalf of

themselves. After considering the record and the argu-

ments by counsel, the court hereby grants the motions for

attorney fees and enters its findings as follows.

App. 33

The first issue to be addressed involves the jurisdic-

tion of this court to determine an award of attorney fees

at this stage of the proceedings. The defendants contend

that they are entitled to an award of fees against both the

plaintiff and her counsel under Title VII of the Civil

Rights Act of 1964 as amended, 42 U.S.C. § 2000e et seq.

(hereinafter Title VII). Specifically, they claim that fees

should be awarded against plaintiff’s counsel pursuant to

the sanction provisions in Rule 11 of the Federal Rules of

Civil Procedure, and through similar sanctions available

under 18 U.S.C. § 1927. In addition, the defendants assert

that jurisdiction for awarding fees against plaintiff’s

counsel is available by reason of the inherent power of a

district court to sanction an attorney in a proper case.

Mr. Ruben and Mr. Weiner have argued that this

court lacks subject matter jurisdiction over the attorney

fee issue, inasmuch as the Sixth Circuit Court of Appeals

had already dismissed the appeal for want of prosecution

at the time the defendants filed their motions for attorney

fees. It is counsel’s position that once the court of ap-

peals dismissed the appeal, this court lost all jurisdiction

over the awarding of fees. In support of their jurisdic-

tion contention, plaintiff’s counsel rely upon the decision

of the Seventh Cireuit Court of Appeals in Overnite

Transp. Co. v. Chicago Indust. Tire Co., 697 F.2d 789 (7th

Cir. 1983). The Seventh Circuit found that a district court

did not have subject matter jurisdiction over a motion to

award attorney fees under 28 U.S.C. § 1927, which was filed

after the underlying action had been affirmed on appeal.

In Overnite, the defendants’ motion for attorney fees was

App. 34

filed eight months after the original dismissal of the ac-

tion by the trial court and nineteen days after the mandate

was returned to the district court by the court of appeals

which affirmed the judgment.

In holding that the filing of a motion for attorney

fees after the underlying action was affirmed on appeal

was unreasonable and outside of the district court’s juris-

diction, the Overnite court found as follows:

Moreover, if there has been no appeal of the

court’s decision on the merits of a case, a fair read-

ing of Terket reveals that absent a specifie statute or

other rule, a motion for attorney’s fees and costs must

be filed with the district court within a ‘‘reasonable

time’’ or as ‘‘expeditiously as possible,’’ after a judg-

ment on the merits is entered. In the instant case no

motion requesting attorney’s fees was filed with either

the district court or this court during the pendency

of Overnite’s original appeal of the merits. It was

not until two months after this court affirmed the dis-

trict court’s dismissal of the plaintiff’s action that the

defendant filed its motion for fees and costs. There-

fore, since the defendant failed to file a motion before

any court requesting attorney’s fees while the appeal

on the merits was pending, and because the district

court did not reserve jurisdiction nor was jurisdiction

expressly reserved by statute, we hold the defendant

did not file its motion within a reasonable time... .

(Footnotes omitted.)

Overnite Transp. Co. v. Chicago Indust. Tire Co., supra

at 793, citing Terket v. Lund, 623 F.2d 29 (7th Cir. 1980).

Although the Supreme Court has never specifically

addressed the issue of when a motion for attorney fees

should be filed in an action arising under Title VII, that

Court has discussed the time limitations for filing a fee

application in civil rights actions pursuant to 42 U.S.C.

App. 35

§ 1988. In White v. New Hampshire Dept. of Empl. Sec.,

455 U.S. 445 (1982), the prevailing party sought attorney

fees four and one-half months after an appeal was dis-

missed and the parties had entered into a consent judg-

ment. The Court, while reinstating the district court find-

ing that the motion was timely filed, held that the time to

file a motion for attorney fees is a reasonable time which

is subject to the discretion of the district court, and that

the trial court should deny a motion for fees which ‘‘un-

fairly surprises or prejudices the affected party.’’ Id.

at 454.

Applying the standards set forth above, this court now

decides that all of the facts and circumstances surrounding

the action must be considered to determine whether a mo-

tion for attorney fees has been timely filed and is thus

within the jurisdiction of this court. To routinely find

that all motions for attorney fees be filed prior to the

termination of any appeal would contradict the finding in

White v. New Hampshire Dept. of Empl. Sec., supra. In-

stead, the court must examine the record to ascertain

whether the motion for attorney fees was filed in a rea-

sonable time and does not unfairly surprise or prejudice

the plaintiff and plaintiff’s counsel.

i. this action, the certified copy of the order of the

Sixth Cireuit dismissing the appeal was received and

docketed by the clerk of the district court on October 19,

1984, approximately two months after the filing of the

appeal. On October 30, 1984, the individual school board

members represented by Mr. Leister filed their motion for

attorney fees. The motion for fees filed by Mr. Richards

on behalf of the school board and its employees was filed

App. 36

on January 9, 1985. Under the facts and circumstances

of this action, this court finds that both motions were filed

in a timely and reasonable manner and do not unfairly

surprise or prejudice the plaintiff or her counsel.

Unlike the appeal in Overnite which was pending for

several months prior to resolution, the appeal in this ac-

tion was pending but for a brief period of time. Further,

the dismissal of the appeal was directly caused by the ac-

tions or inactions of the plaintiff and her counsel. It

was incumbent upon the plaintiff to either prosecute the

appeal or be subject to a dismissal for failure to comply

with the appellate rules. It is not unreasonable for de-

fense counsel to presume that the plaintiff will prosecute

her appeal once it was filed, and therefore the defendants

must be allowed some time to move for attorney fees.

Thus, the court is unable to find any prejudice to the plain-

tiff or her counsel by permitting the filing of the motions

for fees.

In addition, the court is unable to find that plaintiff

or her counsel should have been unfairly surprised by the

filing of these motions. The motions were filed within

one month and three and one-half months respectively of

the date upon which the appeal was dismissed in the Sixth

Cireuit. In light of the four and one-half months after

dismissal of the appeal time period determined in White

v. New Hampshire Dept. of Empl. Sec., supra, to have

been reasonable, the defendants’ actions in this case can-

not be deemed to be unreasonable. Additionally, the plain-

tiff and her counsel at trial were made aware that fees

could be sought by the defendants pursuant to the state-

ments made by defense counsel during their motions under

App. 37

Rule 41(b) of the Federal Rules of Civil Procedure. Fur-

ther, they should have been aware, by reason of the de-

fendants’ repeated assertions throughout the trial pro-

ceedings, that defendant considered the action to be friv-

olous, unjustified in fact_and law, and brought by the

plaintiff and her counsel in bad faith. Hence, the court

finds that the motions for awarding attorney fees were

filed within a reasonable time frame and that it has juris-

diction to entertain the motions.

The first substantive issue to be addressed is that

concerning the responsibility and liability of Mr. Weiner.

The record reveals that at the time of his involvement in

this action, Mr. Weiner had been a member of the bar of

this state for a very short time. In his capacity as a duly

licensed attorney, Weiner was employed as an associate

in the firm of Lester & Associates and worked on this case

on a limited basis under the supervision of Mr. Lester.

On January 5, 1983, plaintiff moved to disqualify all

of the attorneys representing the various defendants.

While this motion was admiitedly prepared by Mr. Weiner

while under the supervision and at the request of Mr.

Lester, and only after consulting with Mr. Ruben on the

legal issue raised therein, Mr. Weiner signed the motion.

That pleading asserted that the various defense counsel

had a conflict of interest because of their alleged multiple

representation of defendants. Specifically, the plaintiff

alleged as follows:

In the case at bar there exists an overwhelming

blatant appearance of conflicting interests between

both the Defendant Board and the Board Member De-

App. 38

fendants and as such Defendant’s counsel should not

only be disqualified, but should have been alert to these

conflicting interests and declined multiple represen-

tation of said Defendants. (Emphasis added.)

Plaintiff’s Brief in Support of the Motion to Disqualify

Counsel at page 3.

This statement is singularly inaccurate factually and

plaintiff’s counsel should have been aware of the inaccu-

racy at the time the motion was filed. The record and the

pleadings submitted by the various defendants clearly de-

lineate that the Warren Board of Education and its em-

ployees were being represented by Mr. Richards, while the

individual board members were being represented by Mr.

Leister. The alleged dual representation of defense coun-

sel of both the Warren Board of Education and the in-

dividual board members had no factual basis whatsoever.

The record reflects that these defendants were represented

by separate counsel. Thus, factually, the alleged conflict

in representation asserted by the plaintiff simply did not

exist at the time the motion was filed. ~All counsel in-

volved in this action should have been aware of the actual

representation of each defendant by simply reviewing the

pleadings in the record.

Rule 11 of the Federal Rules of Civil Procedure re-

quires that every pleading, motion or other paper which

is submitted to the court be signed by an attorney. In

addition, the rule provides as follows:

The signature of an attorney .. . constitutes a cer-

tification by him that he has read the pleading, mo-

tion, or other paper; that to the best of his knowl-

edge, information, and belief formed after reasonable

inquiry it is well grounded in fact and is warranted

App. 39

by existing law or a good faith argument for the ex-

tension, modification, or reversal of existing law, and

that it is not interposed for any improper purpose,

such as to harass or to cause unnecessary delay or

needless increase in the cost of the litigation. (Em-

phasis added.)

Further, the rule states that any attorney who violates the

provisions of this rule shall be subject to an appropriate

sanction, ‘‘which may include an order to pay to the other

party or parties the amount of the reasonable expenses

incurred because of the filing of the pleading, motion, or

other paper, including a reasonable attorney’s fee.’’

A motion for sanctions under Rule 11 should not be

lightly made by a party or granted by a court. This court

is very much aware of the serious effect the granting of a

sanction may have upon a lawyer’s professional record

and reputation in the community. In determining the ap-

propriateness of imposing any sanctions under Rule 11

against Mr. Weiner in this action, the court has reviewed

with care the Advisory Committee Notes to the rule which

states in pertinent part:

The rule is not intended to chill an attorney’s

enthusiasm or creativity in pursuing factual or legal

theories. The court is expected to avoid using the

wisdom of hindsight and should test the signer’s con-

duct by inquiring what was reasonable to believe at

the time the pleading, motion, or other paper was

submitted. Thus, what constitutes a reasonable in-

quiry may depend on such factors as how much time

for investigation was available to the signer; whether

he had to rely on a client for information as to the

facts underlying the pleading, motion, or other paper;

whether the pleading, motion, or other paper was

based on a plausible view of the law; or whether he

App. 40

depended on forwarding counsel or another member of

the bar.

Applying this criteria to the conduct of counsel in this

case, the court finds that sanctions should be imposed.

At the hearing on the motion for attorney fees and

sanctions, the court addressed a direct inquiry to Mr.

Weiner to determine the extent of his investigation into

the underlying facts prior to his filing the motion in ques-

tion. Mr. Weiner replied that he had done little investi-

gation and, in fact, had never reviewed the pleadings in

this action to ascertain which defendants were represented

by Mr. Richards and which defendants were represented

by Mr. Leister. Instead, Mr. Weiner stated that because

the file in this matter was quite large and there were

numerous defendants, the actual representation of the

various defendants was confusing and unclear to him.

This careless approach to the filing of a serious and

unjustified charge of professional misconduct and con-

flict of interest upon each member of defense counsel! war-

rants the assessment of sanctions. The purpose of Rule

11 is to prevent and eventually end the filing of motions,

pleadings, and other paper by counsel which are totally

unfounded and not warranted by either the facts or the

law. The motion which Mr. Weiner filed clearly comes

under the rule. It further appears that the motion was

filed with the sole purpose of disrupting the efforts of

the defense attorneys to obtain discovery and bring this

manner to trial. It is not the purpose of the rule to pre-

vent or preclude the filing of motions predicated upon

novel or unique legal theories or questions of fact. In-

stead, the purpose is to prevent a motion such as the one

App. 41

filed by Mr. Weiner, a motion which was never researched

in fact and was seemingly designed only to harass op-

posing counsel.

Mr. Weiner has asserted two separate theories for

the proposition that sanctions are inappropriate against

him. First he claims he was mereiy following the instruc-

tions of his supervisor Mr. Lester and advisor, Mr. Ru-

ben, and second, he asserts that he was acting as an em-

ployee of Mr. Lester and would be protected by the doc-

trine of respondeat superior. Both of these arguments

are totally without merit.

The fact that Mr. Lester and Mr. Ruben may have

been involved in the preparation and filing of the motion

to disqualify defense counsel does not alter Mr. Weiner’s

responsibility factually or legally. Mr. Weiner, was and

is a licensed attorney. As such, he had and has a legal

and professional responsibility under Rule 11 to abide by

the rule’s provisions which require that motions be filed

after reasonable inquiry. When counsel pursues a mo-

tion ‘‘that a reasonably careful attorney would have

known, after appropriate inquiry, to be unsound, the con-

duct is objectively unreasonable and vexatious.’’ Jn re

TCI Ltd, 769 F.2d 441, 445 (7th Cir. 1985). As an attor-

ney, and as a professional who actively prepared the mo-

tion and signed the document, Mr. Weiner is fully ac-

countable under Rule 11 for the filing of the motion. Al-

though Mr. Lester asserts that he alone is responsible for

the filing of unwarranted motions, his acceptance of re-

sponsibility does not alter the accountability of the attor-

ney who actually certifies that the motion fulfills the

standards required by Rule 11.

App. 42

The assertion of the doctrine of respondeat superior

as a defense to any sanctions under Rule 11 is without

foundation in the law. The doctrine has no application to

the actions taken by Mr. Weiner in this case. Rule 11 ap-

plies to the attorney who affixes his signature and thus cer-

tifies the document submitted to the court; it has no ap-

plication to his employer. Though counsel may serve his

business associates, his first and foremost duty is to the

Law.

In determining the amount of the sanctions to be im-

posed under Rule 11 against Mr. Weiner, the court may

consider all of the circumstances involved in this action

including the experience and standing of counsel. See:

Huettig & Schromm v. Landscape Contractors Council,

582 F.Supp. 1519, 1522 (N.D. Cal. 1984). Since Mr. Wein-

er’s participation in this action was limited to the motion

for disqualification and reply briefs to that motion, the

court feels it just to assess only a sanction for the attor-

ney fees which involved that motion. In considering a

monetary sanction against Mr. Weiner, the court notes

that he is a young attorney with a limited amount of ex-

perience, and that he relied to some extent upon the direc-

tions given by more experienced counsel, Mr. Lester and

Mr. Ruben. Thus, it is the hope of this court that the

sanction imposed against Mr. Weiner shall cause him in

the future to considvs the magnitude of his actions should

he file a motion which is not well founded in fact or re-

searched in the Law and also cause him to consider the

professional responsibility he has to his client and to the

other members of the bar and bench. Hence, this court

orders that Mr. Weiner pay $350.00 as attorney fees to

Mr. Richards and $150.00 as attorney fees to Mr. Leister

on behalf of their respective clients as a sanction for vio-

lating Rule 11.

App. 43

III

The next issue to be addressed by this court concerns

whether the defendants are entitled to an award of attor-

ney fees under Section 706(k) of Title VII, 42 U.S.C.

§ 2000e-5(k). The defendants contend that the plaintiff

and her counsel pursued this action in bad faith even

though they were aware that it was frivolous, unreason-

able and without foundation in fact and law.

In Christiansburg Garment Co. v. E.E.0.C., 434 U.S.

412 (1978), the Supreme Court discussed the awarding of

attorney fees to a ‘‘prevailing party’’ under Title VII.

The Supreme Court found that a prevailing plaintiff

should normally be awarded attorney fees under the act,

absent extraordinary circumstances. In reaching this

conclusion, the Court examined the legislative history

of Title VII, and noted that successful plaintiff is

vindicating a policy established by the Congress in expos-

ing unlawful employment discrimination. Thus, the Court

concluded that Congress intended to provide remuner-

ation for plaintiff’s counsel to compensate them for their

private role in enforcing the civil rights statutes by re-

quiring the defendant-employer, which engages in discrim-

inatory practices, to pay all of the costs including attorney

fees of the action.

The Christianburg Court further stated that it was

the legislative intent to provide additional protection to

a defendant from unwarranted actions brought against

him. This protection for defendants was the subject of

the discussion which follows:

The sparse legislative history of § 706(k) reveals

a little more than the barest outlines of a proper ac-

commodation of the competing considerations we have

App. 44

discussed. The only specific references to § 706(k) in

the legislative debates indicates that the fee provi-

sion was included to ‘‘make it easier for a plaintiff of

limited means to bring a meritorious suit.’’ During

the Senate floor discussions of the almost identical at-

torney’s fees provision of Title II], however, several

Senators explained that its allowance of awards to

defendants would serve ‘‘to deter the bringing of

lawsuits without foundation,’’ ‘‘to discourage friv-

olous suits,’’ and ‘‘to diminish the likelihood of un-

justified suits being brought.’’ If anything can be

gleaned from these fragments of legislative history,

it is that while Congress wanted to clear the way for

suits to be brought under the Act, it also wanted to

protect defendants from burdensome litigation having

no legal or factual basis. (Emphasis added, footnotes

omitted.)

Id. at 420.

Having found that Congress intended to provide some

protections to prevailing defendants, the Christiansburg

Court developed a standard which must be met in order

to award attorney fees to a prevailing defendant. The

Court stated,

In sum, a district court may in its discretion

award attorney’s fees to a prevailing defendant in a

Title VII case upon a finding that the plaintiff’s

action was frivolous, unreasonable, or without foun-

dation, even though not brought in subjective bad

fatth.

In applying this criteria, it is important that a

district court resist the understandable temptation to

engage in post hoc reasoning by concluding that, be-

cause a plaintiff did not ultimately prevail, his action

must have been unreasonable or without foundation.

This kind of hindsight logie could discourage all but

the most airtight claims, for seldom can a prospective

App. 45

plaintiff be sure of ultimate success. No matter how

honest one’s belief that he has been the victim of

discrimination, no matter how meritorious one’s claim

may appear at the outset, the course of litigation is

rarely predictable. Decisive facts may not emerge

until discovery or trial. The law may change or

clarify in the midst of litigation. Even when the law

or the facts appear questionable or unfavorable at

the outset, a party may have an entirely reasonable

ground for bringing suit. (Emphasis added.)

Id. at 421-422, Therefore, this court must determine

whether the plaintiff’s claim was ‘‘frivolous, unreasonable,

or without foundation’’ at the outset of this litigation or

‘‘that the plaintiff continued to litigate after it clearly be-

came so.’’ Jd. Further, should this court find that the

instant action was either brought or continued in bad

faith by the plaintiff or her counsel, ‘‘there will be an even

stronger basis for charging him with the attorney’s fees

incurred by the defense.’’ Jd.

The Sixth Cireuit Court of Appeals has recently dis-

cussed the Christiansburg standard for awarding attorney

fees to a prevailing defendant in civil rights actions. In

Tarter v. Raybuck, 742 F.2d 977 (6th Cir. 1984), the court

reversed the district court’s award of attorney’s fees to a

defendant since the underlying claim was not wholly mer-

itless or without foundation. In Tartar, the issue before

the district court involved a student’s fourth amendment

rights in the context of a physical search of the student

by a school official. Although the district court found

that the student had consented to the search, the consent

issue ‘‘was reasonably in dispute given the context of the

purported waiver of important constitutional rights. The

exact nature and extent of a student’s fourth amendment

App. 46

rights are not well settled.’’ Jd. at 988. Thus, the cir-

cuit court held that a fee award would not be justified

when a factual dispute exists and the plaintiff is assert-

ing a cause of action predicated upon the violation of

constitutional rights which are not well defined under the

law.

The Christiansburg standards have also been applied

recently by the Sixth Circuit to a fair housing action. In

Smith v. Smythe-Cramer Co., 754 F.2d 180 (6th Cir. 1985),

the court stated:

Application of these standards requires inquiry

into the plaintiffs’ basis for bringing suit. Awards to

prevailing defendants will depend on the factual cir-

cumstances of each case. While a showing of bad

faith is not required for an award of attorneys fees

to a prevailing defendant, such a showing would jus-

tify an award of fees. Additionally, courts have

awarded attorneys fees to prevailing defendants where

no evidence supports the plaintiff’s position or the

defects in the suit are of such magnitude that the

plaintiff’s ultimate failure is clearly apparent from

the beginning or at some significant point in the pro-

ceedings after which the plaintiff continues to litigate.

As the Supreme Court emphasized in Hughes, how-

ever, the mere fact that allegations prove legally in-

sufficient to require a trial does not, for that reason

alone, render a complaint groundless under Christians-

burg, 449 U.S. at 16, 101 S.Ct. at 179.

Id. at 183. The court further noted that awards of attor-

ney fees have been properly granted to defendants when

a plaintiff misuses the civil rights laws to collaterally chal-

lenge state judgments, Tonti v. Petropoulous, 656 F.2d

212, 215-16 (6th Cir. 1981), or when a plaintiff brings a

claim which is clearly barred by unambiguous ease law.

Werch v. City of Berlin, 673 F.2d 192, 196 (7th Cir. 1982).

App. 47

Unlike the novel legal issues presented to the trial

court in Tartar v. Raybuck, supra, the legal issues ad-

vanced by the plaintiff in this action involve a settled area

of the law. The plaintiff did not advance or even attempt

to advance facts or theories which would serve to effectu-

ate a change in existing law under Title VII; instead, she

asserted that a cause of action of discrimination based

upon sex and national origin factually existed under the

standards for Title VII actions set forth in McDonnell

Douglas Uorp. v. Green, 411 U.S. 792 (1973). Therefore,

any determination of whether the plaintiff’s filing and

prosecution of this action meets the standards for frivol-

ous claims under Christiansburg, involves a review of

factual circumstances surrounding the filing and prosecu-

tion of this case only in this manner may it be determined

whether a good faith belief of a factual dispute existed.

Conjunctive to with this determination is a review of

the involvement of plaintiff’s counsel, Mr. Lester and Mr.

Ruben. The defendants assert that both attorneys prose-

cuted this action in bad faith solely to extort a settlement

from the school board. Further, it is asserted that plain-

tiff’s counsel knew that the underlying claims and allega-

tions made by the plaintiff were frivolous and totally

without merit, but in spite of that knowledge continued to

press this litigation in the hope that due to the threat of

the expense of the litigation, some settlement could be

forced upon the defendants.

In addition to the authority contained in Rule 11, a

district court may assess attorney fees against an attorney

who comes before it pursuant to 28 U.S.C. § 1927, which

follows:

App. 48

Any attorney or other person admitted to conduct

cases in any court of the United States or any Terri-

tory thereof who so multiplies the proceedings in any

case unreasonably and vexatiously may be required

by the court to satisfy personally the excess costs, ex-

penses, and attorneys’ fees reasonably incurred be-

cause of such conduct.

This statute has been construed by the Supreme Court to

permit the awarding of attorney fees against counsel in

a civil rights action as sanction under limited cireum-

stances.

In Roadway Express, Inc. v. Piper, 447 U.S. 752

(1980), the Supreme Court found that attorney fees could

be assessed and awarded against a plaintiff’s counsel un-

der 28 U.S.C. § 1927 if counsel willfully abt es the judi-

cial process. The Court stated:

Of course, the general rule in federal courts is

that a litigant cannot recover his counsel fees. See

Alyeska Pipeline Co. v. Wilderness Society, 421 U.S.

at 257. But that rule does not apply when the oppos-

ing party has acted in bad faith. In Alyeska, we ac-

knowledged the ‘‘inherent power’’ of courts to ‘‘assess

attorneys’ fees for the ‘willful disobedience of a court

order ...as part of the fine to be levied on the de-

fendant [,] Toledo Scale Co. v. Computing Scale Co.,

261 U.S. 399, 426-428 (1923), ‘Fleischmann Distilling

Corp. v. Maier Brewing Co., supra, at 718; or when

the losing party has ‘acted in bad faith, vexatiously,

wantonly, or for oppressive reasons... .’ FD. Rich

Co. [v. United States ex rel. Industrial Lumber Co.},

417 U.S. [116], at 129 |(1974)] (citing Vaughan v.

Atkinson, 369 U.S. 527 (1962)). Td., at 258-259.

The bad-faith exception for the award of attorney’s

fees is not restricted to cases where the action is filed

in bad faith. ‘‘‘[B]ad faith’ may be found, not only

App. 49

in the actions that led to the lawsuit, but also in the

conduct of the litigation.’’ Hall v. Cole, 412 U.S. 1,

15 (1973). See Browning Debenture Holders’ Comm.

v. DASA Corp., 560 F.2d 1078, 1088 (CA2 1977). This

view coincides with the ruling in Link, supra, which

approved judicial power to dismiss a case not because

the substantive claim was without merit, but because

the plaintiff failed to pursue the litigation.

The power of a court over members of its bar is

at least as great as its authority over litigants. If a

court may tax counsel fees against a party who has

litigated in bad faith, it certainly may assess those

expenses against counsel who willfully abuse judicial

processes. (Footnote omitted.)

Id. at 765-766. Under this test, the trial court may only

award attorney fees if it makes a specifie finding that

plaintiff’s counsel’s conduct constituted or was tantamount

to bad faith. See In re TCI Ltd, supra, at 445; Dreiling

v. Peugeot Motors of America, Inc., 768 F.2d 1159, 1165

(10th Cir. 1985); United States v. Austin, 749 F.2d 1407,

1408 (9th Cir. 1984); Shimman v. International Union of

Operating Engineers, 744 F.2d 1226, 1230 (6th Cir. 1984).

In this regard, the court must review the actions and con-

duct of both Mr. Lester and Mr. Ruben separately.

Mr. Lester first entered an appearance in this action

on October 5, 1981 after original counsel obtained leave to

withdraw. Mr. Ruben filed his notice of appearance as

‘‘additional counsel’’ on January 25, 1982. Thereafter, all

court notices or orders were sent to both men by the clerk

of courts. At all pretrials conducted in this matter before

this court, one or both men attended on behalf of the plain-

tiff.

App. 50

On March 15, 1982, Mr. Lester sent a letter to the de-

fendants wherein he offered to settle this action for fifty-

four thousand dollars. In this letter, counsel advised the

defendants that their failure to accept this offer ‘‘will

dramatically increase Mrs. Rathbun’s legal fees and ren-

der settlement for fifty-four thousand ‘‘unrealistic.’’ Spe-

cifically, counsel stated ‘‘[t]his office estimates that tak-

ing into consideration a fifteen day trial, seventeen or

more depositions and various other costs, the total addi-

tional legal costs would be estimated at well over One-

hundred Thousand Dollars.’’ Contemporaneously, coun-

sel informed the defendants that unless the settlement

offer was accepted immediately, deposition subpoenas

would be sent to 22 employees and officials of the Warren

City School System. Many of these people were not par-

ties to this action. These depositions were to take place

in Cleveland, Ohio and would last an estimated ‘‘eight

hours per day per person.’’

Upon receipt of this letter, the defendants did not

agree to settle this litigation. In spite of defendant’s po-

sition, the 22 employees and officials of the school system

were never issued the subpoenas nor were any of them

deposed as stated in the Letter of March 15. In fact, the

only deposition ever conducted in this action was the depo-

sition of the plaintiff which was taken by the defendants.

The plaintiff did not undertake any depositions but in-

stead elected to conduct discovery through the issuance

of several sets of interrogatories to the various defen-

dants.

On March 29, 1984, a trial notice was issued, setting

this action for trial on June 26, 1984. Simultaneously,

App. 51

this court issued an order regarding the preparation of

counsel for trial, which order required counsel for all par-

ties to submit to the court proposed witness Lists, and

pre-marked exhibits two days prior to the trial. In addi-

tion, counsel was required to submit proposed findings

of fact and conclusions of law and trial briei’s. Although

this order was sent to all counsel of record, only defense

counsel complied with the court’s order regarding pre-

trial submissions. Neither attorney for the plaintiff com-

plied with the court’s order or requested leave to comply

prior to trial.

On the morning of trial, Mrs. Rathbun was repre-

sented by Mr. Lester and Mr. Ruben in the courtroom.

-The trial, however, was delayed because Mr. Lester was

late in arriving to commence trial. Upon Mr. Lester’s

arrival, the proceedings were yet further delayed in order

to ascertain the reasons for Mr. Lester and Professor

Ruben’s total failure to comply in any manner with the

court’s pretrial order of March 29, 1984. Thereafter, Mr.

Lester requested and was granted leave to file all pre-

trial submissions by 9:00 A.M. on the next day. The trial

of this matter then commenced with both Mr. Lester and

Mr. Ruben in attendance. The sole witness called on the

first day of trial was the plaintiff herself.

On June 27, 1984, Mr. Lester filed his pretrial sub-

missions which included a witness list with twenty-one

people named. Among the purported witnesses was a man

who had recently undergone a serious heart operation

and was under the advise of his physician to remain bed-

ridden. Also named as a witness was a man who had

died approximately eleven months prior to trial. State

App. 52

ment of the fact of his death was made part of the record

in this action on September 12, 1983.

Mr. Ruben did not attend the trial proceedings after

the first day. Prior to his absence the court was not in-

formed that he would no longer participate in the trial

proceedings, nor was his absence ever explained.

On the third day of trial, the plaintiff did not have

sufficient witnesses to complete the day, even though

counsel had been previously made aware of the court’s

daily schedule for trial and had been requested to sched-

ule his witnesses accordingly. Until this time, Mr. Lester

had called as witnesses Mrs. Rathbun, her husband, a

friend of the plaintiff’s and the defendant’s representa-

tive at trial, Mr. Angelo. At this point Mr. Lester dis-

closed that none of the witnesses named or tis list had

yet been the subject of subpoena or even notified that

they could possibly be called as witnesses.’ Counsel as-

sured the court that he would personally have the sub-

poenas served that evening and that no further delays in

the trial would occur. Mr. Lester explained that he and

the plaintiff had limited financial resources and that he

was, at this point in the proceedings, prosecuting the

action on his own.

The next day, Mr. Lester called six witnesses who

were the plaintiff’s co-workers and who had been issued

subpoenas the previous evening. Several of these wit-

nesses testified that they knew nothing concerning the

subject matter of this litigation, and all testified that they

had very limited contact with the plaintiff. None of these

witnesses had been deposed or even interviewed by plain-

tiff’s counsel prior to testifying at trial. In fact, much

ii ill PN Raa eat oad sie SK

App. 53

of the evidence presented through these witnesses and

through earlier witnesses offered by the plaintiff con-

trasted sharply with the testimony offered by the plain-

tiff herself.

In essence, both of plaintiff’s attorneys’ preparation

and performance at trial were less than professional, to

say the least. Although the plaintiff brought this action

against five individual school board members and several

individual employees of the school systems, the record is

totally devoid of any evidence involving these people. In

fact most of the individua! defendants’ names, identities,

employment or official positions were never mentioned

by any witness including the plaintiff, nor do these de-

fendants’ names appear in any exhibit offered by the

plaintiff. Instead, the record establishes only that these

individual defendants had the misfortune of being so

named and were therefore forced to defend this lawsuit.

It is clear to the court that under the facts and cireum-

stances found in the record, the filing and prosecution of

this action against all of the individual defendants was

a frivolous and unwarranted act as defined in Christians-

burg. Further, this court can only reach one conclusion

regarding the purpose of this filing and prosecution by

the plaintiff and her counsel as it relates to the individ-

ual defendants. That conclusion is that the plaintiff, from

the inception of this action and her counsel from the time

they entered appearances in this case, acted with the

intent to extract some monetary settlement from several

individuals associated with the school system because of

the threat of defending and expense of litigating this

action, even though the plaintiff had no evidence either

direct or circumstantial of any wrongdoing or liability

App. 54

on the part of these individual defendants. The actions

on the part of Mrs. Rathbun, Mr. Lester and Mr. Ruben

of bringing and prosecuting unfounded charges of inten-

tional discriminaton against the innocent individual de-

fendants are totally contradfetory to the legislative pur-

pose of Title VII and the other civil rights laws of this

country. Under such circumstances, as heretofore de-

scribed, the court finds that the plaintiff, Mr. Lester and

Mr. Ruben have all acted without requisite good faith by

charging and prosecuting the individual defendants when

they neither had nor produced a single thread of evidence

against these defendants. Further, the testimony of the

plaintiff herself clearly demonstrated that she had no

evidence whatsoever which would indicate any discrimi-

natory or unlawful action on the part of those individ-

uals.

The court also finds that the action against the War-

ren Board of Education was brought by the plaintiff and

prosecuted by Mr. Lester and Mr. Ruben in bad faith. In

her pleadings, the plaintiff alleged that the actions of

her employer against her were a result of unlawful dis-

crimination in violation of Title VII. At trial, Mrs. Rath-

bun testified that she was denied overtime opportunities

by the board of education and that she received burden-

some work tasks and a retaliative transfer. to another

school. However, all of the relevant evidence offered by

Mrs. Rathbun, including some of her testimony and that

of the other witnesses which she otfered, disputed and

contradicted each and every claim.

The record reveals factually that Mrs. Rathbun did

receive numerous overtime opportunities with the school

65 ES ah Etec aL Si sean VE (ee

App. 55

board. This was true even though she was at that time

only a substitute employee of the school system, and was

not entitled under school policy to work overtime unless

all of the regular employees were first offered the over-

time work. Further, the record reveals that Ms. Rathbun

was actually aware that she was working as much or

“more overtime as her male co-workers, but wanted to

work even more hours. ‘he total lack of evidence of

unconstitutional or discriminatory acts presented at trial

by the plaintiff is grounds for awarding attorney fees

against Mrs. Rathbun. See Lewis v. Brown & Root, Inc.,

711 F.2d 1287 (Sth Cir. 1983) cert denied —U.S. —, 104

S. Ct. 2690, 81 L.Ed.2d 884 (1984).

Additionally, the record reveals that Mrs. Rathbun

was transferred to an elementary school close to her home

after an incident occurred between her and a male co-

worker while she was employed at the high school. ‘This

incident involved a physical attack upon the plaintiff by

the co-worker. Subsequent to this attack, the school board

met to administer a severe discipline against the man.

However, at the request of Mrs. Rathbun, no discipline

was administered against the co-worker. There was no

evidence offered by the plaintiff that her transfer after

this incident was for a2 discriminatory reason. The sole

evidence offered by the plaintiff demonstrated that the

transfer was to alleviate the plaintiff’s concerns about

working with the men at the high school and to provide

her employment closer to her home. Thus, the action

against the Warren Board of Education was totally un-

supported by any evidence of discriminatory conduct and

must be considered to be frivolous, without foundation in

fact, and lacking in good faith.

App. 56

The actions of Mr. Lester and Mr. Ruben, as thoy

concern the Warren Board of Education, must also be

considered to be suspect. Both men knew or should have

known that the prosecution of this action was warrant-

less. Therefore, counsel’s actions can only be considered

to have been conducted with an eye to compelling defen-

dants to enter into a settlement so as to avoid the ex-

pense of litigation. The attorneys not only continued to

prosecute this action, with knowledge of its merits, but

engaged in a course of conduct which harassed the de-

fendants and their counsel. First, Mr. Lester sent the

‘*proposed settlement’’ letter of March 15, 1982 which

offers the defendants the alternative of settling the action

for fifty-four thousand dollars or face twenty-two immi-

nent depositions, a fifteen day trial and one hundred

thousand dollars in legal fees. When this proposal was

rejected and the defendants cominenced their own dis-

covery requests, Mr. Lester instructed Mr. Weiner to file,

under the guidance of Mr. Ruben, the previously men-

tioned motion to disqualify counsel. Finally, the approach

taken by Mr. Lester and Mr. Ruben to the preparation

for and conduct of the trial raises grave questions con-

cerning their regard for their professional responsibility

to fellow members of the bar and to the litigants who come

before this court.

The activities of counsel previously described, to-

gether with the posture taken by plaintiff herself, pre-

sent an unparalleled example of an abusive use of the

system of justice in the civil rights area. Such an abuse

of Title VII and conduct of counsel can not be tolerated

by this court. Hence, this court shall award appropri-

ate fees against each of the parties involved.

Oy eal St ma eS

ened

App. 57

When making a determination of the attorney fee

award, the court must consider the reasonableness of the

hours expended and the reasonableness of the rate

charged. Hensley v. Eckerhart, 461 U.S. 424 (1983). The

Sixth Cireuit has expressly set forth the guidelines for

awarding attorney fees under 42 U.S.C. § 1988. In North-

cross v. Board of Ed. of Memphis City Schools, 611 I".2d

624 (6th Cir. 1979), cert. denied, 447 U.S. 911 (1980), the

court held that:

[t]he district court should indicate on the record the

number of hours it finds the plaintiffs’ attorneys

have expended on the case. This finding must first

take into account the affidavits of counsel. The hours

claimed need not be automatically accepted by the

district court, but to the extent that hours are re-

jected, the court must indicate some reaon for its

action, so that we may determine whether the court

properly exercised its discretion or made an error

of law in its conclusion. Hours may be cut for dupli-

cation, padding or frivolous claims.

/d. at 636. Although the Northcross decision involves a

prevailing plaintiff under section 1983, this court must

consider this guidance given by the circuit when award-

ing fees in this action. See also Murphy v. International

Union of Operating Engineers, Local 18, — F.2d — (6th

Cir. September 30, 1985).

Both attorneys for the defendants have submitted the

number of hours each expended in the defense of this

action. Mr. Leister, the attorney for the individual school

board members submitted his affidavit with supporting

documentation that reveals that his clients were billed

App. 58

$12,744.00 tor attorney fees and $716.17 for costs actually

incurred by counsel. In addition, Mr. Richards, the at-

torney for the Warren Board of Education and its em-

ployees, submitted his affidavit with supporting documen-

tation that reveals that his clients were billed $30,797.50

for_the defense of this action and $2,390.54 for costs in-

curred by counsel. It is not disputed that Mr. Richards

undertook the lead role for the defense and thus devoted

more billable hours to this case. Having reviewed the

documents and the hours expended by counsel, the court

finds that they are reasonable under the facts of this liti-

gation and the length of the trial.

When determining a reasonable hourly rate, a court

must examine ‘‘the fair market value of the services pro-

vided.’”’ Northcross v. Board of Ed. of Memphis City

Schools, supra at 638. The fair market value would be the

hourly rate charged by attorneys with similar ‘‘training,

background, experience and skill’’ as the plaintiff’s coun-

sel. Jd. In this action, the hourly rates charged by both

Mr. Leister and Mr. Richards must be found to be reason-

able after considering their respective backgrounds and

their performance before this court. Mr. Leister charged

between $65.00 and $55.00 per hour for all work performed

while Mr. Richards charged $70.00 per hours. These rates

are well within the rates charged by attorneys in the North-

ern District of Ohio and are thus found to be reasonable.

The final issue before this court involves the amount

of the award to be assessed against Mr. Lester, Mr. Ruben

and the plaintiff. In making the award against Mr. Lester,

the court must consider his involvement in this action.

App. 59

Much of the expense incurred by the defendants was a

direct result of Mr. Lester’s tactics prior to trial, his fail-

ure to comply with the court’s pre-trial order, and his

failure to provide a timely examination of witnesses at

trial. Hence the court in its discretion awards Mr. Leister

$2,500.00 and Mr. Richards $2,500.00 on behalf of their

client against Mr. Lester as a sanction for prosecuting this

action in bad faith.

The awarding of fees against Mr. Ruben requires

more explanation. Mr. Ruben asserts that he was acting

only as the advisor or teacher to Mr. Lester, and when

applicable, Mr. Weiner. Further, he contends, that he was

not an active participant in these proceedings but was

merely assisting a friend and former student. Thus, Mr.

Ruben attempts to avoid any responsibility for this ac-

tion by placing blame and responsibility upon Mr. Lester.

However, the record in this action will not permit Mr.

Ruben to-escape responsibility so conveniently by accusing

his co-counsel.

That record reveals that Mr. Ruben was in fact an

active participant in these proceedings from the date he

entered an appearance in this case through the trial. He

attended pretrials conducted by this court as a repesenta-

tive of the plaintiff. In addition, he appeared at trial as

plaintiff’s counsel and in that capacity is fully responsible

for the failure of the plaintiff to comply with the court’s

pretrial order or obtain witnesses for trial.

In essence Mr. Ruben appears to have wanted to have

participated in any possible success in this case or settle-

ment that may have been extracted from the defendants.

However, he also appears now to avoid any responsibility

App. 60

by claiming total ignorance of the facts of the case and the

manner in which it was prosecuted. It should be noted

that Mr. Ruben is not a newcomer to this bar, but instead

has practiced for many years and enjoys the reputation

associated with his employment at a fine institution. As

an experienced membéer~of tlie bar, he must surely be

charged with the knowledge and the responsibility that

counsel of record undertakes when he accepts the position

of representing a party in a lawsuit in the federal courts.

To state that he was unaware of the frivolous nature of

the plaintiff’s underlying claims and the harassment of

opposing counsel is simply not eredible. Hence, this court

also awards Mr. Leister $2,500.00 and Mr. Richards

$2,500.00 on behalf of their respective clients against Mr.

Ruben as a sanction for his participation in the course of

conduct pursued by plaintiff.

The balance of the fees incurred by the defense coun-

sel should be recovered from the plaintiff herself pursuant

to Section 706(k) of Title VII, 42 U.S.C. § 2000e-5(k).

The ultimate responsibility for the filing and prosecu-

tion of this case must be placed upon her beeause she knew

from the inception of this action that it was frivolous

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