Petition for Writ of Certiorari — Swan v. Ruben

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8'7 @ 3 5 | ) Supreme Court, U.S.

FILED Jf

OCT 27 1987

No.

YOSEPH F. SPANIOL, UR,

=BLERK

In The

Supreme Court of the United States

October Term, 1987

££)

WARREN CITY SCHOOL DISTRICT BOARD OF

EDUCATION, ROBERT L. PEGUES, ANTHONY

BERARDUCCI, NICHOLAS ANGELO, BART

WILSON AND WILLIAM HAAS

Petitioners,

ALAN MILES RUBEN AND JEANNE RATHBUN,

Respondents.

fy)

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

fy)

CuHar_es L. RicHarps,

Counsel of Record

Ricuarps, AMBrosy & FREDERICKA

Suite 300, The First Place

159 East Market Street

Warren, Ohio 44481

(216) 373-1000

Counsel for Petitioners

Warren City School District Board

of Education, Robert L. Pegues, An-

thony Berarducci, Nicholas Angelo,

Bart Wilson and William Haas

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

or cali collect (402) 342-2831

QUESTIONS PRESENTED

When defendant files a motion for an award of attor-

ney fees against a plaintiff and plaintiff’s counsel,

pursuant to 28 U.S.C. § 1927, what standard must the

district court apply to determine if counsel ‘‘ unreason-

ably and vexaciously’’ multiplied the proceedings.

May the court of appeals, on appeal of an award of

attorney fees made in favor of a defendant and against

a plaintiff and her attorney reverse the award on the

basis of an ‘‘abuse of disecretion’’ without also finding

that the trial court’s findings of fact and conclusions

of law issued under Fed. R. Civ. P. 52(a) are clearly

erroneous.

When counsel for plaintiff is found to have been guilty

of conducting litigation ‘‘in bad faith’’ and an award

of attorney fees against plaintiff’s counsel in

favor of the defendant is based upon such a finding,

is the award of attorney fees limited to the ‘‘excess’’

costs, expenses and attorney fees incurred because of

such conduct, even if the proper handling of the case

would have revealed the case to be frivolous in fact,

or where the bad faith conduct includes especially

egregious acts such as prosecution of the case to

extract money from the defendants.

What is the effect to be given by a federal district

court in deciding a motion for an award of attorney

fees against plaintiff and plaintiff’s counsel, of the

fact that an administrative agency, such as a state

civil rights commission, made a finding of probable

cause that discrimination had occurred.

What is the procedure to be followed by the federal

district court in ruling on a motion for an award of

attorney fees when the motion is directed against both

the plaintiff and her counsel, especially when plain-

tiff does not appear at the hearing on the motion

or when plaintiff’s counsel abandon plaintiff and

argue to preserve their own interests.

LIST OF PARTIES

Other parties, in addition to those listed in the cap-

tion of the complaint are the individual school board mem-

bers at the time that the suit was filed in the district court,

namely:

Catherine Swan

Henry Angelo

Willard Ruben

Raymond Tesner

Mary Milheim

In addition, the district court’s award of attorney fees

was made against two other attorneys not involved in this

appeal who are:

Elliott Lester

Keith Weiner

TABLE OF CONTENTS

Page

unease SOE i

Neen eieesecnnicnnenienee ii

SE ieee

Neen ee sth ae

LSS EC 2

STATUTORY PROVISIONS INVOLVED |... 2

Pieters UP tee CASE. 3

WHY THE WRIT SHOULD BE GRANTED |. 1]

CONCLUSION ae

APPENDICES:

Opinion of the United States Court of

Appeals for the Sixth Circuit, July 30,

Nee teeeecnmicncinernnmarerere Appendix A,

App. 1-30

Order of the United States District Court

for the Northern District of Ohio, Octo-

ber 22, 1986 ................. ROSEY RE Pea el en ae Appendix B,

App. 31-62

Findings of Fact and Conclusions of Law

of the United States District Court for

the Northern District of Ohio, July 6,

ele! STS Appendix C,

App. 63-72

Judgment entry of the United States

Court of Appeals for the Sixfh Circuit,

ES LE Appendix D,

App. 73

i ae

TABLE OF AUTHORITIES

Page

CasEs

Christiansburg Garment Co. v. EEOC, 434 US.

oy JE eee REL SEDER Tia oe Schr Pe a oe me 7)

Colucci v. New York Times Co., 533 F. Supp. 1011

8 a ere SE CANE rs Ae PRIOR 12

Dreiling v. Peugeot Motors of America, Inc., 768

F.2d 1159, 1165 (10th Cir. 1985) 12

Ford v. Temple Hosp., 790 F.2d 342 (3rd Cir. 1986) ...... 11

Haynie v. Ross Gear Div, of TRW, Inc., 799 F.2d

237 (6th Cir. 1986), cert. granted, — U.S. —, 107

rs Ro ccdicemettcientuiticeconnien 12

In re TCI, Lid., 769 F.2d 441 (7th Cir. 1985) 2. 12

Indianapolis Colts v. Mayor & City Council, 775

ae Be BS A | ee eiccee acne 13

Jones v. Continental Corp., 789 F.2d 1225 (6th

Cir. 1986) 12,13

Knorr Brake Corp. v. Harbil, Inc., 738 F.2d 223

(7th Cir. 1984) i 413, 13

Lewis v. Brown & Root, Inc., 711 F.2d 1287 (5th

Cir. 1983), aff’d in part on reconsideration,

722 F.2d 209 (5th Cir. 1984), cert. denied, 464

U.S. 1069, 467 U.S. 1231 (1964) CC 12,13

Shimman v. International Union of Operating En-

gineers, 744 F.2d 1226, 1230 (6th Cir. 1984) 00. ee |

T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors

Assn., 809 F.2d 626 (9th Cir. 1987) 00 12

United States v. Austin, 749 F.2d 1407, 1408 (9th

Cir. 1984) 12

STATUTES

Civil Rights Act of 1964, Title VII, 42 U.S.C.

§ 2000(e) et seq. 4

Civil Rights Act of 1964, Title VII, § 706(K),

3 Re | ee 2

28 U.S.C. § 1927 . 3, 10, 11, 13

In The

Supreme Court of the United States

October Term, 1987

_f)

WARREN CITY SCHOOL DISTRICT BOARD OF

EDUCATION, ROBERT L. PEGUES, ANTHONY

BERARDUCCI, NICHOLAS ANGELO, BART

WILSON AND WILLIAM HAAS

Petitioners,

ALAN MILES RUBEN AND JEANNE RATHBUN,

Respondents.

ff)

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

—_, |

Petitioners the Warren City School District Board of

Education, Robert L. Pegues, Anthony Berarducci, Nicho-

las Angelo, Bart Wilson and William Haas respectfully

pray that a writ of certiorari issue to review the judgment

and opinion of the United States Court of Appeals for the

Sixth Circuit, filed on July 30, 1987.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Sixth Cireuit, Case Nos. 85-3986 and 85-3987, is

reported at 825 F.2d 977 and is reproduced in Appendix A.

(App. 1-30).

The district court’s order awarding attorney fees was

filed on October 22, 1985 and is unreported. ‘This order is

reproduced in Appendix B. (App. 31-62).

The findings of fact and conclusions of law of the

United States District Court for the Northern District of

Ohio, Eastern Division, Case No. C80-1914-Y, were filed

October 22, 1985, and are unreported. These findings and

conclusions are reproduced in Appendix C. (App. 63-72).

JURISDICTION

The judgment of the Sixth Cireuit Court of Appeals

was entered on July 30, 1987. The jurisdiction of this

Court is invoked under 28 U.S.C. 4 1254(1).

co)

STATUTORY PROVISIONS INVOLVED

The Civil Rights Act of 1964, Title VII, Sec. 706(K),

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 attorneys fee as part of the costs, and the

Commission and the United States shall be liable for

costs the same as a private person.

28 U.S.C. § 1927:

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 vexaciously may be required

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

penses, and attorneys’ fees reasonably incurred be-

cause of such conduct.

STATEMENT OF THE CASE

Plaintiff Jeanne Rathbun was a naturalized citizen of

the United States of French origin. Plaintiff was hired by

petitioner, Warren City School District Board of Educativn

(Board of Education), in 1973 as a substitute janitor. In

October 1975, plaintiff became a regular employee of the

Board of Education as opposed to a substitute employee.

Plaintiff worked in various school buildings operated by

the Board of Education until December of 1981, when she

took a ‘‘medical leave’’ of absence and never worked again

within the Warren Board of Education school system.

On September 11, 1978, plaintiff filed a complaint with

the Ohio Civil Rights Commission charging discrimination

in connection with her employment. She also filed charges

with the Equal Employment Opportunity Commission on

October 16, 1978. In her Ohio Civil Rights Commission

complaint, plaintiff alleged sex discrimination by the

‘*Warren City Schools’’ and mentioned acts by Bart Wil-

son, a foreman of custodians and janitors, William Haas,

head eustodian of the school system, and Steve Hudock,

assistant head custodian of the school system. In her Equal

Employment Opportunity Commission charge, plaintiff

also alleged sex discrimination by ‘‘ Warren City Schools’’

and likewise mentioned Wilson, Haas, and additionally

mentioned Nicholas J. Angelo, once athletic director and

then supervisor of business operations for the school

system.

In March 1979 the Ohio Civil Rights Commission is-

sued a determination of probable cause that plaintiff's

allegations established a case of sex and national origin

discrimination. The Equal Employment Opportunity Com.

mission declined to pursue the matter in its own right and

issued a right to sue letter in July of 1980.

On October 16, 1981, plaintiff filed an action in the

United States District Court for the Northern District of

Ohio alleging employment discrimination and seeking re-

lief under Title VII of the Civil Rights Act of 1964 as

amended, 42 USC § 2000(e) et seq. The original com-

plaint was filed by Attorneys Shenyey, Berman and

Abakumov of Cleveland, Ohio. In addition to the Board

of Education, the defendants named in the original com-

plaint were Robert L. Pegues, Superintendent of the War-

ren City Schools; Anthony R. Berarducci, Assistant Su-

perintendent of the Warren City Schools; the five mem-

bers of the Board of Education at the time the suit was

filed (Catherine C. Swan, Henry Angelo, Willard Rubin,

Raymond Tesner and Mary Milheim), and also Nicholas

J. Angelo, Bart Wilson, William Haas, Steven Hudock

and a fellow janitor, Bernie Wilson, who died during the

pendency of the action.

}

Shenyey, Berman and Abakumov withdrew from the

case later in calendar year 1981. The defendants’ mo-

tions for attorney fees were not in any way directed at

Shenyey, Berman and Abakumov, but instead were directed

at their successors as counsel for plaintiff.

Plaintiff eventually filed a second amended complaint

and again alleged violations of Title VII of the Civil Rights

Act of 1964, 42 USC § 2000(e) et seq. The second amended

complaint became the operative pleading in terms of relief

requested by plaintiff.

Mrs. Rathbun alleged that she had been discriminated

against on the basis of her sex and national origin. That

discrimination allegedly took the following forms:

1. Denial of equal overtime

2. Verbal abuse

3. Involuntary transfer

4. Disparate workloads

On June 26, 1984, a trial to the court commenced in

the United States District Court for the Northern District

of Ohio before the Honorable Sam H. Bell. At the conclu-

sion of Mrs. Rathbun’s case on June 29, 1984, Judge Bell

granted motions for dismissal under Fed. R. Civ. P. 41(b)

on behalf of all defendants. On July 10, 1984, judgment

was entered in favor of all defendants dismissing Mrs.

Rathbun’s complaint with prejudice and findings of fact

and conclusions of law were adopted by the trial court.

Mrs. Rathbun filed a notice of appeal on the merits of

her claim on August 6, 1984. On September 24, 1984 the

Sixth Cireuit Court of Appeals dismissed Mrs. Rathbun’s

appeal for want of prosecution under Rule 18 of the local

rules of the Sixth Cireuit. A certified copy of that order

was filed in the trial court on October 19, 1984.

The individual school board members then filed a mo-

tion for attorney fees in the trial court on or about October

29, 1984. A second motion for attorney fees was filed on

behalf of the Board of Education and all other defendants

on January 9, 1985. After the filing of briefs and an cral

hearing on March 15, 1985, which was not attended by

Plaintiff Jeanne Rathbun herself but by her then attor-

ney, the district judge granted both motions for attorney

fees on October 22, 1985.

In his order granting fees, the district judge directed

the fees incurred on behalf of the individual school board

members to be paid as follows:

Mrs. Rathbun $ 8,321.17

Attorney Weiner 150.00

Attorney Lester 2,500.00

Attorney Ruben 2,000.00

$13,471.17

The Board of Education and other individual defen-

dants were awarded fees to be paid as follows:

Mrs. Rathbun $27,838.04

Attorney Weiner 350.00

Attorney Lester 2,500.00

Attorney Ruben 2,000.00

$33,188.04

Thus, Attorney-Respondent Alan Miles Ruben was or-

dered to pay only $5,000 of a total award of $46,959.21.

Attorney Ruben’s share of the total attorney fee award

was 10.7%.

From that order, an appeal was pursued on behalf of

Mrs. Rathbun and Attorney-Respondent Alan Miles Ruben.

Mrs. Rathbun’s other attorneys in the trial court, Elliott

Lester and Keith Weiner, did not appeal to the Sixth Cir-

cuit Court of Appeals.

Mr. Lester entered his appearance in the case on Oc-

tober 5, 1981 as successor to Shenyey, Berman and Aba-

kumov. On January 25, 1982, Mr. Ruben entered his ap-

pearance as ‘‘additional counsel’’ on behalf of Mrs. Rath-

bun. Ruben was a law professor from Cleveland Marshall

College of Law, Cleveland, Ohio, and was brought in to

help the inexperienced Elliott Lester, apparently because

of Ruben’s alleged experience in Title VII cases.

On March 15, 1982, about six weeks after Mr. Ruben

made his appearance as counsel, Mrs. Rathbun’s attorneys

sent a letter over Attorney Elliott Lester’s signature mak-

ing a settlement demand of $54,000. That letter threat-

ened defendants with the prospects of a ‘‘fifteen day trial,

seventeen or more depositions”’’ and ‘‘total additional legal

costs .. . estimated at well over One-hundred Thousand

DeHars.’’ The letter went on to list twenty-two individ-

uals to be deposed in Cleveland with depositions ‘‘expect-

ed to last eight hours per day per person.’’

In spite of the direct threat in the letter, Mrs. Rath-

bun’s attorneys did not depose a single person and no

worthwhile discovery was ever employed by plaintiff’s

counsel.

Mrs. Rathbun’s attorneys filed a motion to disqualify

all counsel on January 1, 1983. That motion sought to dis-

qualify all defense counsel in this case, nearly two and

one-half years after the action was commenced, on the

basis of an alleged ‘‘conflict of interest’? where absolute-

ly none existed. The motion was totally without sub-

stance or merit. The motion to remove counsel for con-

flict of interest was apparently the brain child of Attorney

Ruben who played a significant role in the planning and

strategy of the motion. The motion was overruled on

August 18, 1983.

Plaintiff’s counsel did not comply with District Judge

Bell’s pretrial order issued on March 29, 1984. In his

order, Judge Bell required counsel to submit to the court

proposed witness lists, pre-marked exhibits, proposed find-

ings of fact and conclusions of law, and trial briefs. Al-

though defense counsel complied with that order in every

respect, Mrs. Rathbun’s attorneys did not comply in any

regard prior to trial nor did they request leave to comply

until admonished by the trial judge on the first day of trial.

On the first day of trial, the proceedings were delayed

because Mrs. Rathbun’s attorneys were late. The proceed-

ings were further delayed because of her attorneys’ total

neglect in complying with the court’s pretrial order. Both

Mr. Ruben and Mr. Lester attended the first day of trial.

Thereafter, Mr. Ruben abandoned Attorney Lester, and

left him alone to prosecute the case, although Mr. Ruben

never withdrew as counsel and never explained his absence.

On the second day of trial Mrs. Rathbun’s attorneys

filed their pre-trial submissions which contained a witness

list of twenty-one people. That witness list included the

name 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.

On the third day of trial, Mrs. Rathbun did not pro-

duce witnesses to occupy the trial court’s daily schedule.

The only witnesses to have testified at that point were

Mrs. Rathbun, her husband, a personal friend, and Nick

Angelo, the defendants’ representative at trial. Mr. Lester

acknowledged to the court that none of the other witnesses

on Mrs. Rathbun’s witness list had been subpoenaed or even

notified that they might be called as witnesses.

On the fourth and final day of trial, six witnesses were

called to testify. At the conclusion of their testimony,

Mrs. Rathbun rested and moved through her counsel for

a judgment on her behalf. That motion was denied. Mo-

tions were then made on behalf of each defendant for judg-

ment under Civil Rule 41(b) and those motions were

granted. Judge Bell then filed findings of fact and con-

clusions of law.

The proceedings culminating in the award of attorney

fees against Mrs. Rathbun and her attorneys then followed.

In his thirty-three page award of attorney fees (Ap-

pendix B) the district court judge made a number of ex-

press findings and conclusions regarding the conduct of

counsel and the nature and quality of the plaintiff’s law-

suit. (App. 53-56). The judge determined that:

1. The filing and prosecution of the action against

all of the individual defendants was a frivolous and un-

warranted act as defined in Christiansburg Garment Co.

v. EEOC, 434 U.S. 412 (1978).

2. Plaintiff, from the inception of this action, and

her counsel, from the time they entered appearances in the

case, acted with the intent to extract some monetary set-

tlement from the several individuals associated with the

school system because of the threat of defending and ex-

pense of litigating this action.

3. Plaintiff, Mr. Lester and Mrs. Ruben all acted

without requisite good faith by charging and prosecuting

the individual defendants when they neither had nor pro-

duced a single thread of evidence against these defendants.

4. The action against the Warren Board of Educa-

tion was brought by the plaintiff and prosecuted by Mr.

Lester and Mr. Ruben in bad faith.

5. The action against the Warren Board of Educa-

tion was totally unsupported by any evidence of discrim-

inatory conduct and must be considered to be frivolous

without foundation in fact and lacking in good faith.

6. Both Mr. Lester and Mr. Ruben knew, or should

have known, that the prosecution of the action was war-

rantless.

7. The activities of counsel presented an unparalleled

example of an abusive use of the system of justice in the

civil rights area.

On appeal, the Sixth Cireuit Court of Appeals re-

versed and remanded the case to the trial court for further

proceedings. In doing so, the court of appeals invited in-

quiry ‘‘as to Rathbun’s lability for defendants’ costs and

Ruben’s liability under the district judge’s inherent power,

or 28 USC § 1927.’’ The Sixth Cireuit Court of Appeals

expressly noted that on remand:

[W]e contemplate that the district judge will re-

quire defendants’ attorneys to amend their motions

to identify the claimed misconduct by Ruben and the

extra efforts required by them as a result. The dis-

trict judge can then proceed to consider their motions

anew. (App. 30).

The Sixth Cireuit Court of Appeals completely wiped

out the award of attorney fees against plaintiff, but left

it to the trial court to determine whether plaintiff, because

of her possible indigency, should be held responsible for

costs in the trial court which amount to more than three

thousand dollars.

WHY THE WRIT SHOULD BE GRANTED

THIS CASE ILLUSTRATES THE MANY PROB-

LEMS FACING FEDERAL DISTRICT COURTS

IN RULING ON A MOTION FOR AN AWARD

OF ATTORNEY FEES AND ALSO DEMON.

STRATES THE PROBLEMS FACING THE CIR-

CUIT COURTS OF APPEAL UPON RE-

VIEW OF THESE AWARDS. THE PROBLEMS

RAISED BY THIS CASE ARE SIGNIFICANT,

OCCUR FREQUENTLY, AND HAVE YET TO

BE ADDRESSED BY THE SUPREME COURT

OF THE UNITED STATES.

The standard to be applied by the district judge in de-

ciding whether attorney fees should be awarded to the de-

fendant under 28 USC $1927 is not uniform among the

circuits. Indeed, very different standards are now being

applied.

The most restrictive standard requires a showing

of willful bad faith before an attorney can be sanctioned.

Ford v. Temple Hosp., 790 F.2d 342 (8rd Cir. 1986). The

Ninth Cireuit requires a showing of either reckless con-

duct or bad faith. T.W. Elec. Serv., Inc. v. Pacific Elec.

Contractors Assn., 809 F.2d 626 (9th Cir. 1987).

The Sixth Circuit appears to apply yet another stan-

dard. The Sixth Circuit would not require a showing of

intentional conduct or conscious impropriety, but would

require more than mere negligence or inadvertence. Jones

v. Continental Corp., 789 F.2d 1225 (6th Cir. 1986) ; Haynie

v. Ross Gear Div. of TRW, Inc., 799 F.2d 237 (6th Cir.

1986), cert. granted, — U.S. —, 107 S.Ct. 1624 (1987). The

Seventh Circuit also seems to follow an intermediate stan-

dard in holding that an express finding of bad faith is not

required, however some degree of culpability must be

shown, such as recklessness, or intentionally filing or prose-

euting a claim which lacks a plausible legal or factual basis.

Knorr Brake Corp. v. Harbil, Inc., 738 F.2d 223 (7th Cir.

1984) ; In re TCI, Ltd., 769 F.2d 441 (7th Cir. 1985). The

Sixth and Seventh Circuits seem to state a reasonable per-

son standard, in that an attorney can be sanctioned under

§ 1927 where a reasonably careful attorney would have

known or should have known that a claim was frivolous

or that litigation tactics would needlessly delay or ob-

struct the progression of the lawsuit. Jones, 789 F.2d

1225 (6th Cir. 1986); In re TCI, Ltd., 769 F.2d 441 (7th

Cir. 1985); Knorr Brake Corp., 738 F.2d 223 (7th Cir.

1984).

Some circuits require a showing of bad faith or malice.

In re TCI, Ltd., 769 F.2d 4411 (7th Cir. 1985); 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).

Some circuits measure the conduct of counsel against ac-

cepted standards of conduct used in litigation. Knorr

Brake v. Harbil, Inc., 738 F.2d 223 (7th Cir. 1984) ; Colucci

v. New York Times Co., 533 F. Supp. 1011 (S.D.N.Y.,

is Hoek an

1982). Other jurisdictions, including the Sixth Circuit,

have refused to apply the stringent bad faith or malice test,

and have applied the most objective test of all, which in-

volves an analysis of whether counsel filed or prosecuted

a case which was without plausible legal or factual basis.

Knorr Brake v. Harbil, Inc., 738 F.2d 223 (7th Cir. 1984) ;

Lewis v. Brown & Root, Inc., 711 F.2d 1287 (Sth Cir. 1983),

aff’d in part on reconsideration, 722 F.2d 209 (5th Cir.

1984), cert. denied, 464 U.S. 1069, 467 U.S. 1231 (1984) ;

Indianapolis Colts v. Mayor & City Council, 775 F.2d 177

(7th Cir. 1985); Jones v. Continental Corp., 789 F.2d 1225

(6th Cir. 1986).

The very opinion which this Court is being asked to

review demonstrates the problems which appellate courts

are having in determining and applying a standard to

gauge an attorney’s conduct when a motion is filed under

28 USC § 1927. Indeed, the Sixth Circuit, in an apparent

effort to find a way to reverse the studied opinion and

order of the trial judge, has abandoned the precedent even

its own circuit had previously set and came up with a new

standard defined as:

Conduct on the part of the subject attorney that trial

judges, applying the collective wisdom of their experi-

ence on the bench, could agree falls short of the obli-

gations owed by a member of the bar to the court and

which, as a result, causes additional expenses to the

opposing party. (App. 13).

It is certainly time for this Honorable Court to speak

on an issue involving conflict, not only among the circuits,

but within a given circuit, on such an important subject as

motions for awards of attorney fees.

The standard of review is unclear and its application

to particular cases has been inconsistent and has produced

uneven, conflicting appellate decisions.

While the standard of review in the reported cases ap-

pears to be one of ‘‘abuse of discretion,’’ a problem arises

whenever the district court makes express findings and

conclusions in its attorney fee award as did Judge Bell in

the instant case. The question presented by this appeal,

because of the manner in which the Sixth Circuit largely

ignored the trial judge’s findings of fact and conclusions

of law, is whether a reviewing court may find that an abuse

of discretion has occurred without first making a deter-

mination that the underlying evidence makes the trial

court’s findings of fact and conclusions of law upon which

the attorney fee award is based clearly erroneous.

When the test is abuse of discretion, reversal should

be both difficult and rare, yet it appears that awards by

district court judges, which are becoming more frequent,

and which are made by the person in the best position to

judge the conduct of counsel, are being reversed on a very

regular basis by the reviewing courts. Further, the prece-

dent established by the opinion of the Sixth Cireuit herein

establishes a procedural framework which is cumbersome,

largely unnecessary and which will result in a prolifera-

tion of the very ‘‘satellite litigation’’ which the Sixth Cir-

cuit seeks to avoid. (App. 29).

Petitioner submits that if Judge Bell’s carefully con-

sidered, thirty-three page opinion awarding attorney fees

on the basis of numerous specific findings of misconduct

and bad faith on the part of plaintiff and counsel is sub-

ject to reversal as an abuse of discretion, then it is cer-

tainly time for this court to step in and clarify this entire

subject matter, both substantively and procedurally, for

the bench and bar.

£)~

CONCLUSION

For the foregoing reasons a writ of certiorari should

issue to review the judgment and opinion of the Court of

Appeals for the Sixth Circuit.

Respectfully submitted,

Cuaries L. RicHarps,

Counsel of Record

Ricuarps, AmMpBrosy & FREDERICKA

Suite 300, The First Place

159 East Market Street

Warren, Ohio 44481

(216) 373-1000

Counsel for Petitioners

Warren City School District Board

of Education, Robert L. Pegues, An-

thony Berarducci, Nicholas Angelo,

Bart Wilson and William Haas

App. 1

APPENDIX A

Nos. 85-3986/3987

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

In rE: ALan Mites Rusen,

Atiorney-Appellant, (85-3987)

On AppgaL from the

United States Dis-

trict Court for the

Northern District

of Ohio.

JEANNE RatuHeun,

Plaintiff-Appellant, (85-3986)

Warren City Scuoots, Rosert L.

Prcues, CaTHERINE O. Swan,

Henry J. ANGELO, WiLLarp T.

Rusrn, RaymMonp J. TEsNeEr,

Mary Mituem, AntrHony R.

Berarpucci, Nicnouias J. ANGELO,

Bart Witson, WituiaM Haas,

Steve Hupock, and

Bernie WILson,

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 questions

about the propriety of sanctions against a plaintiff and one

of her attorneys arising out of a sex and national origin

discrimination case filed under Title VII of the Civil

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

sons that follow, we reverse the sanctions against plaintiff

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 of

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

tor at several school buildings in the Warren, Ohio public

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

lying action in 1980, including East Junior High School

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

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

this period, she alleged that she was denied overtime equal

to male janitors and was subjected to physical and verbal

abuse and disparate workloads. She claimed a retaliatory

transfer from East to Harding in September of 1974 and

a retaliatory transfer again in May of 1978 to Devon on

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 School

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 (‘‘ EEOC’’)

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-

eeived 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

case 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-

fleets, 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.

i Ss

MS TAS 8 Et OS

NE MIE PTE COE

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 I"ederal 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, 484 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

App. 7

fees under 42 U.S.C. 41988 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 te 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 nct, 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-

aa.

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

et Mitts Chita

‘eeeeniiititesiimaaaalaiiaaa aii,

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.l6 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. 1873 (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 Litigants 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 diseussed the

‘“‘bad 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

elie crit alae ait 4 -

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 proeeed-

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, id. 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 tactics

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 8. 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.

Bb. 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 cireum

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 OCRU'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 (Sth 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 (contran

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 jo'lowing page)

ee Ae ED

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 Sieel

& 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 EEOU 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 Jones,

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 issue 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

remedied 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 Badtllo, 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 how 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

case where couple had some reason to believe they had

been diseriminated-against in housing). The adding of

some meritless claims does not make the whole case frivo-

‘ous. 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 cireum-

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

cainot 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. ‘ihe 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 HKEOC

charge and, thus, was not granted summary judgment.

Ruben argues that denial of the above motions pre-

eluded 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

71The 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 /Jegal 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 lack 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-

nificant 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.

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.

A 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).

App. 26

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 209 (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 oceupy 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 exciuding 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 uver its manage-

ment when it first became apparent that the case 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. 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

misconduct, remand is necessary to allow the district judge

to make such a determination. As the Court of Appeals

for the Second Circuit 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 groundiess, 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).

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 fer 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

— 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. 41927. 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

Vv ) SAM H. BELL

)

CITY OF WARREN BOARD ) ORDER

OF EDUCATION, et al. )

) (Filed 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 defendar.ts 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.

ee eee ot

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 specific 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 Las 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.

In 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 admittedly 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

abled side a it

ARG DO AAS Raha S18 pital esti tntsut a NE a hati cals eMac Mya Did bash tints Sia si

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 Commiitee 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 merely 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 consider 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 4 706(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

faith.

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 logic 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.’’ Id. 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

ineurred 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 d -ndants 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).

Ditiniity el bebe 0

aes

Pe ee aS Sa vad

ot ets.

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 Vorp. 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 prosecnu-

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 requifd

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 abuses 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... .’ F.D. 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)). Id., 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. ‘‘ ‘{Bjad 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 specific 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 briefs. 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. 4

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 ali 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 on his 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

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 eud 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 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 contradictory to the legislative pur-

pose of Title VII and the other civil rights laws of this

country. Under such circumstances, as heretofore de

seribed, 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. [urther, the testimony of the

plaintiff_hersellf 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 offered, disputed and

contradicted each and every claim.

The record reveals factually that Mrs. Rathbun did

receive numerous overtime opportunities with the school

als 6 CEN FO

PAR TO Re le Le

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. ‘the total lack of evidence oi

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 requesi 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 a 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 @onsidered to be {rivolous, without foundation in

fact, and lacking in good faith.

App. 56

The actions of Mr. Lester and Mr. Ruben, as they

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 commenced 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 unparaileled 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.

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 Circuit 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 for 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-

eurred 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. Id. 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 two 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.

a oS ee

Be ile OR AD Orne W ahr ow Re

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 assistity 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 eseape 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 member of the 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 credible. 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 because she knew

from the inception of this action that it was frivolous and

without any foundation in fact.

The record reveals that the plaintiff voluntarily went

on a medical leave from her employment with the Warren

Board of Education in order to return to her native

France. During the years that followed this leave, the

school system made numerous requests or offers of dif-

ferent comparable positions in the hope that she would

return to work. At no time, however, did the plaintiff

ever accept a position or return to work from her medical

leave. At the vlaintiffs’ election, she chose to remain in

;

App. 61

France and not return to work. Nowhere in the record

does it show that she was treated in a discriminatory man-

ner. This fact is relevant since at trial the damage sought

by the plaintiff was her lost wages and her ‘right’ to re-

instatement at her previous position. However, all of this

relief was always available to her by merely working.

Instead, she chose not to work.

The plaintiff was treated compassionately and fairly

and was never discriminated against by her employer. In

fact, many of the people who helped her gain the position

originally and who later accommodated her desire to work

overtime even though she was not eligible for the work

as a temporary employee were ‘‘rewarded”’ for their as-

sistance by being named as defendants in this action. Un-

der these conditions, the court has no hesitation in holding

that she acted in bad faith in filing this action, and is

therefore fully accountable for the balance of the fees in-

curred by the defendants.

In summary, the court finds that the fees and costs

incurred by Mr. Leister’s and Mr. Richard’s clients shall

be the responsibility of the plaintiff and her counsel. Mr.

Leister’s fees and costs are awarded as follows:

Mr. Weiner ” 150.00

Mr. Lester 2,500.00

Mr. Ruben 2,500.00

Mrs. Rathbun 8,321.17

$ 13,471.00

Mr. Richard’s fees and costs are awarded as follows:

Mr. Weiner $ 350.00

Mr. Lester 2,500.00

Mr. Ruben 2,500.00

Mrs. Rathbun 27,838.04

$ 33,188.04

App. 62

It is regrettable when circumstances conspire to ne-

cessitate an opinion such as this. The court’s ruling im-

pacts financially upon the plaintiff; it also impacts both

financially and ethically upon counsel. But this court, as

others, serves the whole of our society, not one claimant

or one profession.

Adherence to the principles of law set forth above

and commitment to principles of fundamental fairness

require such a ruling if only for the purpose of protecting

innocent future defendants from the same type of unwar-

ranted prosecution.

Accordingly, the defendants’ motion for awarding at-

torney fees is hereby granted as set forth in this opinion.

IT IS SO ORDERED.

/s/ Sam H. Bell

SAM H. BELL

U.S. DISTRICT JUDGE

;

App. 63

APPENDIX C

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

JEANNE RATHBUN )

) CASE NO. C80-

Plaintiff ) 1914-Y

JUDGE SAM

) H.BELL

WARREN BOARD OF ) Are pega

EDUCATION, et al. ) ee ae

) ~~

Defendant ) OF LAW

STATEMENT OF THE CASE

(Filed July 6, 1984)

This action was filed on October 16, 1980 by plaintiff,

Jeanne Rathburn against the Warren City School Dis-

trict Board of Education and several of its employees and

board members. Jurisdiction of this court was invoked

pursuant to Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000(e) et seq.

In brief, Mrs. Rathbun charged that while she was

working for the Warren school system as a janitor she

was denied the same opportunities as her male co-workers

because of her sex and national origin. Mrs. Rathbun is

a naturalized citizen of French ancestry.

On the basis of these contentions, a trial of this cause

was begun on June 26, 1984, continuing for four days there-

after. At the conelusion of the plaintiff's case, the court

as trier of the facts rendered judgment against the plain-

App. 64

tiff and in favor of all of the defendants in accordance

‘with Rule 41(b) of the Federal Rules of Civil Procedure.

The evidence adduced by plaintiff consisted of her

own testimony, the testimony obtained as if on cross ex-

amination of certain named defendants, and witnesses who

had been associated with Mrs. Rathbun during her years

of employment for the Warren City School District. This

fact is mentioned because the testimony given by members

of the ‘‘fellow employee’”’ group contrasted sharply with

that offered by plaintiff herself. Inasmuch as such testi-

mony was offered by plaintiff, a relatively unusual prob-

lem was faced by the court in its determination relative

to whether plaintiff had established a prima facie case

at the conclusion of her case in chief.

Mrs. Rathbun gave evidence of a litany of associated

ills suffered by her at the hands of various defendants

during her years of active employment. In sum, her al-

legations of disparate treatment centered on four deline-

ated areas.

1. Denied the ability to earn overtime monies.

2. <A suffering of verbal and physical abuse and in-

timidation from certain of her coworkers.

3. Retaliative transfers within the school system.

4. The assignment to her of burdensome work

tasks.

Concerning these allegations, the court has considered

the evidence, both testimonial and otherwise evidential and

pursuant to Rule 52 of the Federal Rules of Civil Proce-

dure enters its Findings of Fact and Conclusions of Law.

| |

ee ee es

App. 65

FINDINGS OF FACT

Mrs. Rathbun started working for the Warren City

School District in 1973 as a substitute janitor; however,

she worked on a regular basis at East Jr. High

School. In 1974, the plaintiff was transferred to Warren

G. Harding High School (hereinafter Harding) where she

was assigned to work on the second floor. While at Hard-

ing, Mrs. Rathbun passed a civil service examination and

on October 6, 1975 became a regular full-time employee of

the school system and was thereafter protected by Ohio

Civil Service Laws as a non-certified classified employee.

During this period Mrs. Rathbun was the only woman

janitor employed at Harding. However, women were

employed as janitors in the other buildings in the school

system. ©

At Harding, janitors were assigned overtime by the

custodian in charge of the building, William Haas. Mr.

Haas would assign the overtime work to the janitor whose

work station was located where the overtime work was to

be performed. If that individual declined to work on the

overtime, the work was offered to the other janitors. An

attempt was made by Haas to distribute equally the over-

time work between all of the janitors who expressed an

interest in the work including Mrs. Rathbun. The over-

time was not offered to a substitute janitor unless all of

the regular full-time employees had refused to work.

The major source of overtime work involved the care

and clean-up of the high school football stadium. During

the football season, the athletic department used a tar-

paulin to cover the field. This tarpaulin was placed over

the playing surface whenever it was raining, and removed

App. 66

after the rain stopped or when it was time to start playing

the football game. This operation required the physical

labors of ten or twelve people, and provided overtime to

the janitorial staff at Harding and to other employees of

the school system.

The removal and placement of the tarpaulin when it

was wet was strenuous work, and Haas generally assigned

only the male janitors to work this overtime. Several of

the janitors refused this overtime because of their age or

physical condition. Mrs. Rathbun informed Haas that she

would like to participate in the overtime involving the

football stadium. Thereafter, the plaintiff was regularly

assigned to work on the clean-up crew at the stadium and

received overtime. Some of this overtime was received

while Mrs. Rathbun was still a regular substitute employee

of the scheel system. However, the plaintiff was not

regularly used to help with the tarpaulin, but instead was

assigned the tasks of cleaning the restrooms and locker

rooms. Mrs. Rathbun only worked on the tarpaulin on a

few occasions, and found that she was capable of doing

the work. By 1977, the athletic department stopped using

the tarpaulin and started to use students to clean the

stadium. These moves effectively ended the overtime work

for all of the janitors at the football stadium.

In those exhibits introduced into evidence, there exist

no compilations concerning how much overtime was worked

by plaintiff either as a substitute or full time employee.

It seems evident that though some of those who felt that

certain overtime jobs then existent were ‘‘men’s work’’,

such as the erection of bleachers and the removal of field

tarpaulins, such jobs were performed by Mrs. Rathbun at

App. 67

her urging. It is further evident that she was given

lighter duty work to do at overtime rates.

At one point during the plaintiff’s history at Hard-

ing, she requested and was permitted to temporarily

change her job assignment to the adjacent fieldhouse.

This vacancy was created when a male janitor took an

extended sick leave. While working in the fieldhouse, Mrs.

Rathbun was given the overtime associated with this par-

ticular job assignment. The fieldhouse generated over-

time for the janitors whenever a basketball game or wres-

tling match was held. This overtime was later eliminated

because of an austerity program in the school system.

The plaintiff and some of her male co-workers were

not compatible and were unable to work together in har-

mony. The plaintiff and these co-workers repeatedly

complained to various of their supervisors about the con-

duct of the others. This disharmony eventually culminated

in an incident between the plaintiff and a totally deaf and

dumb co-worker who physically attacked Mrs. Rathbun.

The day after this incident the school board met to admin-

ister a severe discipline against the co-worker, however,

at the request of the plaintiff, the board did not discipline

the man.

On May 30, 1978, the plaintiff was transferred tou

Devon Elementary School. This transfer was made be-

cause the business manager of the school, Nicholas Angelo,

felt that the personnel problems at Harding could be

resolved if Mrs. Rathbun were moved to another school.

The business manager chose Devon Klementary because

it was close to the plaintiff’s home and was a school that

only required one janitor.

App. 68

While at Devon Elementary, the plaintiff received

several obscene phone calls and was scared by people

wearing masks. The identity of these people was never

ascertained by the plaintiff even though the F.B.I. con-

ducted an investigation into the problem. The plaintiff

remained at Devon until she went on a medical leave in

1981.

During Mrs. Rathbun’s employment, she had a history

of absenteeism, and took several extended leaves. The

plaintiff used these leaves to return to France where she

would rest. The plaintiff felt these trips were necessary

to improve her mental health by getting away from the

job environment.

CONCLUSIONS OF LAW

Mrs. Rathbun seeks relief in this matter pursuant to

Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000(e) et seq. The filing of this action within ninety

days after receipt of the Notice of Right to Sue Letter

from the E.E.O.C. properly invoked the jurisdiction of

this court.

In furtherance of her Title VII claim, the plaintiff

has alleged that concerning her assignment of overtime

work she was treated differently than the male janitors

because of her sex and-national origin. When disparate

treatment is alleged a plaintiff must prove ‘‘(1) differ-

ences in treatment, and (2) a discriminatory motive on the

part of her employer.’’

(Emphasis added.) Underwood

v. Jefferson Memorial Hospital, 639 F.2d 455, 457 (8th

Cir. 1981), citing, International Brotherhood of Teamsters

App. 69

v. United States, 431 U.S. 324 (1977) ; McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973).

In this action, Mrs. Rathbun has failed to show either

of the required elements to establish a claim of discrimi-

nation predicated upon sex or national origin. The issue

of overtime is, in great measure, concerned with the as-

signment of overtime hours in conjunction with athletic

department affairs. It is clear that the janitor or eus-

todian immediately assigned to the field in which a given

athletic event was scheduled had firsteall on the employ-

ment in question. His (or her) familiarity with the build-

ing or field was the primary consideration of selecting him

to work. This criteria was not based upon sex or national

origin. The evidence is clear that additional workers

were hired on a seniority basis with older employees in

favor of service being given preference. As a general

rule substitutes did not work overtime hours. Mrs. Rath-

bun, even in that capacity, did work and was paid though

she may well have worked fewer hours then many of her

male counterparts. Nothing in the evidence adduced estab-

lishes a prima facie case which supports her contention

that she was denied either work or pay as a result of her

sex or national origin. Underwood v. Jefferson Memorial

Hosp. supra.

The same is true in relation to her transfer from

Harding to Devon Elementary. The latter, staffed by one

night janitor (Mrs. Rathbun) and one custodian was, by

comparison to the high school, a small unit and work there

offered small opportunity for overtime work. In the vears

during which plaintiff worked at Devon, she worked little

extra time; those years were also ones during which thie

fiseal policies of the system itself were subjected to belt-

App. 70

tightening efforts to reduce overtime pay. Nothing said

concerning Mrs. Rathbun’s employment at Devon per-

suades the court that while there, she was denied the op-

portunity to accrue overtime hours because of her sex

and/or national crigin.

To reach conclusions in relation to the issue—as well

as to all issues raised by plaintiff and one which she has

the burden of original proof—the court must determine

the credibility of each witness who appeared during the

course of trial. Plaintiff herself is subjected to the same

testimony process. The determination of this question is

vital to the reaching of this decision.

There is no doubt that plaintiff was physically as-

saulted by a member of the Harding janitorial staff. The

degree of her injuries is open to some question. Other

complaints of harassment were made by plaintiff and evi-

dence was adduced concerning the physical affect (not

the cause) of the actions of one or more persons unknown

to plaintiff and therefore to the court.

To attribute to defendants or others associated with

them—or any of them—the acts of making obscene phone

calls, placing razor blades in plaintiff’s soap supplies,

frightening her during working hours, stretches the power

of the court to make such attributions on the basis of the

evidence before it.

But harassment and intimidation take many forms,

some much more subtle than those instances referred to

above. Plaintiff complains that fellow employees referred

to her as a ‘‘French Bitch,’’ that her work assignments

were such as to isolate her, and that defendants, or some

of them, established a pattern of intimidation and fear.

App. 71

The evidence is clearly to the contrary. Reasonable

minds, hearing the testimony of plaintiff and her wit-

nesses could not disagree that her transfer to Devon from

Harding was not motivated by her sex or nationality but

to remove her from a position in which her troubles with

her fellow janitor and custodian had begun to affect the

morale of the entire Harding staff. There is no evidence

that plaintiff’s work was anything but good while em-

ployed at any post assigned to her: East Junior High,

Harding High School or Devon. But while her personal

testimony elicits discriminatory and sexist statements of

men fellow employees, her own witnesses negate sucli

charges with their statements concerning the ‘same inci-

dents. In the face of such evidence, there is no reason

to believe that her transfer from one school to another was

some form of punishment imposed upon her because of

her work related activities. It should be added that even

if statements were made to plaintiff by her fellow em-

ployees as claimed, such statements were isolated in nature

and hardly assume Constitutional proportion.

The totality of the evidence establishes further that

certain complaints of plaintiff were brought to the atten-

tion of the Board of Education on at least one occasion.

In 1978, Nick Angelo was contacted by the Ohio Civil

Rights Commission and gave it certain paperwork and

records pertaining to plaintiff at that time. It is Mr.

Angelo’s belief that he met with members of the Board

and school and administrative staff. Minutes of the meet-

ing were taken by the secretary of the union (not the

Board secretary). These minutes are not present in evi-

dence. During the period 1978-9, Mr. Angelo ‘‘probably”’

had conversations concerning plaintiff with various mem-

App. 72

bers of the Board of Education. The content of these con-

versations is not known with any specificity. In sum, the

record is absolutely barren of any evidence whatsoever

indicative of the fact that the Board, the acknowledged

employer of plaintiff in this case, did anything to dis

criminate against plaintiff. Indeed, if the Board were

made aware of any acts of claimed discrimination, we are

not privy to that awareness. Further, in the same vein,

there is no evidence to indicate that individual Board

members acted in any manner to suggest that they should

be encumbered with personal liability to plaintiff in this

cause. Lastly, there is no evidence tending to indicate that

the Board, or any member thereof, acted so as to partici

pate or encourage or ratify that conduct, if any, which

could have been considered violative of plaintiff's Con-

stitutional rights.

Accordingly, the plaintiff’s claims are hereby dis-

missed with prejudice to Rule 41(b) of the Federal Rules

of Civil Procedure.

IT IS SO ORDERED.

s/ Sam H. Bell

U.S. DISTRICT JUDGE

App. 73

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 85-3986/3987

IN RE: ALAN MILES RUBEN,

Attorney-Appellant (85-3987).

JEANNE RATHBUN,

Plaintiff-Appellant (85-3986),

WARREN CITY SCHOOLS, et al.,

Defendants-Appellees.

Before: WELLFORD and NORRIS, Cireuit Judges; and

COHN District Judge.

JUDGMENT

(July 30, 1987)

ON APPEAL from the United States District Court

for the Northern District of Ohio.

THIS CAUSE came on to be heard on the record from

the said district court and was argued by counsel.

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this court that the judgment of

the said district court in this case be and the same is here-

by reversed as to the sanctions against plaintiff and her

attorney and taxation of costs against plaintiff, and re-

mand the case for further consideration not inconsistent

with this opinion.

App. 74

IT IS FURTHER ORDERED that Appellants re-

cover from Appellee the costs on appeal, as itemized be-

low, and that execution therefor issue out of said district

court, if necessary.

ENTERED BY ORDER OF THE COURT

John P. Hehman, Clerk

/s/ John P. Hehman

Clerk

(SEAL)

A True Copy.

Issued as Mandate: August 25, 1987

Attest:

/s/ Gary McCarthy

Deputy Clerk

COSTS: None

Pet SE sc citminceeanne $

Mesa

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.