In federal court, the parties are subject to sanctions for any number of offenses, ranging from discovery abuse to filing frivolous claims. Sanctions can include everything from money to a prohibition of certain evidence. Federal Rule of Civil Procedure Rule 54(d) allows the winner in a lawsuit to seek an award of attorney’s fees. The expenses or costs of a lawsuit will be automatically assessed against the loser. But, the big concern is an award of attorney’s fees. Since, in an average discrimination lawsuit, the typical defense attorney will be seeking an award of 200-300 hours of attorney time and paralegal time. 200 hours at $300/hour is serious money indeed.
The burden to show a lawsuit was truly "frivolous" is pretty high. But, in Garner v. Cuyahoga County Juvenile Court, 554 F.3d 624 (6th Cir. 2009), the U.S. district court awarded sanctions against the plaintiffs. That award was affirmed (mostly) on appeal. In this lawsuit, some twelve plaintiffs sued the Cuyahoga County Juvenile Court, and several managers on an individual basis. The suit was based on violations of the Equal Protection Clause of the Fourteenth Amendment (meaning in general, that they were treated differently that other persons based on race), retaliation for opposing discrimination, for wrongful termination, and for causing emotional distress.
Comment: while there are times when it is necessary to sue managers in their individual capacity, there needs to be a good treason. Courts are suspicious of individual lawsuits against employers.
The lower court granted summary judgment against all the plaintiffs on all their claims. The employer then sought sanctions against the plaintiffs and their lawyer. The lower court awarded $660,103.49 in monetary sanctions against eleven plaintiffs. The court found them jointly and severally liable, meaning each one is liable for the whole amount. So, if one or two are insolvent, the remaining plaintiffs would be responsible for the whole amount.
During the lawsuit, the employer moved for summary judgment against the fourteen former employees. CCJC filed individual motions for summary judgment in September, 2003. The employees filed responses with exhibits and affidavits. In December, 2003, the employees asked to "update" their responses. The court denied the request.
By March, 2005, the court granted summary judgment against all the plaintiffs. The court found that nine employees had failed to include any evidence of racial animus. The lower court found that five plaintiffs had failed to present sufficient evidence of racial animus.
Comment: the plaintiffs’ attorneys (there were two attorneys initially) did not point to specific evidence in the various responses to the the motions for summary judgment. That is a huge mistake., Federal judges will not hunt around in a mass of documents looking for possible evidence. The attorney, Merrie Frost, also called the lower court judge a racist at some point, but never moved for recusal or presented evidence which would justify recusal.
In August, 2005, the lower court granted the employer’s request for costs, including attorney’s fees. The court held thirteen employees jointly and severally liable for $69,000. One employee who had filed for bankruptcy was excluded from this ruling.The court found the allegations to be without factual support and, therefore, "frivolous." The court found the employees should have known at the end of discovery that there was not sufficient evidence to support their claims. Three employees were excluded form the order regarding attorney fees, because their claims had some factual support.
The lower court’s reasoning appears to be that eleven employees did not provide adequate evidence of causal connection or of pretext. That is, their claims appear to be based on conjecture or speculation. One of the managers was alleged to have made racist statements in regard to some employees. But, other than the alleged statement, there was nothing to indicate the eleven employees have been treated in a discriminatory way. And, the racists statements were only directed to the three employees.
Comment: the courts are impatient with claims based on "speculation." They hear that with some frequency. I know that discrimination often occurs for which there is no apparent evidence. But, lawsuits are about evidence. Without evidence, the claim is little more than "speculation."
The lower court also found that the employees’ attorney pursued claims she should have known lacked merit. That conduct violates 28 U.S.C. Sec. 1927. Sec. 1927 finds that unnecessarily increasing litigation will incur sanctions. The district court noted that each plaintiff was asked to identify all action s/he considered to be discriminatory in written discovery. Based on those responses, the plaintiffs’ lawyer should have know the claims were meritless.
Comment: I see those requests all the time. "Identify all acts upon which you base your claim for discrimination" (roughly). To answer this sort of interrogatory is tedious, but it is a legitimate request. I presume the plaintiffs’ lacked a good answer to this interrogatory.
The plaintiff’s attorney, Merrie Frost, left her law in October, 2003. She claims she was not involved in the lawsuit after that date. On appeal, the employees did not contest the award of $69,000 in costs. They did appeal the award of $660,000 in attorney fees. The employees (and Ms. Frost) argued on appeal that since Ms. Frost had won a previous discrimination case against CCJC, then this case is not meritless. The appellate court rejected that a argument. And, the Sixth Circuit rejected the argument that because two employees were subject to race based comments, that such comments would apply to the employees. "Me-too" claimants cannot "piggy back" with other non-frivolous claims, said the court.
The employees had planned a disparate impact case – based on statistics. But, the employees never hired an expert who could refute the employer’s statistics. Some seven employees alleged retaliation for opposing discrimination. But, the district court found that each of these claims lacked critical elements of the case, ranging from no apparent adverse personnel action to two employees who did not engage in any protected activity.
Comment: I suspect Ms. Frost made a typical young lawyer mistake: she tried to list every possible claim at the outset, thinking she would drop claims that did not work out. But, in federal court, that approach is not wise. As seen here, the court will believe the plaintiffs were not well prepared for their lawsuit. The weak claims will make the stronger claims look weak.
The employees argued they lacked the income to pay the award of attorney’s fees. The burden, said the court of appeals, was on the employees to show they lacked the ability to pay. The district court noted the plaintiffs averaged $35,000 per year, suggesting they may lack the ability to pay. Yet, for some reason, the lower court did not address their ability or lack of ability in its order. So, the Sixth Circuit ordered the lower court to conduct proceedings regarding the individual plaintiffs’ ability to pay an award of attorney’s fees. As the court of appeals noted, awarding attorney’s fees against losing plaintiffs in a civil rights case is an "extreme" sanction and must be limited to egregious cases. The court of appeals also reversed the finding that liability be "jointly and severally."
At the oral hearing, the attorney Ms. Frost voluntarily conceded if there was any fault, it was on her, not her clients. She asked that any sanctions be awarded against her and her alone. But, said the Sixth Circuit, the clients chose their lawyer and they must accept her actions. See decision here.
And, this is how plaintiffs in a civil rights actions will find themselves the subject of a sanctions order. I am sure they believed sincerely in the justness of their cause. But, in federal court, sincerity alone is not enough.