United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS June 23, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk
No. 03-10101 Summary Calendar
JOHNNY MARTINETS,
Plaintiff,
JOAN DURKIN,
Appellant,
versus
CORNING CABLE SYSTEMS L.L.C., et al.,
Defendants,
CORNING CABLE SYSTEMS L.L.C.,
Defendant-Appellee.
Appeal from the United States District Court for the Northern District of Texas USDC No. 4:02-CV-250-A
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Joan Durkin, attorney for plaintiff Johnny Martinets, appeals
the district court’s award of attorneys’ fees against her under 42
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1 U.S.C. §§ 5000e-5(k) and 12205 for filing and pursuing a frivolous
civil rights lawsuit. She contends that the lawsuit was not
frivolous and, alternatively, that the district court had no
authority to award fees against her under the cited statutes.
I.
Between January 28, 1997 and October 11, 2001, Martinets
worked as a sheet metal worker at defendant Corning Cable Systems’s
plant in Keller, Texas. During his employment Martinets allegedly
began experiencing progressive hearing loss due to his loud working
conditions. He consulted the human resources department about
filing a worker’s compensation claim, and was instructed that he
had to complete an accident report regarding the injury. Martinets
completed the report and human resources advised that company
policy required anyone submitting an accident report to go to a
local clinic for mandatory drug screening. On the morning of
October 11, 2001, after arriving at work, human resources
instructed him to report to the clinic for the drug testing. He
went to the clinic for the screening, which entailed taking two
breathalyzer tests and submitting to urinalysis. The breathalyzer
tests and urinalysis all showed positive for alcohol. Upon
learning of the positive results, Corning immediately terminated
Martinets.
On that same day, after being fired, Martinets went to his
family doctor and requested that he perform a blood alcohol test.
The results of that test were negative for alcohol. Martinets
2 attempted to appeal his termination but human resources told him
the results of the clinic’s tests were conclusive. As a result,
Martinets filed this suit on February 19, 2002 in Texas state
court.
Martinets’s original petition against Corning alleged
intentional infliction of emotional distress and negligence for
terminating him without conducting an investigation into the
accuracy of the test results. Martinets also charged that Corning
had terminated him in retaliation for filing a workers’
compensation claim, and had slandered him by stating that the
results of the breathalyzer were positive.
On March 26, 2002, Corning filed a motion to dismiss the
intentional infliction of emotion distress, negligence, and slander
claims. On May 29, 2002, the district court granted the motion in
regard to the intentional infliction and negligence claims.
Martinets filed an amended complaint on June 10, 2002, that
included only the workers’ compensation retaliation claim.
However, only ten days later, on June 20, 2002, he filed a motion
for leave to file a second amended complaint that included a
disability discrimination claim under the ADA and a racial
discrimination claim under Title VII. It alleged that Corning
discharged Martinets because of his hearing loss and that it
refused to allow Martinets, a white male, to rehabilitate himself
after failing the drug tests or appeal the termination decision
even though it had extended such opportunities to black and
3 Hispanic employees. The second amended complaint also added
Concentra, Inc., the clinic that conducted the drug testing, as an
additional defendant, and averred that Concentra was liable under
the Fair Credit Reporting Act for failing to follow reasonable
procedures to assure the accuracy of the report that showed
Martinets had tested positive for alcohol.
On October 17, 2002, Concentra filed its answer and a motion
to dismiss, which the district court granted. In the same order
the district court also sua sponte severed the workers’
compensation retaliation claim against Corning and remanded it to
state court after determining that state workers’ compensation
claims cannot be removed to federal court.
On November 27, 2002, Corning filed its motion for summary
judgment. It argued that Martinets could not show pretext in
regard to the discrimination claims and that Martinets’s hearing
loss was not a disability. It further alleged that the plaintiff’s
claims were “the latest in a series of frivolous, unreasonable, and
groundless claims” warranting an award of attorneys’ fees against
Martinets and his attorney, Durkin, under Christiansburg Garment
Co. v. EEOC, which held that a “district court may in its
discretion award attorney’s fees to a prevailing defendant in a
Title VII case upon a finding that the plaintiff’s action was
frivolous, unreasonable, or without foundation, even though not
4 brought in subjective bad faith.”1
On December 17, 2002, Martinets filed his response, in which
he admitted that the evening before he went to the clinic, he
“consumed several beers and glasses of wine before and during
dinner.” Although he contended that “he was aware of non-white and
non-disabled co-workers who reported to work under the influence of
alcohol and/or failed company drug tests, yet no adverse employment
actions were taken against those persons,” the only such employee
he could point to was an Asian American co-worker who allegedly
once reported to work hung-over.
The district court granted Corning’s motion for summary
judgment, finding that the evidence unquestionably established that
Corning’s policy was to subject anyone who reported to work under
the influence of alcohol to adverse employment action, including
termination, and that Martinets had proffered no evidence to rebut
this justification for his firing. It further determined that no
evidence showed that the Asian American co-worker who had
reportedly shown up at work with a hang-over was actually
intoxicated on the job. It concluded that Martinets submitted no
evidence showing he received less favorable treatment than any non-
disabled or non-white employees, and that he failed to establish
pretext.
The district court also determined that an award of attorneys’
1 434 U.S. 412, 421 (1978).
5 fees was appropriate under Christiansburg, because the plaintiff’s
allegations were “merely conclusory in nature and groundless” and
“[t]he utter frivolity of this action must have been evident after
plaintiff’s deposition.... That plaintiff continued this litigation
after the deposition ... speaks volumes about plaintiff’s and his
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United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS June 23, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk
No. 03-10101 Summary Calendar
JOHNNY MARTINETS,
Plaintiff,
JOAN DURKIN,
Appellant,
versus
CORNING CABLE SYSTEMS L.L.C., et al.,
Defendants,
CORNING CABLE SYSTEMS L.L.C.,
Defendant-Appellee.
Appeal from the United States District Court for the Northern District of Texas USDC No. 4:02-CV-250-A
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Joan Durkin, attorney for plaintiff Johnny Martinets, appeals
the district court’s award of attorneys’ fees against her under 42
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1 U.S.C. §§ 5000e-5(k) and 12205 for filing and pursuing a frivolous
civil rights lawsuit. She contends that the lawsuit was not
frivolous and, alternatively, that the district court had no
authority to award fees against her under the cited statutes.
I.
Between January 28, 1997 and October 11, 2001, Martinets
worked as a sheet metal worker at defendant Corning Cable Systems’s
plant in Keller, Texas. During his employment Martinets allegedly
began experiencing progressive hearing loss due to his loud working
conditions. He consulted the human resources department about
filing a worker’s compensation claim, and was instructed that he
had to complete an accident report regarding the injury. Martinets
completed the report and human resources advised that company
policy required anyone submitting an accident report to go to a
local clinic for mandatory drug screening. On the morning of
October 11, 2001, after arriving at work, human resources
instructed him to report to the clinic for the drug testing. He
went to the clinic for the screening, which entailed taking two
breathalyzer tests and submitting to urinalysis. The breathalyzer
tests and urinalysis all showed positive for alcohol. Upon
learning of the positive results, Corning immediately terminated
Martinets.
On that same day, after being fired, Martinets went to his
family doctor and requested that he perform a blood alcohol test.
The results of that test were negative for alcohol. Martinets
2 attempted to appeal his termination but human resources told him
the results of the clinic’s tests were conclusive. As a result,
Martinets filed this suit on February 19, 2002 in Texas state
court.
Martinets’s original petition against Corning alleged
intentional infliction of emotional distress and negligence for
terminating him without conducting an investigation into the
accuracy of the test results. Martinets also charged that Corning
had terminated him in retaliation for filing a workers’
compensation claim, and had slandered him by stating that the
results of the breathalyzer were positive.
On March 26, 2002, Corning filed a motion to dismiss the
intentional infliction of emotion distress, negligence, and slander
claims. On May 29, 2002, the district court granted the motion in
regard to the intentional infliction and negligence claims.
Martinets filed an amended complaint on June 10, 2002, that
included only the workers’ compensation retaliation claim.
However, only ten days later, on June 20, 2002, he filed a motion
for leave to file a second amended complaint that included a
disability discrimination claim under the ADA and a racial
discrimination claim under Title VII. It alleged that Corning
discharged Martinets because of his hearing loss and that it
refused to allow Martinets, a white male, to rehabilitate himself
after failing the drug tests or appeal the termination decision
even though it had extended such opportunities to black and
3 Hispanic employees. The second amended complaint also added
Concentra, Inc., the clinic that conducted the drug testing, as an
additional defendant, and averred that Concentra was liable under
the Fair Credit Reporting Act for failing to follow reasonable
procedures to assure the accuracy of the report that showed
Martinets had tested positive for alcohol.
On October 17, 2002, Concentra filed its answer and a motion
to dismiss, which the district court granted. In the same order
the district court also sua sponte severed the workers’
compensation retaliation claim against Corning and remanded it to
state court after determining that state workers’ compensation
claims cannot be removed to federal court.
On November 27, 2002, Corning filed its motion for summary
judgment. It argued that Martinets could not show pretext in
regard to the discrimination claims and that Martinets’s hearing
loss was not a disability. It further alleged that the plaintiff’s
claims were “the latest in a series of frivolous, unreasonable, and
groundless claims” warranting an award of attorneys’ fees against
Martinets and his attorney, Durkin, under Christiansburg Garment
Co. v. EEOC, which held that a “district court may in its
discretion award attorney’s fees to a prevailing defendant in a
Title VII case upon a finding that the plaintiff’s action was
frivolous, unreasonable, or without foundation, even though not
4 brought in subjective bad faith.”1
On December 17, 2002, Martinets filed his response, in which
he admitted that the evening before he went to the clinic, he
“consumed several beers and glasses of wine before and during
dinner.” Although he contended that “he was aware of non-white and
non-disabled co-workers who reported to work under the influence of
alcohol and/or failed company drug tests, yet no adverse employment
actions were taken against those persons,” the only such employee
he could point to was an Asian American co-worker who allegedly
once reported to work hung-over.
The district court granted Corning’s motion for summary
judgment, finding that the evidence unquestionably established that
Corning’s policy was to subject anyone who reported to work under
the influence of alcohol to adverse employment action, including
termination, and that Martinets had proffered no evidence to rebut
this justification for his firing. It further determined that no
evidence showed that the Asian American co-worker who had
reportedly shown up at work with a hang-over was actually
intoxicated on the job. It concluded that Martinets submitted no
evidence showing he received less favorable treatment than any non-
disabled or non-white employees, and that he failed to establish
pretext.
The district court also determined that an award of attorneys’
1 434 U.S. 412, 421 (1978).
5 fees was appropriate under Christiansburg, because the plaintiff’s
allegations were “merely conclusory in nature and groundless” and
“[t]he utter frivolity of this action must have been evident after
plaintiff’s deposition.... That plaintiff continued this litigation
after the deposition ... speaks volumes about plaintiff’s and his
attorney’s intentions.”
II.
Martinets does not appeal the grant of summary judgment, and
only Durkin, Martinets’s attorney, appeals the attorneys’ fees
award. She correctly argues that 42 U.S.C. 2000e-5(k) does not
allow the assessment of attorneys’ fees against the unsuccessful
party’s attorney.2 From this she concludes that 42 U.S.C. § 12205,
which contains nearly identical language, also does not allow
awards against a party’s attorney.3 She also adds that under
2 42 U.S.C. 2000e-5(k) (“In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee (including expert fees) as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person.”); Monk v. Roadway Express, Inc., 599 F.2d 1378, 1383 (5th Cir. 1979) (“Nothing in the language of [2000e-5(k)] and nothing in the cases cited to us by the appellees leads us to believe that 2000e-5(k) authorize[s] the imposition of attorneys’ fees against an unsuccessful party’s attorneys.”). 3 42 U.S.C. § 12205 (“In any action or administrative proceeding commenced pursuant to this chapter, the court or agency, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee, including litigation expenses, and costs, and the United States shall be liable for the foregoing the same as a private individual.”).
6 Christiansburg the awards constituted an abuse of discretion
because the case was not frivolous, unreasonable, or without
foundation.4
Corning responds that Durkin waived the issue whether the
court could award fees against her by not raising it below, and
asserts that it is clear from the history of the litigation that
Martinets’s case was frivolous. Corning is correct that Durkin did
not argue to the district court that it was improper to award
sanctions against her under § 2000e-5(k) and § 12205.
“[O]rdinarily a party may not present a wholly new issue in a
reviewing court.”5 We apply plain error review in determining
whether to allow a party to raise a new issue on appeal.6 Under
this standard “[t]here must be an error that is plain and that
affects substantial rights.”7 It is within our discretion whether
to correct such an error, and we will only exercise it in the rare
circumstances in which the error “seriously affects the fairness,
integrity or public reputation of judicial proceedings.”8
This is not one of those rare cases. In evaluating whether
4 See Christiansburg, 434 U.S. at 421. 5 Crawford v. Falcon Drilling Co., 131 F.3d 1120, 1123 (5th Cir. 1997) (internal quotation marks omitted). 6 Id. 7 Id. 8 Id.
7 injustice would inure in this case, we “evaluate the
blameworthiness of the party’s failure to raise the issue below.”9
Although we permit litigants appearing pro se latitude in raising
new issues on appeal, Durkin “is an attorney and should know when
issues should be raised.”10 Corning’s motion for summary judgment
made clear that it was seeking sanctions against Durkin as well as
Martinets. Yet Durkin never explained why she, as Martinets’s
attorney, should not be sanctioned, and “[her] failure to do so is
unreasonable.”11
We also reject Durkin’s argument that the trial court abused
its discretion in awarding the fees because Martinets’s case was
not frivolous or vexatious. Our own review of the history of this
litigation supports the district court’s determinations.
AFFIRMED.
9 St. Amant v. Bernard, 859 F.2d 379, 385 (5th Cir. 1988). 10 Id. 11 Id.