NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a1061n.06 No. 11-4087 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT TAMI E SEI FERT, Plaintiff-Appellant,

v. GRAPHI C PACKAGI

NG I NTERNATI ONAL , I

NC., Def endant- Appellee

. ) ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE N ORTHERN DI STRI CT OF OH I O

BEF ORE: BOG GS and CLAY, Circuit J udg es; STAFF ORD, District J udg e. *

PER CURI AM. Tamie Seifert appea ls the district court’s decision g ranting summary judgme nt in favor of

her f ormer e mploy er, G raphic Packag ing I nternational, I

nc., in this wrong ful discharg e ca se. Gra

phic Packa g ing move s for sanc tions ag ainst Seifert a nd her a ttorney

. Seifert worke d for Gra

phic Packag ing as a materia ls and scheduling manag er from J uly 27, 2009 to Dec ember 4, 2009, when she was terminated for alleg ed poor perf ormanc e. Seifert

s ub s equently filed a complaint ag ainst Gra phic Packag ing in the Cuyahog a County Court o f Common Pleas asser

ting the following cause s of action under Ohio law: (1) brea ch of implied
contra ct; (2) intentional infl i ction of emotional distress; (3) promissory estoppel; (4) g ender

The Honora

ble Wil liam H. Stafford, J r., Se n ior United States District J udg e for the Norther n * District of F lorida, sitting by desig nation.No. 11-4087

Seifert v. Graphic Packaging I nt’l, Inc. discrimination, in violation of Ohio Revised Code § 4112.99; (5) ag e discrimination, in violation of Ohio Revised Code § 4112.99; and (6) reta liation. Gra phic Packag ing remove d Seifert’ s case to the district court based on diversity jurisdiction pursuant to 28 U.S.C. § 1441. After discovery , Gra phic Packag ing filed a motion for summary judgme nt, which the di strict court g rante d. In dismiss ing Seifert’ s claims, the district c ourt noted that Seifert’ s deposition te stimony failed to e stablish f acts supporting her claims and direc tly ref uted her complaint’s alleg ations. This timely appea l followed. The district court proper ly g rante d summary judgme nt in favor of Gra phic P ac kag ing on Seifert’ s claims. In her deposition, Seifert conce ded that she was not terminated beca use of her g ender or ag e, for feitingher discriminatory discharg e claims. Seifert based her brea ch of implied
contra ct and promissory estoppel claims on her offe r letter. But that letter expressly disclaimed any employ ment contra ct or alteration of the at-will employ ment relationship and did not contain any specific promise of continued employ ment. S ee W i n g v. Anchor Media, Ltd. of Tex ., 570 N.E.2d 1095, 1098–99 (Ohio 1991). Gra phic Packa g ing’ s discharg e of Seife rt did not a mount to extreme and outrag eous conduc t, nor did she present evidenc e of the requisite level of distress to establish a cla im for intentional infliction of emotional distress. See M cNeil v. Case W

. Reserv e Univ ., 664 N.E.2d 973, 976–77 (Ohio Ct. App. 1995); Juerge ns v. Strang, Klubnik & Assocs., Inc ., 644 N.E.2d 1066, 1071–72 (Ohio Ct. App. 1994). Seifert waived her reta liation claim by failing to mention that claim in her brief on appea l. See Turner v. City of Taylor , 412 F.3d 629, 639 (6th Cir. 2005); Dixon v. Ashcroft , 392 F.3d 212, 217 ( 6th Cir. 2004). Pursuant to Fe dera l Rule of Appellat e Procedur e 38 and 28 U.S.C. § 1927, Gra phic Packag ing moves for sanctions ag ainst Seifert and her attorney , Eric Hall, for pursuing this appea l. -2-No. 11-4087

Seifert v. Graphic Packaging I nt’l, Inc. Rule 38 allows this court to awa rd damag es and co s t s if it deter mines that an appeal is frivolous. Rule 38 sanctions ar e “a p p ro p ri ate when an appea l is ‘wholly without merit’ and when the appellant’ s ‘ar guments essentially had no rea sonable expectation o f alt ering the district court’s judgme nt based on law or fac t.’” B & H Med., L.L.C

. v. ABP Admin., Inc. , 526 F.3d 257, 270 (6th Cir. 2008) (quoting W

ilton Corp. v. Ashland Castings Corp ., 188 F.3d 670, 677 (6th Cir. 1999)). Under § 1927, we may impose sanctions persona lly on an at t o rn ey “who

. . . multipl ies the proce eding s in any

case unrea sonably

and vexatiously .” 28 U.S.C. § 1927. “This standar d is met ‘whe n an attorney knows or rea sonably should know that a claim pursued is frivolous.’” T a r eco Props., Inc. v. Morriss , 321 F.3d 545, 550 (6th Cir. 2003) (quoting Jones v. Cont’l Corp ., 789 F.2d 1225, 1230 (6th Cir. 1986)). Fe dera l Rule of Appellate Procedur e 28 require s an appellant’ s brief to include an argument containing “appe llant’s contentions and the rea sons for them, with cit at i o n s to the authoriti es and p ar ts of the rec ord on which the appellant relies.” Fe d. R. App. P. 28(a) (9)( A). The argumen t section of Seifert’ s brief does not contain a single rec ord citation. The fac t that Hall filed a brief with

no reco rd ci t ations, particula rly in light of Seifert’ s damag ing admissions in her deposition testimony , indicates that Hall and Seifert had no rea sonable expectation of vacating the district court’s summa ry judgme nt in favor of Gra phic Packag ing. The pursuit of this meritless appea l

war rants sanctions under Rule 38 and § 1927. Howeve r, the equities weigh in favor of sanctioning only Hall and not his client, who is untrained in the law. We note that the Ohio Supreme Court has suspended Hall from the prac tice of law, Disciplinary Counsel v. Hall , 963 N.E.2d 813 (Ohio 2012), and that he f

iled a notice of

disqualification with this court on Marc h 14, 2012.

-3-No. 11-4087

Seifert v. Graphic Packaging I nt’l, Inc. Acc ording ly , we AFF I RM the district court’s judg ment and GRANT Graphic Packag ing’ s motion for sanctions. Withi n thirty day s of t his opinion, Gra phic P acka g ing shall file an a ffidavit setting forth the costs and attorney ’s fee s incurre d in defe nding this appea l throug h Marc h 14, 2012, with any response from Ha ll due fiftee n day s therea fter.

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