NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0786n.06 No. 13-1036 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

CATHI E KEMPTER, Plaintiff-Appellant,

v. MI CHI GAN B EL L TEL EPHONE COMPANY, dba AT& T Michig an; TRACY BA I N; RI CK SPI ECE, aka Rick Speic e; RENEE GARCI A, Def endants-A

ppellees. ) ) ) ) ) ) ) ) ) ) ) On Appea l from the United States Di strict Court for the Easter n District of Michig an

Be fore : BO GGS and McK EAGUE, Circ uit J udg es; BE CKWI TH, Senior District Judge. *
BO GGS, Circuit J udg e. Cathie Kempter , a cu s to me r s e r v ic e r e p r e s e n

ta ti v e f or Michig an Be ll Telephone (MB T), develope d car pal tunnel sy

ndrome and took eig ht months of medical leave , but

was fired afte r her leave exp i re d and she failed to return to work. Kempter broug ht this discrimination suit under the Americ ans with Disabilities Act, arg uing that she was fired on the basis of her disabili t y ra t h er than her attendanc e, and that MBT failed to provide her either of her two proposed rea sonable acc om m o d at i o n s. One acc ommodation involved place ment in a light-duty position for rec upera ting e mploy ees; the othe r involved t ransf er to a vaca nt positi on that involved less ty ping. The district court reje cted Kempter ’s arg uments, finding that her car pal tunnel sy

ndrome

The Honora

ble Sandra S. Be ckwith, United States Senior District J udg e for the Southern * District of Ohio, sitting by desig nation.No. 13-1036

Kempter v. M

ichigan Bell Telephone Co., et. al

was not a “disability ” under the ADA, and alterna tively that both o f her acc ommodations wer e

unrea sonable a

nd unsupported by

the facts. On appeal, MBT reque sts impos ition of sanctions for
prosec uting a frivolous appea l. For the following rea sons, we aff irm the decision of the district court and impose sanc tions on Kempter’s c ounsel.
I For over 12 y ear s, Kempter worke d as a customer service repr esenta tive for MBT. Customer service repr esenta tives answe r calls from customers and input their information into a computer databa se. The job involves at least six hours of ty ping a day

. ( See Kempter Deposition at 38, R.13- 12 at Pag eI D# 119.) As a re s u l t o f h er extensive key board and mouse work, Kempter develope d

car pal tunnel sy

ndrome.
I n J uly 2009, Kempter beg an medical leave to have surg ery for her car pal tunnel sy

ndrome.
T h ree months afte r the surg ery , Kempter ’s doctor, Dr. Arno Weiss, indicated that Kempter wa s restric ted from “wor

king with computer key

boar d o r t y

ping for more than 2 hours a day ” and the restric tions are “to be perma nent.” (Dr. Weiss Note, R.13-9.) On Marc h 10, 2010, Kempter was examined by Dr. B.J

. Pag e, an independe nt doctor eng ag ed by MBT to deter mine if Kempter was entitled to continuing disabil ity leave

. Dr. Pag e conclude d that Kempter did not require further
trea tment and was fit to return to work without “any work restric tions.” (Dr. Pag e Report at 5, R.15- 8.) As a result, MBT’ s disability car rier informed Kempter on Marc h 22 that her disability benef its

wer e being terminated and that she was expected to return to work the next day , Tuesday , Marc h 23. (Ke mpter Fa x , R.13-8.) Kempter responde d that day , attaching t h e note from Dr. Weiss and explaining that “I am unable to key board no more than 2 hours per day

. . . [s] o at this time I will not

- 2 -No. 13-1036

Kempter v. Michigan Bell Telephone Co., et. al be able to return to work.” ( Ibid .) Kempter ultimately showed up on Friday, March 26, but was suspended pending dismissal due to her failure to attend from March 23 to 25. (Suspension Letter, R.13-6.) She was formally terminated on April 19. (Termination Letter, R.13-7.) Kempter was fired because she had reached the last step in MBT’s “progressive discipline path” for unexcused absences. (Attendance Policy at 4, R.13-3.) Under MBT’s attendance policy, five “chargeable disability absences” within a five-year period result in termination (the first absence is excused, the second two receive written warnings, the fourth three days unpaid suspension). ( Ibid .) “Chargeable disability absences” are those absences caused by “on/off the job injury or illness, as well as any relapse, for which the employee receives short-term disability benefits, but are not protected by the FMLA.” ( Id . at 1.) By contrast, “excluded absences,” which do not factor into 1 attendance determinations, include absences covered by the collective bargaining agreement (e.g., paid sick leave), the FMLA, company policy, or other applicable law. ( Ibid .) Kempter had a poor attendance record during her twelve-year tenure at MBT, often due to exhausting her FMLA leave, accumulating 31 steps of corrective action with 10 suspensions. (Grievance Minutes, R.13-4.) At the time of her March 23 25 absence, Kempter was at the fourth disciplinary stage, having been

The Family and Medical Leave Act (FMLA) permits 480 hours of leave per year if an 1 eligible employee has “a serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). If an employee exhausts her FMLA leave, further absences will be considered “chargeable disability absences,” per company policy - 3 -No. 13-1036

Kempter v. M

ichigan Bell Telephone Co., et. al suspended without pay on November 13, 2008. (Suspension L etter, R.13-6.) Be cause this was the fifth abse nce in f

ive y ear s, she was f

ired. 2 Kempter filed a written g rieva nce on April 30, 2010, which was denied at all three steps of
MBT’ s internal g rieva

nce proce ss. (Gri e v a

n c e D o c u me n ts , R. 1 5-7.) She subsequently filed this suit, raising claims under the Am e r ic a n s w it h Disabilities Act (ADA ) and state discrimination laws. MBT moved for summary judgme nt, arg uing that as Kempter was unable to perf orm an essential function of her job (key

board and mouse work) and could not show the exis tence of a rea sonable

acc ommodation, she was not en t itled to the protec tions of the ADA. As to the rea sonable

acc ommodations, MB T explained tha t 1) Kempter did not reque st any acc ommodation other than
to ty pe only two hours a day , which was not rea sonable, and that 2) there wer e no vaca nt positions, since the only possible position also require d the ability to ty pe more than two hours a day , and had
to be filled by someone else (Ke ith Hannen ) d u e t o a provision in the collective barg aining
ag ree ment. I n response , Kempter primarily arg ued that MBT impermissibly fired her beca use of her disability , not on the basis of attendanc e. I n the fac t se ction of her response , she also ar g ued ther e

wer e three possible rea sonable acc ommodations. First, she arg ued for a simil ar acc ommodation to Diana Rodabaug h, who also had car pal tunnel sy

ndrome. Rodabaug h testif i ed that as an

acc ommodatio n u n d er M BT’ s “Tra nsitional Work Prog ram,” MBT had g iven her a position involving no ty

ping (in fac t, “ not doing any thing” except “sitting there ”). (Rodabaug h Deposition

Al t h o u gh Ke mpter’s arg uments heavily focus on the details of her termination and the 2 attendanc e policy , these fac ts wer e ultimately not rele vant to the district court’s decision. L ikewise, these fa cts are not releva

nt to the leg al issues in this appeal, except as ba ckg round.

- 4 -No. 13-1036

Kempter v. M

ichigan Bell Telephone Co., et. al
at 24, R.15-9.) Second, Kempter arg ued there was a vaca nt position as a “tec hnical associate ” that require d “minimal” ty

ping. (Ha nnen Deposition at 30, R.15-10.) Finally , she also asser ted, based

on Keith Hanne n’s testimony , that there was another simil ar technica l associate position that

rema ined vac ant. The district court g rante d summary judgme nt for MBT. The court first held that Kempter ’s

car pal tunnel sy

ndrome did not constitu t e a disability for the purposes of the ADA, as it is not an impairment that “substantially limit s one or more of the major life activities of such individual.” 42 U.S.C. § 12102(2)

. I n the alterna tive, the cour t held that even if

Kempter was disabled, she failed
to show that she could perf orm an essential function of the j o b , with or without rea sonable

acc ommodation. Kempter arg ued only that rea sonable acc ommodations exis ted, an d t he district
court found her proposed acc omm o d ations unrea sonable. I n particula r, the court found that Kempter ’s own testimony showed that there wer e no vaca nt positions at the time of her termination. (Ke mpter Deposition at 75, R.13-12.) Dec lining to exercise supplemental jurisdiction, the district
court re manded Ke mpter’s re maining sta te-lawclaims to the state cour t. Subsequently , MBT moved for costs and attorney ’s fee s, $1,970 and $25,000 respe ctively

. (R .21.) The district court g rante d costs, since they are awa rded as a matter of course to the
preva iling par

ty , Fe d. R. Civ. P . 54(d)( 1), but de clined to awa rd attorne y ’s fe es. While conce ding that t h i s wa s not “a close case ,” the court found that this was not the ty pe of “extreme” case

war ranting the s anction of a ttorney ’s fe es. The c ourt noted, howe ver, tha t if a R ule 11 motion for sancti o n s h ad b een broug ht, and Kempter , “in the fac e of such a motion, continued onwar d,” the outcome mig ht have be en diffe rent. - 5 -No. 13-1036

Kempter v. M

ichigan Bell Telephone Co., et. al Kempter appea ls the g rant of summary j u d gm ent. MBT has filed a motion under Fe dera l Rule of Appellate Procedur e 38, 28 U.S.C. § 1912, and 28 U.S.C. § 1927 for sanctions, arg uing that
t he appea l is frivolous, contains misrepre sentations, and that Kempter was war ned twice t h at h er claims had no mer it.
II We revie w de novo a district court’s g rant of summary judgme nt. Chattman v. Toho Tenax Am., Inc

. , 686 F.3d 339, 346 ( 6th Cir. 2012). Summary judgme nt is appropr iate where the rec ord shows “that there is no g enuine dispute as to any materia l fac t and the movant is entitled to judgme nt

as a m at t er o f l aw .” Fe d. R. Civ. P. 56(a)

. The court must view all of the fac ts and draw all

rea sonable infere nces in the light most favor able to the nonmoving party

. Fuhr v. Hazel Park Sch.
Dist. , 710 F.3d 668, 673 (6th Cir. 2013). Ne v er t h el es s , t he issue of fac t must be “g enuine.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp ., 475 U.S. 574, 587 (1986). Summary judgme nt will be d en i ed only wher e the rec ord as a whole could lead a rational trier of fac t to find for the nonmoving pa

rty

. Ibid. The ADA prohibits employ ment discrimination ag ainst a “qualifie d individual on the basis of disability .” 42 U.S.C. § 12112(a)

. W h er e t h e ADA claim is based on direc t evidenc e of discrimination, the i nitial burden is on the plaintiff t o show that she (1) has a disability , and (2) is “other wise qualified” for the position, either “(a ) without acc ommodation from the employ er; (b) with an alleg ed ‘esse ntial’ job require ment eliminated; or (c) with a proposed rea sonable

acc ommodation.” Kleiber v. Honda of Am. Mfg., Inc , 485 F.3d 862, 869 (6th Cir. 2007) (inter nal quotation marks omitted); Mo n ett e v. Electronic Data Sys. Corp ., 90 F.3d 1173, 1186 (6th Cir. - 6 -No. 13-1036

Kempter v. Michigan Bell Telephone Co., et. al 1996), abrogated on other grounds by Lewis v. Humboldt Acquisition Corp., Inc. , 681 F.3d 312 (6th Cir. 2012). After the prima facie case is made, the burden shifts to the employer to prove that the “challenged job criterion is essential” (defeating the employee’s showing in (b)) or that the “proposed accommodation will impose an undue hardship upon the employer” (defeating the employee’s showing in (c)). Kleiber , 485 F.3d at 869 (internal quotation marks omitted). 3 Before proceeding to the analysis, we note that Kempter does not appear to understand the relevant ADA standard. The entire argument section of Kempter’s brief below was devoted to arguing that MBT terminated Kempter on the basis of her disability, as shown by both direct and indirect evidence. R.15. This might be enough in a sex or race discrimination case, see 42 U.S.C. § 2000e-2, but under the ADA one must also show that the individual is “otherwise qualified,” regardless of the motive for firing. In other words, the plaintiff must show that she can perform the essential functions of the job, with or without reasonable accommodations. The district court focused on this “otherwise qualified” aspect of Kempter’s claim, leaving the question of whether MBT discriminated on the basis of disability unanswered. On appeal, Kempter has added a new section to her brief, styled as “Kempter’s Retaliation Claim.” Appellant’s Br. at 24. This “retaliation” claim was not raised below, and the “protected activity” Kempter engaged in (a letter sent from her lawyer five months after termination) cannot
While Kempter’s argument that she was fired because of her disability and not for 3 violating MBT’s attendance policy is very weak, the district court did not decide the issue. Thus, for the sake of argument, we will use only the direct, not indirect, evidence standard. In any case, with respect to essential functions and reasonable accommodation, the two legal standards are similar and the differences are immaterial in this particular case. See Hedrick v. W. Reserve Care Sys. , 355 F.3d 444, 452 53 (6th Cir. 2004) (laying out both standards). - 7 -No. 13-1036

Kempter v. Michigan Bell Telephone Co., et. al support a claim of retaliation because it occurred after the adverse employment action. See 42 U.S.C. § 12203(a); Walborn v. Erie Cnty. Care Facility , 150 F.3d 584, 589 (6th Cir. 1998). Read generously, however, this section at least provides some argument that there were reasonable accommodations available a necessary element of an ADA discrimination claim (assuming the plaintiff fails to show she can perform the essential functions of the job).
III As Kempter does not dispute that typing is an “essential function” of the job of a customer service representative, she must demonstrate that she could have performed her essential job duties with a reasonable accommodation. Before the burden shifts to the employer to show an undue burden, the plaintiff must propose an accommodation that is objectively reasonable to employers in general. Walsh v. United Parcel Svc. , 201 F.3d 718, 726 n.3 (6th Cir. 2000). None of her proposed accommodations are reasonable. First, Kempter argues that she could have been accommodated in the same way as Diana Rodabaugh, who also had carpal tunnel syndrome, by giving her a light-duty, non-typing job. As Kempter explains, this position was part of MBT’s “Transitional Work Program,” which gives injured employees the chance to ease back into regular employment. Employers are not required to convert “temporary light-duty positions for recuperating employees” into permanent positions. Hoskins v. Oakland Cnty. Sheriff’s Dep’t , 227 F.3d 719, 730 (6th Cir. 2000). Since Kempter’s doctor’s note indicates that her restrictions are “permanent,” this was not a reasonable

- 8 -No. 13-1036

Kempter v. Michigan Bell Telephone Co., et. al accommodation for Kempter to propose. If, instead, this light-duty accommodation is considered 4 a permanent position, Kempter has not shown that there was an additional job opening; it is not reasonable for an employer to create a new position to accommodate a disabled employee. See Smith v. Ameritech , 129 F.3d 857, 867 (6th Cir. 1997). In addition, based on Rodabaugh’s description of the job, the proposed accommodation is glaringly unreasonable: a job that consists of “not doing anything” serves no function. Second, Kempter argues that there was a vacant position as a “technical associate,” which opened up shortly after her termination and was filled by Keith Hannen. Employers do generally have an obligation to offer as an accommodation positions that are currently unavailable but will become vacant in a reasonable period of time. Monette , 90 F.3d at 1187. But the employer need not reassign the employee if the employee is not qualified, or if another employee’s rights would be displaced. Hedrick

, 355 F.3d at 457. Here, the “technical associate” position, although not requiring as much typing as a customer service representative position, still mandated typing and mouse aptitude. Keith Hannen testified that he took a typing test to qualify for the job, and that the job involved repetitive point-and-click mouse operations. Kempter has not provided any factual basis to counter MBT’s claim that she would be unqualified for the job. In addition, assignment of the position to Kempter would have violated Hannen’s rights under the collective bargaining agreement, since “surplussed” employees (i.e., those affected by downsizing) are supposed to have priority.
Kempter protests that the independent evaluator’s medical opinion that Kempter was not 4 permanently disabled and could do work must be factored in. But if we accept this position, Kempter should have simply returned to work on March 23 to her old job without accommodation, and we would not have this suit. - 9 -No. 13-1036

Kempter v. Michigan Bell Telephone Co., et. al Kempter does not dispute this fact, but argues that the ADA trumps collective bargaining rights. But the case cited by Kempter states that “the employer’s showing of violation of the rules of a seniority system is by itself ordinarily sufficient” to render the accommodation unreasonable. U.S. Airways,
Inc. v. Barnett , 535 U.S. 391, 405 (2002). Kempter has not shown any sort of “special circumstances” that would warrant deviating from the general rule. Ibid

. Finally, Kempter suggests that there was another unfilled technical associate position that she could have taken. But, as Kempter herself testified, this previous employee’s position was vacant only because that position had been “downsized.” (Kempter Deposition at 75, R.13-12.) Just as employers are not required to create new positions, they are not required to resurrect old positions. As none of her accommodations are objectively reasonable, her claim fails.
IV Kempter also challenges the district court’s alternate holding that she could not be considered disabled in the first place, since her carpal tunnel syndrome was a “limited impairment [that] would not significantly restrict her ability to perform a broad range of jobs in various classes.” McKay v. Toyota Motor Mfg., U.S.A., Inc. , 110 F.3d 369, 373 (6th Cir. 1997). She argues that the 2008 ADA Amendment Act called into question the cases on which the district court relied. Pub. L. No. 110 325, 122 Stat. 3553. We decline to address this issue. The record on the issue is sparse, and given the weakness of Kempter’s proposed accommodations, this case is resolvable without construing the 2008 Amendments.
V - 10 -No. 13-1036

Kempter v. M

ichigan Bell Telephone Co., et. al MBT ha s moved for sa

nctions under F eder al R ule of Appellate Procedure 38, 28 U.S.C. § 1912, an d 2 8 U. S

. C

. § 1927. Rule 38 provides that if the court “dete rmines that an appea l is frivolous, it may

. . . awa

rd just da mag es and single or double costs to the appellee .” Fe d. R. A pp. P. 38. Such sanctions are appropr iate if the appea l is “wholly without merit” or the arg uments “had

no rea sonable expectation of altering the district court’s judgme nt based on law or fac t.” B & H Medic al, L.L.C

. v. ABP Admi n ., Inc. , 526 F.3d 257, 270 (6th Cir. 2008) (internal quotation marks omitted). Ba d faith is not “re quired,” but “we will usually impose Rul e 3 8 sanctions only wher e there was some improper purpose, such as hara ssment or delay , behind the appea l.” Ibid. (interna l quot ati on marks and altera tions omitted; italics in orig inal); see also W ilton Corp. v. Ashland Casting Corp. , 188 F.3d 670, 677 (6th Cir. 1999) (“T hus, though w e find this appea l to have been filed without delay or bad faith, we do find it to be wh o l l y wi t h o u t merit.

. . . Where a client

rea sonably relies on the advice of counsel, it may be that a sanction for a frivolous appea l is proper ly imposed on the attorney if the appea l is without merit or substance.” ). Additionally , sanctions may be war rante d wher e the appellants fail to discuss “key aspec ts of the [di strict] court’s holding” and “mer ely reiter ate the a

rg uments they made to the district c ourt.” B & H Medic al, L.L.C. , 526 F.3d
at 270 (interna l quotation marks and altera tions omitted). Section 1912 is “s i m i l ar,” W aeschle v. Dragovic , 687 F.3d 292, 296 (6th Cir. 2012), providing that an appellate court “in its discretion may adjudg e to the prevailing party just damag es for his delay , and si ng le or double costs.” 28 U.S.C. § 1912. Section 1927 provides for sanctions ag ainst an attorney “who so multipl ies the proce eding s in any case unrea sonably

and vexatiously .” 28 U.S.C. § 1927.

- 11 -No. 13-1036

Kempter v. Michigan Bell Telephone Co., et. al This case does not involve any serious misrepresentations, vexatious tactics, or other overt 5 signs of bad faith. ( See Order Denying Fees, R.28 at 7) (noting lack of “vexatious tactics” below). However, Kempter’s appeal suffers from such serious factual and legal issues that sanctions are warranted. In her appeal, Kempter continues to rely on a liberal, and often misleadingly selective, reading of the record. Kempter does not discuss the facts surrounding her dismissal, failing to directly mention much less justify her March 23 25 absence. She fails to reference the note from her doctor, Dr. Weiss, recommending permanent restrictions. While passing over these facts, she irrelevantly cites her lawyer’s pre-suit demand letter in full. In her reasonable accommodation argument, Kempter neglects to mention that the second supposedly vacant technical associate position Kempter “could have been placed in” had been eliminated two years earlier. She also fails to respond to MBT’s arguments that she would not be qualified to perform the technical associate job. She relies solely on Keith Hannen’s statement that the amount of typing on a day-to-day basis is “minimal.” But MBT argues that the ability to type for prolonged periods is essential and, in any case, that the job unquestionably requires significant mouse work a repetitive task ill-suited to employees with carpal tunnel syndrome.

MBT does accuse Kempter of misrepresentation, specifically, in stating that Rodabaugh was 5 fired for her testimony in support of Kempter. According to MBT, Rodabaugh had been on medical leave, but returned to work February 7, 2013. Kempter only weakly replies that: “Just like any other case, the plaintiff has her version of the facts, and the defendants have theirs.” This fact is legally unimportant, but its potential misrepresentation is consistent with Kempter’s cavalier treatment of the record. - 12 -No. 13-1036

Kempter v. Michigan Bell Telephone Co., et. al Kempter’s appeal also suffers from the failure to properly apply the relevant legal standard. Kempter never lays out the elements of an ADA discrimination claim, and despite the district court’s passing on the issue, continues to press her argument that she was fired on the basis of disability. Much of Kempter’s appellate brief is lifted from below, and success on the new issue raised the effect of the 2008 ADA Amendments would not be sufficient to warrant reversal. It is true that Kempter added several pages of argument with respect to the only necessary issue: whether MBT could have provided reasonable accommodation. But this added argument was presented in the 6 form of a “retaliation” claim, which had not been raised below, either in briefing or in the complaint. In addition, the only really new argument in this section that the ADA may take precedence over collective bargaining rights is easily refuted. MBT responded with several cases establishing the contrary proposition, to which Kempter has not responded. Indeed, Kempter failed to file a reply brief altogether, a problematic factor given the strength of MBT’s response. Leeds v. City of Muldraugh , 174 F. App’x 251, 256 (6th Cir. 2006). Standing alone, these deficiencies might be considered mere “negligence or incompetence.” Red Carpet Studios Div. of Source Advantage, Ltd. v. Sater , 465 F.3d 642, 646 (6th Cir. 2006). However, the district court’s warning below that this was not “a close case” and that Rule 11 sanctions might have been justified demonstrates that Kempter’s counsel “knowingly disregarded the risk” of pursuing a frivolous appeal. Scherer v. JP Morgan Chase & Co. , 508 F. App’x 429, 339 (6th Cir. 2012) (internal quotation marks and alteration omitted). In Scherer , the district court also
Even this new argument section is mostly cut-and-pasted: pages 25 28 of the brief’s new 6 section are nearly identical to pages 8 10 of the fact section. - 13 -No. 13-1036

Kempter v. M

ichigan Bell Telephone Co., et. al elec ted not to impose sanctions, but noted that the decisions was a “ver y close call.” Ibid

. L ikewise, counsel in that case evidenc ed a marked la ck of f amiliarity with the rele vant law and failed to file

a re ply brief. Ibid

. Kempter ’s response to the motion for sanctions serve s only to undersc ore the p re v i ously stated inadequa cies. The response fails to rec og nize that the district cour t granted the motion for
summary judgme nt on two ind ep en d en t g rounds, and that rea sonable acc ommodations must be shown to establish a prima fac ie ADA case . I n stead, the response claims that “the district court committed reve rsible e r

r o r w h e n g r a

n ti n g D e f e n d a n t’ s [m otion for summary judgme nt] based on preADAAA case law” and that “asse rting her rig ht to challeng e a district court op i n i o n o n ap peal without fea

r of sanctions is the best way to acc omplish meaning ful chang e in civil rig hts law.” Resp.
to Mot. for Sanctions at ¶¶ 7, 9. But invoking the high principles of civil-rig hts litigation and issues of first impression does not hing to chang e the unde rly ing f actua l weakne ss of her claims. I nstead of actua lly defe nding her proposed acc ommodat i o n s , Ke m pter’s response tersely states that “the District Court O pinion spe aks for itself.” Id. at ¶ 10. Rule 38 and 28 U.S.C. § 1927 do not pe rmit

a lawy er, ostrich-like, to c ontinue prosec uting a case while ref using to r ecog nize the rele vant leg al standard or

counter the opposing party ’s fa ctual ar g uments. VI For the fore g oing rea sons, the district court’s g rant of summar y judgme nt is affirmed. We impose a $5,000 sanction on Kempter ’s counsel, pay able to MBT within 30 day s of the issuance of our manda te.

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