UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOYCE M. WILLIAMS,

Plaintiff-Appellant,

v.

No. 96-1109

COUNTY OF FAIRFAX; MICHAEL

YOUNG, Chief of Police, in his

official and individual capacities,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, Chief District Judge.

(CA-95-1255-A)

Submitted: November 25, 1997

Decided: September 24, 1998

Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.

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Affirmed in part and reversed in part by unpublished per curiam opinion.

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COUNSEL

Joseph D. Gebhardt, Washington, D.C., for Appellant. David P. Bobzien, County Attorney, Robert Lyndon Howell, Deputy County Attorney, Cynthia L. Tianti, Assistant County Attorney, Fairfax, Virginia,

for Appellees.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Joyce M. Williams, a black female, has been employed by the Fairfax County Police Department ("FCPD" or "the Department") as the

Civilian Director of the Victim/Witness Assistance Program ("the

Program") since January 1986. She alleges that Defendants discriminated and retaliated against her for attempting to discipline a white,

subordinate employee, for complaining of racial discrimination within

the police department, and for filing grievances. Specifically, she contends that Defendants "trumped up" disciplinary charges against her,

which resulted in her termination; Defendants verbally harassed her;

and Defendants humiliated her in the press. Accordingly, Williams

filed suit pursuant to Title VII of the Civil Rights Act of 1964, 42

U.S.C.A. § 2000e-5 (West 1994 & Supp. 1998), and 42 U.S.C. § 1983

(1994).1 Defendants moved for summary judgment, which the district

court granted. The district court also granted Defendants' motion for

attorney's fees and nontaxable costs and denied Williams's motion to

amend the order. Williams timely appeals from these orders.2

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1 Through counsel, Williams and three other minority plaintiffs filed

suit in an attempted class action against three separate Fairfax County

departments. After plaintiffs filed an amended complaint, the district

court dismissed the action as undecipherable and gave Williams eleven

days in which to refile her complaint. The court withheld awarding attorney's fees, but clearly warned Williams and her attorney that if she

refiled her case but failed to raise a genuine, factual basis from which to

bring a claim, then sanctions would be assessed. Williams refiled a complaint within the eleven days, but dropped one of the original defendants

from the case. Thereafter, the defendant who had been dropped from the

case moved for attorney's fees, which the court granted in the amount of

$1000. This appeal arises from the complaint Williams filed pro se

within the eleven days.

2 Williams raises no issues on appeal regarding her § 1983 claim.

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This court reviews grants of summary judgment in discrimination

cases de novo. See Jones v. Wellham, 104 F.3d 620, 626 (4th Cir.

1997). Summary judgment is properly granted if the movant can show

that there is no material fact in dispute when viewing the evidence in

the light most favorable to the nonmovant. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 256-57 (1986).

To establish a prima facie case of discriminatory discharge, Williams must show: (1) she is a member of a protected class; (2) she was

qualified for the job and performed satisfactorily; (3) in spite of her

qualifications and performance, she was discharged; and (4) the position remained open to similarly qualified applicants after plaintiff's

dismissal. See Carter v. Ball, 33 F.3d 450, 458 (4th Cir. 1994). Williams failed to establish that she was performing at a satisfactory

level. There was substantial evidence that Williams had abused her

use of the county vehicle and her sick and vacation leave. Furthermore, the position did not remain open to similarly qualified applicants after Williams's dismissal. In fact, Williams was not replaced

at all. She returned to her original position, with her original title and

salary. Thus, Williams failed to establish a prima facie case of discriminatory discharge.

Williams next alleges that her termination was in retaliation for: (1)

her attempt to discipline Virginia Johnson, a white employee; (2) her

complaints of discrimination by the FCPD; and (3) filing grievances.

To establish a prima facie case of retaliation, Williams must prove:

(1) she engaged in a protected activity; (2) the FCPD took adverse

employment action against her; and (3) a causal connection existed

between the protected activity and the adverse action. See Carter, 33

F.3d at 460.

Williams failed to establish a prima facie case of retaliation in relation to her discipline of Johnson because attempting to discipline a

subordinate is not a "protected activity" under Title VII. Assuming

Williams met her burden of establishing a prima facie case with

regard to the allegation of retaliation for complaining within the

department about discrimination, the burden of production then shifts

to Defendants to articulate some legitimate, nondiscriminatory reason

for their actions. See Texas Dep't of Community Affairs v. Burdine,

450 U.S. 248, 253 (1981). The Defendants produced overwhelming

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evidence that Williams was fired because of the findings of the Civil

Service Commission.3 The evidence included several statements by

co-workers, and multiple reports and memoranda detailing the findings of the Internal Affairs investigation into Williams's activities.

After the Defendants provide a nondiscriminatory reason for the

discharge, the burden shifts back to Williams to prove by a preponderance of the evidence that the legitimate reasons offered by Defendants were not the true reasons for her termination. See Burdine, 450

U.S. at 253. Although she came forward with an abundance of documentary evidence, none established that Defendants' proffered reason

for terminating Williams was pretextual. Thus, Williams failed to satisfy her burden.

Williams also argues that Defendants discriminated or retaliated

against her: (1) by changing the conditions of her employment after

her reinstatement; (2) by giving her a lower performance evaluation;

and (3) in the handling of her grievance of that evaluation and her

report of insubordination of two employees. None of these claims has

any basis.

This circuit has defined an adverse employment action as one

involving "hiring, granting leave, discharging, promoting [or] compensating." Page v. Bolger, 645 F.2d 227, 233 (4th Cir. 1981). The

Civil Service Commission ordered the Defendants to reinstate Williams. Defendants complied, giving Williams her same salary, title,

and benefits. The only changes Williams experienced after being reinstated were a different office location and removal of her supervisory

duties. These changes do not constitute adverse employment actions.

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3 Both parties devote a large portion of their briefs to discussing the

preclusive effect of the findings of the Civil Service Commission. After

the parties' briefs were filed, this court held, in a similar case, that the

unreviewed findings of the Civil Service Commission are merely state

administrative determinations which are not entitled to preclusive effect

in Title VII cases. See Rao v. County of Fairfax, Virginia, 108 F.3d 42,

45 (4th Cir. 1997). Even without giving the Commission's findings preclusive effect, there is sufficient evidence to establish Defendants' nondiscriminatory motive for discharging Williams. Thus, we deny

Williams's motion for summary reversal.

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See id. Further, even if Williams could make out a prima facie case

of retaliation, she failed to rebut Defendants' nondiscriminatory reason for altering her duties. Defendants submit that prior to the findings of the Commission, Williams had been relatively unsupervised.

However, after being found guilty of several disciplinary infractions

involving truthfulness, the FCPD decided she should be more closely

supervised. Accordingly, Williams's supervisory duties were removed

and her office was relocated to a space beside her new supervisor so

that her activities could be more closely monitored. Williams submitted no evidence to rebut this claim.

As to Williams's claim that she received a lowered performance

evaluation, the district court properly granted summary judgment. The

evaluation was above satisfactory and qualified Williams for a merit

increase in pay. Furthermore, Major Libby included consideration of

the Commission's findings in the evaluation pursuant to personnel

policy. Thus, this claim also fails.

Williams next alleges that Major Libby improperly handled her

grievance of that evaluation by threatening her and throwing his written response to the grievance at her. Major Libby used no racial epithets or slurs, never physically touched Williams, and after the first

encounter over the grievance, Williams sought out Major Libby to

continue the discussion a short time later. Williams's allegations are

unsupported by any evidence and therefore, fail to state a claim.

Williams also contends that Major Libby improperly handled her

complaint of insubordination by the employees because he referred

the matter to Internal Affairs for an investigation against Williams's

wishes. Again, Williams fails to state a claim. Major Libby believed

that a charge of insubordination was serious enough to warrant an

investigation. The mere fact that Williams disagreed with Major

Libby's assessment of the situation does not raise any inference of

discrimination or retaliation.

Finally, Williams alleges that Defendants conspired to humiliate

her in the press. However, Williams presented no evidence of the conspiracy other than her own allegations. Furthermore, in her deposition, Williams admitted having no evidence of a conspiracy. Thus,

this claim also fails.

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The district court awarded Defendants $14,737.50, in attorney's

fees and $2,377.88, in non-taxable costs.4 This court reviews a district

court's award of attorney's fees for an abuse of discretion. See

Hutchinson v. Staton, 994 F.2d 1076, 1080-81 (4th Cir. 1993). A

court may award attorney's fees to a prevailing defendant in a Title

VII case if it finds the plaintiff's suit to be"frivolous, unreasonable,

or groundless, or [where] the plaintiff continued to litigate after it

clearly became so.'" Lotz Realty Co. v. United States Dep't of Hous.

and Urban Dev., 717 F.2d 929, 931 (4th Cir. 1983) (quoting

Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978)).

In this case, Williams, represented by counsel, filed an action alleging discrimination and retaliation in violation of Title VII. The district

court dismissed the second amended complaint in that action and gave

Williams eleven days to refile. However, the district court also

warned Williams that if she chose to refile her action, but lacked a

factual basis to bring a particular claim against a particular defendant,

then the court would impose sanctions. Williams refiled her complaint

pro se because she was no longer represented by her original attorney,

though she retained new counsel shortly thereafter. Upon motion for

summary judgment by Defendants, the district court found "absolutely no evidence of racial discrimination in this case" and granted

Defendants' motion. Thus, because the district court: (1) allowed Williams to amend her complaint twice; (2) allowed her to refile after dismissal; (3) warned her that sanctions would be imposed if she refiled

her complaint without any factual basis; and (4) found all of Williams's claims to be groundless, we find that the district court's award

of attorney's fees against Williams personally was not an abuse of

discretion. See Hutchinson, 994 F.2d at 1080-81. To the extent the

district court awarded fees against Williams's second set of attorneys,

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4 The district court awarded attorney's fees pursuant to 42 U.S.C.A.

§ 1988 (West Supp. 1997). However, to the extent the fees were awarded

for Williams's Title VII claims, the fees should have been awarded under

42 U.S.C. § 2000e-5(k) (1994). See Arvinger v. City Council of

Baltimore, 31 F.3d 196, 200 n.* (4th Cir. 1994). Nevertheless, this error

is harmless because the standard for granting attorney's fees under

§ 1988 is identical to the standards applied under § 2000e-5. See Hensley

v. Eckerhart, 461 U.S. 424, 433 n.7 (1983); Martin v. Cavalier Hotel

Corp., 48 F.3d 1343, 1359 n.10 (4th Cir. 1995).

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however, we find that the district court abused its discretion. Both

Title VII and § 1983 are silent about who pays the fees, and we found

no authority for the court's imposition of attorney's fees against counsel under these statutes. Accordingly, we reverse the award of attorney's fees against Williams's counsel. We note, however, that the

district court is free to consider sanctions against counsel under Fed.

R. Civ. P. 11 and under the court's inherent power to sanction an

attorney who acts wantonly, vexatiously, or in bad faith. See Quiroga

v. Hasbro, Inc., 934 F.2d 497, 504 (3d Cir. 1991).

Williams also argues that the district court's award was excessive.

She contends that the district court decided the case based on the issue

of the preclusive effect of the Civil Service Commission's findings.

She complains that Defendants should have made their preclusion

argument earlier in the litigation, before Defendants incurred all the

requested fees and expenses, a large portion of which were incurred

for time spent on discovery. This argument fails. There is no requirement that Defendants move at any particular stage in the proceedings

for dismissal or summary judgment as a prerequisite to recovering

attorney's fees and costs. See Bakker v. Grutman , 942 F.2d 236, 241

(4th Cir. 1991). Furthermore, although the district court may have

considered the preclusive effect of the Commission's findings, the

court's decision was largely based on Williams's lack of evidence.

The full measure of Williams's evidence could not be ascertained

until after discovery. Thus, the district court did not abuse its discretion by accepting Defendants' calculation of attorney's fees, which

included time spent during the discovery process.

Next, Williams argues that the district court's assessment of attorney's fees should have been guided by the fees applied to her attorney

in the first class action suit (No. 95-815-A) which was dismissed with

permission to refile within eleven days. The starting point for determining fees is found by multiplying the number of hours reasonably

spent on the case by the reasonable or customary hourly rate. See

Allen v. Burke, 690 F.2d 376, 380 (4th Cir. 1982). From this number,

the district court may then adjust the award upward or downward

based on twelve traditional factors, one of which includes attorney's

fees in similar cases. See id. at 379. Thus, although the district court

may have properly considered the award of attorney's fees in the first

case, (No. 95-815-A), it was not an abuse of discretion to conclude

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that the second award (No. 95-1255-A), which came after the court's

warning, should be significantly higher than the first.

Finally, Williams argues that the second set of attorneys should not

be held responsible for the hours spent by Defendants' attorneys on

the first case (No. 95-815-A). Because we have reversed the award

against the attorneys, this issue is moot.

Consequently, we affirm the district court's orders granting summary judgment and awarding attorney's fees against Williams personally, and we reverse the award of attorney's fees against Williams's

counsel. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the court

and argument would not aid the decisional process.

AFFIRMED IN PART; REVERSED IN PART

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