1--- U.S. ----, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). 

1

United States Court of Appeals,

Fifth Circuit.

No. 92-2964.

Summary Calendar.

Patsy Elaine CARMON, Plaintiff-Appellant,

v.

LUBRIZOL CORPORATION, Defendant-Appellee.

March 31, 1994.

Appeal from the United States District Court for the Southern

District of Texas.

Before JOLLY, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:

Plaintiff-Appellant Patsy Elaine Carmon challenges the

district court's judgment on partial findings dismissing her claims

of discrimination under Title VII. Specifically, Carmon contends

that the district court applied the wrong legal standard to her

"hostile work environment" claim premised on sexual harassment,

i.e., that the district court should have applied the standard

recently reaffirmed by the Supreme Court in Harris v. Forklift

Systems, Inc.1

We conclude that Carmon thoroughly misapprehends the basis of

the district court's dismissal. First, the district court did

apply the standard reaffirmed in Harris. Second—and of more

significance—Carmon fails to address the grounds for the dismissal.

The dismissal of her suit was grounded on the district court's
 

2Carmon also claimed that she had been terminated or

constructively discharged, denied a promotion, and subjected to

racial harassment, all in violation of Title VII. As noted

infra, Carmon has not challenged the district court's dismissal

of these other claims. 

2

conclusion that Defendant-Appellee Lubrizol Corporation

("Lubrizol") could not be held liable here because it took prompt

and appropriate remedial action in response to Carmon's

allegations. We thus conclude that Carmon has wasted the time and

resources of this court and of the opposing party by completely

failing to present any plausible challenge to the district court's

judgment. Consequently, we dismiss this appeal as frivolous and

impose sanctions under United States Code Title 28, Section 1927

and Federal Rules of Appellate Procedure 38.

I

FACTS AND PROCEEDINGS

After holding a bench trial, the district court made the

following findings regarding Carmon's hostile-work-environment

claim.2 Lubrizol, a specialty chemical company, hired Carmon in

1977 as an operator-trainee for Lubrizol's facility in Deer Park,

Texas. Lubrizol promoted Carmon to the position of "C" operator in

1978 and to the position of "B" operator in 1981. She was

terminated in October 1987 for failing either to report to work or

respond to Lubrizol's repeated requests for information regarding

her medical condition.

During her ten-year tenure with Lubrizol, Carmon twice claimed

that she had been subjected to a hostile work environment caused by

sexual harassment. In 1986 Carmon engaged in an argument with an
3

"A" operator, Therman Brittain, over her failure to complete a work

assignment, an argument that degenerated into the trading of vulgar

insults by both Carmon and Brittain. Shortly after this argument,

Carmon made her first accusation, one in which she complained to a

supervisor about the language used by Brittain. She also alleged

that Brittain asked her questions about her sexual activities,

although she made no allegation that Brittain touched her or

indicated to her that he wanted to engage in sexual relations.

Immediately, Lubrizol sprang into action. On the same day

that Carmon made the complaint, several supervisors and the

personnel manager of Lubrizol met with her. Carmon was told that

Lubrizol appreciated her bringing this incident to its attention,

that Lubrizol did not condone or tolerate sexual harassment, and

that Lubrizol would conduct a prompt investigation.

Lubrizol proved to be as good as its word. Supervisory

personnel of Lubrizol first questioned Brittain, who denied making

any sexually-oriented comments or asking about Carmon's personal

life; although he did admit to using foul language on many

occasions. Next, Lubrizol's supervisors interviewed six witnesses,

none of whom corroborated Carmon's claims regarding sexual insults

or sexual innuendo by Brittain. From this investigation, Lubrizol

concluded that both Carmon and Brittain had used foul language.

Finally—because sufficient evidence indicated that Brittain had

used offensive language—Lubrizol reprimanded Brittain in writing

and transferred him to another shift. This investigation and

disciplinary action was completed within three days following the
 

3At trial, Carmon raised a plethora of new allegations of

sexual harassment. These allegations kept expanding during

direct examination, cross-examination, and even redirect

examination. Eventually, the district court concluded that

Carmon was not credible regarding these new allegations. In

addition, the district court observed that Carmon had

never—despite having ample opportunity and encouragement—informed

Lubrizol of these allegations. 

4

original complaint.

Carmon made her second accusation in a ten-page letter sent to

Lubrizol in September 1987. Upon receipt of this letter, Lubrizol

conducted another prompt, thorough investigation. Lubrizol sent

two employees from its corporate human resources department to join

the Deer Park personnel manager in the investigation. This team

interviewed the employees named in Carmon's letter. In addition,

the team asked Carmon to provide any additional information that

she may have had regarding her allegations—a request that she

declined.3

Although this investigation did not turn up evidence of sexual

harassment, it did uncover some proof that employees engaged in

horseplay and other inappropriate behavior in the workplace. In

response, Lubrizol distributed a memorandum to all employees

regarding such behavior. This memorandum pointed out that vulgar

and abusive language, practical jokes, and horseplay would not be

tolerated in the workplace. In addition, it reminded all Lubrizol

employees that necessary action would be taken against anyone

participating or engaging in such behavior. Finally, Lubrizol held

meetings to inform employees of what constitutes appropriate

workplace behavior.
 

4E.g., Atwood v. Union Carbide Corp., 847 F.2d 278, 280 (5th

Cir.1988), reh. on other grounds, 850 F.2d 1093, cert. denied,

489 U.S. 1079, 109 S.Ct. 1531, 103 L.Ed.2d 836 (1989); Kincade

v. General Tire & Rubber Co., 635 F.2d 501, 504-06 (5th

Cir.1981). 

 

5FED.R.APP.P. 28(a). 

5

In April 1990, Carmon filed suit against Lubrizol alleging

that she had been terminated or constructively discharged, denied

a promotion, and subjected to racial and sexual harassment, all in

violation of Title VII. Her claims of sexual and racial harassment

were premised on the contention that such harassment created a

hostile work environment. For three days, Carmon presented her

case to the district court. After Carmon rested her case, the

district court entered a judgment on partial findings under Federal

Rule of Civil Procedure 52(c) and dismissed the case with

prejudice. Carmon timely appealed.

II

DISCUSSION

We liberally construe briefs in determining issues presented

for review; however, issues not raised at all are waived.4

Moreover, Rule 28 of the Federal Rules of Appellate Procedure

mandates that:

The brief of the appellant shall contain ... [a]n argument.

... The argument shall contain the contentions of the

appellant with respect to the issues presented, and the

reasons therefor, with citations to the authorities, statutes

and parts of the record relied on.5

Even when we thus construe Carmon's brief liberally, we
 

6Thus, any arguments that Carmon may have had regarding her

termination or constructive discharge, her lack of promotion, and

her alleged subjection to racial harassment, are deemed waived. 

See, e.g., Kincade, 635 F.2d at 504-06. 

 

7--- U.S. ----, 114 S.Ct. 367, 126 L.Ed.2d 295. 

 

8Id., at ----, 114 S.Ct. at 369-70, 126 L.Ed.2d at 301

(quoting Meritor Savings Bank v. Vinson, 477 U.S. 57, 67, 106

S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986)). In its Conclusions of

Law, the district court stated and applied the standard exactly

as it has been enunciated in Meritor and Harris. 

 

9Harris, --- U.S. at ---- - ----, 114 S.Ct. at 370-72, 126

L.Ed.2d at 302-03. 

6

discern but one challenge to the district court's judgment.6 As

noted, Carmon's one contention on appeal is that the district court

applied the wrong legal standard to her hostile-work-environment

claim premised on sexual harassment, i.e., that the court should

have applied the standard recently reaffirmed in Harris v. Forklift

Systems.7

Carmon misapprehends the basis of the district court's

dismissal. Again, the district court did apply the standard

reaffirmed in Harris: That a hostile-work-environment claim is

established when the complained of discriminatory conduct "is

"sufficiently severe or pervasive to alter the conditions of the

victim's employment and create an abusive working environment.' "

8

Harris—which was decided after the district court entered judgment

in the instant case—did not change this standard. Rather, Harris

merely made clear that psychological injury is not an element of a

hostile-work-environment claim9—a point that was never at issue in

the instant case.

Second—and more significantly—the district court grounded its
 

10See, e.g., Jones v. Flagship Int'l, 793 F.2d 714, 719-20

(5th Cir.1986, cert. denied, 479 U.S. 1065, 107 S.Ct. 952, 93

L.Ed.2d 1001 (1987). Harris did not change this requirement. 

Nash v. Electrospace System, Inc., 9 F.3d 401, 403-04 (5th

Cir.1993). 

 

11FED.R.APP.P. 38. 

 

12E.g., Montgomery v. United States, 933 F.2d 348, 350 (5th

Cir.1991) (quoting Coghlan v. Starkey, 852 F.2d 806, 811 (5th

Cir.1988)). 

7

dismissal on the conclusion that Lubrizol could not be held liable

because it took prompt and appropriate remedial action in response

to Carmon's allegations. Under controlling precedent, for Carmon

to succeed in holding Lubrizol liable for the misconduct of its

employees, she had to show that Lubrizol failed to take such

action.10 And given the overwhelming evidence of the prompt and

proper responses by Lubrizol, Carmon has not—and plausibly

cannot—challenge the district court's findings and conclusion on

this issue. Consequently, as the district court correctly held,

Carmon failed to establish an essential element of her

hostile-work-environment claim.

III

SANCTIONS

Lubrizol has requested attorney's fees and costs as sanctions

against Carmon for prosecuting this appeal. Under Federal Rule of

Appellate Procedure 38 we have discretion to sanction an appellant

when an appeal is determined to be frivolous,11 which we have

defined as "an appeal in which "the result is obvious or the

arguments of error are wholly without merit.' "

12 Moreover, we may

hold counsel personally liable for costs, expenses, and attorney's
 

1328 U.S.C. § 1927; Caldwell v. Palmetto State Sav. Bank,

811 F.2d 916, 919 (5th Cir.1987) (holding counsel and appellants

jointly liable under § 1927 and Rule 38). 

8

fees under 28 U.S.C. § 1927 when that counsel "multiplies the

proceedings in any case unreasonably and vexatiously...."13

Counsel for Carmon has caused this court and the opposing

party to waste time and resources, yet has filed nothing more than

a five-page "slap-dash" excuse for a brief—a brief that fails to

raise even one colorable challenge to the district court's

judgment. This brief starts with a Statement of Facts consisting

only of cryptic citations to the record, then proceeds to an

Argument consisting of selective quotes from Harris, and finally

concludes with the bald assertion that the district court erred by

failing to apply the standard reaffirmed in Harris—a patently

inaccurate statement. Had counsel correctly read the district

court's opinion, he would have realized that the court did in fact

apply the very standard stated in Harris. Had counsel spent any

real time studying the record and the opinion, he would also have

discerned that his appellate argument was inapposite. The sexual

harassment claim was disposed of on an entirely separate ground—one

that could not plausibly be challenged on appeal.

Such a poor quality of briefing is inexcusable; prosecution

of such a meritless appeal is likewise inexcusable. Consequently,

we impose sanctions under Federal Rules of Appellate Procedure 38

and 28 U.S.C. § 1927, assessing double costs jointly and severally
 

14Cf., Caldwell, 811 F.2d at 919 (holding client and counsel

jointly liable for prosecuting a meritless appeal). 

9

against Carmon and her counsel.14 We trust that this relatively

mild sanction will provide counsel the "wake up call" needed to

ensure that closer attention will be paid to his professional

responsibilities in the future. Should these lesser sanctions fail

in that regard, however, future frivolous appeals, such as the one

before use, will expose counsel to the full panoply of sanctions at

our disposal for dealing with such conduct.

IV

CONCLUSION

Lubrizol twice did what a company ought to do when faced with

allegations that an employee has been subjected to sexual

harassment, engendering a hostile work environment: It took the

allegations seriously, it conducted prompt and thorough

investigations, and it immediately implemented remedial and

disciplinary measures based on the results of such investigations.

Holding a company such as Lubrizol liable after it has taken such

action would produce truly perverse incentives benefitting no one,

least of all actual or potential victims of sexual harassment.

We conclude that the district court did not err in finding

that Carmon completely failed to establish a necessary element of

her hostile-work-environment claim. We further conclude that

Carmon and her counsel abusively prosecuted a meritless appeal.

Consequently, Carmon's appeal of the judgment of the district court

is DISMISSED as frivolous, with imposition of sanctions under
10

Federal Rules of Appellate Procedure 38 and 28 U.S.C. § 1927;

double costs to be assessed jointly and severally against Carmon

and her appellate counsel.