* Pursuant to 5 TH C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4.

1 United States Court of Appeals

Fifth Circuit



## FILED

June 23, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 422

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 a nd, 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 clai m, 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

learnin g 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. Martinets3

attempted to appeal his termination but human resources told him

the results of the clinic’s tests were co nclusive. 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

ha d terminated him in retaliation for filing a workers’

compens ation 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 A DA and a racial

discrimination claim under Title VII. It alleged that Corning

discharged Martinets because of his hearing l oss and that it

refused to allow Martinets, a white male, to rehabilitate himself

after failing the drug tests or appeal the terminatio n decision

even though it had extended such opportunities to black and4

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 d istrict court also s ua sponte severed the workers’

compensation retaliation claim against Corning and remanded it to

state court after determining t hat 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 dis crimination 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 Gar ment

Co. v. EEOC

, which held that a “district court may in its

discr etion 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 not1 434 U.S. 412, 421 (1978).

5

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 win e 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 s ummary

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 adver se 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 wa s actually

intoxicated on the job. It concluded that Martinets submitted no

evidence showing he received less favorable treatment than any nondisable d or non-white employees, and that he failed to establish

pretext.

The district court also determined that an award of attorneys’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

o f [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 att o rneys’ fees against an unsuccessful party’s

attorneys.”).

3 4 2 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

Unite d 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 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 a gainst 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 aga inst a party’s attorney. 3 She also adds that under4 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 Christiansburg the awards constituted an a buse of discretion

because the case was not frivol ous, unreasonable, or without

foundation. 4

Corning responds that Durkin waived the issue wheth er the

court could award fees against her by not raising it below, and

asserts that it is clea r 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 i mproper 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 rar e cases. In evaluating whether9 St. Amant v. Bernard , 859 F.2d 379, 385 (5th Cir. 1988).

10 Id.

11 Id.

8 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 becau se Martinets’s case was

not frivolous or vexatious. Our own review of the history of this

litigation supports the district court’s determinations.

AFFIRMED.