*

The Honorable Robert Holmes Bell, 

the Western District of Michigan, sitting 

1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

TRUDY WILSON-SIMMONS,

Plaintiff-Appellant,

JOSEPH R. COMPOLI, JR.;

JAMES R. GOODLUCK,

Appellants,

v.

LAKE COUNTY SHERIFF’S

DEPARTMENT; DANIEL A.DUNLAP,

Defendants-Appellees.

Appeal from the United St

for the Northern District of 

No. 96-02359—Donald C. N

Argued: Decembe

Decided and Filed: M

Before: RYAN and SUHRHEI

BELL,

*

 District 
2 Wilson-Simmons v. Lake

County Sheriff’s Dep’t, et al.

No. 98-3553

_________________

COUNSEL

ARGUED: Stephen W. Gard, Cleveland, Ohio, forAppellants. Michael P. Brown, LAKE COUNTYPROSECUTOR’S OFFICE, Painesville, Ohio, for Appellees.ON BRIEF: Joseph R. Compoli, Jr., Cleveland, Ohio, forAppellants. Michael P. Brown, LAKE COUNTYPROSECUTOR’S OFFICE, Painesville, Ohio, for Appellees.Mark S. Telich, Cleveland, Ohio, for Amicus Curiae.

_________________

OPINION

_________________

BELL, District Judge. The Plaintiff, Trudy WilsonSimmons, and her attorneys, Joseph R. Compoli, Jr., and

James R. Goodluck, (hereinafter collectively referred to as the"Appellants") appeal the order of the district court awardingattorney fees against Wilson-Simmons and sanctioning herattorneys by holding them jointly and severally liable for theaward on the grounds that the Plaintiff's racial discriminationand retaliation claims were frivolous, unreasonable andwithout foundation. We affirm.

I.

Wilson-Simmons has been employed as a corrections

officer at the Lake County Sheriff's Department since 1990.On February 7, 1995, she complained to her supervisor, FrankLeonbruno, that she had been told by another co-worker thata corrections officer had sent a racist electronic mail ("email") about her to another corrections officer.Wilson-Simmons refused to identify the co-worker who hadgiven her this information. She requested to view the e-mailgenerated by every officer in the Lake County DetentionFacility for the month of January. Leonbruno informed herthat the e-mail records were not readily available and that they
10 Wilson-Simmons v. Lake

County Sheriff’s Dep’t, et al.

No. 98-3553

Bad faith is not required to support a sanction under § 1927.Jones, 789 F.2d at 1230. 

Having reviewed the record, we concur with the district

court that it should have been patently obvious to Plaintiff'scounsel that the facts alleged did not, as a matter of law,support a retaliation claim. The district court did not abuse itsdiscretion by imposing sanctions upon counsel for pursuingan action based on a disgruntled employee's motleyassortment of grievances and perceived mistreatment.

For the reasons stated herein, we AFFIRM the judgment of

the district court awarding attorney fees against WilsonSimmons pursuant to § 1988 and imposing joint and severalliability for that award upon her counsel as a sanctionpursuant to § 1927.

No. 98-3553 Wils

County S

would need to be reconstructed. Ta notice to all employees prohibitmails. In the absence of Wilson-Simmons, Leonbruno was allegation. The next day, Wilswritten request to view the e-mail for the month of January. She was the Lake County Sheriff's Departmone hundred forty hours to reconsand that she would be responsible 

In October 1996, Wilson-Simmo

against the Defendants, the Lake Coand Daniel A. Dunlap, the Lake racial discrimination and retaliatio§ 1981, § 1983, § 2000e-2(a), § 2law. The complaint alleged that the against her because the fee to viebeen $3.00, the price of a public Defendants failed to investigate thcomplaint further alleged that folcomplaint and request for access tthe Defendants retaliated against hthe fourth floor which housed maxilosing her overtime paperwork, readministering a written disciplinamake a door check during her shift her log report; (4) instructing her tof these events because her respon(5) giving her a disciplinary wequipment to advertise her TupSimmons alleges that she suffered as a result of these incidents.

The Defendants thereafter move

On October 22, 1997, the district With respect to Wilson-Simmons' rthe district court set forth the burdMcDonnell Douglas Corp. v. Gree
4 Wilson-Simmons v. Lake

County Sheriff’s Dep’t, et al.

No. 98-3553

1817, 36 L.Ed. 2d 668 (1973). The court first noted that thePlaintiff had no evidence that the allegedly racist e-mailexisted. She had learned of it from a co-worker who was toldby another corrections officer that still another correctionsofficers was responsible. The court further found thatWilson-Simmons had failed to show an adverse employmentaction related to her discrimination claims and that she hadproffered no evidence to suggest that she was treated worsethan similarly situated, non-protected employees. The courtconcluded that the Defendants were entitled to summaryjudgment because she had failed to demonstrate a prima faciecase of disparate treatment.

The district court next reviewed each alleged incident with

respect to her retaliation claim. The court clarified that herassignment to the fourth floor with maximum securityinmates was part of her duties and that she had presented noevidence to demonstrate that she was singled out and given adisproportionate number of assignments to this area. Thecourt noted that other officers, including members of aprotected class, were assigned to this duty more frequentlythan she was. The court concluded that the loss of herovertime sheet was a single, isolated event that was nothingmore than a clerical oversight. As to the allegations that shewas unfairly reprimanded, the evidence revealed that she hadnot been disciplined but had merely received requests frommanagement to explain certain conduct. The courtaccordingly determined that she had failed to demonstrate thatshe suffered adverse employment action in retaliation for herprotected activity. Wilson-Simmons did not appeal the orderof the court granting summary judgment. 

On November 6, 1997, the Defendants moved for attorney

fees and costs against Wilson-Simmons pursuant to 42 U.S.C.§ 1988. The district court referred the motion to a magistratejudge. On January 14, 1998, the magistrate judgerecommended that attorney fees be awarded against WilsonSimmons and that the district court issue an order to counselto show cause why sanctions should not be imposed against

No. 98-3553 Wils

County S

that the district court rejected recommendation that the court Plaintiff's counsel pursuant to § inherent authority because the coauthority in its opinion and adopreport "as modified." 

We reject such a tortured read

opinion. There is no text in the support Appellants' claim that magistrate judge's recommendation pursuant to § 1927. Although the does not specifically cite § 1927 as court's order to show cause and recommendation adopted by the coas a whole, it is evident that the § 1927 as the basis for imposing s

We further conclude that the dist

sanctions upon Plaintiff's counsel wdiscretion. Sanctions under § 192attorney has engaged in some sorobjective standpoint, 'falls short of member of the bar to the court and additional expense to the opposing Massillon, Ohio, 78 F.3d 1041, 10

Ruben, 825 F.2d 977, 984 (6th CiU.S. 934, 108 S.Ct. 1108, 99 Ldenied, 519 U.S. 935, 117 S.Ct. 312"An attorney's ethical obligation behalf of his or her client does not burden the federal courts by pursuinon the merits . . . . Accordingly . . or reasonably should know that a cor that his or her litigation tactics wlitigation of nonfrivolous claims, a assessing fees attributable to sattorney." In re Ruben, 825 F.2d 

Continental Corp., 789 F.2d 122
8 Wilson-Simmons v. Lake

County Sheriff’s Dep’t, et al.

No. 98-3553

argument is a red herring. She presented no evidence that sheshould have been charged the fee for a public record of $3.00rather than the $2,500 cost of reconstructing the files. Neitherdid she present any evidence that the cost was in any wayracially based. Furthermore, the district court found that therewas no evidence to indicate that any of the five co-workersshe had identified were involved or that the alleged e-maileven existed. Wilson-Simmons proffered no evidenceregarding when the e-mail had been sent, who had sent it,who it was sent to, or whether her name was even mentioned.

With respect to Wilson-Simmons' claim that the Defendants

failed to investigate, the district court concluded that theevidence demonstrated that the Defendants took hercomplaint seriously and responded promptly by issuing amemorandum to all personnel prohibiting using e-mail tomake racial statements. The court further found that herclaims for retaliation were without factual foundation. Afterviewing the allegations and the evidence, the district courtdetermined that Wilson-Simmons had failed to set forth aprima facie case of racial discrimination or retaliation and thather claims were without foundation from the outset. Weagree with the district court's well reasoned analysis andconclude that the court did not abuse its discretion inawarding attorney fees against Wilson-Simmons pursuant to§ 1988. The remedial action was prompt and appropriate, seeHafford v. Seidner, 183 F.3d 506, 512 (6th Cir. 1999),especially given that the Plaintiff refused to cooperate in heremployer's attempt to investigate the matter. See Perry v.Harris Chernin, Inc., 126 F.3d 1010, 1014-15 (7th Cir. 1997).Moreover, the memorandum was apparently effective. ThePlaintiff does not claim that she ever saw, or heard rumorsabout, racist e-mails following the circulation of the memo. 

C.

We next consider the Appellants' claim that the district

court was not authorized to impose attorney fees againstPlaintiff's counsel pursuant to 42 U.S.C. § 1988. They argue

No. 98-3553 Wils

County S

1Section 1927 provides:

Any attorney or other person admin any court of the United Stthereof who so multiplies the prunreasonably and vexatiously mcourt to satisfy personally the eand attorneys' fees reasonably inconduct.

them pursuant to 28 U.S.C. § 

inherent authority. According to complete lack of substance and mpatent to Plaintiff's counsel that thher against pursuing the empty claiwhen its futility should have been "share the burden of the Plaintiff's 

The district court issued an o

counsel to show cause, in writing, be imposed against them pursuant Plaintiff filed an objection to threcommendation and brief in oppApril 7, 1998, the court awarded ato the Defendants against the PPlaintiff's attorneys were jointly aaward. In its order, the court ijudgment by reference and adoptreport and recommendation as followed.

II.

A.

We first consider the Appellants

court improperly imposed monetwithout conducting a hearing.
6 Wilson-Simmons v. Lake

County Sheriff’s Dep’t, et al.

No. 98-3553

In this circuit, there is no requirement that a full evidentiary

hearing be held before imposing sanctions. Cook v.

American S.S. Co., 134 F.3d 771, 774 (6th Cir. 1998). "Whatis required, however, is that before the imposition ofsanctions, the attorney must be given notice and anopportunity to be heard. . . . An order to show cause, alongwith an opportunity to respond to said order, can be sufficient,in certain circumstances, to provide the necessary proceduralsafeguards . . . ." Id. at 775 (citation omitted).

As a preliminary matter, we note that no due process

concerns are present in this case. Both the magistrate judge'sreport and recommendation and the district court's show causeorder clearly put the Appellants on notice that the court wasconsidering imposing monetary sanctions upon both WilsonSimmons and her attorneys.  "It is within the discretion of the district court to determinewhether an evidentiary hearing would assist the court in itsdecision." Id. The magistrate judge reviewed WilsonSimmons' entire 361 page deposition testimony in preparinghis report and recommendation. The district court had beforeit the magistrate judge's report and recommendation, theAppellants' brief in opposition and response to the show causeorder, and the court's opinion granting summary judgment.The district court was familiar with the Plaintiff's allegationsand demonstrated a thorough knowledge of the factual andlegal issues in the case. Because nothing in the recordindicates that a hearing was needed to assist the court indetermining whether sanctions were warranted, we hold thatthe district court did not abuse its discretion in not conductingan evidentiary hearing. 

B.

We next consider the Appellants' claim that the district

court improperly awarded attorney fees against WilsonSimmons pursuant to 42 U.S.C. § 1988 because her claimswere not frivolous, unreasonable, or without foundation. 

No. 98-3553 Wils

County S

We review a district court's awa

42 U.S.C. § 1988 based on an abuReed v. Rhodes, 179 F.3d 453, 46light of a district court's superlitigation and the desirability of avreview of what essentially are facattorneys' fees under § 1988 ideference." Id. (quoting Hensley v

437, 103 S.Ct. 1933, 1941, 76 L.Equotation marks omitted).

Under 42 U.S.C. § 1988, a 

discretion award attorney fees to a a finding that "the plaintiff's unreasonable, or without foundatioin subjective bad faith." Wayne v. V

517, 530 (6th Cir. 1994) (quoting Co. v. EEOC, 434 U.S. 412, 42L.Ed.2d 648 (1978)) (internal quotdenied, 514 U.S. 1127, 115 S.Ct. (1995). "[A] district court must repost hoc reasoning and the hindsisuit is without foundation becaudoes not prevail." Smith v. Smyt180, 183 (6th Cir.) (quoting ChristiU.S. at 421-22, 98 S.Ct. at 700), c105 S.Ct. 3530, 87 L.Ed.2d 654 (1not be assessed his opponent's attofinds the claim was groundless plaintiff continued to litigate aftSmythe-Cramer Co., 33 F.3d at 18into the plaintiff's basis for filing sdefendants will depend on the factcase." Id.

The district court properly ap

support for her race discrimination offered as evidence the fact that shcosts associated with reconstructi