In the

United States Court of Appeals

For the Seventh Circuit

No. 00-2708

Kevin M. Johnson,

Plaintiff-Appellant,

v.

ITT Aerospace/Communications

Division of ITT Industries, Inc.,

Defendant-Appellee.

Appeal from the United States District Court for the

Northern District of Indiana, Fort Wayne Division.

No. 99 C 84--Roger B. Cosbey, Magistrate Judge.

Submitted January 23, 2001--Decided November 29, 2001

 Before Posner and Easterbrook, Circuit

Judges./1

 Posner, Circuit Judge. The plaintiff in

this Title VII case appeals from a series

of pretrial rulings that resulted in

judgment for his employer. In a unit of

eight or ten employees assembling radio

amplifiers, Johnson was the only male and

also the only American Indian. He

contends (we must assume, for purposes of

the appeal, truthfully) that during a

period of two weeks prior to September 8,

1998, some of his coworkers made fun of

his ethnicity by speaking to each other

in a stereotypical Indian manner. There

was a crescendo of this talk on September

8 that resulted in a shouting match

between Johnson and one of the women. The

two complained about each other to the

company’s human resources department,

which warned both of them that they would

be disciplined if there were further

incidents. There were none. The

contention that the company is guilty of

ethnic harassment is frivolous. Even if,

as we greatly doubt, the offensive and

gratuitous mockery of Johnson’s ethnicity

reached the degree of severity at which

it could be said to have altered his

working conditions, Harris v. Forklift

Systems, Inc., 510 U.S. 17, 21 (1993),

the company, as soon as it was apprised

of the situation, took prompt and

entirely effective measures to stop it,
thus discharging its legal duty. E.g.,

Berry v. Delta Airlines, Inc., 260 F.3d

803, 813 (7th Cir. 2001); Tutman v. WBBMTV/CBS, Inc., 209 F.3d 1044, 1048 (7th

Cir. 2000); Watts v. Kroger Co., 147 F.3d

460, 465-66 (5th Cir. 1998).

 More interesting, though not more

meritorious, is Johnson’s challenge to

the company’s attendance policy, which

contains an exception for absences that

are due to the employee’s being ordered

by a court "to appear as a witness (not

a party)." Johnson was assessed two

unexcused absences for days on which he

attended a preliminary pretrial

conference, and gave his deposition, in

this very suit. No discipline was imposed

for these absences, and after Johnson

complained through his union about the

lack of an exception for absences

required for the prosecution of a suit by

an employee against the employer, the

policy was amended to add such an

exception. Johnson seeks no relief; but

he wanted to amend his complaint to add a

challenge to the pre-amended policy as

being (1) a form of retaliation against

persons who file Title VII claims and (2)

a form of "disparate impact"

discrimination against Title VII

claimants, so that he can claim that, as

the catalyst of the policy change, he is

entitled to attorneys’ fees.

 He is too late. The Supreme Court has

rejected the "catalyst" ground for

obtaining attorneys’ fees under feeshifting provisions, such as that of

Title VII, that limit the award of fees

to a "prevailing party" in the

litigation. Buckhannon Board & Care Home,

Inc. v. West Virginia Dept. of Health &

Human Services, 121 S. Ct. 1835 (2001);

see 42 U.S.C. sec. 2000e-5(k). But even

in the heyday of the catalyst theory,

when a defendant could not, simply by

abandoning an unlawful practice in

response to a lawsuit actual or

threatened, deprive the plaintiff, actual

or would-be, of a right to obtain

attorneys’ fees for having brought about

the abandonment of the practice, the

practice had to be unlawful; otherwise

the plaintiff’s efforts would not have

advanced or enforced the law and ought

not be rewarded. There is nothing

unlawful about a leave policy that

distinguishes between leave that is due

to a court order and leave to enable an
employee to engage in private business,

including the filing of lawsuits. It

would be one thing if an employer

deliberately strewed unreasonable

obstacles in the path of employees

seeking to enforce their rights under

Title VII or other employment laws;

Sauers v. Salt Lake County, 1 F.3d 1122,

1128 (10th Cir. 1993), holds that

"preemptive retaliation" falls within the

statute’s prohibition against retaliation

for filing a charge of discrimination (42

U.S.C. sec. 2000e-3(a)). Cf. Heuer v.

Weil-McLain, 203 F.3d 1021, 1023 (7th

Cir. 2000); McEwen v. Delta Air Lines,

Inc., 919 F.2d 58, 59 (7th Cir. 1990).

There is no suggestion of that here,

however, and even if there were, it would

hardly merit a remedy against an employer

who denied leave to an employee who was

pursuing frivolous litigation against the

employer, just as it is not actionable

retaliation to discipline an employee for

filing a frivolous charge against the

employer. E.g., Roth v. Lutheran General

Hospital, 57 F.3d 1446, 1459-60 (7th Cir.

1995); Yatvin v. Madison Metropolitan

School District, 840 F.2d 412, 418 (7th

Cir. 1988); Little v. United

Technologies, 103 F.3d 956, 960 (11th

Cir. 1997). The employer’s action here in

yielding to the union’s demand to make an

exception for employment suits was not an

acknowledgment of unlawfulness, but, so

far as appears, merely a tug in the

endless tug of war between labor and

management.

Affirmed.

FOOTNOTE

/1 Judge Ripple was the third member of the panel

to which this appeal was submitted. However, an

event occurring after submission required him to

recuse himself from all further deliberations and

decision in the matter.