Carmon v. Lubrizol Corp. ( 1994 )

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
1
--- U.S. ----, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993).
1
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
2
Carmon 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
"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
3
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.
3
At 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
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
4
E.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).
5
FED.R.APP.P. 28(a).
5
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
6
Thus, 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.
8
Id., 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.
9
Harris, --- U.S. at ---- - ----, 114 S.Ct. at 370-72, 126
L.Ed.2d at 302-03.
6
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
10
See, 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).
11
FED.R.APP.P. 38.
12
E.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
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
13
28 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
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
14
Cf., Caldwell, 811 F.2d at 919 (holding client and counsel
jointly liable for prosecuting a meritless appeal).
9
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.
10