White v. Goodyear Tire ( 1996 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
____________
Nos. 95-20417
95-20754
____________
STERLING WHITE,
Plaintiff-Appellant,
versus
THE GOODYEAR TIRE AND RUBBER COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
For the Southern District of Texas
(CA-H-94-3508)
August 26, 1996
Before KING, DAVIS, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Sterling White appeals the district court’s orders granting
The Goodyear Tire and Rubber Company’s motion for summary judgment
and motion for costs and attorneys’ fees. We affirm in part,
vacate and remand in part, and reverse and remand in part.
I
Sterling White was employed as a baler-helper at Goodyear's
*
Pursuant to Local Rule 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should not be published and is not precedent except under the limited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 Local Rule 47.5.4.
Chemical Plant in Houston, Texas. The baler-helper position
required White to work in a non-air conditioned building with
extremely hot rubber, fumes, and chemicals. In October of 1991,
White experienced a sickle cell crisis, which he alleges may have
been caused by his work environment.1 White’s doctors recommended
that he avoid exposure to chemicals, fumes, and excessive heat.
Given those medical restrictions and the essential functions of the
baler-helper position, Goodyear claimed it could not make any
reasonable accommodations to enable White to perform the essential
functions of his job. In addition, Goodyear claimed that there
were no other positions available that were appropriate for White's
restrictions and abilities. Therefore, Goodyear terminated White.
White filed a charge of employment discrimination with the
Equal Employment Opportunity Commission (“EEOC”) claiming that he
had been discriminated against because of his disability, in
violation of the Americans with Disabilities Act. The EEOC issued
White a right to sue letter for a violation of his rights under the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101.2 White
stated in his deposition, which is contained in the summary
1
White argues that while he always had a genetic trait for sickle cell
anemia, his sickle cell crisis was caused by his job environment. However, when
White initially experienced his crisis, he stated separately on several benefit
claim forms for his employer that his injury was not due in any way to a
condition arising from his occupation.
2
The ADA protects "qualified individuals with a disability" from
employment discrimination on account of the disability. 42 U.S.C. § 12112. A
"qualified individual with a disability" is "an individual with a disability who,
with or without reasonable accommodation, can perform the essential functions of
the employment position that such individual holds or desires." § 12111(8).
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judgment record, that he also filed a complaint of race
discrimination with the EEOC after he filed the complaint of
disability discrimination. The summary judgment evidence does not
indicate, however, whether the EEOC ever issued a formal charge or
a right to sue letter based on White’s complaint of race
discrimination. Subsequently, White filed a pro se complaint in
federal court, alleging race discrimination, in violation of 42
U.S.C. § 2000e et seq. (“Title VII”), and disability
discrimination, in violation of the ADA.
Eight months after the federal suit was filed, White was
represented in federal court by an attorney for the first time.
Simultaneous with her Notice of Appearance, White’s attorney
requested a jury trial, which the district court denied as
untimely. Subsequently, White filed a FED. R. CIV. P. 39(b) motion
requesting a jury trial,3 which the district court denied. White
then filed a lawsuit in Texas state court, pursuant to TEX. LAB.
CODE ANN. § 451.001, alleging that Goodyear terminated him in
retaliation for his institution of a workers' compensation claim.
Goodyear removed the state lawsuit to federal court, and the two
actions were consolidated.
3
FED. R. CIV. P.39(b) provides:
Issues not demanded for trial by jury as provided in Rule 38 shall be
tried by the court; but, notwithstanding the failure of a party to demand
a jury in an action in which such a demand might have been made of right,
the court in its discretion upon motion may order a trial by a jury of any
or all issues.
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Goodyear filed a motion for partial summary judgment on
White's Title VII and workers' compensation retaliation claims.
White filed a response to Goodyear's motion for partial summary
judgment. The district court held a hearing on the summary
judgment motion and dismissed all of White's claims, including his
ADA claim. Goodyear then filed a motion for costs and attorneys’
fees, pursuant to 28 U.S.C. § 1927. The district court entered an
order and a final judgment ordering that Goodyear take $3,500 on
its claim for costs and attorneys’ fees. White now appeals the
district court’s order granting summary judgment in Goodyear’s
favor and the order awarding Goodyear costs and attorneys’ fees.4
II
White argues that the district court erred in sua sponte
granting summary judgment in Goodyear’s favor on his ADA claim. A
district court has the power to grant summary judgment sua sponte
as long as the nonmoving party has adequate notice that he must
4
The district court initially entered an "interlocutory order" stating
that on Goodyear's motion for summary judgment, White takes nothing. The court
left the issue of sanctions to be decided in the future. White appealed this
"interlocutory order" in No. 95-20417. At that time, this Court requested that
the parties brief the issue of whether we had jurisdiction over the district
court's interlocutory order. Several months later, the district court entered
a final judgment in the case and ordered that Goodyear take $3,500 on its claim
for costs and attorneys’ fees, pursuant to 28 U.S.C. § 1927. White appealed the
order for costs and attorneys’ fees in No. 95-20754. The two appeals have been
consolidated. Even though the district court's interlocutory order was not a
final judgment at the time that White filed the initial appeal, a final judgment
has since been entered in the case. Therefore, this Court now has jurisdiction
over the appeal. See Alcorn County, Miss. v. U.S. Interstate Supplies, Inc., 731
F.2d 1160, 1166 (5th Cir. 1984) (stating that “a premature notice of appeal
properly may invoke this court’s jurisdiction . . . subject to the exceptions
mandated by FED. R. APP. P. 4(a)(4)”).
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come forward with his evidence. Leatherman v. Tarrant County
Narcotics Intell. and Coord. Unit, 28 F.3d 1388, 1397 (5th Cir.
1994). This notice requirement is met if the nonmoving party has
notice that his claim may be subject to summary dismissal at least
ten days before the actual grant of summary judgment. FED. R. CIV.
P. 56(c); Leatherman, 28 F.3d at 1397. “Any reasonable doubt about
whether [the nonmovant] received notice that its entire case was at
risk must be resolved in [the nonmovant’s] favor.” NL Indus., Inc.
v. GHR Energy Corp., 940 F.2d 957, 965 (5th Cir. 1991), cert.
denied, 502 U.S. 1032, 112 S. Ct. 873, 116 L. Ed. 2d 778 (1992).
A district court’s error in not providing adequate notice may be
considered harmless "if the nonmovant has no additional evidence or
if all of the nonmovant's additional evidence is reviewed by the
appellate court and none of the evidence presents a genuine issue
of material fact." Leatherman, 28 F.3d at 1398 (internal quotation
marks omitted).
Goodyear argues that White had adequate notice that his ADA
claim might be considered for summary judgment because Goodyear’s
brief in support of its motion for partial summary judgment
included facts sufficient to defeat White’s ADA claim. White
argues that, when he received Goodyear’s motion for partial summary
judgment, he believed that only his Title VII and workers’
compensation retaliation claims would be considered for summary
judgment. As evidence of this belief, White contends that after
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receiving only a partial motion for summary judgment, he
specifically elected not to depose the human resources manager
involved in his termination who could have provided essential
evidence for his ADA claim. We conclude that White did not receive
adequate notice that his ADA claim might be subject to summary
judgment. See NL Indus., Inc., 940 F.2d at 966 (reversing summary
judgment which district court granted sua sponte where movant only
requested partial summary judgment and movant’s motion did not
provide nonmovant with adequate notice). Additionally, we cannot
conclude that this lack of notice was harmless. Because White did
not have notice that his ADA claim would be considered for summary
judgment he did not conduct essential discovery, nor did he place
evidence in the record to support his ADA claim. We therefore
vacate the district court’s order granting Goodyear summary
judgment on White’s ADA claim.
III
White argues that the district court erred in granting
Goodyear summary judgment on his Title VII claim. We review a
district court’s grant of summary judgment de novo “to determine,
viewing the evidence in the light most favorable to the nonmoving
party, whether any genuine issue of material fact existed and
whether the district court correctly applied the relevant law.”
Anderson v. American Airlines, Inc., 2 F.3d 590, 593 (5th Cir.
1993). The moving party has the initial burden to “demonstrate by
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competent evidence that no issue of material fact exists.” Scott
v. Moore, 85 F.3d 230, 232 (5th Cir. 1996). Once this burden is
met, the nonmoving party “must set forth specific facts showing
that there is a genuine issue for trial.” FED. R. CIV. P. 56(e).
Before bringing a civil action under Title VII, a plaintiff
must exhaust his administrative remedies by filing a charge of
discrimination with the EEOC. Sanchez v. Standard Brands, 431 F.2d
455, 460 (5th Cir. 1970). The district court granted summary
judgment for Goodyear on White's race discrimination claim because
it found that White had not exhausted his administrative remedies.
However, our review of the summary judgment record indicates that
Goodyear did not meet its burden of establishing through competent
summary judgment evidence that there is no genuine issue of
material fact of the issue of exhaustion. See Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (stating that
“the party moving for summary judgment must demonstrate the absence
of a genuine issue of material fact”) (internal quotation marks
omitted). Goodyear submitted the EEOC’s entire file pertaining to
White’s ADA charge, Charge Number 330-93-1854. Goodyear states in
its brief accompanying its motion for summary judgment that it
requested and received all the EEOC files pertaining to White.
However, Goodyear’s counsel’s unsworn assertion does not constitute
competent summary judgment evidence. See FED. R. CIV. P. 56(e).
The Certification of Documents from the EEOC states that it is a
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“true and accurate” copy of the file pertaining to Charge Number
330-93-1854, but it does not state that this is the only EEOC file
for Sterling White.5 In sum, Goodyear’s summary judgment evidence
does not establish that White never filed a charge of race
discrimination with the EEOC.
Additionally, we note that in his response to Goodyear’s
motion for summary judgment, White submitted his deposition
testimony in which he stated that he filed a complaint of race
discrimination with the EEOC after he filed the ADA charge.6 It is
unclear from the record whether an official EEOC charge or right to
sue letter ever resulted from White’s race complaint.
Nevertheless, we reverse the order granting summary judgment on
White’s Title VII claim because Goodyear has not met its burden of
establishing through competent summary judgment evidence the
absence of a dispute as to whether White exhausted his
administrative remedies. See id. (stating that “regardless of the
nonmovant’s response” a summary judgment motion must be denied if
the moving party fails to “demonstrate the absence of a genuine
issue of material fact”) (internal quotation marks omitted).
IV
5
Moreover, the EEOC’s letter to Goodyear’s counsel specifically
states, “You have requested information contained in the file of Charge No. 330-
93-1854.”
6
White also submitted an EEOC questionnaire, which was not properly
authenticated for summary judgment purposes, in which he alleged that Goodyear
discriminated against him on the grounds of race and “illness.”
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White next argues that the district court erred in granting
Goodyear summary judgment on his workers’ compensation retaliation
claim, brought pursuant to TEX. LAB. CODE. ANN. § 451.001. The
district court granted Goodyear’s motion for summary judgment on
the retaliation claim because it found that White had not suffered
an on-the-job injury. Because White did not have an on-the-job
injury, the district court reasoned, Goodyear could not retaliate
against him for instituting a workers’ compensation claim asserting
such an injury.
Section 451.001 of the Texas Labor Code provides that an
employer may not discriminate against an employee because he has
(1) in good faith filed a workers’ compensation claim, (2) hired a
lawyer to represent him in a workers’ compensation claim, (3) in
good faith instituted or caused to be instituted a proceeding under
the Texas Workers’ Compensation Act (“the Act”), or (4) has
testified or is about to testify in a proceeding under the Act.
TEX. LAB. CODE. ANN. § 451.001. Courts have liberally construed
§ 451.001 “to protect persons who are entitled to benefits under
the Workers’ Compensation Law and to prevent them from being
discharged by reason of taking steps to collect such benefits.”
Gauthreaux v. Baylor Univ. Med. Ctr., 879 F. Supp. 634, 639 (N.D.
Tex. 1994) (internal quotation marks omitted); see also Palmer v.
Miller Brewing Co., 852 S.W.2d 57, 60 (Tex. Ct. App.))Fort Worth
1993, writ denied). Therefore, an employee can recover for
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retaliation for taking steps to collect a workers' compensation
claim "even when the employee was fired before filing a claim for
compensation so long as the evidence shows that the employee took
steps towards instituting a compensation proceeding." Palmer, 852
S.W.2d at 60-61. An employee takes steps towards instituting a
compensation proceeding simply by informing his employer of the
injury or the fact that he is seeking medical treatment for the
injury. Id.; Gauthreaux, 879 F. Supp. at 649. The plaintiff has
the burden of proving that there is a causal link between the
discharge and the plaintiff’s protected behavior. Burfield v.
Brown, Moore & Flint, Inc., 51 F.3d 583, 589-90 (5th Cir. 1995).
Our research reveals no authority to indicate that an employee
must have a valid workers' compensation claim, or an actual work-
related injury in order to sue for workers' compensation
retaliation. Section 451.001 does require, however, that the
employee file a workers’ compensation claim or institute a workers’
compensation proceeding in good faith. In light of the liberal
construction that courts have given § 451.001, we conclude that
§ 451.001 was intended to allow employees to recover from employers
who retaliate against them for claims filed or instituted in good
faith, even if those claims later turn out not to be compensable
under the Act. In order to file or institute a claim in good
faith, an employee must have an objectively reasonable belief that
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she has a compensable injury under the Act.7 See Gunn Chevrolet,
Inc. v. Hinerman, 898 S.W.2d 817 (Tex. 1995) (holding that employee
did not have a good faith claim for workers’ compensation because
her employer did not subscribe to the Act, employee had no reason
to think that employer did, and employee never claimed that
employer was responsible for her injury).
We note that Texas courts have adopted a similar good faith
standard for a related employment statute, the Texas Whistle Blower
Act. See Texas Dept. Hum. Serv. v. Hinds, 904 S.W.2d 629, 633, 636
(Tex. 1995) (comparing the two statutes). The Whistle Blower Act
prohibits “a local government from terminating an employee for
reporting ‘a violation of law to an appropriate law enforcement
authority if the employee report is made in good faith.’” Lastor
v. City of Hearne, 810 S.W.2d 742 (Tex. Ct. App.))Waco 1991, no
writ) (quoting TEX. REV. CIV. STAT. ANN. art. 6252-16a, § 2)
(emphasis in original). Despite the statutory language which
appears to require that the employee report an actual violation of
law, Texas courts have held that “the good-faith requirement can be
given effect only if it protects the employee from retribution for
reporting an incident that turns out not to be a violation of law.”
Texas Dept. Hum. Serv. v. Green, 855 S.W.2d 136,150 (Tex. Ct.
7
Also implicit in the good faith requirement of § 451.001, is that the
employee filed or instituted her workers’ compensation claim for a proper
purpose, not as a result of malice or spite. However, Goodyear’s motion for
summary judgment did not explicitly challenge White’s motive in this case.
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App.))Austin 1993, writ denied); Lastor, 810 S.W.2d at 744.
Therefore, it is not determinative whether the employee reports an
actual violation of law. Instead, the focus of the good faith
requirement “is whether an employee’s belief that the reported
conduct violates the law is objectively reasonable.” Green, 855
S.W.2d at 151.
Courts also employ the “objectively reasonable belief”
standard in federal discrimination retaliation statutes. In Payne
v. McLemore’s Wholesale & Retail Stores, the plaintiff alleged that
he was not “rehired in retaliation for his boycott and picketing
activities which were, according to plaintiff, in opposition” to
his employer’s unlawful employment practice of discriminating
against blacks in hiring and promotion. 654 F.2d 1130, 1135-36
(5th Cir. 1981), cert. denied, 455 U.S. 1000, 102 S. Ct. 1630, 71
L. Ed. 2d 866 (1982). The defendant contended that the plaintiff
had failed to establish a prima facie case of retaliation “because
he failed to prove that defendant had committed any unlawful
employment practices.” Id. at 1137. The court disagreed, holding
that a plaintiff can establish a prima facie case of retaliatory
discharge under Title VII “if he shows that he had a reasonable
belief that the employer was engaged in unlawful employment
practices.” Id. at 1140; see also Grant v. Hazelett Strip-Casting
Corp., 880 F.2d 1564, 1569 (2d Cir. 1989) (stating that a plaintiff
can establish a prima facie case of retaliatory discharge under the
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Age Discrimination in Employment Act if he was retaliated against
for opposing a practice which he had “a good faith, reasonable
belief” was prohibited by the Act) (internal quotation marks
omitted).
Although the district court erred in granting Goodyear summary
judgment on the ground that White did not suffer an on-the-job
injury, we still affirm the summary judgment on this claim. As we
have stated, the relevant inquiry in this case is whether White had
an objectively reasonable belief that he had a compensable injury
under the Act when he informed his employer of his injury. White
alleges that his sickle cell crisis may have been caused by his
work environment, thus giving rise to a compensable injury.
However, Goodyear’s summary judgment evidence demonstrates that
when White instituted a proceeding under the Act by notifying his
employer of his illness, he stated that his illness was not in any
way due to a condition of his occupation. Accordingly, White did
not believe, reasonably or unreasonably, that he had a compensable
injury under the Act. Therefore, White did not institute a
workers’ compensation proceeding in good faith, and Goodyear is
entitled to summary judgment on this claim.
V
White contends that the district court abused its discretion
in denying his FED. R. CIV. P. 39(b) motion for a jury trial. FED.
R. CIV. P. 38(b) allows a party to demand a jury trial “not later
than 10 days after the service of the last pleading." “A party may
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be relieved of the Rule 38(b) requirement upon motion and at the
discretion of the court pursuant to FED. R. CIV. P. 39(b)."
Richardson v. Henry, 902 F.2d 414, 416 (5th Cir.), cert. denied,
498 U.S. 901, 111 S. Ct. 260, 112 L. Ed. 2d 218 (1990); Lewis v.
Thigpen, 767 F.2d 252, 257 (5th Cir. 1985). If a pro se litigant
credibly alleges that he did not make a timely request for a jury
trial because of his ignorance of the relevant procedure, “the
trial court should exercise its discretion under Rule 39(b) to
grant him a trial by jury in the absence of strong and compelling
reasons to the contrary.” Lewis, 767 F.2d at 259. In determining
whether a pro se litigant's claim of inadvertence is credible, the
court can consider factors such as a pro se litigant's choice to
represent himself and his experience with trial court procedure.
Id. Disruption of a court’s docket or prejudice to the opposing
party can constitute strong and compelling reasons to deny a pro se
litigant’s credible claims of ignorance. Id. at 260 n.12.
Moreover, even if "a party is erroneously denied a jury trial, the
error is harmless if the evidence could not have withstood a motion
for directed verdict." Id. at 260.
White claims that he did not make a timely motion for a jury
trial because at the time the motion was due, he was proceeding pro
se and was not aware of the jury demand requirement.8 In denying
8
White’s Rule 39(b) motion acknowledged:
Although the court provided Mr. White with helpful forms to plead his
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White’s Rule 39(b) motion, the district court did not make a
finding as to whether White’s excuse was credible. The district
court did state that White began the action “through the assistance
of a commission,” and that the court had “allowed White several
indulgences already,” including proceeding without paying costs.
These statements do not indicate whether the district court
believed White’s claims of ignorance and do not indicate any other
valid reason for denying White’s Rule 39(b) motion.
The district court’s chief rationale for denying White's
motion was that granting it would unfairly prejudice Goodyear
because the company would lose a "favorable procedural status."
The district court specifically stated:
White argues that Goodyear is not prejudiced by being put to
a jury trial. If having a jury that it does not want is not
prejudice to Goodyear, then it cannot be significant to White.
White believes that he will enjoy a substantial advantage over
Goodyear in a jury trial; if he is correct, his advantage is
Goodyear’s disadvantage. Having escaped a jury demand within
the time allowed by the rules, Goodyear emphatically contends
that it will be prejudiced))prejudiced in that it will lose a
favorable procedural status.
The district court’s definition of prejudice would effectively
mandate that all opposed Rule 39(b) motions be denied on the
grounds of prejudice to the opposing party. Employing this
causes of action, and although the court provided Mr. White with many
useful written instructions to help him proceed, neither the forms nor the
instructions advised him that he must specifically request a trial by jury
to obtain one, or that such a request must be made within certain time
limits. The complaint form provided to Mr. White contained no box or
blank regarding jury trial.
At this court’s urging, Mr. White ultimately obtained counsel, who
filed a jury demand simultaneously with her Notice of Appearance.
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definition of prejudice would frustrate our longstanding belief
that “the right to trial by jury is a basic and fundamental feature
of our system.” Lewis, 767 F.2d at 259 (internal quotation marks
omitted). Proper considerations of prejudice in the context of a
Rule 39(b) motion include a lack of time to prepare for an
impending trial or significant time and resources spent preparing
for a bench trial. See United States v. Unum, Inc., 658 F.2d 300
(5th Cir. 1981) (holding that district court did not abuse its
discretion in denying a Rule 39(b) motion because “[f]orcing the
plaintiff to change its trial strategy [only a few days before the
final docket call] would have worked a substantial hardship”).
Neither of these considerations is present in this case.
Based on the foregoing, we hold that the district court abused
its discretion by applying an improper standard in denying White’s
motion for a jury trial. Additionally, we cannot conclude that
this error was harmless because based on the limited record before
us, it is not clear that White’s claims cannot withstand a motion
for judgment as a matter of law. See Rhodes v. Guiberson Oil
Tools, 75 F.3d 989, 994 (5th Cir. 1996) (en banc) (stating standard
for judgment as a matter of law); Boeing Company v. Shipman, 411
F.2d 365, 374 (5th Cir. 1969) (en banc) (same). We therefore
vacate the district court’s order. On remand, if the district
court finds that White’s claim of ignorance is not credible, it
must articulate the reasons for its findings. Lewis, 767 F.2d at
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260. In addition, if there are any strong and compelling reasons
to deny White’s Rule 39(b) motion, the district court must
specifically state those reasons on remand. Id.
VI
White’s attorney, Cynthia Thomson, argues that the district
court abused its discretion in sanctioning her, pursuant to 28
U.S.C. § 1927, because the court failed to make the necessary
factual findings. Section 1927 allows a district court to require
an attorney to personally pay the excess costs, expenses, and
attorneys' fees reasonably incurred as a result of the attorney's
actions which unreasonably and vexatiously multiply the
proceedings. 28 U.S.C. § 1927. We review a district court’s award
of fees and costs under 28 U.S.C. § 1927 for abuse of discretion.
Browning v. Kramer, 931 F.2d 340, 344 (5th Cir. 1991). "Section
1927 requires a sanctioning court to do more than disagree with a
party's legal analysis.” F.D.I.C. v. Calhoun, 34 F.3d 1291, 1300
(5th Cir. 1994). The court must specifically determine that the
attorney’s claims were unreasonable and that they were asserted for
an improper purpose. Id. In addition, the court must make
findings identifying the specific conduct which unreasonably and
vexatiously multiplied the proceedings. Browning, 931 F.2d at 346.
The attorney will only be responsible for the excessive fees and
costs that the court determines were incurred by the opponents in
responding to such claims. Id.
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The district court failed to identify Thomson’s unreasonable
and vexatious conduct which multiplied the proceedings, or the fees
and costs which Goodyear incurred as a result of this conduct. We
therefore hold that the district court abused its discretion in
imposing sanctions under § 1927, and we vacate the award. See
Calhoun, 34 F.3d at 1301 (reversing award of sanctions where claims
were “warranted by existing law” and district court did not make
“separate showing of improper purpose”); F.D.I.C. v. Conner, 20
F.3d 1376, 1385 (5th Cir. 1994) (vacating award of sanctions under
§ 1927 where district court did not make a specific finding that
the attorney’s conduct was vexatious). “On remand, the district
court may, if the facts warrant it, identify the conduct in which
[Thomson] engaged that displayed the degree of recklessness, bad
faith, or improper motive required for a finding that [Thomson] has
multiplied the proceedings unreasonably and vexatiously.” Conner,
20 F.3d at 1385 (internal quotation marks omitted).9
VII
For the foregoing reasons, we AFFIRM in part, REVERSE and
REMAND in part, and VACATE and REMAND in part for further
proceedings consistent with this opinion.
9
Goodyear argues that White's appeal of his race and retaliation
claims is frivolous; therefore, Goodyear should recover its attorneys' fees and
costs incurred as a result of defending the appeal, pursuant to FED. R. APP. P.
38. See FED. R. APP. P. 38 (stating that "if a court of appeals determines that
an appeal is frivolous, it may, after a separately filed motion or notice from
the court and reasonably opportunity to respond, award just damages and single
or double costs to the appellee"). Because we have concluded that White’s appeal
of these claims is not frivolous, we decline Goodyear’s request for sanctions.
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