293 F.3d 1306 (11th Cir. 2002), 00-15111, Thomas v. Tenneco Packaging Co., Inc.

Docket Nº:00-15111.
Citation:293 F.3d 1306
Party Name:Clarence THOMAS, Plaintiff, Ethel L. Munson, Respondent-Appellant, v. TENNECO PACKAGING CO., INC., Defendant.
Case Date:June 13, 2002
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1306

293 F.3d 1306 (11th Cir. 2002)

Clarence THOMAS, Plaintiff,

Ethel L. Munson, Respondent-Appellant,



No. 00-15111.

United States Court of Appeals, Eleventh Circuit

June 13, 2002

Page 1307

Ethel L. Munson, Atlanta, GA, for Thomas, Plaintiff.

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Sandra Kay Lalli, William A. Clineburg, Jr., King & Spalding, Atlanta, GA, for Tenneco Packaging Co., Inc., Defendant.

Appeal from the United States District Court for the Middle District of Georgia.

Before BIRCH and DUBINA, Circuit Judges, and KATZ [*] , District Judge.


Respondent-Appellant Ethel L. Munson, attorney for Plaintiff Clarence Thomas, challenges the district court's decision to sanction her for submitting documents that contained remarks, deemed abusive and offensive by the court, that were directed at counsel for Defendant Tenneco Packaging Company ("Tenneco"). In response to the remarks, the district court, invoking its inherent powers, formally censured and reprimanded Munson. The court also stated that- any future documents found, after notice and an opportunity to be heard, to contain such remarks would be stricken without an opportunity to amend or withdraw. We conclude that an attorney who submits documents to the district court that contain ad hominem attacks directed at opposing counsel is subject to sanction under the court's inherent power to oversee attorneys practicing before it. We also reject Munson's contention that the district judge in this case should have recused himself. Accordingly, we AFFIRM.


The district court levied sanctions against Munson during the course of a race discrimination action marked by acrimony. The action commenced in December 1998 when Thomas, through his attorney Munson, filed suit against Tenneco in the United States District Court for the Middle District of Georgia. Thomas, an African American, had been an employee of Tenneco and its predecessor company since 1978. In his complaint, Thomas alleged that Tenneco denied him promotions to a supervisory position in 1987, 1991, and 1998 because of his race.1 As a result of the denied promotions, Thomas asserted that he had suffered racial discrimination in violation of 42 U.S.C. § 1981. In response, Tenneco submitted an answer in which the company denied Thomas's allegations of race discrimination and asserted several affirmative defenses, including that the claims raised by Thomas were barred by the applicable statute of limitations.

A. The Discovery Phase

During the ensuing discovery period, several bitter disputes arose between Munson and counsel for Tenneco ("opposing counsel"). One point of contention concerned whether opposing counsel was conducting himself appropriately in deposing Thomas and the plaintiff witnesses. For instance, Thomas originally was deposed on 15 April 1999, but Munson cut short the deposition and postponed any future questioning based on her assertion that opposing counsel was abusive towards her client.2 At the continuation of the deposition on 4 May 1999, Munson again raised the issue of opposing counsel's conduct, and she objected several times to what she considered the insulting and argumentative tone of his questioning. Yet, at no time during the dispute over how

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opposing counsel deposed Thomas, and at no time during the disputes over opposing counsel's questioning of other deponents, did Munson seek a protective order under Federal Rule of Civil Procedure 26(c).3

Munson and opposing counsel also were embroiled in a discovery dispute over the production of certain Tenneco personnel records and the scheduling of several depositions. Specifically, the two attorneys argued over the production of personnel records of several non-party Tenneco employees who were promoted to supervisory positions in lieu of Thomas. Opposing counsel for Tenneco refused to hand over the records until a confidentiality protective order was in effect. In addition, Munson and opposing counsel fought over the deposition schedule for six witnesses, all of whom were either current or past Tenneco employees. In response to motions filed as a result of these disputes, the district court, among other things, granted Tenneco's motion for a confidentiality protective order concerning the personnel records and instituted a schedule for conducting the depositions of the six witnesses.

Munson challenged the district court order by filing a petition for a writ of mandamus with our court. In the petition, Munson referred to opposing counsel's law firm as "[t]he white[ ] law firm," R2-59-3, and she described the entire discovery dispute over the production of documents and scheduling of witnesses in racial terms. Concerning the deposition schedule instituted by the district court, Munson alleged that "[t]he white[ ] law firrn representing the defendant-employer . . . was permitted to set defendant's deposition schedules without any interference from the court or plaintiff's African-American counsel (a civil rights attorney)." Id. That is, Munson maintained that "unusual deposition schedules [were] forced upon the African-American plaintiff while the white law firm set its own schedule and [proceeded] at its own pace." Id. at 6-7.

In addition, Munson inserted into the mandamus petition derogatory remarks

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about the Middle District of Georgia in general, and about the district judge hearing the case in particular, in order to suggest that racial bias permeated the discovery order. For example, in one footnote, Munson stated that "civil rights attorneys outside of this jurisdiction have knowledge of the reputation of the Middle District and are not desirous of appearing in that forum." Id. at 2 n. 1. Later she remarked: "Although a motion for recusal was considered, such did not appear to be a viable alternative given plaintiff's counsel's prior experiences in the Middle District of Georgia." Id. at 5 n. 2. Munson further contended in the petition that the tone of the district judge towards her was "extremely and unusually hostile" and "combative" during one telephone conference. Id. She speculated that "[s]uch seeming[ ] resentment could be the result of the court having to rule for the plaintiff [on a separate issue] when it did not want to do so," again insinuating that the district judge was biased against her and her client. Id. Concluding that all of these allegations were without merit, we denied the petition for writ of mandamus. See In re Thomas, No. 99-11656 (June 15, 1999).

B. The District Court's Grant of Summary Judgment to Tenneco

After the acerbic discovery period ended, Tenneco moved for the district court to grant summary judgment in its favor. In moving for summary judgment, Tenneco argued that, with respect to the denied promotions in 1987 and 1991, Thomas's claims for back pay and damages were foreclosed by the statute of limitations. Tenneco also asserted that Thomas did not have evidence sufficient to demonstrate that he was qualified for the supervisor positions that he had sought. Finally, Tenneco alleged that Thomas could not prove that Tenneco acted with discriminatory intent in granting the promotions to other employees.

In response to the motion, Munson filed the Plaintiff’s Response to Defendant's Motion for Summary Judgment and the Plaintiff's Statement of Material Facts, the latter of which included several attached exhibits. As exhibits, Munson submitted several affidavits, including the affidavits of Thomas and of Helen Blair.4 Both of the affidavits contained ad hominem attacks directed at opposing counsel. With respect to the Thomas affidavit filed by Munson, paragraph 12 failed to discuss the underlying promotions claims at issue in the case. The paragraph instead contained Thomas's demeaning description of opposing counsel during the two times that he deposed Thomas. For instance, in reference to opposing counsel, Thomas stated that he "was uncomfortable being around that type of a white person" during his deposition. Thomas Aff. at 5 (R3-96 Exh. A). Thomas also remarked therein that opposing counsel "spit out" and "snarled" his words at the deposition, and that opposing counsel was "a little man sp[ ]ewing venom." Id. at 6. Furthermore, Thomas alleged that persons attending the deposition "were laughing" at opposing counsel, given that his "hair was standing up on his head, he was biting on a pencil and he was turning red." Id 5

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The Blair affidavit filed by Munson contained similar vitriol directed at opposing counsel. In paragraph 5 of the affidavit, Blair described a conversation she had with Munson after a meeting between a Tenneco manager and several African-American employees who had commenced suit against Tenneco. During the meeting, the manager and the employees allegedly discussed the issue of retaliation. Blair stated in her affidavit that:

Ms. Munson . . . told me that she would notify the attorney for the company to advise him that he would do well to tell his clients to back off, and that there should be no more of these meetings. I told Ms. Munson the little attorney seemed to be part of the problem, and he probably put them up to this.

Ms. Munson said maybe so since he is trying to win at all cost, and he apparently has grossly under estimated [sic] us. . . .

Blair Aff. at 3 (R3-96 Exh. E). Thus, as with the Thomas affidavit, the Blair affidavit served in part as a vehicle for showering opposing counsel with invective.

Other documents submitted in response to Tenneco's summary judgment motion also contained ad hominem attacks directed at opposing counsel. One such document filed by Munson was the Plaintiff's Amended Supplement to Plaintiffs Response to Defendant's Motion for Summary Judgment (the...

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