Bacon v. American Federation of State, County, and Mun. Employees Council, No. 13

• Decision Date: 02 July 1986
• Docket Number: No. 85-2377,85-2377
• Citation: 795 F.2d 33
• Parties: 42 Fair Empl.Prac.Cas. 1520, 41 Empl. Prac. Dec. P 36,549 Ronald William BACON, Plaintiff-Appellant, v. AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES COUNCIL, # 13, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 33

795 F.2d 33

42 Fair Empl.Prac.Cas. 1520,

41 Empl. Prac. Dec. P 36,549

Ronald William BACON, Plaintiff-Appellant, v. AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL

EMPLOYEES COUNCIL, # 13, Defendant-Appellee.

No. 85-2377.

United States Court of Appeals, Seventh Circuit.

Submitted Feb. 12, 1986.

Decided July 2, 1986.

Ronald W. Bacon, Rockford, Ill., for plaintiff-appellant.

Gail E. Mrozowski, Cornfield & Feldman, Chicago, Ill., for defendant-appellee.

Before POSNER, COFFEY and RIPPLE, Circuit Judges.

POSNER, Circuit Judge.

Ronald Bacon appeals from the dismissal by the district court of his Title VII claim against his union, which he alleges failed, because of his race and sex, to represent him fairly in a grievance proceeding against his employer. The union moved for summary judgment, which the district court granted in an opinion that properly disposes of the issues and that we adopt as our decision on the merits.

The purpose of this opinion is merely to explain why we have decided to require Mr. Bacon to pay the union's attorney's fees incurred in defending against the appeal in this court. A prevailing defendant in a suit under Title VII is entitled to attorney's fees if the plaintiff's suit is frivolous, Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978), and to attorney's fees incurred in the appeal if the appeal is frivolous, Bugg v. International Union of Allied Industrial Workers of America, Local 507, 674 F.2d 595, 599-600 (7th Cir.1982), or to damages in lieu of attorney's fees, Fed R.App.P. 38. And since requiring the payment of attorney's fees because a claim or defense (as the case may be) is frivolous is a sanction designed as much to protect the court from the burdens of fruitless litigation as to protect the prevailing party from having to bear the cost of defending against utterly meritless contentions, such payment may be ordered even if not requested by the prevailing party. Wang v. Gordon, 715 F.2d 1187, 1190-91 (7th Cir.1983).

In a civil case, where there is no right to appointment of counsel, courts naturally are more lenient when it comes to assessing against litigants not represented by counsel sanctions for frivolous litigation than they are in the case of litigants who do have counsel. A layman cannot be expected to realize as quickly as a lawyer would that a legal position has no possible merit, and it would be as cruel as it would be pointless to hold laymen who cannot afford a lawyer--which so far as appears is Mr. Bacon's position--to a standard of care that they cannot attain even with their best efforts. Nevertheless, when a layman persists in a hopeless cause long after it should have been clear to him, as a reasonable (though not law-trained) person, that his cause was indeed hopeless, sanctions should be imposed, as this and other courts have frequently done in "tax protester" and other frivolous pro se suits. See, e.g., Coleman v. Commissioner, 791 F.2d 68, 71-72 (7th Cir. 1986); Wisconsin v. Glick, 782 F.2d 670 (7th Cir.1986); Bugg v. International Union of Allied Industrial Workers, Local 507, supra, 674 F.2d at 600-01; Mathes v. Commissioner, 788 F.2d 33 (D.C.Cir.1986) (collecting cases); Triola v. Dept. of Transportation, 769 F.2d 760, 762 (Fed.Cir.1985). It is no defense that the pro se litigant may not have thought his cause hopeless; we cannot peer into a litigant's mind; it is enough that a reasonable person in his position would have known that he had no basis for challenging the district court's decision. See ...