Ruben, In re

• Decision Date: 30 July 1987
• Docket Number: 85-3987,Nos. 85-3986,s. 85-3986
• Citation: 825 F.2d 977
• Parties: 43 Empl. Prac. Dec. P 37,302, 41 Ed. Law Rep. 66 In re Alan Miles RUBEN, Attorney-Appellant. (85-3987) Jeanne RATHBUN, Plaintiff-Appellant, (85-3986) v. WARREN CITY SCHOOLS, Robert L. Pegues, Catherine O. Swan, Henry J. Angelo, Willard T. Rubin, Raymond J. Tesner, Mary Milheim, Anthony R. Berarducci, Nicholas J. Angelo, Bart Wilson, William Haas, Steve Hudock, and Bernie Wilson, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 977

825 F.2d 977

43 Empl. Prac. Dec. P 37,302, 41 Ed. Law Rep. 66

In re Alan Miles RUBEN, Attorney-Appellant. (85-3987) Jeanne RATHBUN, Plaintiff-Appellant, (85-3986) v. WARREN CITY SCHOOLS, Robert L. Pegues, Catherine O. Swan Henry J. Angelo, Willard T. Rubin, Raymond J. Tesner, Mary Milheim, Anthony R. Berarducci, Nicholas J. Angelo, Bart Wilson, William Haas, Steve Hudock, and Bernie Wilson Defendants-Appellees.

Nos. 85-3986, 85-3987.

United States Court of Appeals Sixth Circuit.

Argued April 3, 1987.

Decided July 30, 1987.

Libert Pinto (argued), Cleveland, Ohio, for Rathbun.

Stephen W. Gard (argued), Cleveland, Ohio, for Ruben.

Craig D. Leister (argued), Columbus, Ohio, Charles L. Richards (argued), Warren, Ohio, for defendants-appellees.

Before WELLFORD and NORRIS, Circuit Judges, and COHN, District Judge. ^*

COHN, District Judge.

This appeal raises questions about the propriety of sanctions against a plaintiff and one of her attorneys arising out of a sex and national origin discrimination case filed under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. For the reasons that follow, we reverse the sanctions against plaintiff and her attorney and taxation of costs against plaintiff, and remand the case for further consideration by the district judge.

I. STATEMENT OF THE CASE

Plaintiff, Jeanne Rathbun, is a naturalized citizen of the United States of French origin. She worked as a janitor at several school buildings in the Warren, Ohio public school system from 1973 to the time she filed the underlying action in 1980, including East Junior High School ("East"), Warren G. Harding High School ("Harding"), and Devon Elementary School ("Devon"). Throughout this period, she alleged that she was denied overtime equal to male janitors and was subjected to physical and verbal abuse and disparate workloads. She claimed a retaliatory transfer from East to Harding in September of 1974 and a retaliatory transfer again in May of 1978 to Devon on account of her complaints of discrimination.

Rathbun filed a charge with the Ohio Civil Rights Commission ("OCRC") in September of 1978, alleging sex discrimination against "Warren City Schools" only ¹ and mentioning acts by Bart Wilson, a foreman of custodians and janitors; William Haas, head custodian of the school system; and Steve Hudock, assistant head custodian of the school system. Rathbun also filed a charge with the Equal Employment Opportunity Commission ("EEOC") in October of 1978, again alleging sex discrimination by "Warren City Schools" only. The EEOC charge likewise mentioned Wilson, Haas, and, additionally, Nicholas Angelo, athletic director and then supervisor of business operations for the school system, but it did not mention Hudock. (Rathbun did not complain in the EEOC charge about her time at East Junior High, and there is only an oblique reference to this period in the OCRC charge.)

In March of 1979, the OCRC found probable cause that Rathbun's allegations established a case of sex and national origin discrimination at each of the three buildings she had worked at. The finding was accompanied by a four-page summary of evidence based largely on interviews with Rathbun's co-workers. The EEOC declined to pursue Rathbun's charge and issued a right-to-sue letter in July of 1980. On the basis of the OCRC's attempts at conciliation, the Warren school board offered to allow Rathbun to transfer to any one of twenty-two job sites, including return to Harding. Rathbun refused to work elsewhere, and she declined the jobs offered at Harding in the belief that the jobs would be more strenuous than her old job. In declining the conciliation offers, Rathbun relied on the advice of her then attorney--Shenyey, Berman & Abakumov.

Shenyey, Berman & Abakumov filed this case on October 16, 1980, within ninety days after Rathbun received the EEOC's right-to-sue letter. The individual defendants named were: the superintendent of the Warren City School District at the time of suit (Robert Pegues); the assistant superintendent at the time of suit (Anthony Berarducci); the five members of Warren City School District Board of Education ("the school board defendants") at the time of suit (Catherine Swan, Henry Angelo, Willard Rubin, Raymond Tesner, and Mary Milheim), named in their "representative capacity"; Nicholas Angelo; Bart Wilson; Haas; Hudock; and a fellow janitor, Bernie Wilson.

Shenyey, Berman & Abakumov withdrew from the case in 1981. Defendants do not dispute that the withdrawal was unrelated to the merits of the case. Attorney Elliott Lester substituted as Rathbun's attorney and pursued the case through trial. Because of Lester's inexperience in Title VII cases, in January of 1982 he sought the assistance of appellant Alan Miles Ruben, a law professor from Cleveland Marshall College of Law. Ruben entered his appearance as "additional counsel" and, according to Lester, provided academic guidance only. The record reflects, however, that Ruben's role was actually more extensive. Lester also used a newly licensed associate, Keith Weiner, on the case for a year beginning in September of 1982.

After Rathbun's presentation of her case-in-chief over four days of trial, the district judge granted defendants' motion to dismiss on June 29, 1984. Fed.R.Civ.P. 41(b). Findings of facts and conclusions of law ² were filed July 6, 1984; the order of dismissal was entered July 10, 1984. Rathbun filed a notice of appeal on August 6, 1984; the appeal was dismissed for want of prosecution on September 24, 1984. The mandate was filed with the district court on October 19, 1984.

The school board defendants filed a motion for attorneys' fees from Rathbun and her attorneys on various legal grounds on October 30, 1984. The other defendants filed a similar motion on January 9, 1985. The district judge held a hearing on the motions on March 15, 1985, at which Lester, Weiner, and defendants' attorneys argued. Ruben was present at the hearing; an attorney argued on his behalf. Although briefs were filed on Rathbun's behalf in opposition to the motions, ³ no one argued her position at the March 15 hearing.

On October 22, 1985, the district judge entered an order and opinion granting defendants' motions. Weiner was sanctioned $500 under Federal Rule of Civil Procedure 11 for filing a motion not well grounded in fact; he does not appeal. Lester was sanctioned $5,000; he also does not appeal. ⁴ Ruben likewise was sanctioned $5,000. While the district judge's opinion does not clearly delineate the legal grounds for sanctioning Ruben, his opinion mentions Federal Rule of Civil Procedure 11, 28 U.S.C. Sec. 1927, and a judge's inherent power to punish bad faith conduct during litigation. See Roadway Express, Inc. v. Piper, 447 U.S. 752, 765-67, 100 S.Ct. 2455, 2463-65, 65 L.Ed.2d 488 (1980). The bulk of the sanction--$36,159.21--fell on Rathbun. Again, while the district judge did not clearly delineate the legal grounds for sanctioning Rathbun, the opinion offers alternative grounds. Like Ruben's sanction, the first ground cited for the sanction against Rathbun is the inherent power to punish bad faith litigation. The second ground described by the judge was that Rathbun's case was "frivolous, unreasonable, or without foundation...." Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978) (interpreting Sec. 706(k) of Title VII, 42 U.S.C. 2000e-5(k)). The district judge also taxed costs against Rathbun.

II. TIMELINESS OF THE MOTIONS FOR ATTORNEYS' FEES

The school board defendants filed their motion almost four months after the district judge's findings of fact and conclusions of law and almost three months after the notice of appeal. The motion followed the dismissal of the appeal by less than two weeks. The other defendants filed their motion little more than two months later. There is no local rule in the Northern District of Ohio limiting the time period for the filing of a motion for attorneys' fees. The parties agree that instead of a strict time measure, the test is one of "reasonableness." They dispute the proper milestone for measuring the period and whether the motions here were filed within a "reasonable" time.

The district judge considered the timeliness issue in granting the motions, relying primarily on White v. New Hampshire Dep't of Employment Sec., 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982). There, the Supreme Court upheld an award of attorney's fees under 42 U.S.C. Sec. 1988 where the motion for attorney's fees was filed four-and-one-half months after the entry of final judgment. The Supreme Court held that the entertainment of such a motion is within the discretion of the district court, which should consider unfair surprise or prejudice to the affected party and the policy of avoiding piecemeal appeals. 455 U.S. at 454, 102 S.Ct. at 1167.

Ruben argues that the district judge lacked jurisdiction to consider the attorneys' fee motions after Rathbun's appeal was dismissed, relying primarily on Overnite Transp. Co. v. Chicago Indus. Tire Co., 697 F.2d 789 (7th Cir.1983). There, a motion for attorneys' fees under 28 U.S.C. Sec. 1927 filed eight months after dismissal and two months after affirmance was held to be untimely. The Overnite court did not, however, overrule or limit two earlier cases requiring the filing of such a motion only within a "reasonable" time and, if there is an appeal on the merits, before or during the pendency of the appeal. Loctite Corp. v. Fel-Pro, Inc., 667 F.2d 577 (7th Cir.1981); Terket v. Lund, 623 F.2d 29 (7th Cir.1980).

The district judge properly rejected Ruben's reliance on Overnite. Unlike the appeal in Overnite, the appeal here was pending for only a brief time before it was dismissed due to inaction by Rathbun and her attorneys. Cf. In re Itel Sec. Litig., 791 F.2d 672 (9th Cir.1986) (attorney cannot destroy district court's jurisdiction to impose...