Scheve, et al v. The Moody Foundation

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 00-40745
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TINA SCHEVE,
Plaintiff-Appellant,
AND
MARK W. STEVENS,
Appellant,
VERSUS
THE MOODY FOUNDATION,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
(G-99-CV-379)
_________________________
June 20, 2001

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2
Before REYNALDO G. GARZA,
HIGGINBOTHAM, and SMITH,
Circuit Judges.
PER CURIAM:*
Tina Scheve appeals a summary judgment
on her claim of discrimination in violation of
provisions of the Employee Retirement
Income Security Act of 1974 (“ERISA”), 29
U.S.C. §§ 1140-41. Scheve and her attorney,
Mark Stevens, appeal the award of attorney’s
fees to the Moody Foundation.1 Finding no
reversible error, we affirm.
Scheve filed a complaint asserting a claim
with no basis in fact, which would have been
apparent if she or Stevens had conducted even
a cursory investigation. Moreover, upon
“learning” of the inaccuracy of the allegations,
she refused to withdraw the claim and instead
asserted a new theory of liability for the first
time in her response to the motion for
summary judgment.
Summary judgment was appropriate,
because Scheve failed to establish an element
of her prima facie case, i.e., that the
foundation fired her with specific intent to
prevent her from exercising her rights under
ERISA. See Stafford v. True Temper Sports,
123 F.3d 291, 295 (5th Cir. 1997).
Furthermore, given the groundless nature of
the claim and the appellants’ persistence in its
maintenance, the decision to award the
foundation its reasonable attorney’s fees
cannot be considered an abuse of discretion
with respect to either Scheve, see Ironworkers
Local # 272 v. Bowen, 624 F.2d 1255, 1266
(5th Cir. 1980),2 or Stevens, see Browning v.
Kramer, 931 F.2d 340, 344 (5th Cir. 1991)
(“[W]hen the entire course of proceedings
were unwarranted and should neither have
been commenced nor persisted in, an award
under § 1927 may . . . shift the entire financial
burden of an action’s defense.”).
AFFIRMED.
* Pursuant to 5TH CIR. R. 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determined that this opinion should not be
published and is not precedent except under the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 5TH CIR. R.
47.5.4.
1 The court cited several bases for the fee
award, including, inter alia, ERISA’s fee-shifting
provision, 29 U.S.C. § 1132(g), for the award
against Scheve, and 28 U.S.C. § 1927 for the
award against Stevens.
2 Scheve complains that the court failed
properly to analyze the fee award under Bowen.
Although in its oral order the court did not discuss
the Bowen factors at length, the court expressly
considered each of the relevant factors sufficiently
to allow us to conclude that it did not abuse its
discretion in awarding fees under § 1132(g).
Moreover, other than the conclusional assertion
that “under any view of the Bowen factors, this fee
award was improper,” Scheve fails even to argue
why the award was inappropriate under Bowen.

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