Trudy Wilson -Simmons v. Lake County Sheriff’s Department ; Daniel A. Dunlap

*The Honorable Robert Holmes Bell, United States District Judge for
the Western District of Michigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0104P (6th Cir.)
File Name: 00a0104p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
TRUDY W ILSON -S IMMONS,
Plaintiff-Appellant,
J OSEPH R. C OMPOLI, J R.;
J AMES R. GOODLUCK,
Appellants,
v.
LAKE C OUNTY S HERIFF’S
DEPARTMENT ; DANIEL A.
DUNLAP ,
Defendants-Appellees.
;>

1
No. 98-3553
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 96-02359—Donald C. Nugent, District Judge.
Argued: December 6, 1999
Decided and Filed: March 24, 2000
Before: RYAN and SUHRHEINRICH, Circuit Judges;
BELL,* District Judge.

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2 Wilson-Simmons v. Lake
County Sheriff’s Dep’t, et al.
No. 98-3553
_________________
COUNSEL
ARGUED: Stephen W. Gard, Cleveland, Ohio, for
Appellants. Michael P. Brown, LAKE COUNTY
PROSECUTOR’S OFFICE, Painesville, Ohio, for Appellees.
ON BRIEF: Joseph R. Compoli, Jr., Cleveland, Ohio, for
Appellants. Michael P. Brown, LAKE COUNTY
PROSECUTOR’S OFFICE, Painesville, Ohio, for Appellees.
Mark S. Telich, Cleveland, Ohio, for Amicus Curiae.
_________________
OPINION
_________________
BELL, District Judge. The Plaintiff, Trudy Wilson-
Simmons, and her attorneys, Joseph R. Compoli, Jr., and
James R. Goodluck, (hereinafter collectively referred to as the
"Appellants") appeal the order of the district court awarding
attorney fees against Wilson-Simmons and sanctioning her
attorneys by holding them jointly and severally liable for the
award on the grounds that the Plaintiff's racial discrimination
and retaliation claims were frivolous, unreasonable and
without foundation. We affirm.
I.
Wilson-Simmons has been employed as a corrections
officer at the Lake County Sheriff's Department since 1990.
On February 7, 1995, she complained to her supervisor, Frank
Leonbruno, that she had been told by another co-worker that
a corrections officer had sent a racist electronic mail ("e-
mail") about her to another corrections officer.
Wilson-Simmons refused to identify the co-worker who had
given her this information. She requested to view the e-mail
generated by every officer in the Lake County Detention
Facility for the month of January. Leonbruno informed her
that the e-mail records were not readily available and that they

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10 Wilson-Simmons v. Lake
County Sheriff’s Dep’t, et al.
No. 98-3553
Bad faith is not required to support a sanction under § 1927.
Jones, 789 F.2d at 1230.
Having reviewed the record, we concur with the district
court that it should have been patently obvious to Plaintiff's
counsel that the facts alleged did not, as a matter of law,
support a retaliation claim. The district court did not abuse its
discretion by imposing sanctions upon counsel for pursuing
an action based on a disgruntled employee's motley
assortment of grievances and perceived mistreatment.
For the reasons stated herein, we AFFIRM the judgment of
the district court awarding attorney fees against Wilson-
Simmons pursuant to § 1988 and imposing joint and several
liability for that award upon her counsel as a sanction
pursuant to § 1927.
No. 98-3553 Wilson-Simmons v. Lake
County Sheriff’s Dep’t, et al.
3
would need to be reconstructed. That day, Leonbruno posted
a notice to all employees prohibiting racial statements in e-
mails. In the absence of further details from
Wilson-Simmons, Leonbruno was unable to investigate the
allegation. The next day, Wilson-Simmons submitted a
written request to view the e-mail of five corrections officers
for the month of January. She was advised that it would take
the Lake County Sheriff's Department's computer specialist
one hundred forty hours to reconstruct the requested e-mail
and that she would be responsible for the $2,500 cost.
In October 1996, Wilson-Simmons commenced this action
against the Defendants, the Lake County Sheriff's Department
and Daniel A. Dunlap, the Lake County Sheriff, alleging
racial discrimination and retaliation in violation of 42 U.S.C.
§ 1981, § 1983, § 2000e-2(a), § 2000e-3(a) and Ohio state
law. The complaint alleged that the Defendants discriminated
against her because the fee to view the e-mail should have
been $3.00, the price of a public record, and because the
Defendants failed to investigate the alleged racial slur. The
complaint further alleged that following Wilson-Simmons'
complaint and request for access to the alleged racist e-mail,
the Defendants retaliated against her by: (1) assigning her to
the fourth floor which housed maximum security inmates; (2)
losing her overtime paperwork, requiring her to refile it; (3)
administering a written disciplinary warning for failing to
make a door check during her shift and for using white out on
her log report; (4) instructing her to rewrite her explanations
of these events because her response was insubordinate; and
(5) giving her a disciplinary warning for using office
equipment to advertise her Tupperware party. Wilson-
Simmons alleges that she suffered severe clinical depression
as a result of these incidents.
The Defendants thereafter moved for summary judgment.
On October 22, 1997, the district court granted the motion.
With respect to Wilson-Simmons' racial discrimination claim,
the district court set forth the burden shifting framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct.

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4 Wilson-Simmons v. Lake
County Sheriff’s Dep’t, et al.
No. 98-3553
1817, 36 L.Ed. 2d 668 (1973). The court first noted that the
Plaintiff had no evidence that the allegedly racist e-mail
existed. She had learned of it from a co-worker who was told
by another corrections officer that still another corrections
officers was responsible. The court further found that
Wilson-Simmons had failed to show an adverse employment
action related to her discrimination claims and that she had
proffered no evidence to suggest that she was treated worse
than similarly situated, non-protected employees. The court
concluded that the Defendants were entitled to summary
judgment because she had failed to demonstrate a prima facie
case of disparate treatment.
The district court next reviewed each alleged incident with
respect to her retaliation claim. The court clarified that her
assignment to the fourth floor with maximum security
inmates was part of her duties and that she had presented no
evidence to demonstrate that she was singled out and given a
disproportionate number of assignments to this area. The
court noted that other officers, including members of a
protected class, were assigned to this duty more frequently
than she was. The court concluded that the loss of her
overtime sheet was a single, isolated event that was nothing
more than a clerical oversight. As to the allegations that she
was unfairly reprimanded, the evidence revealed that she had
not been disciplined but had merely received requests from
management to explain certain conduct. The court
accordingly determined that she had failed to demonstrate that
she suffered adverse employment action in retaliation for her
protected activity. Wilson-Simmons did not appeal the order
of the court granting summary judgment.
On November 6, 1997, the Defendants moved for attorney
fees and costs against Wilson-Simmons pursuant to 42 U.S.C.
§ 1988. The district court referred the motion to a magistrate
judge. On January 14, 1998, the magistrate judge
recommended that attorney fees be awarded against Wilson-
Simmons and that the district court issue an order to counsel
to show cause why sanctions should not be imposed against
No. 98-3553 Wilson-Simmons v. Lake
County Sheriff’s Dep’t, et al.
9
that the district court rejected the magistrate judge's
recommendation that the court impose attorney fees on
Plaintiff's counsel pursuant to § 1927 and/or the court's
inherent authority because the court only cited § 1988 as
authority in its opinion and adopted the magistrate judge's
report "as modified."
We reject such a tortured reading of the district court's
opinion. There is no text in the district court's opinion to
support Appellants' claim that the court rejected the
magistrate judge's recommendation that counsel be sanctioned
pursuant to § 1927. Although the order imposing sanctions
does not specifically cite § 1927 as authority, both the district
court's order to show cause and the underlying report and
recommendation adopted by the court do. Reading the order
as a whole, it is evident that the district court relied upon
§ 1927 as the basis for imposing sanctions against counsel.
We further conclude that the district court's order imposing
sanctions upon Plaintiff's counsel was a proper exercise of its
discretion. Sanctions under § 1927 are warranted "when an
attorney has engaged in some sort of conduct that, from an
objective standpoint, 'falls short of the obligations owed by a
member of the bar to the court and which, as a result, causes
additional expense to the opposing party.'" Holmes v. City of
Massillon, Ohio, 78 F.3d 1041, 1049 (6th Cir.) (quoting In re
Ruben, 825 F.2d 977, 984 (6th Cir. 1987), cert. denied, 485
U.S. 934, 108 S.Ct. 1108, 99 L.Ed.2d 269 (1988)), cert.
denied, 519 U.S. 935, 117 S.Ct. 312, 136 L.Ed.2d 228 (1996).
"An attorney's ethical obligation of zealous advocacy on
behalf of his or her client does not amount to carte blanche to
burden the federal courts by pursuing claims that are frivolous
on the merits . . . . Accordingly . . . when an attorney knows
or reasonably should know that a claim pursued is frivolous,
or that his or her litigation tactics will needlessly obstruct the
litigation of nonfrivolous claims, a trial court does not err by
assessing fees attributable to such actions against the
attorney." In re Ruben, 825 F.2d at 984 (quoting Jones v.
Continental Corp., 789 F.2d 1225, 1230 (6th Cir. 1986)).

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8 Wilson-Simmons v. Lake
County Sheriff’s Dep’t, et al.
No. 98-3553
argument is a red herring. She presented no evidence that she
should have been charged the fee for a public record of $3.00
rather than the $2,500 cost of reconstructing the files. Neither
did she present any evidence that the cost was in any way
racially based. Furthermore, the district court found that there
was no evidence to indicate that any of the five co-workers
she had identified were involved or that the alleged e-mail
even existed. Wilson-Simmons proffered no evidence
regarding when the e-mail had been sent, who had sent it,
who it was sent to, or whether her name was even mentioned.
With respect to Wilson-Simmons' claim that the Defendants
failed to investigate, the district court concluded that the
evidence demonstrated that the Defendants took her
complaint seriously and responded promptly by issuing a
memorandum to all personnel prohibiting using e-mail to
make racial statements. The court further found that her
claims for retaliation were without factual foundation. After
viewing the allegations and the evidence, the district court
determined that Wilson-Simmons had failed to set forth a
prima facie case of racial discrimination or retaliation and that
her claims were without foundation from the outset. We
agree with the district court's well reasoned analysis and
conclude that the court did not abuse its discretion in
awarding attorney fees against Wilson-Simmons pursuant to
§ 1988. The remedial action was prompt and appropriate, see
Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir. 1999),
especially given that the Plaintiff refused to cooperate in her
employer's attempt to investigate the matter. See Perry v.
Harris Chernin, Inc., 126 F.3d 1010, 1014-15 (7th Cir. 1997).
Moreover, the memorandum was apparently effective. The
Plaintiff does not claim that she ever saw, or heard rumors
about, racist e-mails following the circulation of the memo.
C.
We next consider the Appellants' claim that the district
court was not authorized to impose attorney fees against
Plaintiff's counsel pursuant to 42 U.S.C. § 1988. They argue
No. 98-3553 Wilson-Simmons v. Lake
County Sheriff’s Dep’t, et al.
5
1Section 1927 provides:
Any attorney or other person admitted to conduct cases
in any court of the United States or any Territory
thereof who so multiplies the proceedings in any case
unreasonably and vexatiously may be required by the
court to satisfy personally the excess costs, expenses
and attorneys' fees reasonably incurred because of such
conduct.
them pursuant to 28 U.S.C. § 19271 and/or the court's
inherent authority. According to the magistrate judge, the
complete lack of substance and merit should have been so
patent to Plaintiff's counsel that their failure to either advise
her against pursuing the empty claims or terminate the action
when its futility should have been obvious called for them to
"share the burden of the Plaintiff's folly." (J.A. 26).
The district court issued an order directing Plaintiff's
counsel to show cause, in writing, why sanctions should not
be imposed against them pursuant to 28 U.S.C. § 1927. The
Plaintiff filed an objection to the magistrate's report and
recommendation and brief in opposition to sanctions. On
April 7, 1998, the court awarded attorney fees of $17,131.95
to the Defendants against the Plaintiff and held that the
Plaintiff's attorneys were jointly and severally liable for the
award. In its order, the court incorporated its summary
judgment by reference and adopted the magistrate judge's
report and recommendation as modified. This appeal
followed.
II.
A.
We first consider the Appellants' contention that the district
court improperly imposed monetary sanctions upon them
without conducting a hearing.

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6 Wilson-Simmons v. Lake
County Sheriff’s Dep’t, et al.
No. 98-3553
In this circuit, there is no requirement that a full evidentiary
hearing be held before imposing sanctions. Cook v.
American S.S. Co., 134 F.3d 771, 774 (6th Cir. 1998). "What
is required, however, is that before the imposition of
sanctions, the attorney must be given notice and an
opportunity to be heard. . . . An order to show cause, along
with an opportunity to respond to said order, can be sufficient,
in certain circumstances, to provide the necessary procedural
safeguards . . . ." Id. at 775 (citation omitted).
As a preliminary matter, we note that no due process
concerns are present in this case. Both the magistrate judge's
report and recommendation and the district court's show cause
order clearly put the Appellants on notice that the court was
considering imposing monetary sanctions upon both Wilson-
Simmons and her attorneys.
"It is within the discretion of the district court to determine
whether an evidentiary hearing would assist the court in its
decision." Id. The magistrate judge reviewed Wilson-
Simmons' entire 361 page deposition testimony in preparing
his report and recommendation. The district court had before
it the magistrate judge's report and recommendation, the
Appellants' brief in opposition and response to the show cause
order, and the court's opinion granting summary judgment.
The district court was familiar with the Plaintiff's allegations
and demonstrated a thorough knowledge of the factual and
legal issues in the case. Because nothing in the record
indicates that a hearing was needed to assist the court in
determining whether sanctions were warranted, we hold that
the district court did not abuse its discretion in not conducting
an evidentiary hearing.
B.
We next consider the Appellants' claim that the district
court improperly awarded attorney fees against Wilson-
Simmons pursuant to 42 U.S.C. § 1988 because her claims
were not frivolous, unreasonable, or without foundation.
No. 98-3553 Wilson-Simmons v. Lake
County Sheriff’s Dep’t, et al.
7
We review a district court's award of attorneys fees under
42 U.S.C. § 1988 based on an abuse of discretion standard.
Reed v. Rhodes, 179 F.3d 453, 469 n.2 (6th Cir. 1999). "In
light of a district court's superior understanding of the
litigation and the desirability of avoiding frequent appellate
review of what essentially are factual matters, an award of
attorneys' fees under § 1988 is entitled to substantial
deference." Id. (quoting Hensley v. Eckerhart, 461 U.S. 424,
437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983)) (internal
quotation marks omitted).
Under 42 U.S.C. § 1988, a district court may in its
discretion award attorney fees to a prevailing defendant upon
a finding that "the plaintiff's action was frivolous,
unreasonable, or without foundation, even though not brought
in subjective bad faith." Wayne v. Village of Sebring, 36 F.3d
517, 530 (6th Cir. 1994) (quoting Christiansburg Garment
Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54
L.Ed.2d 648 (1978)) (internal quotation marks omitted), cert.
denied, 514 U.S. 1127, 115 S.Ct. 2000, 131 L.Ed.2d 1001
(1995). "[A] district court must resist the urge to engage in
post hoc reasoning and the hindsight logic of concluding a
suit is without foundation because the plaintiff ultimately
does not prevail." Smith v. Smythe-Cramer Co., 754 F.2d
180, 183 (6th Cir.) (quoting Christiansburg Garment Co., 434
U.S. at 421-22, 98 S.Ct. at 700), cert. denied, 473 U.S. 906,
105 S.Ct. 3530, 87 L.Ed.2d 654 (1985). A "plaintiff should
not be assessed his opponent's attorney fees unless the court
finds the claim was groundless at the outset or 'that the
plaintiff continued to litigate after it clearly became so.'"
Smythe-Cramer Co., 33 F.3d at 183. This "requires inquiry
into the plaintiff's basis for filing suit. Awards to prevailing
defendants will depend on the factual circumstances of each
case." Id.
The district court properly applied this standard. As
support for her race discrimination claim, Wilson-Simmons
offered as evidence the fact that she would have to pay for the
costs associated with reconstructing the e-mail files. This

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