Temple v. American Airlines

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-11569
Summary Calendar
_______________
DAVID J. TEMPLE,
Plaintiff-Appellee,
VERSUS
AMERICAN AIRLINES, INC.,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
m 3:99-CV-2289-AH-L
_________________________
August 26, 2002
Before HIGGINBOTHAM, SMITH,
and CLEMENT, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
The magistrate judge, to whom this matter
was referred by consent (hereafter called the
“district court” or the “court”), granted
summary judgment for American Airlines, Inc.
(“American”), but declined to shift fees under
42 U.S.C. § 12205 or 28 U.S.C. § 1927.
Finding no reversible error, we affirm.
* 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determined that this opinion should not be
published and is not precedent except under the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.
*(...continued)
47.5.4.

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I.
Temple asserted three causes of action
against American: (1) wrongful discharge and
a failure to accommodate under the Americans
with Disabilities Act (“ADA”), 42 U.S.C.
§ 12111 et seq.; (2) wrongful discharge in
violation of the Family Medical Leave Act
(“FMLA”), 29 U.S.C. § 2601 et seq.; and
(3) promissory estoppel. American filed an
answer, which included the affirmative defense
that Temple’s ADA “claims are barred by the
applicable statute of limitations.” In a joint
status report, American noted that the FMLA
claim lacked merit because the FMLA does
not cover leaves of absence to care for a sick
brother-in-law.
American deposed Temple, who testified
that he “guess[ed]” that he received the right
to sue letter on July 7, 1999, the same day the
EEOC had signed and dated the letter.
Temple stated that American granted his
requests for two leaves of absence so he could
visit his sick brother-in-law and attend the
funeral. Temple admitted that the leaves of
absence were not because he or his parents,
spouse, or children suffered a serious illness,
or because of the birth or adoption of a child.
Temple testified, however, that he request-
ed the leave of absence so that he could “take
care of [his] kids” while his wife attended to
her terminally ill brother. Temple reported
that an American supervisor instructed him to
“go ahead and take care of the family situation
first, and we’ll discuss that [training schedule]
when you get back.” Temple also admitted,
however, that he had no idea whether the
leaves of absence would be held against him
and that he did not rely on a manager’s
promises. American responded to an
interrogatory by pointing out that Temple’s
failure to file suit within 90 days after receiving
a right to sue letter would bar his claim.
After Temple’s deposition, American did
not immediately move for summary judgment,
but, instead, moved for leave to amend and
add the affirmative defense of mitigation. The
court granted the motion to amend and gave
Temple an opportunity to amend his
complaint. American substituted counsel,
which further delayed the filing of its summary
judgment motion, and the district court
extended the deadline for filing dispositive
motions.
American moved for summary judgment,
alleging many alternative grounds for dismissal
but making only three arguments relevant to
this appeal. First, it asserted that Temple had
failed to sue within ninety days from when he
received a right to sue letter, making his ADA
claim untimely. Second, American argued that
the FMLA does not guarantee leaves of
absence to care for a sick brother-in-law or to
attend his funeral. Finally, American relied on
Temple’s testimony that he had not relied on
promises made by American’s managers.
Temple sought to dismiss without prejudice
under FED. R. CIV. P. 41(a)(2); the court
refused. Temple filed a response to the motion
for summary judgment, conceding his “federal
discrimination claims.” He filed a motion for
additional discovery under FED. R. CIV. P.
56(f) to explore his promissory estoppel claim.
On August 17, 2001, the district court granted
American summary judgment and denied
Temple’s rule 56(f) motion.
American then moved for attorneys’ fees
under two statutes. First, it sought fees as a
“prevailing party” under the ADA, 42 U.S.C.

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§ 12205. American emphasized that it had
obtained summary judgment because Temple
filed his claims two days after the filing
deadline had lapsed. Second, American
invoked 28 U.S.C. § 1927 to punish Temple
for “unreaso nably” and “vexatiously”
multiplying claims or proceedings. American
argued that Temple unnecessarily forced them
to move for summary judgment.
The court described Temple’s actions as
“disturbing” but refused to grant the motion.
The court explained that American could have
provided Temple with notice that his claims
lacked merit before moving for summary judg-
ment; the court also reasoned that Temple’s
claims had too firm a basis in fact and law to
justify shifting fees.
II.
The ADA permits “prevailing parties” to
recover attorneys’ fees.1 We review for abuse
of discretion decisions shifting fees under the
ADA. No Barriers, Inc. v. Brinker Chili’s
Texas, Inc., 262 F.3d 496, 498 (5th Cir.
2001). “A district court abuses its discretion
if it awards sanctions based on an erroneous
view of the law or on a clearly erroneous
assessment of the evidence.” Walker v. City of
Bogalusa, 168 F.3d 237, 240 (5th Cir. 1999).
We have applied the same standards to the
ADA’s fee-shifting provision for “prevailing
parties” that we apply to the almost-identical
fee-shifting provisions of title VII and 42
U.S.C. § 1988. No Barriers, 262 F.3d at 498.
Under all three statutes, “a district court may
in its discretion award attorney’s fees to a pre-
vailing defendant . . . upon a finding that the
plaintiff’s action was frivolous, unreasonable,
or without foundation.” Christiansburg
Garment Co. v. EEOC, 434 U.S. 412, 421
(1978).
American argues that because the ADA’s
filing requirements plainly barred Temple’s
claim, his suit was frivolous and “without
foundation.” We addressed this same
argument under title VII’s fee-shifting
provision in Nilsen v. City of Moss Point,
Miss., 621 F.2d 117, 122 (5th Cir. 1980),
holding that a district court did not abuse its
discretion by denying fees to a defendant that
had prevailed on an exhaustion defense. The
plaintiff in Nilsen sued over seven months after
receiving an EEOC letter, and we affirmed the
dismissal on that basis. Id. 120-21. We also
deferred, however, to the district court’s
finding that the plaintiff had not violated the
standard set forth in Christianburg and upheld
the denial of fees. Id. at 122.
American argues that Temple’s ADA claim
became “frivolous” when his deposition
testimony established the date on which he had
received his right to sue letter. Temple’s
revelation may have supported American’s
motion for summary judgment, but it fell far
short of the epiphany that American describes.
Temple first testified that he did not
remember when he received the letter.
American then confronted him with a copy of
1 Section 12205 states:
In any action or administrative
proceeding commenced pursuant to this
chapter, the court or agency, in its
discretion, may allow the prevailing party,
other than the United States, a reasonable
attorney's fee, including litigation expenses,
and costs, and the United States shall be
liable for the foregoing the same as a private
individual.
42 U.S.C. § 12205.

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the letter that he had faxed to another person,
and the fax indicated he had sent it on July 7.
Temple responded by saying that he
“guess[ed]” he received the right to sue letter
on the same date the EEOC officer signed it,
but he qualified that by saying that he really
did not remember receiving it.
The summary judgment evidence did prove
that Temple received the letter on July 7, but
the evidence was not overwhelming. His
counsel reasonably could have waited for the
summary judgment motion to determine the
quantity of admissible evidence supporting
American’s allegations about the date of
receipt.
American fully developed its exhaustion
defense only in the motion for summary
judgment. It raised the ADA’s time limits
generally as an affirmative defense in its
answer, but it had not specifically identified the
ninety-day filing requirement. Similarly, in the
deposition, American asked Temple whether
he had received the right to sue letter on the
same day it was signed. After Temple replied
that he “guess[ed]” so, American asked no
further questions. American’s interrogatory
response described his ADA claim as time
barred.
An ADA plaintiff does not have an
obligation to dismiss his claim where the
defendant has unearthed facts, but has not
developed its argument or theory,
demonstrating that the claim is time barred.
The plaintiff may wait until the defendant
advances a legal argument, either in the form
of a motion to dismiss or a motion for
summary judgment. After considering that
argument and evidence, Temple accepted
American’s proof of the date of receipt and
conceded the claim.
If Temple’s deposition testimony so plainly
established the date he received the letter that
it barred Temple’s claim, American could have
sought leave to file a short motion for
summary judgment. American’s counsel
thereby would have avoided altogether most of
the co sts of filing for summary judgment.
Taking this step, rather than submitting a so-
phisticated motion for summary judgment sup-
ported by over 200 pages of documents,
would have reduced attorneys’ fees charged to
defend against the ADA claim.
III.
American appeals the denial of fees under
28 U.S.C. § 1927, a matter we review for
abuse of discretion. Mercury Air Group, Inc.
v. Mansour, 237 F.3d 542, 549 (5th Cir.
2001). According to § 1927, a court may shift
reasonable fees to “any attorney” “who so
multiplies the proceedings in any case
unreasonably and vexatiously.”2 The court
must find that the sanctioned attorney
multiplied the proceedings both
“unreasonably” and “vexatiously.” FDIC v.
Calhoun, 34 F.3d 1291, 1297 (5th Cir. 1994).
Proving that a counsel’s behavior was both
“vexatious” and “unreasonable” requires
“evidence of bad faith, improper motive, or
reckless disregard of the duty owed to the
2 Section 1927, in full, provides:
Any attorney or other person admitted
to conduct cases in any court of the United
States or any Territory thereof who so mul-
tiplies 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.
28 U.S.C. § 1927.

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court.” Edwards v. Gen. Motors Corp., 153
F.3d 242, 246 (5th Cir. 1992).
Section 1927 only authorizes shifting fees
associated with “the persistent prosecution of
a meritless claim.” Browning v. Kramer, 931
F.2d 340, 345 (5th Cir. 1991) (citation
omitted) (internal quotation omitted). The
courts often use repeated filings, despite
warnings from the court, or other proof of
excessive litigiousness to justify sanctions.
Nat’l Ass’n of Gov’t Employees v. Nat’l Fed’n
of Fed. Employees, 844 F.2d 216, 224 (5th
Cir. 1988). We have interpreted § 1927 as
penal and have construed it in favor of the
sanctioned party. FDIC v. Connor, 20 F.3d
1376, 1384 (5th Cir. 1994). This construction
prevents the courts from dampening “the
legitimate zeal of an attorney in representing
her client.” Browning v. Kramer, 931 F.2d
340, 344 (5th Cir. 1991).
American contends that Temple should
have known that his case lacked merit after his
deposition, which revealed the ADA claim as
time barred, the absence of facts supporting an
FMLA claim, and the shaky grounds for prom-
issory estoppel. Section 1927, however,
requires more than knowledge of a case’s
weaknesses, even if fatal. American has not
pointed to evidence of bad faith, improper mo-
tive, or a reckless disregard of duties owed to
the court. Edwards, 153 F.3d at 246. We ex-
amine each claim in turn and find that none
was outlandish or baseless enough to shift the
costs for the motion for summary judgment:
On the ADA claim, Temple had some basis
for waiting until American fleshed out its ex-
haustion argument in the motion for summary
judgment. We decline to shift fees under
§ 1927 for substantially the same reasons we
declined to shift fees under the ADA’s more
lenient standard.
On the FMLA claim, Temple advanced a
legal argument or theory, although it was not
very compelling. By its terms, the FMLA
guarantees leave for employees to care for
spouses, parents, and children with “serious
health condition[s]”; the statute does not en-
sure leave to care for sick brothers-in-law. 29
U.S.C. § 2612(a)(1). One other litigant has
argued that courts should extend the FMLA’s
protections to other relatives similar to those
expressly covered.3
We have not addressed the question wheth-
er the FMLA’s list of covered relatives is ex-
haustive or illustrative, and Temple could have
made a (weak) argument that the list is merely
illustrative. He also testified that he was
caring for his children during the leaves of
absence. He could have relied on the
illustrative list argument in combination with
his actions in caring for his children to make a
weak argument for extending the FMLA to
this case. This dubious theory of recovery was
not frivolous enough to warrant § 1927
sanctions.
Temple had some evidence to support his
promissory estoppel claim. Although he did
not advance proof of subjective reliance, he
did testify that an American supervisor had
told him not to worry about his job during his
absence. Despite the fact that the summary
judgment evidence failed to support a
promissory estoppel claim, Temple was
justified in forcing American to file for
summary judgment.
3 Krohn v. Forsting, 11 F. Supp. 2d 1082,
1091-92 (E.D. Mo. 1998) (rejecting argument that
the FMLA guaranteed leave of absence to care for
grandmother who had not served as primary
caregiver).

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The evidence on all three claims, although
weak, does not justify shifting fees for
American’s motion for summary judgment.
Where the plaintiff has some evidence to
support his claim, § 1927 usually does not
require the plaintiff to dismiss voluntarily.
Jackson Marine Corp. v. Harvey Barge
Repair, Inc., 794 F.2d 989, 992 (5th Cir.
1986). The plaintiff may merely refuse to
oppose the summary dismissal of those weak
claims. Id. The district court, which watched
events unfold firsthand, did not abuse its
discretion by refusing to grant fees under §
1927.
AFFIRMED.

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