                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                              June 23, 2003
                        FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                            No. 03-10101
                          Summary Calendar



JOHNNY MARTINETS,

          Plaintiff,

JOAN DURKIN,

          Appellant,

                                versus

CORNING CABLE SYSTEMS L.L.C., et al.,

          Defendants,

CORNING CABLE SYSTEMS L.L.C.,

          Defendant-Appellee.



          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 4:02-CV-250-A


Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Joan Durkin, attorney for plaintiff Johnny Martinets, appeals

the district court’s award of attorneys’ fees against her under 42


     *
      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this opinion should not be published and is not precedent except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
U.S.C. §§ 5000e-5(k) and 12205 for filing and pursuing a frivolous

civil rights lawsuit.        She contends that the lawsuit was not

frivolous and, alternatively, that the district court had no

authority to award fees against her under the cited statutes.

                                   I.

     Between January 28, 1997 and October 11, 2001, Martinets

worked as a sheet metal worker at defendant Corning Cable Systems’s

plant in Keller, Texas.     During his employment Martinets allegedly

began experiencing progressive hearing loss due to his loud working

conditions.     He consulted the human resources department about

filing a worker’s compensation claim, and was instructed that he

had to complete an accident report regarding the injury. Martinets

completed the report and human resources advised that company

policy required anyone submitting an accident report to go to a

local clinic for mandatory drug screening.            On the morning of

October   11,   2001,   after    arriving   at   work,     human   resources

instructed him to report to the clinic for the drug testing.             He

went to the clinic for the screening, which entailed taking two

breathalyzer tests and submitting to urinalysis.           The breathalyzer

tests and     urinalysis   all   showed   positive   for   alcohol.    Upon

learning of the positive results, Corning immediately terminated

Martinets.

     On that same day, after being fired, Martinets went to his

family doctor and requested that he perform a blood alcohol test.

The results of that test were negative for alcohol.                Martinets

                                     2
attempted to appeal his termination but human resources told him

the results of the clinic’s tests were conclusive.                          As a result,

Martinets filed this suit on February 19, 2002 in Texas state

court.

      Martinets’s        original       petition     against         Corning         alleged

intentional infliction of emotional distress and negligence for

terminating      him    without     conducting     an    investigation           into    the

accuracy of the test results.            Martinets also charged that Corning

had   terminated        him    in   retaliation         for    filing        a    workers’

compensation claim, and had slandered him by stating that the

results of the breathalyzer were positive.

      On March 26, 2002, Corning filed a motion to dismiss the

intentional infliction of emotion distress, negligence, and slander

claims.    On May 29, 2002, the district court granted the motion in

regard    to    the    intentional      infliction      and     negligence           claims.

Martinets      filed    an    amended    complaint      on    June    10,    2002,       that

included       only    the    workers’     compensation        retaliation            claim.

However, only ten days later, on June 20, 2002, he filed a motion

for leave to file a second amended complaint that included a

disability      discrimination       claim     under     the    ADA    and       a    racial

discrimination claim under Title VII.                   It alleged that Corning

discharged Martinets because of his hearing loss and that it

refused to allow Martinets, a white male, to rehabilitate himself

after failing the drug tests or appeal the termination decision

even though       it   had    extended    such     opportunities        to       black   and

                                           3
Hispanic employees.          The second amended complaint also added

Concentra, Inc., the clinic that conducted the drug testing, as an

additional defendant, and averred that Concentra was liable under

the Fair Credit Reporting Act for failing to follow reasonable

procedures    to   assure    the   accuracy          of    the   report    that    showed

Martinets had tested positive for alcohol.

      On October 17, 2002, Concentra filed its answer and a motion

to dismiss, which the district court granted.                     In the same order

the   district     court    also    sua           sponte    severed       the    workers’

compensation retaliation claim against Corning and remanded it to

state court after determining that state workers’ compensation

claims cannot be removed to federal court.

      On November 27, 2002, Corning filed its motion for summary

judgment.     It argued that Martinets could not show pretext in

regard to the discrimination claims and that Martinets’s hearing

loss was not a disability. It further alleged that the plaintiff’s

claims were “the latest in a series of frivolous, unreasonable, and

groundless claims” warranting an award of attorneys’ fees against

Martinets and his attorney, Durkin, under Christiansburg Garment

Co.   v.   EEOC,   which    held   that       a    “district     court     may    in   its

discretion award attorney’s fees to a prevailing defendant in a

Title VII case upon a finding that the plaintiff’s action was

frivolous, unreasonable, or without foundation, even though not




                                          4
brought in subjective bad faith.”1

     On December 17, 2002, Martinets filed his response, in which

he admitted that the evening before he went to the clinic, he

“consumed several beers and glasses of wine before and during

dinner.” Although he contended that “he was aware of non-white and

non-disabled co-workers who reported to work under the influence of

alcohol and/or failed company drug tests, yet no adverse employment

actions were taken against those persons,” the only such employee

he could point to was an Asian American co-worker who allegedly

once reported to work hung-over.

     The    district    court       granted    Corning’s   motion    for    summary

judgment, finding that the evidence unquestionably established that

Corning’s policy was to subject anyone who reported to work under

the influence of alcohol to adverse employment action, including

termination, and that Martinets had proffered no evidence to rebut

this justification for his firing.              It further determined that no

evidence    showed     that    the     Asian    American   co-worker       who   had

reportedly    shown    up     at    work   with   a   hang-over     was    actually

intoxicated on the job.            It concluded that Martinets submitted no

evidence showing he received less favorable treatment than any non-

disabled or non-white employees, and that he failed to establish

pretext.

     The district court also determined that an award of attorneys’


     1
         434 U.S. 412, 421 (1978).

                                           5
fees was appropriate under Christiansburg, because the plaintiff’s

allegations were “merely conclusory in nature and groundless” and

“[t]he utter frivolity of this action must have been evident after

plaintiff’s deposition.... That plaintiff continued this litigation

after the deposition ... speaks volumes about plaintiff’s and his

attorney’s intentions.”

                                 II.

     Martinets does not appeal the grant of summary judgment, and

only Durkin, Martinets’s attorney, appeals the attorneys’ fees

award.   She correctly argues that 42 U.S.C. 2000e-5(k) does not

allow the assessment of attorneys’ fees against the unsuccessful

party’s attorney.2   From this she concludes that 42 U.S.C. § 12205,

which contains nearly identical language, also does not allow

awards against a party’s attorney.3      She also adds that under



     2
       42 U.S.C. 2000e-5(k) (“In any action or proceeding under
this subchapter the court, in its discretion, may allow the
prevailing party, other than the Commission or the United States,
a reasonable attorney's fee (including expert fees) as part of the
costs, and the Commission and the United States shall be liable for
costs the same as a private person.”); Monk v. Roadway Express,
Inc., 599 F.2d 1378, 1383 (5th Cir. 1979) (“Nothing in the language
of [2000e-5(k)] and nothing in the cases cited to us by the
appellees leads us to believe that 2000e-5(k) authorize[s] the
imposition of attorneys’ fees against an unsuccessful party’s
attorneys.”).
     3
       42 U.S.C. § 12205 (“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.”).

                                  6
Christiansburg     the   awards    constituted       an   abuse    of   discretion

because the case was not frivolous, unreasonable, or without

foundation.4

     Corning responds that Durkin waived the issue whether the

court could award fees against her by not raising it below, and

asserts that it is clear from the history of the litigation that

Martinets’s case was frivolous. Corning is correct that Durkin did

not argue to the district court that it was improper to award

sanctions      against   her      under       §   2000e-5(k)      and   §   12205.

“[O]rdinarily a party may not present a wholly new issue in a

reviewing court.”5       We apply plain error review in determining

whether to allow a party to raise a new issue on appeal.6                    Under

this standard “[t]here must be an error that is plain and that

affects substantial rights.”7        It is within our discretion whether

to correct such an error, and we will only exercise it in the rare

circumstances in which the error “seriously affects the fairness,

integrity or public reputation of judicial proceedings.”8

     This is not one of those rare cases.                 In evaluating whether



     4
         See Christiansburg, 434 U.S. at 421.
     5
       Crawford v. Falcon Drilling Co., 131 F.3d 1120, 1123 (5th
Cir. 1997) (internal quotation marks omitted).
     6
         Id.
     7
         Id.
     8
         Id.

                                          7
injustice       would   inure   in   this   case,   we   “evaluate   the

blameworthiness of the party’s failure to raise the issue below.”9

Although we permit litigants appearing pro se latitude in raising

new issues on appeal, Durkin “is an attorney and should know when

issues should be raised.”10      Corning’s motion for summary judgment

made clear that it was seeking sanctions against Durkin as well as

Martinets.       Yet Durkin never explained why she, as Martinets’s

attorney, should not be sanctioned, and “[her] failure to do so is

unreasonable.”11

     We also reject Durkin’s argument that the trial court abused

its discretion in awarding the fees because Martinets’s case was

not frivolous or vexatious.      Our own review of the history of this

litigation supports the district court’s determinations.

     AFFIRMED.




     9
          St. Amant v. Bernard, 859 F.2d 379, 385 (5th Cir. 1988).
     10
          Id.
     11
          Id.

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