UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOYCE M. WILLIAMS,
Plaintiff-Appellant,

v.
                                                                        No. 96-1109
COUNTY OF FAIRFAX; MICHAEL
YOUNG, Chief of Police, in his
official and individual capacities,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-95-1255-A)

Submitted: November 25, 1997

Decided: September 24, 1998

Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed in part and reversed in part by unpublished per curiam opin-
ion.

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COUNSEL

Joseph D. Gebhardt, Washington, D.C., for Appellant. David P. Bob-
zien, County Attorney, Robert Lyndon Howell, Deputy County Attor-
ney, Cynthia L. Tianti, Assistant County Attorney, Fairfax, Virginia,
for Appellees.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Joyce M. Williams, a black female, has been employed by the Fair-
fax County Police Department ("FCPD" or "the Department") as the
Civilian Director of the Victim/Witness Assistance Program ("the
Program") since January 1986. She alleges that Defendants discrimi-
nated and retaliated against her for attempting to discipline a white,
subordinate employee, for complaining of racial discrimination within
the police department, and for filing grievances. Specifically, she con-
tends that Defendants "trumped up" disciplinary charges against her,
which resulted in her termination; Defendants verbally harassed her;
and Defendants humiliated her in the press. Accordingly, Williams
filed suit pursuant to Title VII of the Civil Rights Act of 1964, 42
U.S.C.A. § 2000e-5 (West 1994 & Supp. 1998), and 42 U.S.C. § 1983
(1994).1 Defendants moved for summary judgment, which the district
court granted. The district court also granted Defendants' motion for
attorney's fees and nontaxable costs and denied Williams's motion to
amend the order. Williams timely appeals from these orders.2
_________________________________________________________________
1 Through counsel, Williams and three other minority plaintiffs filed
suit in an attempted class action against three separate Fairfax County
departments. After plaintiffs filed an amended complaint, the district
court dismissed the action as undecipherable and gave Williams eleven
days in which to refile her complaint. The court withheld awarding attor-
ney's fees, but clearly warned Williams and her attorney that if she
refiled her case but failed to raise a genuine, factual basis from which to
bring a claim, then sanctions would be assessed. Williams refiled a com-
plaint within the eleven days, but dropped one of the original defendants
from the case. Thereafter, the defendant who had been dropped from the
case moved for attorney's fees, which the court granted in the amount of
$1000. This appeal arises from the complaint Williams filed pro se
within the eleven days.

2 Williams raises no issues on appeal regarding her § 1983 claim.

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This court reviews grants of summary judgment in discrimination
cases de novo. See Jones v. Wellham, 104 F.3d 620, 626 (4th Cir.
1997). Summary judgment is properly granted if the movant can show
that there is no material fact in dispute when viewing the evidence in
the light most favorable to the nonmovant. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 256-57 (1986).

To establish a prima facie case of discriminatory discharge, Wil-
liams must show: (1) she is a member of a protected class; (2) she was
qualified for the job and performed satisfactorily; (3) in spite of her
qualifications and performance, she was discharged; and (4) the posi-
tion remained open to similarly qualified applicants after plaintiff's
dismissal. See Carter v. Ball, 33 F.3d 450, 458 (4th Cir. 1994). Wil-
liams failed to establish that she was performing at a satisfactory
level. There was substantial evidence that Williams had abused her
use of the county vehicle and her sick and vacation leave. Further-
more, the position did not remain open to similarly qualified appli-
cants after Williams's dismissal. In fact, Williams was not replaced
at all. She returned to her original position, with her original title and
salary. Thus, Williams failed to establish a prima facie case of dis-
criminatory discharge.

Williams next alleges that her termination was in retaliation for: (1)
her attempt to discipline Virginia Johnson, a white employee; (2) her
complaints of discrimination by the FCPD; and (3) filing grievances.
To establish a prima facie case of retaliation, Williams must prove:
(1) she engaged in a protected activity; (2) the FCPD took adverse
employment action against her; and (3) a causal connection existed
between the protected activity and the adverse action. See Carter, 33
F.3d at 460.

Williams failed to establish a prima facie case of retaliation in rela-
tion to her discipline of Johnson because attempting to discipline a
subordinate is not a "protected activity" under Title VII. Assuming
Williams met her burden of establishing a prima facie case with
regard to the allegation of retaliation for complaining within the
department about discrimination, the burden of production then shifts
to Defendants to articulate some legitimate, nondiscriminatory reason
for their actions. See Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). The Defendants produced overwhelming

                     3
evidence that Williams was fired because of the findings of the Civil
Service Commission.3 The evidence included several statements by
co-workers, and multiple reports and memoranda detailing the find-
ings of the Internal Affairs investigation into Williams's activities.

After the Defendants provide a nondiscriminatory reason for the
discharge, the burden shifts back to Williams to prove by a prepon-
derance of the evidence that the legitimate reasons offered by Defen-
dants were not the true reasons for her termination. See Burdine, 450
U.S. at 253. Although she came forward with an abundance of docu-
mentary evidence, none established that Defendants' proffered reason
for terminating Williams was pretextual. Thus, Williams failed to sat-
isfy her burden.

Williams also argues that Defendants discriminated or retaliated
against her: (1) by changing the conditions of her employment after
her reinstatement; (2) by giving her a lower performance evaluation;
and (3) in the handling of her grievance of that evaluation and her
report of insubordination of two employees. None of these claims has
any basis.

This circuit has defined an adverse employment action as one
involving "hiring, granting leave, discharging, promoting [or] com-
pensating." Page v. Bolger, 645 F.2d 227, 233 (4th Cir. 1981). The
Civil Service Commission ordered the Defendants to reinstate Wil-
liams. Defendants complied, giving Williams her same salary, title,
and benefits. The only changes Williams experienced after being rein-
stated were a different office location and removal of her supervisory
duties. These changes do not constitute adverse employment actions.
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3 Both parties devote a large portion of their briefs to discussing the
preclusive effect of the findings of the Civil Service Commission. After
the parties' briefs were filed, this court held, in a similar case, that the
unreviewed findings of the Civil Service Commission are merely state
administrative determinations which are not entitled to preclusive effect
in Title VII cases. See Rao v. County of Fairfax, Virginia, 108 F.3d 42,
45 (4th Cir. 1997). Even without giving the Commission's findings pre-
clusive effect, there is sufficient evidence to establish Defendants' non-
discriminatory motive for discharging Williams. Thus, we deny
Williams's motion for summary reversal.

                    4
See id. Further, even if Williams could make out a prima facie case
of retaliation, she failed to rebut Defendants' nondiscriminatory rea-
son for altering her duties. Defendants submit that prior to the find-
ings of the Commission, Williams had been relatively unsupervised.
However, after being found guilty of several disciplinary infractions
involving truthfulness, the FCPD decided she should be more closely
supervised. Accordingly, Williams's supervisory duties were removed
and her office was relocated to a space beside her new supervisor so
that her activities could be more closely monitored. Williams submit-
ted no evidence to rebut this claim.

As to Williams's claim that she received a lowered performance
evaluation, the district court properly granted summary judgment. The
evaluation was above satisfactory and qualified Williams for a merit
increase in pay. Furthermore, Major Libby included consideration of
the Commission's findings in the evaluation pursuant to personnel
policy. Thus, this claim also fails.

Williams next alleges that Major Libby improperly handled her
grievance of that evaluation by threatening her and throwing his writ-
ten response to the grievance at her. Major Libby used no racial epi-
thets or slurs, never physically touched Williams, and after the first
encounter over the grievance, Williams sought out Major Libby to
continue the discussion a short time later. Williams's allegations are
unsupported by any evidence and therefore, fail to state a claim.

Williams also contends that Major Libby improperly handled her
complaint of insubordination by the employees because he referred
the matter to Internal Affairs for an investigation against Williams's
wishes. Again, Williams fails to state a claim. Major Libby believed
that a charge of insubordination was serious enough to warrant an
investigation. The mere fact that Williams disagreed with Major
Libby's assessment of the situation does not raise any inference of
discrimination or retaliation.

Finally, Williams alleges that Defendants conspired to humiliate
her in the press. However, Williams presented no evidence of the con-
spiracy other than her own allegations. Furthermore, in her deposi-
tion, Williams admitted having no evidence of a conspiracy. Thus,
this claim also fails.

                    5
The district court awarded Defendants $14,737.50, in attorney's
fees and $2,377.88, in non-taxable costs.4 This court reviews a district
court's award of attorney's fees for an abuse of discretion. See
Hutchinson v. Staton, 994 F.2d 1076, 1080-81 (4th Cir. 1993). A
court may award attorney's fees to a prevailing defendant in a Title
VII case if it finds the plaintiff's suit to be"frivolous, unreasonable,
or groundless, or [where] the plaintiff continued to litigate after it
clearly became so.'" Lotz Realty Co. v. United States Dep't of Hous.
and Urban Dev., 717 F.2d 929, 931 (4th Cir. 1983) (quoting
Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978)).

In this case, Williams, represented by counsel, filed an action alleg-
ing discrimination and retaliation in violation of Title VII. The district
court dismissed the second amended complaint in that action and gave
Williams eleven days to refile. However, the district court also
warned Williams that if she chose to refile her action, but lacked a
factual basis to bring a particular claim against a particular defendant,
then the court would impose sanctions. Williams refiled her complaint
pro se because she was no longer represented by her original attorney,
though she retained new counsel shortly thereafter. Upon motion for
summary judgment by Defendants, the district court found "abso-
lutely no evidence of racial discrimination in this case" and granted
Defendants' motion. Thus, because the district court: (1) allowed Wil-
liams to amend her complaint twice; (2) allowed her to refile after dis-
missal; (3) warned her that sanctions would be imposed if she refiled
her complaint without any factual basis; and (4) found all of Wil-
liams's claims to be groundless, we find that the district court's award
of attorney's fees against Williams personally was not an abuse of
discretion. See Hutchinson, 994 F.2d at 1080-81. To the extent the
district court awarded fees against Williams's second set of attorneys,
_________________________________________________________________
4 The district court awarded attorney's fees pursuant to 42 U.S.C.A.
§ 1988 (West Supp. 1997). However, to the extent the fees were awarded
for Williams's Title VII claims, the fees should have been awarded under
42 U.S.C. § 2000e-5(k) (1994). See Arvinger v. City Council of
Baltimore, 31 F.3d 196, 200 n.* (4th Cir. 1994). Nevertheless, this error
is harmless because the standard for granting attorney's fees under
§ 1988 is identical to the standards applied under § 2000e-5. See Hensley
v. Eckerhart, 461 U.S. 424, 433 n.7 (1983); Martin v. Cavalier Hotel
Corp., 48 F.3d 1343, 1359 n.10 (4th Cir. 1995).

                    6
however, we find that the district court abused its discretion. Both
Title VII and § 1983 are silent about who pays the fees, and we found
no authority for the court's imposition of attorney's fees against coun-
sel under these statutes. Accordingly, we reverse the award of attor-
ney's fees against Williams's counsel. We note, however, that the
district court is free to consider sanctions against counsel under Fed.
R. Civ. P. 11 and under the court's inherent power to sanction an
attorney who acts wantonly, vexatiously, or in bad faith. See Quiroga
v. Hasbro, Inc., 934 F.2d 497, 504 (3d Cir. 1991).

Williams also argues that the district court's award was excessive.
She contends that the district court decided the case based on the issue
of the preclusive effect of the Civil Service Commission's findings.
She complains that Defendants should have made their preclusion
argument earlier in the litigation, before Defendants incurred all the
requested fees and expenses, a large portion of which were incurred
for time spent on discovery. This argument fails. There is no require-
ment that Defendants move at any particular stage in the proceedings
for dismissal or summary judgment as a prerequisite to recovering
attorney's fees and costs. See Bakker v. Grutman , 942 F.2d 236, 241
(4th Cir. 1991). Furthermore, although the district court may have
considered the preclusive effect of the Commission's findings, the
court's decision was largely based on Williams's lack of evidence.
The full measure of Williams's evidence could not be ascertained
until after discovery. Thus, the district court did not abuse its discre-
tion by accepting Defendants' calculation of attorney's fees, which
included time spent during the discovery process.

Next, Williams argues that the district court's assessment of attor-
ney's fees should have been guided by the fees applied to her attorney
in the first class action suit (No. 95-815-A) which was dismissed with
permission to refile within eleven days. The starting point for deter-
mining fees is found by multiplying the number of hours reasonably
spent on the case by the reasonable or customary hourly rate. See
Allen v. Burke, 690 F.2d 376, 380 (4th Cir. 1982). From this number,
the district court may then adjust the award upward or downward
based on twelve traditional factors, one of which includes attorney's
fees in similar cases. See id. at 379. Thus, although the district court
may have properly considered the award of attorney's fees in the first
case, (No. 95-815-A), it was not an abuse of discretion to conclude

                    7
that the second award (No. 95-1255-A), which came after the court's
warning, should be significantly higher than the first.

Finally, Williams argues that the second set of attorneys should not
be held responsible for the hours spent by Defendants' attorneys on
the first case (No. 95-815-A). Because we have reversed the award
against the attorneys, this issue is moot.

Consequently, we affirm the district court's orders granting sum-
mary judgment and awarding attorney's fees against Williams person-
ally, and we reverse the award of attorney's fees against Williams's
counsel. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.

AFFIRMED IN PART; REVERSED IN PART

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