            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,                             The magistrate judge, to whom this matter
  and CLEMENT, Circuit Judges.                       was referred by consent (hereafter called the
                                                     “district court” or the “court”), granted
JERRY E. SMITH, Circuit Judge:*                      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          (...continued)
limited circumstances set forth in 5TH CIR. R.       47.5.4.
                                                        interrogatory by pointing out that Temple’s
                      I.                                failure to file suit within 90 days after receiving
    Temple asserted three causes of action              a right to sue letter would bar his claim.
against American: (1) wrongful discharge and
a failure to accommodate under the Americans               After Temple’s deposition, American did
with Disabilities Act (“ADA”), 42 U.S.C.                not immediately move for summary judgment,
§ 12111 et seq.; (2) wrongful discharge in              but, instead, moved for leave to amend and
violation of the Family Medical Leave Act               add the affirmative defense of mitigation. The
(“FMLA”), 29 U.S.C. § 2601 et seq.; and                 court granted the motion to amend and gave
(3) promissory estoppel. American filed an              Temple an opportunity to amend his
answer, which included the affirmative defense          complaint. American substituted counsel,
that Temple’s ADA “claims are barred by the             which further delayed the filing of its summary
applicable statute of limitations.” In a joint          judgment motion, and the district court
status report, American noted that the FMLA             extended the deadline for filing dispositive
claim lacked merit because the FMLA does                motions.
not cover leaves of absence to care for a sick
brother-in-law.                                             American moved for summary judgment,
                                                        alleging many alternative grounds for dismissal
   American deposed Temple, who testified               but making only three arguments relevant to
that he “guess[ed]” that he received the right          this appeal. First, it asserted that Temple had
to sue letter on July 7, 1999, the same day the         failed to sue within ninety days from when he
EEOC had signed and dated the letter.                   received a right to sue letter, making his ADA
Temple stated that American granted his                 claim untimely. Second, American argued that
requests for two leaves of absence so he could          the FMLA does not guarantee leaves of
visit his sick brother-in-law and attend the            absence to care for a sick brother-in-law or to
funeral. Temple admitted that the leaves of             attend his funeral. Finally, American relied on
absence were not because he or his parents,             Temple’s testimony that he had not relied on
spouse, or children suffered a serio us illness,        promises made by American’s managers.
or because of the birth or adoption of a child.
                                                           Temple sought to dismiss without prejudice
                                                        under FED. R. CIV. P. 41(a)(2); the court
    Temple testified, however, that he request-         refused. Temple filed a response to the motion
ed the leave of absence so that he could “take          for summary judgment, conceding his “federal
care of [his] kids” while his wife attended to          discrimination claims.” He filed a motion for
her terminally ill brother. Temple reported             additional discovery under FED. R. CIV. P.
that an American supervisor instructed him to           56(f) to explore his promissory estoppel claim.
“go ahead and take care of the family situation         On August 17, 2001, the district court granted
first, and we’ll discuss that [training schedule]       American summary judgment and denied
when you get back.” Temple also admitted,               Temple’s rule 56(f) motion.
however, that he had no idea whether the
leaves of absence would be held against him                American then moved for attorneys’ fees
and that he did not rely on a manager’s                 under two statutes. First, it sought fees as a
promises.       American responded to an                “prevailing party” under the ADA, 42 U.S.C.


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

                                                           American argues that Temple’s ADA claim
   1
       Section 12205 states:                            became “frivolous” when his deposition
                                                        testimony established the date on which he had
        In any action or administrative                 received his right to sue letter. Temple’s
   proceeding commenced pursuant to this                revelation may have supported American’s
   chapter, the court or agency, in its
                                                        motion for summary judgment, but it fell far
   discretion, may allow the prevailing party,
   other than the United States, a reasonable
                                                        short of the epiphany that American describes.
   attorney's fee, including litigation expenses,
   and costs, and the United States shall be
   liable for the foregoing the same as a private          Temple first testified that he did not
   individual.                                          remember when he received the letter.
                                                        American then confronted him with a copy of
42 U.S.C. § 12205.

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

   An ADA plaintiff does not have an
                                                            2
obligation to dismiss his claim where the                       Section 1927, in full, provides:
defendant has unearthed facts, but has not
developed its argument or theory,                                 Any attorney or other person admitted
demonstrating that the claim is time barred.                to conduct cases in any court of the United
                                                            States or any Territory thereof who so mul-
The plaintiff may wait until the defendant
                                                            tiplies the proceedings in any case
advances a legal argument, either in the form               unreasonably and vexatiously may be
of a motion to dismiss or a motion for                      required by the court to satisfy personally
summary judgment. After considering that                    the excess costs, expenses, and attorneys’
argument and evidence, Temple accepted                      fees reasonably incurred because of such
American’s proof of the date of receipt and                 conduct.
conceded the claim.
                                                         28 U.S.C. § 1927.

                                                     4
court.” Edwards v. Gen. Motors Corp., 153                On the FMLA claim, Temple advanced a
F.3d 242, 246 (5th Cir. 1992).                        legal argument or theory, although it was not
   Section 1927 only authorizes shifting fees         very compelling. By its terms, the FMLA
associated with “the persistent prosecution of        guarantees leave for employees to care for
a meritless claim.” Browning v. Kramer, 931           spouses, parents, and children with “serious
F.2d 340, 345 (5th Cir. 1991) (citation               health condition[s]”; the statute does not en-
omitted) (internal quotation omitted). The            sure leave to care for sick brothers-in-law. 29
courts often use repeated filings, despite            U.S.C. § 2612(a)(1). One other litigant has
warnings from the court, or other proof of            argued that courts should extend the FMLA’s
excessive litigiousness to justify sanctions.         protections to other relatives similar to those
Nat’l Ass’n of Gov’t Employees v. Nat’l Fed’n         expressly covered.3
of Fed. Employees, 844 F.2d 216, 224 (5th
Cir. 1988). We have interpreted § 1927 as                 We have not addressed the question wheth-
penal and have construed it in favor of the           er the FMLA’s list of covered relatives is ex-
sanctioned party. FDIC v. Connor, 20 F.3d             haustive or illustrative, and Temple could have
1376, 1384 (5th Cir. 1994). This construction         made a (weak) argument that the list is merely
prevents the courts from dampening “the               illustrative. He also testified that he was
legitimate zeal of an attorney in representing        caring for his children during the leaves of
her client.” Browning v. Kramer, 931 F.2d             absence. He could have relied on the
340, 344 (5th Cir. 1991).                             illustrative list argument in combination with
                                                      his actions in caring for his children to make a
   American contends that Temple should               weak argument for extending the FMLA to
have known that his case lacked merit after his       this case. This dubious theory of recovery was
deposition, which revealed the ADA claim as           not frivolous enough to warrant § 1927
time barred, the absence of facts supporting an       sanctions.
FMLA claim, and the shaky grounds for prom-
issory estoppel. Section 1927, however,                  Temple had some evidence to support his
requires more than knowledge of a case’s              promissory estoppel claim. Although he did
weaknesses, even if fatal. American has not           not advance proof of subjective reliance, he
pointed to evidence of bad faith, improper mo-        did testify that an American supervisor had
tive, or a reckless disregard of duties owed to       told him not to worry about his job during his
the court. Edwards, 153 F.3d at 246. We ex-           absence. Despite the fact that the summary
amine each claim in turn and find that none           judgment evidence failed to support a
was outlandish or baseless enough to shift the        promissory estoppel claim, Temple was
costs for the motion for summary judgment:            justified in forcing American to file 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                 3
                                                           Krohn v. Forsting, 11 F. Supp. 2d 1082,
§ 1927 for substantially the same reasons we          1091-92 (E.D. Mo. 1998) (rejecting argument that
declined to shift fees under the ADA’s more           the FMLA guaranteed leave of absence to care for
lenient standard.                                     grandmother who had not served as primary
                                                      caregiver).

                                                  5
   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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