                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-18-2008

Weisberg v. Riverside Twp Bd Ed
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4190




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                                                  NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   ____________

                        No. 05-4190
                       ____________

                  CHARLES WEISBERG;
                    GAIL WEISBERG

                              v.

    RIVERSIDE TOWNSHIP BOARD OF EDUCATION;
                 J. ALAN FERNER;
                JODI LENNON j/s/a,

                            Appellants
                       ____________

       On Appeal from the United States District Court
                for the District of New Jersey
                   (D.C. No. 01-cv-00758)
        District Judge: Honorable Robert B. Kugler
                        ____________

         Submitted Under Third Circuit LAR 34.1(a)
                     January 11, 2008

Before: FISHER, HARDIMAN and STAPLETON, Circuit Judges.

                 (Filed: January 18, 2008 )
                       ____________

                OPINION OF THE COURT
                     ____________
FISHER, Circuit Judge.

       Plaintiff Charles Weisberg instituted a lawsuit on a variety of theories averring that

his employer, defendant Riverside Township Board of Education (“Riverside”),1 failed to

properly accommodate his alleged disability, which he had acquired as the result of an

accident at work. The District Court granted summary judgment for Riverside and

dismissed Weisberg’s claims in their entirety, but denied Riverside’s motion for attorney

fees and sanctions against Weisberg. Riverside appeals from the denial of attorney’s fees,

alleging that Weisberg’s underlying disability claim was frivolous and that the District

Court abused its discretion in not imposing attorney fees. Riverside also appeals from the

denial of sanctions, arguing that Weisberg delivered false deposition testimony in “bad

faith” and that the District Court likewise abused its discretion in not imposing sanctions

for this behavior, or in the alternative, that the District Court should have held a “proof

hearing” to determine the validity of Weisberg’s excuse for having delivered the false

deposition testimony.

                                              I.

       We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.




       1
        J. Alan Ferner and Jodi Lennon are also listed as defendants in this case. For ease
of reference, all of these defendants will be referred to as “Riverside.”

                                              2
       Weisberg has been an employee of Riverside since 1972 as director of the Child

Study Team. On June 19, 1998, while at work, Weisberg sustained a head and shoulder

injury when a wooden speaker weighing approximately four pounds fell on his head and

shoulders. Weisberg’s lawsuit alleges that this led to “post-concussion syndrome,” a

condition which caused him extreme fatigue, difficulty focusing, headaches, and

sensitivity to loud noises. Because of this condition, Weisberg asked Riverside for a

series of accommodations that included placing all directives in writing, granting

additional notice and resources for the completion of projects, limiting his workday to a

maximum of eight hours, and providing a quiet, distraction-free working environment. In

practical terms, Weisberg claimed that his “extreme fatigue” required him to work a

maximum of forty hours per week, and to adjust the number of hours in his subsequent

work days accordingly if he was required to stay later than 4:00 p.m. on a particular day.

This would essentially prevent him from attending after-school events, including Board of

Education meetings. Because of his sensitivity to loud noises, Weisberg further claimed

that he could no longer chaperone other school events, such as basketball games and

school dances. Conflict with Riverside over these and other “accommodations”

ultimately prompted Weisberg to institute a lawsuit under the Americans with Disabilities

Act (“ADA”), alleging that due to his condition, he was disabled under the Act and

eligible for statutory relief.

       At Weisberg’s October 29, 2001 deposition, Riverside posed a series of questions

regarding Weisberg’s actions on the Monday night prior to that day’s deposition. He

                                             3
initially told counsel that he did not remember what he had done the previous Monday

night, but after additional questioning he stated that he had watched the New York Giants

football game at home alone. Weisberg went on to state that because of his “disability”

there was no way that he could have attended the game; had he done so, he would have

been so fatigued afterwards, that he would have been forced to take the next day off from

work. Unbeknownst to the plaintiff, and contrary to his testimony, a private investigator

had videotaped him on that previous Monday night, meeting with a group of fans, driving

to Giants Stadium, tailgating in the parking lot, entering the stadium, attending the full

game, exiting after midnight and returning home shortly before 2:00 a.m. Weisberg had

not, in fact, asked for the following day off from work, despite the alleged restrictions

imposed by his “extreme fatigue.”

       When Weisberg was confronted with this discrepancy, he attributed his previous

deposition testimony to “false memory syndrome” and presented a letter from Dr. Mark

Rader explaining that individuals with brain injuries sometimes “concoct” stories that

they sincerely believe to be true when placed under stressful conditions. It is not clear

that Dr. Rader ever personally treated Weisberg, but in any event his letter merely

explained “false memory syndrome” generally and did not conclusively diagnose

Weisberg with “false memory syndrome.” Weisberg also presented the affidavits of his

wife and a friend, Charles Pratt, stating that they had witnessed similar instances when

Weisberg had exhibited memory problems. The District Court ultimately found that

Weisberg had produced insufficient evidence that he was “disabled” under the Act, and

                                              4
granted summary judgment for Riverside on all claims. We affirmed that judgment on

May 11, 2006. Weisberg v. Riverside Twp. Bd. of Educ., 180 F. App’x 357 (3d Cir. 2006)

(not precedential).

       Riverside also filed a motion for attorney’s fees under the ADA and sanctions

pursuant to the court’s inherent powers. The District Court found that although Weisberg

had not presented evidence of a disability sufficient to withstand summary judgment, he

had presented “some evidence” that he was impaired by “post-concussion syndrome,” and

therefore his claim was not “frivolous, unreasonable, or without foundation.” Weisberg v.

Riverside Twp. Bd. of Educ., No. Civ. 01-758 (RBK), 2005 WL 2000182, at *1 (D.N.J.

Aug. 18, 2005) (unreported) (citing Christiansburg Garment Co. v. EEOC, 434 U.S. 412,

421 (1978)). The District Court also determined that it had the power to impose sanctions

against Weisberg if it found that he had acted in “bad faith,” id. at *2 (citing Chambers v.

NASCO, Inc., 501 U.S. 32, 45-46 (1991). While the District Court acknowledged that

Weisberg’s “false memory syndrome” excuse was “somewhat dubious,” it found that the

supporting evidence “casts enough doubt” on Weisberg’s purported bad faith for the

Court to exercise its discretion in refraining from imposing sanctions on that basis. Id. at

*3.

                                             II.

       We have jurisdiction over appeals from orders of the District Court under 28

U.S.C. § 1291. We review determinations by the District Court regarding the imposition

of attorney’s fees for abuse of discretion. Lanni v. New Jersey, 259 F.3d 146 (3d Cir.

                                             5
2001); EEOC v. L.B. Foster Co., 123 F.3d 746, 750 (3d. Cir 1997). “We also review an

award of sanctions pursuant to the court’s inherent powers for an abuse of discretion.” In

re Prudential Ins. Co. America Sales Practice Litigation Agent Actions, 278 F.3d 175,

181 (3d Cir. 2002).

                                             III.

       Under the “fee-shifting provision” of the ADA, 42 U.S.C. § 12205, a district court

is empowered to award attorney’s fees to a prevailing party at its discretion. “In

Christiansburg, the Supreme Court clarified that the standard for awarding attorney’s fees

to prevailing defendants is not the same as the standard for prevailing plaintiffs.”

E.E.O.C. v. L.B. Foster Co., 123 F.3d 746, 750 (3d Cir. 1997) (citing Christiansburg

Garment Co., 434 U.S. 412).2 In such a case, the district court may impose fees if the

action was “frivolous, unreasonable, or without foundation.” Christiansburg, 434 U.S. at

421. The decision to award fees to a prevailing defendant is not based on “hard and fast

rules” and should be made on a “case-by-case basis.” L.B. Foster Co., 123 F.3d at 751.

While not an exclusive list, we have considered such factors as whether the plaintiff

established a prima facie case; whether the defendant offered to settle; whether the trial



       2
        Christiansburg dealt with a Title VII fee-shifting provision while the case at bar
involves the fee-shifting provision of the ADA. As the District Court points out, we have
not yet addressed whether and how Christiansburg and its progeny apply to ADA cases in
the Third Circuit. Weisberg, 2005 WL 2000182, at *1. However, as both parties assume
that Christiansburg and its progeny apply to the present case, we will similarly assume
that they apply for purposes of our review here, as the question of whether this is in fact
the appropriate standard is not squarely before us.

                                              6
court dismissed the case prior to trial; whether the question was one of first impression;

and whether the plaintiff risked a “real threat of injury[.]” See id.; Barnes Found. v. Twp.

of Lower Merion, 242 F.3d 151, 158 (3d Cir. 2001). As the District Court acknowledges,

some of these factors support Riverside’s argument, particularly the fact that Weisberg

did not establish a prima facie case, did not show a real threat of injury, the defendants

did not offer to settle, and the issue was not novel or one of first impression. However,

we agree with the District Court that the evidence that Weisberg presented, while

inadequate, especially in light of Weisberg’s credibility, to support even a prima facie

case for disability, illustrated that he likely does, in fact, suffer from some sort of medical

condition affecting his “concentration, vision, mood and energy” and that his claim

cannot therefore be said to be wholly “without foundation.” Thus, the District Court did

not abuse its discretion when it declined to award attorney’s fees to Riverside.

       With regard to sanctions, the District Court correctly found that courts possess an

inherent power to assess sanctions where a party has “acted in bad faith, vexatiously,

wantonly, or for oppressive reasons.” Chambers, 501 U.S. at 45-46. On appeal,

Riverside presses its claim that the District Court abused its discretion by not imposing

sanctions against Weisberg for his false deposition testimony that he did not attend the

New York Giants game when he in fact did so. The sole excuse offered by Weisberg is

“false memory syndrome,” a condition never claimed by Weisberg prior to his false

statement. As Riverside correctly notes, the physician’s letter he presents to the Court

merely describes the condition, but does not diagnose Weisberg with it. While this

                                               7
certainly weakens Weisberg’s case, he does provide some corroboration in the form of the

affidavits of his wife and Charles Pratt, who state that they have witnessed similar

memory lapses in the past, as well as the evidence of his head injury generally. While his

excuse stills strains credulity, the District Court is committed with the discretion to

impose sanctions and we see no compelling reason to disturb its decision on this issue.

The District Court, being more directly familiar with this case, this plaintiff, and the

context of these statements, is in a better position than we are in making such a

determination. We therefore decline to find that the District Court abused its discretion in

this case. In addition, Riverside offers no legal support for the proposition that we must

remand for a “proof hearing” in this matter. Because the District Court has not abused its

discretion in not granting sanctions, we see no compelling reason to grant such a request.

Moreover, we find appellant’s additional arguments unavailing.

                                             IV.

       For the foregoing reasons, we will affirm the order of the District Court.




                                              8
