           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206
        ELECTRONIC CITATION: 2000 FED App. 0104P (6th Cir.)
                    File Name: 00a0104p.06


UNITED STATES COURT OF APPEALS
                  FOR THE SIXTH CIRCUIT
                    _________________


                                   ;
                                    
 TRUDY WILSON-SIMMONS,
                                    
         Plaintiff-Appellant,
                                    
                                    
                                       No. 98-3553
 JOSEPH R. COMPOLI, JR.;
                                    
 JAMES R. GOODLUCK,                  >
                    Appellants, 
                                    
                                    
                                    
            v.
                                    
                                    
 LAKE COUNTY SHERIFF’S
 DEPARTMENT; DANIEL A.              
                                    
         Defendants-Appellees. 
 DUNLAP,

                                    
                                   1
       Appeal from the United States District Court
      for the Northern District of Ohio at Cleveland.
    No. 96-02359—Donald C. Nugent, District Judge.
                  Argued: December 6, 1999
              Decided and Filed: March 24, 2000
  Before: RYAN and SUHRHEINRICH,      Circuit Judges;
               BELL,* District Judge.

    *
     The Honorable Robert Holmes Bell, United States District Judge for
the Western District of Michigan, sitting by designation.

                                  1
2    Wilson-Simmons v. Lake                       No. 98-3553
     County Sheriff’s Dep’t, et al.

                    _________________
                         COUNSEL
ARGUED: Stephen W. Gard, Cleveland, Ohio, for
Appellants.     Michael P. Brown, LAKE COUNTY
PROSECUTOR’S OFFICE, Painesville, Ohio, for Appellees.
ON BRIEF: Joseph R. Compoli, Jr., Cleveland, Ohio, for
Appellants.     Michael P. Brown, LAKE COUNTY
PROSECUTOR’S OFFICE, Painesville, Ohio, for Appellees.
Mark S. Telich, Cleveland, Ohio, for Amicus Curiae.
                    _________________
                        OPINION
                    _________________
   BELL, District Judge. The Plaintiff, Trudy Wilson-
Simmons, and her attorneys, Joseph R. Compoli, Jr., and
James R. Goodluck, (hereinafter collectively referred to as the
"Appellants") appeal the order of the district court awarding
attorney fees against Wilson-Simmons and sanctioning her
attorneys by holding them jointly and severally liable for the
award on the grounds that the Plaintiff's racial discrimination
and retaliation claims were frivolous, unreasonable and
without foundation. We affirm.
                               I.
  Wilson-Simmons has been employed as a corrections
officer at the Lake County Sheriff's Department since 1990.
On February 7, 1995, she complained to her supervisor, Frank
Leonbruno, that she had been told by another co-worker that
a corrections officer had sent a racist electronic mail ("e-
mail") about her to another corrections officer.
Wilson-Simmons refused to identify the co-worker who had
given her this information. She requested to view the e-mail
generated by every officer in the Lake County Detention
Facility for the month of January. Leonbruno informed her
that the e-mail records were not readily available and that they
10    Wilson-Simmons v. Lake                       No. 98-3553      No. 98-3553                  Wilson-Simmons v. Lake          3
      County Sheriff’s Dep’t, et al.                                                          County Sheriff’s Dep’t, et al.

Bad faith is not required to support a sanction under § 1927.       would need to be reconstructed. That day, Leonbruno posted
Jones, 789 F.2d at 1230.                                            a notice to all employees prohibiting racial statements in e-
                                                                    mails.      In the absence of further details from
  Having reviewed the record, we concur with the district           Wilson-Simmons, Leonbruno was unable to investigate the
court that it should have been patently obvious to Plaintiff's      allegation. The next day, Wilson-Simmons submitted a
counsel that the facts alleged did not, as a matter of law,         written request to view the e-mail of five corrections officers
support a retaliation claim. The district court did not abuse its   for the month of January. She was advised that it would take
discretion by imposing sanctions upon counsel for pursuing          the Lake County Sheriff's Department's computer specialist
an action based on a disgruntled employee's motley                  one hundred forty hours to reconstruct the requested e-mail
assortment of grievances and perceived mistreatment.                and that she would be responsible for the $2,500 cost.
   For the reasons stated herein, we AFFIRM the judgment of           In October 1996, Wilson-Simmons commenced this action
the district court awarding attorney fees against Wilson-           against the Defendants, the Lake County Sheriff's Department
Simmons pursuant to § 1988 and imposing joint and several           and Daniel A. Dunlap, the Lake County Sheriff, alleging
liability for that award upon her counsel as a sanction             racial discrimination and retaliation in violation of 42 U.S.C.
pursuant to § 1927.                                                 § 1981, § 1983, § 2000e-2(a), § 2000e-3(a) and Ohio state
                                                                    law. The complaint alleged that the Defendants discriminated
                                                                    against her because the fee to view the e-mail should have
                                                                    been $3.00, the price of a public record, and because the
                                                                    Defendants failed to investigate the alleged racial slur. The
                                                                    complaint further alleged that following Wilson-Simmons'
                                                                    complaint and request for access to the alleged racist e-mail,
                                                                    the Defendants retaliated against her by: (1) assigning her to
                                                                    the fourth floor which housed maximum security inmates; (2)
                                                                    losing her overtime paperwork, requiring her to refile it; (3)
                                                                    administering a written disciplinary warning for failing to
                                                                    make a door check during her shift and for using white out on
                                                                    her log report; (4) instructing her to rewrite her explanations
                                                                    of these events because her response was insubordinate; and
                                                                    (5) giving her a disciplinary warning for using office
                                                                    equipment to advertise her Tupperware party. Wilson-
                                                                    Simmons alleges that she suffered severe clinical depression
                                                                    as a result of these incidents.
                                                                      The Defendants thereafter moved for summary judgment.
                                                                    On October 22, 1997, the district court granted the motion.
                                                                    With respect to Wilson-Simmons' racial discrimination claim,
                                                                    the district court set forth the burden shifting framework of
                                                                    McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct.
4    Wilson-Simmons v. Lake                     No. 98-3553      No. 98-3553                    Wilson-Simmons v. Lake           9
     County Sheriff’s Dep’t, et al.                                                          County Sheriff’s Dep’t, et al.

1817, 36 L.Ed. 2d 668 (1973). The court first noted that the     that the district court rejected the magistrate judge's
Plaintiff had no evidence that the allegedly racist e-mail       recommendation that the court impose attorney fees on
existed. She had learned of it from a co-worker who was told     Plaintiff's counsel pursuant to § 1927 and/or the court's
by another corrections officer that still another corrections    inherent authority because the court only cited § 1988 as
officers was responsible. The court further found that           authority in its opinion and adopted the magistrate judge's
Wilson-Simmons had failed to show an adverse employment          report "as modified."
action related to her discrimination claims and that she had
proffered no evidence to suggest that she was treated worse        We reject such a tortured reading of the district court's
than similarly situated, non-protected employees. The court      opinion. There is no text in the district court's opinion to
concluded that the Defendants were entitled to summary           support Appellants' claim that the court rejected the
judgment because she had failed to demonstrate a prima facie     magistrate judge's recommendation that counsel be sanctioned
case of disparate treatment.                                     pursuant to § 1927. Although the order imposing sanctions
                                                                 does not specifically cite § 1927 as authority, both the district
  The district court next reviewed each alleged incident with    court's order to show cause and the underlying report and
respect to her retaliation claim. The court clarified that her   recommendation adopted by the court do. Reading the order
assignment to the fourth floor with maximum security             as a whole, it is evident that the district court relied upon
inmates was part of her duties and that she had presented no     § 1927 as the basis for imposing sanctions against counsel.
evidence to demonstrate that she was singled out and given a
disproportionate number of assignments to this area. The            We further conclude that the district court's order imposing
court noted that other officers, including members of a          sanctions upon Plaintiff's counsel was a proper exercise of its
protected class, were assigned to this duty more frequently      discretion. Sanctions under § 1927 are warranted "when an
than she was. The court concluded that the loss of her           attorney has engaged in some sort of conduct that, from an
overtime sheet was a single, isolated event that was nothing     objective standpoint, 'falls short of the obligations owed by a
more than a clerical oversight. As to the allegations that she   member of the bar to the court and which, as a result, causes
was unfairly reprimanded, the evidence revealed that she had     additional expense to the opposing party.'" Holmes v. City of
not been disciplined but had merely received requests from       Massillon, Ohio, 78 F.3d 1041, 1049 (6th Cir.) (quoting In re
management to explain certain conduct.             The court     Ruben, 825 F.2d 977, 984 (6th Cir. 1987), cert. denied, 485
accordingly determined that she had failed to demonstrate that   U.S. 934, 108 S.Ct. 1108, 99 L.Ed.2d 269 (1988)), cert.
she suffered adverse employment action in retaliation for her    denied, 519 U.S. 935, 117 S.Ct. 312, 136 L.Ed.2d 228 (1996).
protected activity. Wilson-Simmons did not appeal the order      "An attorney's ethical obligation of zealous advocacy on
of the court granting summary judgment.                          behalf of his or her client does not amount to carte blanche to
                                                                 burden the federal courts by pursuing claims that are frivolous
  On November 6, 1997, the Defendants moved for attorney         on the merits . . . . Accordingly . . . when an attorney knows
fees and costs against Wilson-Simmons pursuant to 42 U.S.C.      or reasonably should know that a claim pursued is frivolous,
§ 1988. The district court referred the motion to a magistrate   or that his or her litigation tactics will needlessly obstruct the
judge.    On January 14, 1998, the magistrate judge              litigation of nonfrivolous claims, a trial court does not err by
recommended that attorney fees be awarded against Wilson-        assessing fees attributable to such actions against the
Simmons and that the district court issue an order to counsel    attorney." In re Ruben, 825 F.2d at 984 (quoting Jones v.
to show cause why sanctions should not be imposed against        Continental Corp., 789 F.2d 1225, 1230 (6th Cir. 1986)).
8     Wilson-Simmons v. Lake                       No. 98-3553      No. 98-3553                         Wilson-Simmons v. Lake           5
      County Sheriff’s Dep’t, et al.                                                                 County Sheriff’s Dep’t, et al.

argument is a red herring. She presented no evidence that she       them pursuant to 28 U.S.C. § 19271 and/or the court's
should have been charged the fee for a public record of $3.00       inherent authority. According to the magistrate judge, the
rather than the $2,500 cost of reconstructing the files. Neither    complete lack of substance and merit should have been so
did she present any evidence that the cost was in any way           patent to Plaintiff's counsel that their failure to either advise
racially based. Furthermore, the district court found that there    her against pursuing the empty claims or terminate the action
was no evidence to indicate that any of the five co-workers         when its futility should have been obvious called for them to
she had identified were involved or that the alleged e-mail         "share the burden of the Plaintiff's folly." (J.A. 26).
even existed. Wilson-Simmons proffered no evidence
regarding when the e-mail had been sent, who had sent it,             The district court issued an order directing Plaintiff's
who it was sent to, or whether her name was even mentioned.         counsel to show cause, in writing, why sanctions should not
                                                                    be imposed against them pursuant to 28 U.S.C. § 1927. The
  With respect to Wilson-Simmons' claim that the Defendants         Plaintiff filed an objection to the magistrate's report and
failed to investigate, the district court concluded that the        recommendation and brief in opposition to sanctions. On
evidence demonstrated that the Defendants took her                  April 7, 1998, the court awarded attorney fees of $17,131.95
complaint seriously and responded promptly by issuing a             to the Defendants against the Plaintiff and held that the
memorandum to all personnel prohibiting using e-mail to             Plaintiff's attorneys were jointly and severally liable for the
make racial statements. The court further found that her            award. In its order, the court incorporated its summary
claims for retaliation were without factual foundation. After       judgment by reference and adopted the magistrate judge's
viewing the allegations and the evidence, the district court        report and recommendation as modified. This appeal
determined that Wilson-Simmons had failed to set forth a            followed.
prima facie case of racial discrimination or retaliation and that
her claims were without foundation from the outset. We                                                  II.
agree with the district court's well reasoned analysis and
conclude that the court did not abuse its discretion in                                                  A.
awarding attorney fees against Wilson-Simmons pursuant to
§ 1988. The remedial action was prompt and appropriate, see           We first consider the Appellants' contention that the district
Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir. 1999),              court improperly imposed monetary sanctions upon them
especially given that the Plaintiff refused to cooperate in her     without conducting a hearing.
employer's attempt to investigate the matter. See Perry v.
Harris Chernin, Inc., 126 F.3d 1010, 1014-15 (7th Cir. 1997).
Moreover, the memorandum was apparently effective. The
Plaintiff does not claim that she ever saw, or heard rumors             1
about, racist e-mails following the circulation of the memo.                Section 1927 provides:

                               C.                                              Any attorney or other person admitted to conduct cases
                                                                               in any court of the United States or any Territory
                                                                               thereof who so multiplies the proceedings in any case
  We next consider the Appellants' claim that the district                     unreasonably and vexatiously may be required by the
court was not authorized to impose attorney fees against                       court to satisfy personally the excess costs, expenses
Plaintiff's counsel pursuant to 42 U.S.C. § 1988. They argue                   and attorneys' fees reasonably incurred because of such
                                                                               conduct.
6     Wilson-Simmons v. Lake                        No. 98-3553       No. 98-3553                   Wilson-Simmons v. Lake          7
      County Sheriff’s Dep’t, et al.                                                             County Sheriff’s Dep’t, et al.

   In this circuit, there is no requirement that a full evidentiary      We review a district court's award of attorneys fees under
hearing be held before imposing sanctions. Cook v.                    42 U.S.C. § 1988 based on an abuse of discretion standard.
American S.S. Co., 134 F.3d 771, 774 (6th Cir. 1998). "What           Reed v. Rhodes, 179 F.3d 453, 469 n.2 (6th Cir. 1999). "In
is required, however, is that before the imposition of                light of a district court's superior understanding of the
sanctions, the attorney must be given notice and an                   litigation and the desirability of avoiding frequent appellate
opportunity to be heard. . . . An order to show cause, along          review of what essentially are factual matters, an award of
with an opportunity to respond to said order, can be sufficient,      attorneys' fees under § 1988 is entitled to substantial
in certain circumstances, to provide the necessary procedural         deference." Id. (quoting Hensley v. Eckerhart, 461 U.S. 424,
safeguards . . . ." Id. at 775 (citation omitted).                    437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983)) (internal
                                                                      quotation marks omitted).
  As a preliminary matter, we note that no due process
concerns are present in this case. Both the magistrate judge's           Under 42 U.S.C. § 1988, a district court may in its
report and recommendation and the district court's show cause         discretion award attorney fees to a prevailing defendant upon
order clearly put the Appellants on notice that the court was         a finding that "the plaintiff's action was frivolous,
considering imposing monetary sanctions upon both Wilson-             unreasonable, or without foundation, even though not brought
Simmons and her attorneys.                                            in subjective bad faith." Wayne v. Village of Sebring, 36 F.3d
                                                                      517, 530 (6th Cir. 1994) (quoting Christiansburg Garment
   "It is within the discretion of the district court to determine    Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54
whether an evidentiary hearing would assist the court in its          L.Ed.2d 648 (1978)) (internal quotation marks omitted), cert.
decision." Id. The magistrate judge reviewed Wilson-                  denied, 514 U.S. 1127, 115 S.Ct. 2000, 131 L.Ed.2d 1001
Simmons' entire 361 page deposition testimony in preparing            (1995). "[A] district court must resist the urge to engage in
his report and recommendation. The district court had before          post hoc reasoning and the hindsight logic of concluding a
it the magistrate judge's report and recommendation, the              suit is without foundation because the plaintiff ultimately
Appellants' brief in opposition and response to the show cause        does not prevail." Smith v. Smythe-Cramer Co., 754 F.2d
order, and the court's opinion granting summary judgment.             180, 183 (6th Cir.) (quoting Christiansburg Garment Co., 434
The district court was familiar with the Plaintiff's allegations      U.S. at 421-22, 98 S.Ct. at 700), cert. denied, 473 U.S. 906,
and demonstrated a thorough knowledge of the factual and              105 S.Ct. 3530, 87 L.Ed.2d 654 (1985). A "plaintiff should
legal issues in the case. Because nothing in the record               not be assessed his opponent's attorney fees unless the court
indicates that a hearing was needed to assist the court in            finds the claim was groundless at the outset or 'that the
determining whether sanctions were warranted, we hold that            plaintiff continued to litigate after it clearly became so.'"
the district court did not abuse its discretion in not conducting     Smythe-Cramer Co., 33 F.3d at 183. This "requires inquiry
an evidentiary hearing.                                               into the plaintiff's basis for filing suit. Awards to prevailing
                                                                      defendants will depend on the factual circumstances of each
                                B.                                    case." Id.
  We next consider the Appellants' claim that the district              The district court properly applied this standard. As
court improperly awarded attorney fees against Wilson-                support for her race discrimination claim, Wilson-Simmons
Simmons pursuant to 42 U.S.C. § 1988 because her claims               offered as evidence the fact that she would have to pay for the
were not frivolous, unreasonable, or without foundation.              costs associated with reconstructing the e-mail files. This
