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Be Warned: Sanctions May Result For Pursuing Frivolous Lawsuits!

Published by on January 7, 2011

A pair of recent decisions suggests that frivolous employment lawsuits are being met with increased scrutiny by the courts.  Both cases resulted in attorneys’ fee awarded to the prevailing defendant.  More after the break. A divided Eleventh Circuit Court of Appeals panel affirmed sanctions in the amount of $387,738 against two Florida attorneys under 28 U.S.C […]

A pair of recent decisions suggests that frivolous employment lawsuits are being met with increased scrutiny by the courts.  Both cases resulted in attorneys’ fee awarded to the prevailing defendant.  More after the break.

A divided Eleventh Circuit Court of Appeals panel affirmed sanctions in the amount of $387,738 against two Florida attorneys under 28 U.S.C § 1927.  The Court of Appeals held that the district court did not abuse its discretion when it concluded that the attorneys unreasonably and vexatiously litigated a sexual harassment lawsuit after their client contradicted herself repeatedly during her deposition. 

Floride Norelus, an immigrant from Haiti, claimed that she was sexually abused by two managers at a Denny’s restaurant where she worked for approximately one year.   In 1996, Norelus filed a lawsuit against Denny’s Inc. and four other defendants, claiming sexual harassment, retaliation, and battery.  Norelus was represented by William and Karen Amlong, two Florida attorneys experienced in employment litigation. 

During over a year of litigation, no witnesses corroborated Norelus’ claims of constant and pervasive sexual abuse, despite her allegations that most of the harassment occurred at work in various areas of the restaurant.  In fact, at least seven of the coworkers that were identified as witness by Norelus contradicted her allegations during their depositions. 

During her eight-day deposition, a Haitian French Creole interpreter translated for Norelus.  Throughout her deposition, Norelus blatantly contradicted statements that she made in her Complaint, including where the sexual abuse occurred, what kind of sexual acts were forced, and whether she sought medical attention as a result of the abuse. 

Norelus’ attorneys arranged for her to take a polygraph examination and undergo a psychological evaluation after the last day of her deposition in order to evaluate the truthfulness of her allegations.  The polygraph examiner concluded that, while she was lying about some things, Norelus was telling the truth about her core allegations of sexual abuse.   The clinical psychologist concluded that Norelus’ symptoms were consistent with Post-Traumatic Stress Disorder.   The Amlongs then decided to continue pursuing the lawsuit.  In order to correct Norelus’ contradicting deposition testimony, the Amlongs submitted a 63-page errata sheet that made 868 changes to the deposition transcript.  The majority of the changes to the deposition testimony were explained by the Amlongs as Norelus “[d]id not understand what was being asked,” the interpreter did a poor job translating, or Norelus had a “refreshed recollection.”   

When Norelus and the Amlongs refused to pay for the costs of reopening Norelus’ subsequent deposition, as ordered by the district court, the lawsuit was dismissed.  Several defendants filed motions requesting the district court impose sanctions against Norelus and the Amlongs.  In response, the district court ordered that the Amlongs personally pay a total of $389,739 for the attorney’s fees and costs that the defendants incurred in litigating the matter after the filling of the errata sheet.  

The Eleventh Circuit affirmed and held that sanctions against the Amlongs were appropriate under 28 U.S.C § 1927.  The Court concluded that the district court did not abuse its discretion by finding that the Amlongs engaged in objectively reckless conduct by proceeding in the case “unreasonably and vexatiously” when they submitted Norelus’ lengthy errata sheet and pursued litigation after her contradictory and unsupported deposition testimony made her claims untenable. 

For a copy of the Court’s decision, click here

Additionally, the United States District Court for the Eastern District of Virginia awarded a prevailing defendant over $25,000 in attorney’s fees and costs in a retaliation lawsuit under Title VII of the Civil Rights Act of 1964 as the action was determined to have lacked any evidentiary support.

The plaintiff in the Virginia case worked as a legal secretary at a Fairfax, Virginia law firm.  In 2008, plaintiff sent one of the firm’s male attorneys several personal e-mail messages and invited him to meetings after work hours.  The attorney complained to plaintiff’s supervisor, and in response, defendant initiated an investigation into plaintiff’s conduct.  During the investigation, plaintiff expressly stated that she did not want to allege that the attorney sexually harassed her, but she claimed that she had e-mail evidence that the male attorney was “interested in her.”  When plaintiff failed to produce these emails, defendant concluded that she should no longer work in the same location and offered to transfer her to its Richmond, Virginia office.  Plaintiff refused the transfer and her employment was terminated. 

Plaintiff sued defendant for retaliation under Title VII, alleging that she was retaliated against because she complained about and participated in an investigation regarding sexual harassment.  Summary judgment was granted in favor of defendant.   The district court then granted defendant’s motion for attorney’s fees and costs, awarding defendant over $25,000.  The court concluded that plaintiff’s lawsuit meet the standard of “frivolous, unreasonable or without foundation” for granting a prevailing defendant its attorney’s fees and costs under Title VII.  The court found that defendant overwhelmingly demonstrated in its motion for summary judgment that plaintiff’s complaint was “based on a blatant misrepresentation of events, and totally lacking any evidentiary support.”  The court ruled that plaintiff was patently unable to demonstrate even a prima facie case of retaliation under Title VII because she did not engage in any protected activity or suffer any adverse employment action.  Accordingly, the court concluded that an award of attorney’s fees and costs was appropriate because the evidence in the record clearly established that the lawsuit was “frivolous, groundless, and unreasonable.”

For a copy of the district court’s opinion regarding defendant’s motion for award of attorney’s fees and costs, click here

Contributed by Laura B. Chaimowitz

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