Williams v. Phillips Petroleum Co. ( 1994 )


Menu:
  •                      United States Court of Appeals,
    Fifth Circuit.
    No. 93-2478.
    Cynthia WILLIAMS, Lorenzo Harris, Shelly Hill, Hallie Cloud,
    Frelander Yarbrough, Jr., Donald Jackson, Clyde Warner, Dwjana
    Lawson, Jackie Martin, and Huey Cunningham, Individually and on
    Behalf of All Others Similarly Situated, Plaintiffs-Appellants,
    v.
    PHILLIPS PETROLEUM COMPANY, W. Wayne Allen, and C.J. Pete Silas,
    Defendants-Appellees.
    June 24, 1994.
    Appeal from the United States District Court for the Southern
    District of Texas.
    Before SMITH and BARKSDALE, Circuit Judges, and WALTER,* District
    Judge.
    JERRY E. SMITH, Circuit Judge:
    Plaintiffs appeal a summary judgment in favor of defendants on
    claims under the Worker Adjustment and Retraining Notification Act
    ("WARN").     Finding no error, we dismiss the appeal.                 Concluding
    that the appeal is frivolous and that plaintiffs' counsel's attacks
    on   opposing   counsel      and    the   district    court   are    baseless   and
    scurrilous,     we   award    attorneys'       fees   and   double   costs   under
    FED.R.APP.P. 38.
    I.
    A.
    In 1992, Phillips Petroleum Company, Phillips Gas Holding
    Company, Inc. ("PGHC"), and Phillips 66 Company, a division of
    *
    District Judge of the Western District of Louisiana,
    sitting by designation.
    1
    Phillips Petroleum Company, reduced their work forces at their
    Houston Chemical Complex ("HCC").            Phillips Petroleum Company laid
    off over 500 employees in Bartlesville, Oklahoma, and provided them
    with sixty days' advance written notice. The company laid off many
    of those employees in May 1992, including Clyde Warner, Dwjana
    Lawson, Jackie Martin, and Huey Cunningham (the "Bartlesville
    plaintiffs").
    HCC laid off twenty-seven employees who worked at three
    different locations in the Houston area and did not give any of
    them sixty-day written notices.              HCC laid off five employees in
    December 1991, sixteen employees from March to July 1992, and six
    employees in September 1992.           From March through June 1992, PGHC
    laid off forty employees who worked in three different single sites
    of   employment.         Thirty-one    employees   worked   in   Bartlesville,
    Oklahoma, eight in Houston, and one in Washington, D.C.
    PGHC gave all the employees who worked in Bartlesville and
    four employees who worked in Houston sixty days' written notice of
    the layoff.   The remaining laid-off PGHC employees did not receive
    sixty days' notice.
    Five   of    the    plaintiffs    (collectively   "Williams"     or   the
    "original plaintiffs") worked for HCC, which laid off Cynthia
    Williams and Shelly Hill in March 1992 and Hallie Cloud, Frelander
    Yarbrough, Jr., and Donald Jackson in September 1992;               the other
    named plaintiff, Lorenzo Harris, worked for PGHC in Houston.                PGHC
    laid off Harris in March 1992.               The defendants did not provide
    sixty-days' written notice to any of the original plaintiffs.                No
    2
    original   plaintiff     worked    in   Bartlesville,        although   the
    Bartlesville plaintiffs all worked in Bartlesville.
    Phillips   Petroleum    Company    laid   off     the    Bartlesville
    plaintiffs in March 1992 and provided sixty-day written notices.
    The original and Bartlesville plaintiffs all signed releases after
    their terminations in exchange for enhanced layoff benefits.
    B.
    The   original   plaintiffs   brought   this    action   for   alleged
    violations of WARN, 29 U.S.C. §§ 2101-2109, alleging that Phillips
    Petroleum Company and two of its officers, W.W. Allen, and C.J.
    Silas (collectively "Phillips"),1 laid them off without providing
    the sixty-day written notice required by WARN.
    On January 25, 1993, defendants requested summary judgment on
    the grounds that WARN was not implicated because the layoffs were
    not from a single site and that even if the single-site requirement
    was met, the plaintiffs had signed written releases of their claims
    against Phillips.      Plaintiffs filed a cross-motion for summary
    judgment, asking that the written releases be declared invalid.
    On April 26, 1993, the original plaintiffs moved to join
    1
    Because we dismiss all defendants for failure to state a
    valid WARN claim, we need not address the issue of whether WARN
    permits liability to be imposed on individual defendants such as
    Allen and Silas. We note that individuals are excluded by WARN's
    plain terms, as WARN covers only an "employer," defined as a
    "business enterprise" that employs "100 or more employees." 29
    U.S.C. § 2101; Wallace v. Detroit Coke Corp., 
    818 F. Supp. 192
    ,
    194 (E.D.Mich.1993). Construing a similar definition of
    "employer" in title VII of the Civil Rights Act of 1964, 42
    U.S.C. § 2000e(b), we recently held that a natural person who
    does not otherwise qualify as an "employer" cannot be held liable
    for backpay. See Grant v. Lone Star Co., 
    21 F.3d 649
    , 653 (5th
    Cir.1994).
    3
    unnamed new parties to the lawsuit, stating that the new parties
    would   be   individuals   who   had    been   laid   off   from    Phillips's
    operations in Bartlesville.      The district court denied the motion.
    The district court granted summary judgment to Phillips in an
    order and separate judgment entered on June 8, 1993.                  In that
    order, the district court identified several outstanding motions
    from both parties, rendered summary judgment for Phillips on all
    issues, and declared all other motions pending at that time to be
    moot.
    On   June   14,   1993,   the   plaintiffs   attempted    to    have   the
    Bartlesville plaintiffs join this action.         In an order of July 26,
    1993, the court denied all motions filed after the entry of final
    judgment.    The court reserved ruling in its July 26 order on the
    defendants' bill of costs, which included a request for attorneys'
    fees, and has not ruled on the defendants' bill of costs at this
    time.
    II.
    Plaintiffs stated in their notice of appeal that they were
    appealing "the final judgment entered in this action on the 8th day
    of June, 1993."    In its June 8 order, the court rendered summary
    judgment on the original plaintiffs' claims against the defendants,
    denied the original plaintiffs' motion for summary judgment, and
    held that all other pending motions were moot.              The court issued
    another order dated July 26, denying all motions filed after the
    June 8 order, including the original plaintiffs' attempt to join
    the Bartlesville plaintiffs.         Because the plaintiffs appealed only
    4
    the June 8 order, the only issues the plaintiffs perfected for
    appeal are the decisions made in that order.                     The motion to join
    the Bartlesville plaintiffs has not been preserved for appeal.
    III.
    A.
    The district court rendered summary judgment because no mass
    layoff occurred       at   the   single       sites    of    employment      where   the
    original    plaintiffs     worked.        Whether      multiple       work   locations
    constitute a "single site of employment" under WARN is a mixed
    question of fact and law.         Carpenters District Council v. Dillard
    Dep't Stores, 
    15 F.3d 1275
    , 1289 (5th Cir.1994). Reviewing de novo
    the issue of whether the Houston and Bartlesville employment
    locations constitute a "single site of employment", we agree with
    the district court and hold that the Houston and Bartlesville
    locations were not a single site of employment.
    WARN    requires      covered    employers             to   provide     "affected
    employees" notice of a mass layoff.                "Affected employees" include
    "employees    who    may   reasonably         be   expected      to   experience     an
    employment loss as a consequence of a proposed plant closing or
    mass layoff by their employer."            29 U.S.C. § 2101(a)(5).             A "mass
    layoff" is defined as any employment loss at a single site of
    employment that involves one-third of the employees at that site
    and at least fifty employees, or at least 500 employees.                     29 U.S.C.
    § 2101(a)(3);       20 C.F.R. § 639.3(c).             If a "mass layoff" occurs,
    the employer must provide written notice to each affected employee
    at least sixty days prior to the layoff and inform various state
    5
    and local officials of the mass layoff.               29 U.S.C. § 2102.            An
    employer who violates WARN is liable for back pay, lost benefits,
    civil penalties, and attorneys' fees.             29 U.S.C. § 2104.
    1.
    The statute does not define a "single site of employment."
    The rules promulgated by the Secretary of Labor provide that
    "[n]on-contiguous sites in the same geographic area which do not
    share   the   same    staff    or   operational     purpose    should        not   be
    considered a single site."             20 C.F.R. § 639.3(i)(4).         Groups of
    structures    within      a   campus    or    industrial   park,   or    separate
    facilities across the street from one another, may be considered a
    single site of employment.          Two plants on opposite sides of a town
    do not constitute a single site of employment if they employ
    different workers.        See 20 C.F.R. § 639.3(i)(1), (4).
    The Houston and Bartlesville layoffs cannot be aggregated to
    bootstrap the Houston plaintiffs over the WARN minimum required for
    a mass layoff.       The regulations indicate that two plants across
    town will rarely be considered a single site for purposes of a mass
    layoff.    It is not plausible, under any reasonable or good-faith
    reading of the regulations, that the Houston and Bartlesville
    plants—located       in   different      states    and     hundreds     of    miles
    apart—could be considered a "single site" for purposes of WARN.
    Employees were not rotated between the different sites, and
    the locations did not share staff and equipment.               See 20 C.F.R. §
    639.3(i)(3).     No other "unusual circumstances" have been alleged
    that would support classifying the two plants as a "single site."
    6
    See 20 C.F.R. § 639.3(i)(8);         
    Carpenters, 15 F.3d at 1290
    .        As the
    Bartlesville and Houston sites are distinct, they may not be
    aggregated in order to meet the minimum employee requirements of
    WARN.    20 C.F.R. § 639.3(i)(1);          International Union, United Mine
    Workers v. Jim Walter Resources, Inc., 
    6 F.3d 722
    , 724-27 (11th
    Cir.1993).     The Bartlesville layoffs, accordingly, are irrelevant
    to the issue of whether the Houston employees were entitled to
    notice under WARN.
    No mass layoff occurred at the single sites of employment
    where the original plaintiffs worked.                Five of the plaintiffs
    worked at HCC's operations in three different locations in and
    around Houston.        HCC   laid   off    twenty-seven    employees     over   a
    ten-month period.      One of the named plaintiffs worked for PGHC in
    Houston;     PGHC laid off eight employees who worked at that site.
    The layoffs at HCC and PGHC were not mass layoffs as defined by the
    Act,    as   the   number   of   employees    laid   off   did   not   meet   the
    fifty-employee minimum.          Thus, the Houston employees were not
    entitled to WARN notification.
    2.
    Williams contends that the mass layoff in Bartlesville
    triggered the applicability of WARN, requiring that notice be given
    to those laid off in Houston.        See Department of Labor Comments, 54
    Fed.Reg. 16042, 16046 (1989).              Even if we assume that these
    comments have legal effect, they apply only if the employees at the
    single site suffering the mass layoff are relocated to other sites,
    thereby "bumping" employees at those sites. Moreover, those likely
    7
    to be bumped must be individually and reasonably identifiable at
    least sixty-five days before the bumping occurs.                 
    Id. A WARN
    event at the first site will trigger a WARN event at
    the second site only if a sufficient number of workers are bumped
    at the second site to trigger WARN independently.                Plaintiffs have
    not alleged that any bumping occurred and have ignored the plain
    language    of   the   department's    comment     limiting      it    to   bumping
    situations.
    3.
    Over 500 employees were laid off in Bartlesville.                     Williams
    contends that Phillips's notice to those employees was defective.
    This claim fails for two reasons.                 First, the claims of the
    Bartlesville plaintiffs are not properly before us, as they failed
    to perfect their appeal.        Second, even if we had jurisdiction,
    Phillips's alleged acts did not violate WARN.
    There is no dispute in the record that Phillips provided
    sixty-day     written    notices     to     all   employees       laid      off   in
    Bartlesville.      For   some   of    the   employees     laid    off,      Phillips
    continued to pay their base pay and benefits during all or part of
    the sixty-day notice period but placed them on "excused leave with
    pay." The employees were not terminated at this time.                  The notices
    submitted by Phillips stated that the layoff date was at least
    sixty days after the notice date.           There is no evidence to support
    the assertion that Phillips immediately terminated the individuals
    laid off in Bartlesville.
    Moreover,     the    premise     of     Williams's     argument         is   of
    8
    questionable validity.      Excused leave with pay and benefits, with
    no corresponding duty to work, cannot harm an employee.               WARN was
    intended to provide employees with notice so that they could adjust
    to the layoff and locate other work.               Fully-paid excused leave
    complies with these purposes.
    B.
    The   district   court   also       rendered   summary   judgment   for
    Phillips because the plaintiffs had signed releases covering the
    allegations made in their complaint.                The plaintiffs filed a
    cross-motion for summary judgment contesting the validity of the
    releases.      The district court properly granted Phillips's motion,
    thereby rejecting plaintiffs'.2
    Normally the release of federal claims is governed by federal
    law. See, e.g., O'Hare v. Global Natural Resources, Inc., 
    898 F.2d 1015
    , 1017 (5th Cir.1990) (Age Discrimination in Employment Act
    ("ADEA"));      Rogers v. General Elec. Co., 
    781 F.2d 452
    , 454 (5th
    Cir.1986) (title VII of the Civil Rights Act of 1964).                  Public
    policy favors voluntary settlement of claims and enforcement of
    releases, 
    Rogers, 781 F.2d at 454
    , but a release of an employment
    or employment discrimination claim is valid only if it is "knowing"
    and "voluntary," Alexander v. Gardner-Denver Co., 
    415 U.S. 36
    , 52
    n. 15, 
    94 S. Ct. 1011
    , 1022 n. 15, 
    39 L. Ed. 2d 147
    (1974).                Once a
    party establishes that his opponent signed a release that addresses
    2
    Although this discussion is unnecessary to the issue of
    whether WARN was violated, given our holding in part 
    III.A., supra
    , we include it as a further indication that this action is
    frivolous.
    9
    the claims at issue, received adequate consideration, and breached
    the release, the opponent has the burden of demonstrating that the
    release was invalid because of fraud, duress, material mistake, or
    some other defense.      We examine the totality of circumstances to
    determine whether the releasor has established an appropriate
    defense.    
    O'Hare, 898 F.2d at 1017
    .
    1.
    Each original plaintiff signed a release shortly after his or
    her termination of employment.      The releases stated that signing
    the release was a condition to participation in the company's
    enhanced supplemental layoff pay plan, advised the employee to
    consult an attorney, gave ample time to consider the release, and
    specifically   covered   all   claims   relating   to    the   individual's
    employment or layoff.     The Bartlesville plaintiffs signed similar
    releases.
    The requirements of WARN pertain to an individual's employment
    and termination, issues addressed in the releases.                Phillips
    provided enhanced benefits for those employees who signed the
    releases.   These benefits were in addition to the basic severance
    plan benefits that the employees would have received regardless of
    whether they had signed the releases.      The original plaintiffs are
    making claims on matters addressed in their release, and the
    Bartlesville plaintiffs attempted to join the lawsuit that involved
    claims on matters addressed in their release.           Thus, all elements
    of a valid release are present.
    Williams has provided no credible evidence that the releases
    10
    were obtained by fraud or duress.          There is no genuine issue of
    material fact that the releases were valid.
    Williams contends that the releases were invalid because they
    did not mention WARN.      This argument is meritless.          There is no
    obligation under WARN or the common law for the defendants to
    mention WARN for the releases to be valid.           The releases stated
    that   they   included   all   claims    relating   to   the   "time   of   my
    employment or to my layoff...."         WARN applies to layoffs and the
    releases addressed all claims related to the plaintiffs' layoffs;
    thus, the releases barred WARN claims.         See Fair v. International
    Flavors & Fragrances, Inc., 
    905 F.2d 1114
    , 1117 (7th Cir.1990)
    (holding that a release of claims relating to employment barred
    claim under Employee Retirement and Income Security Act of 1974
    ("ERISA"));    Stroman v. West Coast Grocery Co., 
    884 F.2d 458
    , 461
    (9th Cir.1989), cert. denied, 
    498 U.S. 854
    , 
    111 S. Ct. 151
    , 
    112 L. Ed. 2d 117
    (1990);      Franz v. Iolab, Inc., 
    801 F. Supp. 1537
    , 1543
    (E.D.La.1992) (holding that a release of all claims barred wrongful
    discharge and ERISA claims).
    Plaintiffs also argue that the waivers did not comply with the
    Older Workers Benefit Protection Act ("OWBPA"), 29 U.S.C. § 626(f).
    Plaintiffs have asserted no age discrimination claim, and their
    proffered analogy between WARN and the ADEA does not survive
    scrutiny. The OWBPA places specific requirements on waivers of age
    discrimination claims in order for them to be considered knowing
    and voluntary.    This statute is a change from the common law, and
    there is no similar obligation imposed on employers under WARN.
    11
    Williams contends that the waivers are invalid under a
    totality   of     the    circumstances           test.         She   claims   that   the
    combination of five factors makes the waivers invalid, but she
    identifies      no   precedent        suggesting         that     these    factors   are
    dispositive. Williams carried the burden to demonstrate that there
    was a genuine issue of material fact on a defense to the validity
    of the releases.         She was obligated to produce some evidence of
    fraud, duress, or other basis for holding the release invalid.                       See
    Widener    v.    Arco     Oil    &    Gas    Co.,        
    717 F. Supp. 1211
    ,     1215
    (N.D.Tex.1989).         She has not done so, thus summary judgment was
    appropriate.
    Even if we accept Williams's statement of the totality of
    circumstances test, she cannot prevail.                        She identifies several
    elements to consider:           (1) a plaintiff's education and business
    experience;      (2) the role of each plaintiff and class member in
    deciding the terms of the release;                        (3) the clarity of the
    agreement and all related documents referred to in the releases;
    (4) whether each plaintiff and class member was represented by or
    consulted with an attorney;                 and (5) the amount of time each
    plaintiff and class member had possession of or access to the
    release before signing it.
    Concerning the plaintiffs' education and business experience,
    there no evidence suggesting that they could not read or understand
    the   releases.         The   cases    relied      upon    by     the   plaintiffs   are
    distinguishable by whether the individual who signed the release
    understood the claims released.                  There is nothing in the record
    12
    establishing a genuine issue of material fact that the plaintiffs
    did not know what they were doing.
    Plaintiffs argue that none of them negotiated the terms of the
    releases.     There is no evidence that plaintiffs were denied an
    opportunity to negotiate, nor that they were given a "take it or
    leave it" offer.        The releases informed each employee that he
    should consult a lawyer and allowed a reasonable period, in most
    instances up to forty-five days, to consider the releases.                        The
    plaintiffs    signed    the    releases    and    never       asserted    in   their
    declarations that Phillips had precluded them from negotiating.
    There is no evidence sufficient to create a genuine issue of
    material fact.
    The releases were clear, simple, and easily understood.                      The
    release     precluded    all     claims    related       to     the   plaintiffs'
    "employment" or "layoff."         This is not technical jargon, and it
    covers the plaintiffs' WARN claims. The plaintiffs do not indicate
    what provisions could have been incomprehensible to them, as they
    were written in plain English.       There is also no evidence of duress
    that could have forced them to sign involuntarily.
    The    plaintiffs    also    claim    that    the    releases       should   be
    invalidated because the defendants presented no evidence that each
    plaintiff and class member actually consulted with an attorney.
    The releases signed by the plaintiffs stated:
    You should thoroughly review and understand the effect of the
    release before signing it. To the extent that you have any
    claims covered by this release, you will be waiving
    potentially valuable rights by signing. You are also advised
    to discuss this release with your lawyer.
    13
    Thus, defendants advised the plaintiffs to consult a lawyer.
    Plaintiffs suggest that Phillips should have offered to supply a
    lawyer, but they offer no authority imposing this duty.               Even
    without   signing   the   releases,    plaintiffs   were   entitled    to
    substantial layoff benefits that could have been used to finance a
    lawyer, either individually or jointly. It is not Phillips's fault
    that the plaintiffs chose not to consult a lawyer after being
    advised to do so.   Plaintiffs do not contest the final element of
    the test, as they were given as much as forty-five days to consider
    the releases.
    2.
    Even if a release is tainted by misrepresentation or duress,
    it is ratified if the releasor retains the consideration after
    learning that the release is voidable.         A person who signs a
    release, then sues his or her employer for matters covered under
    the release, is obligated to return the consideration. Offering to
    tender back the consideration after obtaining relief in the lawsuit
    would be insufficient to avoid a finding of ratification.       Grillet
    v. Sears, Roebuck & Co., 
    927 F.2d 217
    , 220-21 (5th Cir.1991).
    For signing the releases, the original plaintiffs as a group
    received $210,853.65 in consideration in an enhanced plan benefits
    and $56,632.38 in basic plan benefits. The original plaintiffs did
    not return the consideration to the defendants, even after making
    claims that the releases were voidable.         Thus, the plaintiffs
    ratified the releases even if, arguendo, they were not knowingly
    and voluntarily signed.    
    Grillet, 927 F.2d at 220
    .
    14
    IV.
    Plaintiffs         argue   that    the    district     court   abused    its
    discretion by not giving them time to conduct discovery and prepare
    affidavits to support their opposition to the defendants' motion
    for summary judgment.        Plaintiffs complain that the court did not
    rule on their motion for continuance.                  This is incorrect.       The
    court noted that the motion for continuance was outstanding and
    determined that all pending motions other than the defendants'
    summary judgment motion were moot.              As a result, the court denied
    the continuance.
    Summary judgment was awarded because plaintiffs did not work
    at single sites of employment and had released their claims. These
    were pure issues of law.          There are no issues of fact that would
    require additional discovery.              Thus the court did not err by
    refusing to grant a continuance.
    Plaintiffs      also     complain     that    Phillips     did   not   answer
    discovery based upon the events in Bartlesville.                  Because all the
    plaintiffs worked in Houston, however, events in Bartlesville were
    irrelevant    to    their    case.       Thus,    no    further    discovery    was
    necessary.
    Plaintiffs have asserted a number of other discovery requests.
    But they     have   not    explained     how    these   discovery     matters   are
    relevant to any issue in the case.              Moreover, to the extent these
    discovery materials may be relevant, plaintiffs have not indicated
    what information they seek that would be sufficient to create a
    genuine issue of material fact.                 Denial of these requests was
    15
    appropriate.
    Plaintiffs also assert that the district court abused its
    discretion by denying their motion to join new parties.                     The
    plaintiffs made this motion before the district court rendered
    summary judgment but did not identify the parties they sought to
    add until after judgment was entered.          The court acted properly in
    denying the motion, as plaintiffs identified no specific parties
    that needed to be added by the time the court ruled on the motion.
    There was no basis for the district court to grant the motion
    without having specific parties to add.
    V.
    Plaintiffs' attorney, Julius J. Larry, III, contends that
    Phillips's    outside     attorney,   Kerry    E.    Notestine,   engaged   in
    improper ex parte communications with the district judge, the
    magistrate judge, and their law clerks.             The record is singularly
    devoid of evidence that the contacts were improper.                Moreover,
    these same accusations were briefed and rejected in the district
    court.    Lacking any evidence that the contacts were improper, the
    accusations of plaintiffs' counsel are scurrilous, frivolous, and
    contrary to the duties of an officer of the court.            Larry's legal
    arguments    are   also   frivolous   and     independently    deserving    of
    sanctions.
    A.
    Larry seeks to mislead this court about the circumstances of
    the alleged improper contacts. He attempts to prove his conclusion
    of unethical conduct by Phillips's counsel by seriously misquoting
    16
    defendants' counsel's time records, omitting important facts from
    the description of counsel's activities, and drawing unsupported
    conclusions.        The defendants responded to these accusations in the
    district court.       Serenely undeterred by his lack of success, Larry
    has renewed his personal attack against defendants' counsel in this
    court.
    This issue arose from defendants' submission of a bill of
    costs    in   the    district   court.        In   their    bill   of   costs,   the
    defendants moved for attorneys' fees because the district court
    specifically found the plaintiffs' lawsuit was frivolous.                        The
    defendants attached billing records summarizing the activities
    performed by their counsel on the case.                 In their appeal brief,
    plaintiffs     have    excerpted    sections       identifying     five     contacts
    between Notestine and the case managers to Judges Harmon and Stacy
    relating to scheduling matters and a discovery conference.                       The
    plaintiffs admit, as they must, that counsel may communicate with
    these individuals.        Notestine also had one telephone conversation
    with Vivian Craft, Judge Stacy's law clerk, but that conversation
    was initiated by Craft and was for a legitimate purpose.
    Reviewing each of the allegedly improper contacts, Larry's
    duplicity     in    imputing    unethical     conduct      to   Notestine   becomes
    apparent.     For instance, in his brief on appeal, Larry reproduces
    the first contact as follows:
    4/14/93         1.80 (Hours)    Telephone conference with clerk to
    Judge Harmon.
    -----
    The record indicates that this excerpt should read:
    17
    4/14/93   1.80 (Hours)   Telephone conference with clerk to
    Judge Harmon re: status; telephone conference with Rob Fries re:
    same; preparation of discovery response to sent to other side;
    review of reply to defendants response to plaintiff's motion for
    leave to supplement their complaint; transmitting same to client.
    -----
    Comparing Larry's excerpt with the accurate report, Larry plainly
    intended to mislead this court into believing that Notestine spoke
    with for almost two hours with Judge Harmon's law clerk.       The
    context of the full billing report, however, indicates that the
    phone conversation occupied only a small portion of the time.
    Moreover, because this entire issue was already briefed in the
    district court, Larry knew that Notestine's communication was
    actually with Judge Harmon's case manager, not any law clerk.
    Larry admits that contacts with a case manager are permissible.
    Despite recognizing that the time sheet should read "case manager"
    rather than "law clerk," he doggedly and irrelevantly continues to
    argue that law clerks should not communicate with parties.
    Larry reproduces the second contact as follows:
    5/5/93     .20 (Hours)   Telephone conference with clerk to
    Judge Stacy.
    -----
    In full, the time sheet actually reads:
    5/5/93     .20 (Hours)  Telephone conference with clerk to
    Judge Stacy re: hearing requested.
    -----
    Again, Larry is aware that this contact was actually with Judge
    Stacy's case manager, not her law clerk.     The substance of the
    conversation dealt with Judge Stacy's impending maternity leave and
    18
    whether the parties would be able to have a discovery and motion
    conference before she went on leave.
    The third contact is identified by Larry as follows:
    5/14/93    .40 (Hours)   Telephone   conference with Vivian
    Craft, law clerk to Judge Stacy.
    -----
    The full text of the time sheet reads:
    5/14/93    .40 (Hours)  Telephone conference with Rob Fries
    re: status; telephone conference with Vivian Craft, law clerk to
    Judge Stacy, re: discovery conference.
    -----
    Vivian Craft was Judge Stacy's law clerk.    But this contact was
    initiated by her, not by Notestine, and the time records indicate
    that the conversation related only to the discovery conference.
    According to Larry, as set forth in his appellate brief, the
    fourth communication reads:
    5/19/93    .60 (Hours)  Telephone conference with clerk to
    Judge Harmon re: resolution on motions.
    -----
    Again, reality differs dramatically from Larry's brief:
    5/19/93    .60 (Hours)   Telephone conversation with clerk to
    Judge Harmon re: resolution of motions; telephone conference with
    Rob Fries re: same.
    -----
    Again, "clerk to Judge Harmon" refers to her case manager, not her
    law clerk, and there is nothing improper about contacting a case
    manager for this purpose.
    Larry's characterization of the fifth contact is probably the
    most egregious misstatement of all:
    19
    4/28/93       1.30 (Hours)       Telephone      conference      with Judge
    Harmon.
    -----
    In reality, the record reads as follows:
    4/28/93   1.30 (Hours)   Telephone conference with Rob Fries
    re: rule 26(f) conference; research re: same; review of motion
    to add parties; transmitting same to client; telephone conference
    to Judge Harmon re: same; telephone conference with Rob Fries re:
    same.
    -----
    Larry obviously hopes to mislead this court in a number of ways
    with his characterization of this time record.             First, he implies
    that Notestine spoke directly with Judge Harmon for 1.3 hours.
    Defendants never spoke to Judge Harmon about the case and never
    attempted to do so, much less for a full 1.3 hours.               As Phillips's
    counsel   explained     long   ago,     the    reference   to    a   "telephone
    conference    to   Judge   Harmon"    was     an   abbreviated    reference   or
    typographical error relating to a conversation with Judge Harmon's
    case manager, not the judge herself, about a rule 26(f) conference.
    In advancing his claim, Larry has attempted to mislead the
    court by blatantly misrepresenting the record. Trying to sell this
    court on his conspiracy theories, he has attempted to put a veneer
    of impropriety on innocent contacts by quoting selectively from
    Notestine's time sheets and even mischaracterizing the parties
    involved.    We will not stand by idly and allow an attorney to waste
    the time of this court and maliciously denigrate the reputations of
    judges and other officers of the court.
    Moreover, Larry has not explained, either in his brief or in
    his ample opportunity at oral argument, why he has raised this
    20
    issue at all.        He has asked for no remedy, such as overturning the
    judgment.     His only discernible motive is to cast brickbats and to
    "poison the well" by tattling on his opponent. Such motives hardly
    justify his baseless allegations and his attempt to lie to this
    court regarding what is in the record.
    Upon determination that an appeal is frivolous, we "may award
    just    damages      and    single   or   double   costs    to   the   appellee."
    FED.R.APP.P. 38.       Larry has attempted to mislead this court for no
    legitimate end.            He has wasted the time and energy of opposing
    counsel and of this court.            As a result, we exercise our power to
    impose sanctions on plaintiffs and their counsel for filing a
    frivolous appeal.
    B.
    Importantly, the plaintiffs' assertions, made through Larry,
    are    not   based    upon     any   reasonable    or   good-faith     reading   of
    applicable law.            They are utterly baseless and bizarre.                The
    district court explained this in its comprehensive order granting
    summary judgment.          At that point, any attorney should have advised
    his clients of the loss and urged them to pursue the matter no
    further.
    Seven pages of Phillips's fifty-page brief were required to
    rebut Larry's misguided charges of misbehavior.                  The plaintiffs'
    challenge to the validity of the waivers rests on a frivolous
    theory equating WARN with the OWBPA.                Larry forced Phillips to
    defend against the claims of the Bartlesville plaintiffs, who were
    not even properly parties to this appeal.                  His argument for the
    21
    applicability of WARN rests on comments by the Labor Department
    applicable only to employees bumped from their jobs by senior
    employees, a situation that is not alleged to apply here. Finally,
    although we have not reached the merits of the issue, his attempt
    to impose individual liability upon Silas and Allen lacks any
    colorable foundation in the language or structure of WARN.
    C.
    "[C]osts and attorneys' fees [under rule 38] are merited for
    a   frivolous      appeal   the   result      of   which   is   obvious    from   the
    comprehensive and decisive exposition of the law by the judge
    below."      Coghlan v. Starkey, 
    852 F.2d 806
    , 810 (5th Cir.1988) (per
    curiam) (footnote omitted).          In response to inquiry by the court,
    defendants' counsel documents $32,765.50 for attorneys' fees and
    $3,039.22     in   costs    associated     with      responding   to   plaintiffs'
    appeal. Other than charges for in-house legal fees, these are fees
    actually billed to defendants by outside counsel.
    The plaintiffs have not disputed the reasonableness of these
    fees.     We have held that fees imposed as a sanction need not be
    fully compensable.          See Atwood v. Union Carbide Corp., 
    850 F.2d 1093
    , 1094 (5th Cir.1988) (per curiam). We need not decide whether
    the fees claimed here are justified, for we conclude that fees of
    $20,000 are supportable and will serve adequately as a sanction.
    For this reason, we also need not decide whether the in-house legal
    fees    of   $5,607.00,     included     in    the    amount    claimed,    may   be
    recovered.
    D.
    22
    Given   the   generally   frivolous   nature   of   the   appeal,
    exacerbated by Larry's scurrilous attacks on Phillips's counsel and
    the district court, pursuant to rule 38 we order the original
    plaintiffs, Larry, and Justice Center-Houston, which is of counsel
    on appeal, to pay Phillips's attorneys' fees of $20,000.00 and
    attorneys' costs of $3,039.22, plus double taxable costs on appeal.
    We also warn plaintiffs that further vexatious filings in this
    case, including any frivolous petition for rehearing or suggestion
    of rehearing en banc, will subject the plaintiffs and their counsel
    to further sanctions and/or discipline.
    The appeal is DISMISSED as frivolous.    See 5TH CIR.R. 42.2.
    23