Dennis J. LEWIS, Plaintiff-Appellant, v. BROWN & ROOT, INC., Defendant-Appellee , 711 F.2d 1287 ( 1983 )

GEE,

Circuit Judge:

The record in this case paints a convincing picture of the sort of civil rights action that should never have been filed.

Plaintiff Dennis J. Lewis is a thirty-year old black native and citizen of Trinidad, W.I. He had two years of schooling there to become a pipefitter and served an apprenticeship in that trade at the Shell Chemical plant in Trinidad. In 1976, at the age of twenty-three, we find him at work in Texas for defendant Brown & Root as a pipefitter’s helper. In December of that year he was discharged for absenteeism. Between then and the year 1980, he was rehired and released four times by Brown & Root as a pipefitter or pipehanger. One of these releases resulted from a reduction of force; three times he was fired — twice for disobedience to instructions and once for incompetence.

On January 14, 1980, having again been rehired, he was discharged for loafing. This occasion gave rise to the present legal action. Since then, he has been reemployed by Brown & Root four times and released, three times in a reduction of force and once for insubordination. In August of 1980, between stints with Brown & Root, he filed this action claiming that he was a United States citizen, that he had not been discharged for loafing on January 14, 1980, and that he had been discharged and not later rehired because he was black.¹ In addition to other claims for relief, he prayed that Brown & Root be required to give him “training and other assistance as necessary to enable the Plaintiff to overcome the effects of past discrimination,”² be required to institute “an active recruitment policy,” and so on.

The progress of Mr. Lewis’s action has not been such as to signify great seriousness. Six weeks after it was filed, the defendant noticed Lewis’s deposition for October 8, 1980. Thereafter, for his counsel’s convenience and at his request, it was by agreement reset for October 14. Neither Lewis nor his counsel appeared at the appointed time on October 14, and, in consequence, Brown & Root moved for dismissal of the case, default judgment, and other sanctions. Action on that motion was forestalled, however, by a superseding default on the part of plaintiff’s counsel; though duly notified of a November 2 docket call, neither plaintiff nor his counsel appeared and the case was dismissed for want of prosecution. A motion to reinstate, filed on November 5, sought indulgence on the ground of counsel’s “mistake, inadvertence and failure to properly record the date of the Docket Call .... ” On December 30, 1981, it was granted.

The action was set for trial at 9:30 A.M. on April 21, 1981. Trial was delayed for forty-five minutes because Lewis, the sole plaintiff’s witness, failed to appear until 10:15 A.M. It then commenced, and Mr. Lewis’s testimony was heard until 12:20 P.M. At that time, counsel for Lewis requested a recess. One was granted, of fifteen minutes duration — until 12:35 P.M. At that time the court reconvened. Neither Lewis nor counsel appeared. After awaiting their appearance for fifteen minutes, the court dismissed Lewis’s case.

Before the recess, Lewis’s counsel had advised the court that Lewis would be his sole witness and, cross-examination having been completed, that he would require only a short redirect to complete his case. So far as the record shows, neither Lewis nor his counsel ever appeared again after the recess. Counsel for Lewis maintains on brief and at argument that he had other matters to attend to during the customary lunch break, that he informed a courtroom attendant that he might be “a couple of minutes late” in returning from the fifteen-minute recess, and that when he returned half an hour late the courtroom was empty and he was later advised that his case had been dismissed.

Indeed it had, both as supported by no evidence of racial animus and for want of prosecution. Mr. Lewis appeals from the dismissal, as well as from the court’s award of $2,500 attorney’s fees against him and his attorney, jointly and severally, on the basis of 28 U.S.C. § 1927 and the authority of Cbristiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978) (42 U.S.C. § 2000e-5(k)). At oral argument before us, Lewis’s counsel explained that he had other business to transact during the recess and that he returned as soon as that had been attended to. He also maintained that he established a prima facie ease of discrimination by the testimony of his client and that, given this, neither the dismissal of the case nor the award of attorney’s fees can be viewed as proper. We disagree and affirm both aspects of the decision.

A dismissal based on the failure of plaintiff to prove an essential element of his case normally would be improper if entered before plaintiff had completed the presentation of his evidence. Here, decision was rendered after plaintiff had presented all his witnesses — consisting of roughly two hours of plaintiff’s testimony — and after the defense had completed its cross-examination. It is true that Lewis’s counsel advised the court that he wished a few more minutes for redirect. It is also true, as we have seen, that he requested a 15-minute recess and did not return when the court reconvened at the designated time, nor were he or his client to be found when the court dismissed the case another 15 minutes later. We find, in the circumstances of this case, that through his actions Lewis’s counsel had waived his opportunity to conduct redirect. With no witnesses left to call, the district court properly considered plaintiff’s case closed and dismissed the case based on Lewis’s failure to prove a discriminatory motive.

Our survey of the record amply bears out the court’s conclusion that Lewis offered no evidence that either his discharge or the delay of some ten months before he was rehired resulted from racial bias.³ Both Lewis and his white helper, caught wrestling over a bicycle during work hours, were discharged. Let Lewis’s testimony settle the matter:

Q. Now, you didn’t tell the EEOC that you were discharged because of your race, because you knew you were not discharged because of your race, didn’t you?

A. I was discharged because Mr. Spur-geon [a supervisor] thought he was doing the right thing as a superior. He saw two people in a situation and he was doing what was best for him to do as a superior, someone in responsibility. He told me he eliminated both parties. (Tr. 44-5).

The same is true of the failure to rehire Lewis though his discharged white helper was rehired in thirty days. When Lewis reported to reapply, he was surprised to find a Mr. Petty, with whom he had had an earlier dispute over whether Lewis should be the driver of a van pool, receiving the applicants. Again, Lewis’s own testimony is dispositive:

Q. Would you tell the court what you’re trying to say about Mr. Petty?

A. Yes, sir. I believe that my discrimination started right there from Mr. Petty that morning ... on February 12..... Because Mr. Petty had a personal griev-anee against me because I went to the project manager [higher authority] about the van pool.” (Tr. 29) (emphasis supplied)

The above and other evidence in the record — such as the subsequent repeated rehires of Lewis — amply bear out the trial court’s findings that neither Lewis’s discharge nor the delay in his rehiring stemmed from racial bias. We therefore affirm the district court’s finding of no discrimination under the clearly erroneous standard of Pullman v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982).

Moreover, as will be apparent from the remainder of our opinion, we also conclude that the conduct of Lewis and his counsel afforded an ample foundation for the other ground of the court’s dismissal order: want of prosecution. From its inception, the conduct of this action by both Lewis and his counsel evidenced a careless disregard for both court and opposing counsel bordering on the insolent. The action was commenced by a pleading which was inaccurate even as to Lewis’s citizenship and which asserted acts of discrimination which found no basis in Lewis’s eventual testimony in court. Thenceforth it proceeded through a failure of Lewis’s counsel and the refusal of Lewis to appear at a deposition specifically rescheduled to meet their convenience to its first dismissal for want of prosecution, occasioned by the failure of counsel to attend a docket call of which he admittedly had notice. Reinstated and set for a day and hour certain, its commencement was delayed forty-five minutes while the court awaited the arrival of plaintiff’s sole intended witness, Lewis himself.

There then followed two hours of testimony by Mr. Lewis in which, despite an occasional early and conclusionary suggestion that he had been subjected to racial discrimination, he candidly and specifically attributed his discharge to the racially evenhanded enforcement of a valid rule against horseplay and the delay in his rehiring to the personal dislike borne him by a supervisor, stemming from an earlier incident between them which had nothing to do with race. Granted a fifteen-minute recess to prepare to conclude their case, counsel and client returned forty minutes later (so it is claimed) to find that the court had awaited their return for fifteen minutes past the time appointed and dismissed the case a second time for want of prosecution as well as for lack of evidence.

Our review of a dismissal for want of prosecution is limited to inquiring whether the district court abused its discretion. Lopez v. Aransas County Independent School District, 570 F.2d 541, 544 (5th Cir. 1978). Rule 41(b) of the Federal Rules of Civil Procedure permits a dismissal for want of prosecution where there is a record of delay or contumacious conduct and an indication that the client knew of or participated in the attorney’s failure to prosecute. See Anthony v. Marion County General Hospital, 617 F.2d 1164, 1167-69 (5th Cir. 1980); Lopez, 570 F.2d at 544. Although the power to dismiss for want of prosecution should be used sparingly, Ramsay v. Bailey, 531 F.2d 706 (5th Cir.1976), cert. denied, 429 U.S. 1107, 97 S.Ct. 1139, 51 L.Ed.2d 559 (1977), we think the court’s action amply justified in this case. Against a background of casual disregard of its earlier orders, the court faced the election of Lewis and his .counsel to return to court, not when directed to do so, but when and if it suited them. Such protracted and repeated trifling with a busy court, burdened with a heavy docket of serious matters, need not be borne.

As for the court’s award of $2,500 attorney’s fees against the plaintiff, we think its finding that Mr. Lewis’s action was frivolous, unreasonable and without foundation fully justified for the reasons stated above.⁴ As the court noted in its order awarding the fees, the evidence offered by Mr. Lewis did not demonstrate, even by inference, any unlawful discrimination.⁵ As a result, the court and the defendant were subjected to a proceeding virtually if not utterly spurious, one which wasted valuable time that should have been devoted to matters of at least arguable merit.

The language of the 1964 Civil Rights Act,⁶ identical as regards plaintiffs and defendants, has been differentially interpreted. Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). Plaintiffs are to recover, we are told, virtually in the normal course, defendants only “upon a finding that the plaintiff’s action was^frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.” Id. at 421, 98 S.Ct. at 700. The trial court so found, and that finding is not clearly erroneous; this is the standard for review of such findings in our circuit. Nilsen v. City of Moss Point, 621 F.2d 117 (5th Cir.1980). We affirm it.

As for the joint award against plaintiff’s counsel, entered pursuant to 28 U.S.C. § 1927, we also find it warranted. Here, the standard is vexatious multiplication of litigation, id., and once again, the district court’s resolution of that issue must stand unless clearly erroneous.⁷ On this record the district court was justified in concluding, as it did, that the entire course of proceedings was unwarranted and should neither have been commenced nor persisted in. Worse, the irresponsible manner in which the litigation was conducted further multiplied these needless proceedings. The district court’s judgment is in all respects affirmed.

AFFIRMED.

1 . In April, the EEOC issued Lewis his Notice of Right to Sue, noting that “No reasonable cause was found to believe that the allegations made in your charge are true, as indicated in the attached determination.”

2 . Presumably suffered by him in Trinidad, since he had been working for Brown & Root off and on, at advancing pay scales, during most of his adult life.

3 . Appellant objects to dismissal for failure to adduce evidence of racial animus because, he asserts, he had established a prima facie case and defendant had not articulated a legitimate nondiscriminatory reason for the decision not to rehire. See Jackson v. City of Killeen, 654 F.2d 1181, 1183 (5th Cir.1981) (relying on McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), as clarified in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). We reject this argument; appellant misunderstands the decision below. The evidence supporting defendant’s nondiscriminatory reasons was offered by plaintiff himself, during his trial testimony. See Tr. 29; 44-45. Moreover, McDonnell Douglas represents merely a division of eviden-tiary burdens, and, in the words of the Supreme Court, “[t]he ultimate burden of persuading the trier of fact that a defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Burdine, 450 U.S. at 253, 101 S.Ct. at 1093. Finally, plaintiff had not presented any evidence that the defendant’s nondiscriminatory reasons were a mere pretext. See Furnco Construction Corp. v. Waters, 438 U.S. 567, 578, 98 S.Ct. 2943, 2950, 57 L.Ed.2d 957 (1978).

Thus, the dismissal on the merits below properly respected the burdens of proof established for this type of case. See also United States Postal Service Board of Governors v. Aikens, — U.S. —, —, 103 S.Ct. 1478, 1481, 75 L.Ed.2d 403, 409 (1983). “Because this case was fully tried on the merits, it is surprising to find the parties and the Court of Appeals still addressing the question whether Aikens made out a prima facie case. We think that by framing the issue in these terms they have unnecessarily evaded the ultimate issue of discrimination vel non.” (footnote omitted)

4 . We affirm the dismissal below on both the failure to prove discrimination and want of prosecution grounds, alternatively. As well as the decision on the substantive merits, the dismissal for want of prosecution also is “an adjudication upon the merits.” Fed.R.Civ.P. 41(b); see Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241, 247 n. 5 (5th Cir.1980). Therefore, the dismissal for want of prosecution alone is adequate as a basis for the attorney’s fee award, provided the record independently supports the finding required by the Christians-burg decision. See Anthony, 617 F.2d 1164; Lopez, 570 F.2d 541.

5 . Following the Christiansburg standard, discussed below in text, we have sustained awards of attorney’s fees to prevailing defendants where the plaintiff’s claim was supported by no evidence. Harris v. Plastics Mfg. Co., 617 F.2d 438 (5th Cir.1980); EEOC v. First Alabama Bank of Montgomery, 595 F.2d 1050 (5th Cir. 1979).

6 . 42 U.S.C. § 2000e-5(k), “In any action or proceeding under this title the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs.... ”

7 . Monk v. Roadway Express, Inc., 599 F.2d 1378, 1381 (5th Cir.1979), aff’d in relevant part sub nom. Roadway Express, Inc. v. Piper, 447 U.S. 752, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980). In Monk, where this standard of review was adopted under § 1927, the statute did not provide for awards of attorney’s fees. Subsequently, Congress amended the statute expressly to allow such an award, Pub.L. 96-349, 94 Stat. 1156 (codified as amended at 28 U.S.C. § 1927 (Supp. IV 1980)); this change had no effect on the standard of review.