Scheve v. The Moody Foundation

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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m 00-40745
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TINA SCHEVE,
Plaintiff-Appellant,
AND
MARK W. STEVENS,
Appellant,
VERSUS
THE MOODY FOUNDATION,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
(G-99-CV-379)
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June 20, 2001
Before REYNALDO G. GARZA, ERISA. See Stafford v. True Temper Sports,
HIGGINBOTHAM, and SMITH, 123 F.3d 291, 295 (5th Cir. 1997).
Circuit Judges. Furthermore, given the groundless nature of
the claim and the appellants’ persistence in its
PER CURIAM:* maintenance, the decision to award the
foundation its reasonable attorney’s fees
cannot be considered an abuse of discretion
with respect to either Scheve, see Ironworkers
Tina Scheve appeals a summary judgment Local # 272 v. Bowen, 624 F.2d 1255, 1266
on her claim of discrimination in violation of (5th Cir. 1980),2 or Stevens, see Browning v.
provisions of the Employee Retirement Kramer, 931 F.2d 340, 344 (5th Cir. 1991)
Income Security Act of 1974 (“ERISA”), 29 (“[W]hen the entire course of proceedings
U.S.C. §§ 1140-41. Scheve and her attorney, were unwarranted and should neither have
Mark Stevens, appeal the award of attorney’s been commenced nor persisted in, an award
fees to the Moody Foundation.1 Finding no under § 1927 may . . . shift the entire financial
reversible error, we affirm. burden of an action’s defense.”).
Scheve filed a complaint asserting a claim AFFIRMED.
with no basis in fact, which would have been
apparent if she or Stevens had conducted even
a cursory investigation. Moreover, upon
“learning” of the inaccuracy of the allegations,
she refused to withdraw the claim and instead
asserted a new theory of liability for the first
time in her response to the motion for
summary judgment.
Summary judgment was appropriate,
because Scheve failed to establish an element
of her prima facie case, i.e., that the
foundation fired her with specific intent to
prevent her from exercising her rights under
* 2
Pursuant to 5TH CIR. R. 47.5, the court has Scheve complains that the court failed
determined that this opinion should not be properly to analyze the fee award under Bowen.
published and is not precedent except under the Although in its oral order the court did not discuss
limited circumstances set forth in 5TH CIR. R. the Bowen factors at length, the court expressly
47.5.4. considered each of the relevant factors sufficiently
to allow us to conclude that it did not abuse its
1
The court cited several bases for the fee discretion in awarding fees under § 1132(g).
award, including, inter alia, ERISA’s fee-shifting Moreover, other than the conclusional assertion
provision, 29 U.S.C. § 1132(g), for the award that “under any view of the Bowen factors, this fee
against Scheve, and 28 U.S.C. § 1927 for the award was improper,” Scheve fails even to argue
award against Stevens. why the award was inappropriate under Bowen.
2