12‐4773‐cv
Muhammad v. Walmart Stores East, L.P.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2013
(Submitted: August 19, 2013 Decided: October 9, 2013)
Docket No. 12‐4773‐cv
ABIDAN MUHAMMAD,
Plaintiff‐Appellant,
‐v.‐
WALMART STORES EAST, L.P.*
Defendant‐Appellee.
Before:
LEVAL, WESLEY, AND HALL, Circuit Judges
Plaintiff‐Appellant Abidan Muhammad asserts various employment
discrimination claims against his employer, Walmart Stores, East L.P. At
*
The Clerk of the Court is directed to amend the caption to conform with the
listing of the parties above.
summary judgment, Plaintiff’s attorney, Christina Agola, asserted that her client
had pled a gender discrimination claim that he had not. Judge Siragusa of the
United States District Court for the Western District of New York imposed Rule 11
Sanctions on Agola. Agola appeals. We REVERSE and VACATE the decision and
order imposing sanctions.
CHRISTINA S. AGOLA, Christina A. Agola, PLLC, Rochester, NY, for
Appellant.
MICHAEL S. HANAN, Gordon & Rees LLP, Florham Park, NJ for
Appellee.
PER CURIAM:
Christina Agola is an attorney practicing primarily employment law in the
Western District of New York. She has a long disciplinary history in the courts of
this Circuit. See, e.g., In re Agola, 484 F. Appʹx 594 (2d Cir. 2012) (summary order)
(failing to comply with scheduling orders); Rankin v. City of Niagara Falls, No. 09‐
cv‐974‐A, 2013 WL 1501682 (W.D.N.Y. Apr. 11, 2013) (misrepresenting facts to the
court); Johnson v. The Univ. of Rochester Med. Ctr., 715 F. Supp. 2d 427 (W.D.N.Y.
2010) (same); Geiger v. Town of Greece, No. 07‐cv‐6066(CJS), 2008 WL 728471
(W.D.N.Y. Mar. 18, 2008) (pursuing a frivolous claim); Colombo v. E. Irondequoit
2
Cent. Sch., No. 07‐cv‐6270(CJS), 2010 WL 6004378, at *10 n.8 (W.D.N.Y. Dec. 17,
2010) (collecting more cases).1 Acting pro se, plaintiff Abidan Muhammad
initiated the present employment discrimination action in the United States
District Court for the Western District of New York. Shortly thereafter, Agola
began representing Muhammad. At summary judgment, Agola represented to
the court that Muhammad had clearly pled a gender discrimination claim which
he had not. Sua sponte, the court ordered Agola to show cause why she should not
be sanctioned under Federal Rule of Civil Procedure 11. Agola insisted that the
liberal pleading standard afforded pro se complaints meant that Muhammad’s
complaint should be read to include a gender discrimination claim. The court
rejected this argument as frivolous, reprimanded Agola, and imposed a $7,500
sanction. Agola appeals the imposition of sanctions. Because the district court
misapplied the relevant legal standard, we vacate the sanction order and reverse.
1
Agola was temporarily suspended by the Supreme Court Appellate Division for
the Fourth Department on September 10, 2013 during an investigation into disciplinary
matters involving Ms. Agola currently pending before that court. On September 16,
this Court followed with a reciprocal order of suspension pending the outcome of
matters at the Appellate Division.
3
Background
In February 2008, Walmart hired Abidan Muhammad as an overnight deli
stocker at its Chili Avenue store in Rochester, New York. Five months later,
Muhammad requested and obtained a leave of absence for a hand injury. As
requested, Muhammad was granted leave until September 10, 2008. When
Muhammad returned to work on that day, consistent with his doctor’s orders,
Walmart reassigned him to the light‐duty position of Greeter during his normal,
overnight shift.
Three weeks later while working Muhammad heard a rumor that he had
been fired. Shortly thereafter, Muhammad saw a group of managers and
approached them to inquire further. They denied any knowledge of the rumors.
Muhammad then returned to his work, but almost immediately approached the
managers again. Unprovoked, Mohammad yelled at them, threw his employee
identification on the ground, and left. The incident was captured on video tape.
Following an internal investigation, Muhammad was fired.
On the same night, a female Walmart associate was involved in another
disturbance. The associate’s boyfriend argued with her outside and then threw
her through the Walmart entrance. The boyfriend was bleeding and had a welt on
4
his forehead. Each screamed profanities at the other and called the police.
Walmart determined that the employee was the victim of domestic violence and
did not fire her.
On October 27, 2008, following his own termination, Muhammad, acting pro
se, filed a complaint with the New York State Division of Human Rights (DHR),
and cross‐filed with the Equal Employment Opportunity Commission (EEOC),
alleging that Walmart terminated his employment because of his race and
disability. Muhammad left the “sex” discrimination portion of the complaint
form blank. In the portion of the form asking for information about similarly
situated persons, however, Muhammad described the domestic violence incident
from the night he was fired and wrote, “manual of Walmart [says] fighting [is]
automatic termination[;] not her[,] I was fired.” DHR found the complaint
without merit and, on April 24, 2009, summarily dismissed it.
On November 10, 2009, the EEOC issued Muhammad a right‐to‐sue letter,
and on February 10, 2010, Muhammad filed the instant suit. On the district
court’s pro se discrimination complaint form, Muhammad checked the box for
Title VII and ADA discrimination, indicating that he intended to sue pursuant to
“Title VII of the Civil Rights Act of 1964 . . . (race, color, gender, religion, national
5
origin)” and the “Americans with Disabilities Act of 1990.” He also checked the
corresponding boxes for the following:
a. Failure to provide me with reasonable accommodations to the
application process.
. . .
c. Termination of my employment.
. . .
e. Failure to provide me with reasonable accommodations so I can
perform the essential functions of my job.
. . .
h. Retaliation because I complained about discrimination or
harassment directed toward me.
In response to the prompt “Defendant’s conduct is discriminatory with respect to
the which of the following (check all that apply):” Muhammad did not check the
boxes for “a. Race b. Color. c. Sex.” Instead, he checked only the box for “h.
disability.” In the narrative portion of the form, Muhammad discussed only
Walmart’s actions related to his alleged disability. He made no mention of race or
gender discrimination.
One month later, Christina Agola filed notice of her appearance in the case.
Although given five months in which to do so, Agola never amended the
complaint to include gender discrimination. Nonetheless, during Muhammad’s
January 2011, deposition, Agola’s client announced his belief that, race, gender,
and disability all played a part in his firing.
6
In March 2011, Walmart filed its motion for summary judgment.
Walmart’s statement of undisputed facts recognized Muhammad’s wide ranging
theory of discrimination, disclosed in his deposition. However, in responding to
Mohammad’s actual pleadings, Walmart’s memorandum supporting its motion
for summary judgment addressed only race and disability discrimination.
Agola filed Muhammad’s opposition to summary judgment in June 2011.
She claimed that Muhammad “clearly” pled gender discrimination and suggested
that unless the complaint “limited the ground(s) upon which Plaintiff seeks relief”
a plaintiff may seek relief for any wrong he believes the defendant has done him.
According to Agola, Walmart should have anticipated a gender discrimination
claim from Muhammad’s deposition responses.
The district court was understandably displeased by Agola’s last‐minute
introduction of an unpled gender‐discrimination claim. After disposing of the
suit’s merits, the district court,2 sua sponte, ordered Agola to show cause why she
should not be sanctioned for raising an unpled gender discrimination claim at
summary judgment and for characterizing it as clearly pled. Agola filed a lengthy
response to the order to show cause, but did not attend the hearing; rather, she
2
By summary order issued today we affirm that decision.
7
sent an associate to argue the motion on her behalf. The court rejected her
arguments and imposed a reprimand and a $7,500 sanction. Agola appeals the
sanction order to this court.
On appeal, Agola argues that her client raised the gender discrimination
claim on multiple occasions, including (i) in his complaint to the DHR, (ii) by
checking the box for Title VII “race, color, gender, religion, [and] national origin”
discrimination on his pro se complaint form, and (iii) in his deposition responses.
Agola contends that her client thus put the defendant on notice of his gender
discrimination claim and that, under the liberal pleading standard afforded pro se
EEOC complaints, this is enough.
Discussion
We review orders imposing Rule 11 sanctions for abuse of discretion. Kiobel
v. Millson, 592 F.3d 78, 81 (2d Cir. 2010). “This deferential standard is applicable
to the review of Rule 11 sanctions because . . . the district court is familiar with the
issues and litigants and is thus better situated than the court of appeals to marshal
the pertinent facts and apply a fact‐dependent legal standard.” Storey v. Cello
Holdings, 347 F.3d 370, 387 (2d Cir. 2003) (internal citations and quotations
omitted). Nonetheless, when, as here, the court issues sanctions sua sponte
8
without offering the offender the opportunity to withdraw the offending
submission, our “review is more exacting than under the ordinary
abuse‐of‐discretion standard,”ATSI Commcʹns, Inc. v. Shaar Fund, Ltd., 579 F.3d
143, 150 (2d Cir. 2009), because in such cases the court simultaneously acts “as
accuser, fact finder, and sentencing judge.” Mackler Prods., Inc. v. Cohen, 146 F.3d
126, 128 (2d Cir. 1998).
Under Rule 11, a court may sanction an attorney for, among other things,
misrepresenting facts or making frivolous legal arguments. Storey, 347 F.3d at 388.
Rule 11 contemplates that “ordinarily” opposing counsel will initiate sanctions
proceedings. Advisory Committee notes to the 1993 amendments. In those
situations opposing counsel must serve a notice of the sanctions claim on the
accused attorney 21 days before moving for sanctions to give an opportunity to
correct the asserted misconduct. Fed. R. Civ. P. 11(c)(2). Rule 11 also gives the
court the power to initiate sanctions proceedings sua sponte. Fed. R. Civ. P.
11(c)(3). In these rarer cases, however, the 21‐day safe harbor does not apply and
the court may impose sanctions without providing opportunity to withdraw the
misstatement.
9
For sanctions issued pursuant to a motion by opposing counsel, courts have
long held that an attorney could be sanctioned for conduct that was objectively
unreasonable. In In re Pennie & Edmonds LLP, we considered, for the first time, the
appropriate standard for sua sponte sanctions. 323 F.3d 86, 90 (2d Cir. 2003). In
Pennie, we determined that the power of the court under Rule 11 to issue sanctions
sua sponte without affording the offender the opportunity to withdraw the
challenged document in the manner provided in the ʺsafe harborʺ provision of
Rule 11(c)(1)(A), is akin to the court’s inherent power of contempt. We reasoned
that, like contempt, sua sponte sanctions in those circumstances should issue only
upon a finding of subjective bad faith. Id. at 91.3 The only question for this court
is whether the record before the district court could sustain a finding that Agola
was in bad faith in asserting that Muhammadʹs pro se complaint included a claim
of gender discrimination. Applying the heightened review standard accorded to
the imposition of sanctions in such circumstances, we find that it could not. ATSI,
579 F.3d at 150.
3
In Pennie we addressed only the “narrow issue” of an attorney permitting a
client to submit a false affidavit. Pennie, 323 F.3d at 87. The nature of attorney
misconduct does not change the contempt‐like nature of sua sponte sanctions.
Moreover, the district courts of this Circuit have already applied Pennie beyond the
affidavit context. Centauri Shipping Ltd. v. W. Bulk Carriers KS, 528 F. Supp.2d 197, 200
n.3 (S.D.N.Y. 2007) (collecting cases).
10
Our review of the record indicates that the district court did not apply the
correct legal standard. Intʹl Bhd. of Boilermakers v. Local Lodge D129, 910 F.2d 1056,
1059 (2d Cir. 1990). Here, the district court said it was applying the Pennie bad
faith standard; its analysis, however, indicates that it was applying an objective
reasonableness test. The court couched its conclusion in terms of what “any
competent attorney” would have done and extensively discussed Agola’s
admittedly incompetent practice in other areas. This is not enough to
demonstrate subjective bad faith.
Conclusion
For the foregoing reasons, the Decision and Order of the district court, filed
November 28, 2012, is REVERSED and VACATED .
11