Williams v. Phillips Petroleum Co.

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.

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 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.

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