The Federal Rules of Civil Procedure are intended to promote the “just, speedy, and inexpensive determination” of lawsuits. For companies defending baseless employment claims, those words may feel like an empty promise. The First Circuit’s recent decision in Alston v. Spiegel sanctioning an attorney for filing frivolous discrimination and retaliation claims, however, reminds employers that there are strategies for deterring such claims.
In late 2015, attorney Brooks Ames filed a complaint on behalf of Gerald Alston, a former firefighter for the Town of Brookline, against Brookline, its Board of Selectmen, and several Brookline representatives, including a purported elected and appointed official, Stanley Spiegel. The complaint alleged that defendants had discriminated against Alston because of his race by harassing him and terminating his employment, and retaliated against him in violation of federal civil rights statutes. With respect to Spiegel, the complaint contended that, after Alston had made allegations of discrimination against Brookline, Spiegel distributed to other elected officials copies of a letter that “attacked . . . Alston’s courage and credibility” that had been published in a local newspaper. The complaint also asserted that Spiegel had told an individual who supported Alston in pursuing his claims against Brookline that “she would not support Alston if she knew the ‘real story’ contained in Alston’s personnel file.”
After Brookline and the Board moved to dismiss the complaint, Ames filed a first amended complaint. Spiegel then moved to dismiss that complaint and sought Rule 11 sanctions based on the absence of any allegation that accused Spiegel of actionable wrongdoing. Without addressing Spiegel’s motion for sanctions, the court reminded Ames of his obligations under Rule 11, suggested the claims could not be bolstered by “clearer pleading,” but nevertheless gave him an opportunity to file a second amended complaint, which he did.
Ames’s second amended complaint alleged that Spiegel enforced a discriminatory policy “in concert” with Brookline, defended the Board’s conduct, and frequently consulted with members of the Board about unspecified matters. It also added that, when Spiegel circulated the letter that allegedly “attacked” Alston, he pointed out a quotation cautioning readers not to “rush to judgment” about Alston’s case. Finally, the second amended complaint asserted that Spiegel became “extremely agitated” when he interacted with the Alston supporter and told her he was “disgusted.”
Again, Spiegel filed motions to dismiss and for sanctions. This time, the court granted both motions. With respect to the motion for sanctions, the court found that, although it had given Ames “the opportunity to replead against Spiegel,” it did not give him “license to file a frivolous case for the second time.” To “deter future misconduct,” the court ordered Ames to pay over $20,000 as a sanction under Rule 11. Ames appealed this decision.
Before addressing the merits of Ames’s appeal, the First Circuit set the stage by outlining the contours of Rule 11. Rule 11 allows a court to sanction a lawyer “for advocating a frivolous position, pursuing an unfounded claim, or filing a lawsuit for some improper purpose.” Claims are frivolous when they are “either not well-grounded in fact or unwarranted by existing law or a good faith argument for an extension, modification[,] or reversal of existing law.” With this standard in mind, Ames argued that the First Circuit should reverse the sanctions order for three reasons, all of which the court rejected.
First, Ames argued that the lower court allowed him to file the second amended complaint, suggesting that it did not consider his claims to be frivolous. The First Circuit rejected this argument. The first amended complaint contained only two allegations against Spiegel – namely, his distribution of a letter to other elected officials and his confrontation with the Alston supporter – and did not link either of them to Alston’s discrimination or retaliation claims. The second amended complaint added a few additional allegations against Spiegel, but they were irrelevant, failed to connect Spiegel to the adverse employment actions at issue, and did not suggest that Spiegel harbored any racial animus toward Alston – a fact the First Circuit found “stunning” in a discrimination case. Notably, although the second amended complaint did not “disregar[d] a statute or circuit precedent directly on point,” that was beside the point. Rather, the inquiry for Rule 11 purposes is whether a “reasonable attorney” “‘would have believed [there was] evidence to support [the] claims.’” Given the dearth of allegations of wrongdoing against Spiegel, the court “answered this question in the negative.”
Second, Ames contended that his client’s claims against Spiegel based on his telling the Alston supporter that she would not support him if she knew the “real story” were an extension of existing law. Specifically, Ames pointed to a 2013 trial court decision that held that an “employer’s dissemination of ‘severely damaging information’ about [an employee] to a media website could support a retaliation claim” and indicated that even a threat of such dissemination could be considered retaliatory. The First Circuit found this analogy unavailing because Ames did not allege that Spiegel was Alston’s employer, had “disseminated any negative information about Alston,” or had even “threaten[ed] any such dissemination.”
Finally, Ames asserted that plaintiffs’ lawyers would be unlikely to replead claims that have been dismissed to preserve their right to appeal the dismissal out of fear of being sanctioned. According to Ames, this was particularly true where, as here, the trial court suggested that the claims were frivolous in its decision allowing them to be refiled. The First Circuit disagreed, reasoning that “the claims against Spiegel [were] frivolous not because the [lower court] predicted as much . . . but because – despite having had the benefit of a warning that the allegations against Spiegel failed to comply with the most basic of pleading requirements – Ames stubbornly persisted in rehashing essentially the same claims.”
Finding no merit in any of Ames’s arguments, the First Circuit denied the appeal and upheld the sanctions. In doing so, it noted its “respect [for] a lawyer’s zealous advocacy for his client,” but cautioned that “[w]hen – as in this case – zealous advocacy is based on nothing more than a wing and a prayer, it is sanctionable.”
Takeaways for Employers
Rule 11 sets a high bar for imposing sanctions on litigants and their attorneys. That bar is not, however, insurmountable. Alston serves as a reminder to companies that the Federal Rules of Civil Procedure provide them with a powerful tool to deter frivolous employment claims. Sometimes, the best defense is a good offense.