HR Management & Compliance

Plaintiff’s Attorney Fined for Withholding Evidence in ADA Suit

An employee’s attorney must pay $5,000 for omitting important information in an Americans with Disabilities Act lawsuit, the 6th U.S. Circuit Court of Appeals ruled.

In Kempter v. Michigan Bell Telephone Co. , No. 13-1036 (6th Cir. Aug. 26, 2013), the plaintiff’s attorney failed to mention that that his client, Cathie Kempter, had been permanently restricted from performing the essential functions of her job. In an appeal to the 6th Circuit, her attorney also failed to disclose that the “vacant position” to which she was requesting reassignment as an accommodation had been eliminated two years earlier.

After successfully defending the allegations, Michigan Bell Telephone Co. requested that Kempter’s attorney be sanctioned under the Federal Rules of Civil Procedure. The rules allow courts to fine attorneys if, among other things, an appeal is “wholly without merit” or “had no reasonable expectation of altering the district court’s judgment,” the court said, quoting 6th Circuit precedent.

Fines also can be appropriate if the appeal fails to address key aspects of the district court’s holding and merely repeats the arguments made to the district court, the 6th Circuit explained.

“Kempter’s appeal suffers from such serious factual and legal issues that sanctions are warranted,” the court said. The appeal relied on a liberal and “misleadingly selective” version of the facts. It failed to mention that her restrictions were permanent and that “the second supposedly vacant technical associate position Kempter ‘could have been placed in’ had been eliminated two years earlier,” the court said.

Moreover, she never responded to MBT’s arguments that she wasn’t qualified to perform the essential functions of a technical associate. “Instead of actually defending her proposed accommodations, Kempter’s response tersely states that ‘the District Court Opinion speaks for itself,’” the 6th Circuit said. The rules of civil procedure “do not permit a lawyer, ostrich-like, to continue prosecuting a case while refusing to recognize the relevant legal standard or counter the opposing party’s factual arguments.”

In addition, the district court had warned Kempter that this was not a “close case” and that sanctions might have been justified at that stage. Filing her appeal despite these warnings “demonstrates that Kempter’s counsel ‘knowingly disregarded the risk’ of pursuing a frivolous appeal,” the 6th Circuit concluded, fining the attorney $5,000.

Read the full story on HR Compliance Expert.

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