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A prominent Chicago attorney was sanctioned this week by a federal appeals court and ordered to pay $10,000 for filing a frivolous appeal challenging a lower court’s decision to significantly reduce his fees from an employment case. The 7th U.S. Circuit Court of Appeals in an opinion released Aug. 30 ordered that Ernest Rossiello personally pay the money within two weeks for having attempted to defraud the district court and the defendant in the case of Jennifer Dormeyer v. Comerica Bank-Illinois, Nos. 99-1089 and 99-3252. Rossiello, the name partner in Ernest T. Rossiello & Assoc., P.C., appealed a decision by U.S. District Judge David Coar to reduce by 80 percent, from $35,000 to $6,216, the fees and costs associated with Dormeyer’s lawsuit that challenged her termination from a bank on violations of Family Medical Leave Act, the Pregnancy Discrimination Act and the Fair Labor Standards Act. “The decision for sanctions is a paradox,” Rossiello said Thursday. “The issue of sanctions for a frivolous appeal was never raised in a brief or at oral argument. The court came up with it on their own.” In addition, he could not see how his appeal was frivolous, as it did not fall under the guidelines of a previous 7th Circuit decision, Rossiello said. In the 1996 case of Flexible Mfg. Sys. Pty. Ltd. v. Super Prod. Corp., No. 95-2160, the court defined a frivolous appeal as one that would not alter a district court’s decision, was done to delay or harass or done out of “sheer obstinacy.” “There is no explanation to how I passed the test for a frivolous appeal,” Rossiello said. In July the appellate court upheld the granting of summary judgment to Comerica Bank-Illinois. In that opinion, a three-judge panel alleged that Rossiello engaged in the “dishonest practice” of linking a small valid legal argument to a larger non-valid one in order to seek a large award of attorney’s fees. The court gave Rossiello two weeks to show cause why he should not be sanctioned and following his response issued a per curiam ruling Aug. 30 ordering the sanctions. On Thursday, Rossiello explained that because of the type of employment cases he handles — disputes over over-time pay — the monetary awards received by his clients are not very high. “So there is no surprise that I claim a fee higher than the judgment,” Rossiello said. Although he said that a motion for fees can be rare, district court judges feel “imposed upon” when faced with them, Rossiello said. “They’re time consuming,” he added. “They have to determine what is related to a successful claim and what is not related.” In the July decision, the court said it would refer the question of fraudulent billing by Rossiello to the executive committee of the U.S. District Court in Chicago for possible disciplinary action. Appearing before the committee will provide the opportunity to discuss the issue on motions for attorney fees, Rossiello said. This was not the first time that the 7th Circuit has dealt with the issue of how much Rossiello should be paid for a case. In April 1999, the court found that Rossiello’s fee demand was “unreasonable” in a case in which he represented a plaintiff seeking overtime pay. The case was settled for $1,100 and Rossiello sought fees of $7,280 but the district court awarded just $752. Spegon v. The Catholic Bishop of Chicago, No. 98-1240. In 1998, Rossiello argued a case before the U.S. Supreme Court that led to a landmark decision that companies can be liable for sexual harassment by a supervisor with immediate or successively higher authority over an employee. Burlington Industries v. Ellerth, No. 97-569.

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