______________________________________ No. 11-2247 ______________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT ______________________________________ Oral Argument Requested ______________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. TRICORE REFERENCE LABORATORIES, Defendant-Appellee. ____________________________________________________ On Appeal from the United States District Court for the District of New Mexico (1:09-cv-00956-JEC-DJS) The Honorable John E. Conway, Presiding ____________________________________________________ OPENING BRIEF OF PLAINTIFF-APPELLANT EQUAL EMPLOYMENT OPPORTUNITY COMMISSION REGARDING FEES ____________________________________________________ P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel CORBETT L. ANDERSON Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, D.C. 20507 (202) 663-4579 (phone) (202) 663-7090 (fax) corbett.anderson@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . iii STATEMENT OF RELATED CASES. . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE. . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. Background. . . . . . . . . . . . . . . . . . . . . . . . . . 3 B. District Court’s Decisions. . . . . . . . . . . . . . . . . . 14 1. Summary Judgment Granted. . . . . . . . . . . . . . . . . . 14 2. EEOC’s Claims Deemed Frivolous, Unreasonable, or Without Foundation. . . . . . . . . . . . . . . . . . . . . 17 3. Attorney’s Fees Awarded. . . . . . . . . . . . . . . . . . 19 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 20 STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . 22 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 A. The EEOC’s termination claim never became clearly frivolous, unreasonable, or without foundation. . . . . . . . 25 B. The EEOC’s reasonable accommodation claim never became clearly frivolous, unreasonable, or without foundation. . . . 29 C. Because both claims are not frivolous, TriCore cannot recover fees. . . . . . . . . . . . . . . . . 34 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . 40 TABLE OF AUTHORITIES Cases Bergemann v. United States, 820 F.2d 1117 (10th Cir. 1987). . . . . . 32 Butler v. City of Prairie Village, Kan., 172 F.3d 736 (10th Cir. 1999).27 Carter v. Pathfinder Energy Servs., Inc., 662 F.3d 1134 (10th Cir. 2011). . . . . . . . . . . . . . .28-29 Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978). .17, 20, 23, 25 Clajon Prod. Corp. v. Petera, 70 F.3d 1566 (10th Cir. 1995). . . . . 23 Cleveland v. Policy Mgt. Sys. Corp., 526 U.S. 795 (1999). . . . . . . 16 Crowe & Dunlevy, P.C., 640 F.3d 1140 (10th Cir. 2011). . . . . . . . .22 EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184 (10th Cir. 2000). 29 EEOC v. PVNF, L.L.C., 487 F.3d 790 (10th Cir. 2007). . . . . . . . . 22 Fox v. Vice, 131 S. Ct. 2205 (2011). . . . . . . . . 22, 24, 36, 37, 39 Hennagir v. Utah Dep’t of Corrections, 587 F.3d 1255 (10th Cir. 2009). . . . . . . . . . . . . . . 30 Hensley v. Eckerhart, 461 U.S. 424 (1983). . . . . . . . . 35, 36, 37 Jones v. Continental Corp., 789 F.2d 1225 (6th Cir. 1986). . . . . . 24 Kellogg v. Energy Safety Servs., Inc., 544 F.3d 1121 (10th Cir. 2008).30 Mathews v. The Denver Post, 263 F.3d 1164 (10th Cir. 2001). . . . . . 32 Mitchell v. City of Moore, Okla., 218 F.3d 1190 (10th Cir. 2000). . . 23 Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221 (10th Cir. 1994). . . . . . . . . . . . . . . 23 Skerski v. Time Warner Cable Co., 257 F.3d 273 (3d Cir. 2001). . .31, 32 Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999). . . . . 33 Smith v. Smythe-Cramer Co., 754 F.2d 180 (6th Cir. 1985). . . . . . 24 Twilley v. Integris Baptist Med. Ctr., Inc., 16 Fed. App’x 923, 2001 WL 901102 (10th Cir. 2001). . 24, 26, 29 Walker v. United Parcel Serv., Inc., 240 F.3d 1268 (10th Cir. 2001). .35 Statutes 28 U.S.C. § 451. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. § 1331. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1337. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1343. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1345. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 12101. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 12111(9)(B). . . . . . . . . . . . . . . . . . . . . . . 32 Other Authorities EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act. . . . . . . . .33-34 Regulations 29 C.F.R. § 1630.2(n)(1). . . . . . . . . . . . . . . . . . . . . . . 32 STATEMENT OF RELATED CASES This appeal is related to Appeal No. 11-2096, which pertains to the district court’s grant of summary judgment. STATEMENT OF JURISDICTION The U.S. Equal Employment Opportunity Commission’s (“EEOC” or “Commission”) Second Amended Complaint alleges that TriCore Reference Laboratories (“TriCore”) violated the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq. AA17- 21 (R.61 at 1-5).<1> The U.S. District Court for the District of New Mexico had jurisdiction over this matter under 28 U.S.C. §§ 451, 1331, 1337, 1343, and 1345. On April 27, 2011, the district court granted TriCore’s Motion for Order Deeming the EEOC’s Claims as Frivolous, Unreasonable, or Without Foundation. AAIII-554 (R.113). On October 26, 2011, the district court granted TriCore’s Application for Attorney’s Fees. AAIII-646 (R.133). The EEOC filed a notice of appeal on December 22, 2011. AAIII-652 (R.135). This Court now has jurisdiction under 28 U.S.C. § 1291. STATEMENT OF THE ISSUE Did the district court commit legal error or otherwise abuse its discretion in deeming both the EEOC’s termination claim and its reasonable accommodation claim clearly frivolous and granting TriCore’s application for attorney’s fees on that basis? STATEMENT OF THE CASE The U.S. District Court for the District of New Mexico granted TriCore’s motion for summary judgment in this case in which the EEOC alleged that TriCore violated the ADA by failing to reasonably accommodate Rhonda Wagoner-Alison and by terminating her because of her disability. AA339-46 (R.96 at 1-8). TriCore then moved for an order deeming the EEOC’s claims as frivolous, unreasonable, or without foundation. AAIII-371 (R.97). The Commission opposed TriCore’s motion on both procedural and substantive grounds. AAIII-460 (R.104). The district court granted the motion, holding that the EEOC’s reasonable accommodation claim became clearly frivolous on April 8, 2010, and that its termination claim became clearly frivolous on June 4, 2010. AAIII-558-59 (R.113 at 5-6). Based on this ruling, the court ordered TriCore to submit an application for attorney’s fees, which it did, seeking fees in the amount of $140,571.62. AAIII-560-629 (R.117; R.117-1). The Commission opposed. AAIII-632-41 (R.121). The district court awarded TriCore all of its requested fees, AAIII-646-49 (R.133), and the EEOC appealed. AAIII-652-53 (R.135 at 1-2). STATEMENT OF FACTS A. Background TriCore provides medical laboratory and testing services. Rhonda Wagoner-Alison suffers from diabetes and osteoarthritis in both ankles. AA215 (R.85-1 at 1, Wagoner-Alison Decl. ¶3). On October 20, 2004, TriCore hired Wagoner-Alison as a Technical Lab Assistant I (AA218 (R.85-1 at 4)), a job which consists of phlebotomy (i.e., drawing blood), registering patients into TriCore’s computer system, processing specimens, and various other duties. AA230-32 (R.85-1 at 16-18). Wagoner-Alison’s job title changed from Technical Lab Assistant I to Clinical Lab Assistant I (“CLA-I”) on July 6, 2005, as a result of a change in terminology at TriCore. AA56 (R.76-1 at 4, Wagoner-Alison Dep. 99), AA235 (R.85-1 at 21). Wagoner-Alison received a promotion to Clinical Lab Assistant II (“CLA-II”) effective October 30, 2005. AA236 (R.85-1 at 22). The CLA-II position description in place in 2006 indicates that standing and walking, included among the job’s physical demands, were required “1/3 to 2/3” of the time. AA88 (R.76-3 at 3). In February 2006, Wagoner-Alison had surgery on her left ankle and took leave under the Family and Medical Leave Act (“FMLA”) to recover. AA57 (R.76-1 at 5, Wagoner-Alison Dep. 106), AA97-100 (R.76-6 at 1-4, FMLA certification). Her doctor initially approved her return to work in a part-time “desk duty only” capacity until further notice. AA271-72 (R.85-1 at 57-58). Upon her return to work in March 2006, TriCore let Wagoner-Alison work part-time and perform only the patient-registration portion of her CLA-II job, using her scooter and wheelchair to get around. AA58 (R.76-1 at 6, Wagoner- Alison Dep. 112-13). About three months later, in June 2006, she resumed working full time and performing the full scope of her CLA-II job, still using her scooter, as needed, to get around. AA59 (R.76-1 at 7, Wagoner-Alison Dep. 114-15), AA264 (R.85-1 at 50). She would perform blood draws sitting at patients’ bedsides or kneeling next to them. AA60, 61 (R.76-1 at 8, 9, Wagoner-Alison Dep. 119, 123-26). In January 2007, TriCore adopted a new policy on registration errors, stating that only one missed or incorrect test would be permitted per quarter and anything beyond that would be grounds for corrective action, and everyone received a verbal coaching setting forth the new policy. AA181 (R.76-28, Ln 1: “As of January 1, 2007 the new policy has gone into effect.”). The standard for deciding what corrective action would be taken in any particular circumstance was somewhat broad and vague, with management having discretion to handle employee errors on an individualized basis, taking into account the person’s training, previous record, and whether personal or other non-work-related issues may be at play. AA283 (R.85-1 at 69, Rogers Dep. 126). On May 18, 2007, Wagoner-Alison underwent a second surgery, this time on her right foot/ankle, and again took approved FMLA leave to recover. AA102-04 (R.76-8, FMLA certification), AA216 (R.85- 1 at 2, Wagoner Alison Decl. ¶13). While she was out, Tami McMahon replaced Marina Salazar as Wagoner-Alison’s second-level manager. AA267 (R.85-1 at 53, McMahon Dep. 15). Soon thereafter the CLA-II position description was changed so that the amount of standing and walking required went from “1/3 to 2/3” of the time to “[o]ver 2/3” of the time. AA290 (R.85-1 at 76, “Revision Date: 6/07”). There is no evidence that the job itself changed. Wagoner-Alison attempted to return to work in June 2007 and, just as in 2006, she provided a doctor’s note authorizing her to return in a “non-weight-bearing, desk-duty only” capacity until further notice. AA265 (R.85-1 at 51). This time, however, TriCore would not let Wagoner-Alison return to work without providing more information on what she could do. AA80-81 (R.76-2 at 6-7, McMahon Dep. 56-67), AA216 (R.85-1 at 2, Wagoner-Alison Decl. ¶15). Wagoner-Alison attempted to comply with TriCore’s request and provided a second doctor’s note a week later, stating she was “ok to return to strict non- weight bearing duties … until further notice.” AA270 (R.85-1 at 56). Yet TriCore still would not permit Wagoner-Alison to return to work. AA216 (R.85-1 at 2, Wagoner-Alison Decl. ¶18). Because TriCore refused to permit Wagoner-Alison to return to work as authorized by her doctor’s notes, Wagoner-Alison was forced to remain on leave for months. AA109 & AA269 (R.76-9 at 5 & R.85-1 at 55, Hahn Dep. 66), AA216 (R.85-1 at 2, Wagoner-Alison Decl. ¶18). Indeed, out of concern that TriCore would not allow her to come back to work, Wagoner-Alison applied for social security benefits on June 18, 2007, as she was extremely worried about paying her bills and feeding her family. AA162 (R.76-24 at 1), AA216 ¶19 (R.85-1 at 2, Wagoner-Alison Decl. ¶19). (The Social Security Administration denied this application two months later. AA162 (R.76-24 at 1)) On August 8, 2007, TriCore’s human resources department sent a “Need for Reasonable Accommodation” form directly to Wagoner- Alison’s doctor, a different doctor than the one who had authorized Wagoner-Alison to return to work in June. AA114-15 (R.76-11 at 1- 2). Wagoner-Alison’s new doctor filled out the reasonable accommodation form on August 10, 2007. AA115 (R.76-11 at 2). The doctor stated that Wagoner-Alison could return to a “light duty desk type position” on August 20, 2007, working eight hours a day and intermittently walking or standing for a total of one to two hours. AA114 (R.76-11 at 1). The doctor wrote that Wagoner-Alison would recover fully in three additional months, although she would be routinely reassessed. AA115 (R.76-11 at 2). In her deposition, the doctor testified that, at the time, her professional opinion was that Wagoner-Alison could walk or stand for up to one to two hours intermittently. AA117 (R.76-12 at 2, Mirmiran Dep. 17:10-16). She said “intermittently” meant not a concentrated period of time. Id. TriCore finally permitted Wagoner-Alison to return to work on August 21, 2007. AA216 (R.85-1 at 2, Wagoner-Alison Decl. ¶22), AA273 (R.85-1 at 59). She was assigned to perform patient- registration duties only, similar to the duties she performed when she returned from surgery in 2006. AA64 (R.76-1 at 12, Wagoner-Alison Dep. 167-68), AA275 (R.85-1 at 61). Around this time, TriCore created a new “Registration Specialist” position which encompassed the patient registration duties of the CLA-II position. AA83 & AA267 (R.76-2 at 9 & R.85-1 at 53, McMahon Dep. 94). Employees transferring to the Registration Specialist position had to pass a 30- words-per-minute typing test. AA83 (R.76-2 at 9, McMahon Dep. 93, 96). Although Wagoner-Alison did not pass the typing test, TriCore put her in the Registration Specialist job for a 30-day trial period because it believed she was qualified given her successful performance of the same function as a TriCore phlebotomist the previous three years. AA83 (R.76-2 at 9, McMahon Dep. 94), AA107 (R.76-9 at 3, Hahn Dep. 42), AA275 (R.85-1 at 61). Wagoner-Alison’s return to work was short-lived, as she was terminated on October 8, 2007, less than two months after returning. AA276 (R.85-1 at 62). The reason stated for Wagoner-Alison’s termination on her employee status sheet, signed by Tami McMahon on October 8, 2007, is “LOA [leave of absence] expired” and “[h]ealth.” Id.; AA85 (R.76-2 at 11, McMahon Dep. 111). But TriCore contends that within weeks of Wagoner-Alison’s return to work she began committing numerous registration errors that impacted patient safety. AA32 (R.76 at 4, TriCore’s Memorandum Motion for Summary Judgment at 4 ¶14). TriCore contends that McMahon and one of her key subordinates, Andrea Rogers, met with Wagoner-Alison and told her she had committed too many registration errors to continue as a Registration Specialist, AA84 (R.76-2 at 10, McMahon Dep. 107-08), and placed her on leave for three weeks during which she was encouraged to apply for other positions. AA32 (R.76 at 4, TriCore’s Memorandum Motion for Summary Judgment at 4 ¶15). TriCore says Wagoner-Alison’s employment ended when she did not apply for other positions. AA33 (R.76 at 5, TriCore’s Memorandum Motion for Summary Judgment at ¶¶5 17, 18). The EEOC adduced testimonial and documentary evidence disputing TriCore’s explanation. Wagoner-Alison stated in her declaration that “in all [her] years of working for TriCore, [she] never had any issues with [her] error rate or patient registration skills,” and that prior to her return to work after her second surgery in 2007, she “had never been coached or disciplined for patient registration errors.” AA215 & AA217 (R.85-1 at 1 & 3, Wagoner-Alison Decl. ¶¶6 & 26). Wagoner-Alison further declared that she never received a “TR2” for patient registration errors during her TriCore career. AA215 (R.85-1 at 1, Wagoner-Alison Decl. ¶7). “TR2” is shorthand for “TriCore Risk/Complaint Reporting,” and is the company’s system for tracking reports of errors, complaints, or failed processes or systems. AA285-86 (R.85-1 at 71-72, TriCore TR2 Policy), AA288-89 (R.85-1 at 74-75, Crossey Dep. 56-57). Indeed, the record evidence indicates that she successfully performed patient registration for three years as part of her phlebotomy jobs at TriCore. She in fact earned a promotion from CLA-I to CLA-II in October 2005, which necessarily depended on her having demonstrated proficiency in registering patients. AA236 (R.85-1 at 22), AA280 (R.85-1 at 66, Rogers Dep. 46). And the next year, 2006 – a year which included an extended period in which Wagoner-Alison performed patient-registration duties only – not only did she receive several awards for specific acts of noteworthy performance, the latest dated August 2006 (AA247-60 (R.85-1 at 33- 46)), but her 2006 year-end performance evaluation stated, in part, that she “me[t] expectations” on the essential functions of the CLA-II job and that her “work [was] accurate.” AA129 (R.76-14 at 4, Aguirre Dep. 77), AA242 (R.85-1 at 28, Wagoner-Alison 2006 performance evaluation subsections 7 and 11). Although TriCore states that Wagoner-Alison’s performance problems manifested within weeks of her return, TriCore’s routinely generated monthly error report does not show Wagoner-Alison among the randomly selected Registration Specialists who committed errors in August 2007, and there is no error report for September 2007. AAII349 (R.86 at 1, filed under seal), AA280-81 (R.85-1 at 66-67, Rogers Dep. 74-75). In fact, Wagoner-Alison testified that she was not informed that she was purportedly making an inordinate number of registration errors until the day she was terminated, and does not recall any meeting with McMahon or Rogers prior to her termination. AA225 (R.85-1 at 11, Wagoner-Alison Dep. 182-83). She also said she heard about her purported errors more in litigation than when she was at TriCore. AA229 (R.85-1 at 15, Wagoner-Alison Dep. 295-96). The only documented blemish on Wagoner-Alison’s performance in the record considered by the district court is a “Record of Verbal Coaching” she received on September 6, 2007, for a “misref” error, which simply means that she mistakenly ordered a test unavailable at TriCore. AA133 (R.76-15 at 3, Cowboy Dep. 121), AA144 (R.76-16). There is no evidence that TriCore considered this verbal coaching alone to be grounds for termination. See AA84 (R.76-2 at 10, McMahon Dep. 105). After her termination, on October 18, 2007, Wagoner-Alison applied for unemployment compensation, stating that the reason TriCore gave her for letting her go was, “You are unable to perform the job you were hired to do.” AA151 (R.76-22 at 1, NM Dep’t of Workforce Solutions, Claimant’s Stmt.). A few months later, on January 12, 2008, Wagoner-Alison also re-applied for social security disability benefits. AA167 (R.76-24 at 6). The “function report” that she filled out with the assistance of a claimant representative states that she suffered from fatigue, poor balance, poor mobility due to weak ankles, and an inability to walk more than five or six steps in her house without stopping to rest for five minutes, or walk fifteen steps (or stand and walk five to ten minutes) without having to sit down and rest for at least an hour. AA159 (R.76-23 at 8). It further stated that she used a cane, walker, and electric scooter to get around. The Social Security Administration ruled in Wagoner-Alison’s favor on March 30, 2009, finding that since her May 2007 surgery she had been disabled within the meaning of sections 216(i) and 233(d) of the Social Security Act. AA162-67 (R.76-24 at 1-6). The SSA determined that “[t]he claimant has the residual functional capacity to perform less than a full range of sedentary work … because of inability to sustain work activity at even the sedentary exertional level over an eight-hour workday and a 40-hour workweek or equivalent work schedule on a regular and continuing basis.” AA164 (R.76-24 at 3 ¶5). The SSA further stated that “[t]he demands of the claimant’s past relevant light to medium work as … a phlebotomist exceed the residual functional capacity above.” AA166 (R.76-24 at 5 ¶6). B. District Court’s Decisions 1. Summary Judgment Granted The district court first held that Wagoner-Alison was not qualified for the CLA-II position, which the court said Wagoner-Alison had held at all relevant times, because she could not perform what the EEOC and/or Wagoner-Alison admitted were essential functions – walking and standing. AA343 (R.96 at 5). See also AA341 & n.2 (R.96 at 3 & n.2). The court was referring to one of the EEOC’s responses to a request for admissions. The EEOC initially admitted that standing and walking are essential functions of the CLA-II position at TriCore as shown on the position description for that job. AA95-96 (R.76-5 at 2-3). The EEOC also admitted that following her May 2007 surgery and until October 8, 2007, Wagoner-Alison was never released to return to work in anything other than a desk type, sedentary position. AA180 (R.76-27 at 2, Request for Admission No. 6). The court acknowledged that later, during summary judgment briefing, the EEOC disputed TriCore’s representation that standing and walking are essential functions. AA341 n.2 (R.96 at 3 n.2). The Commission pointed out that standing and walking appear on the position description under the heading “physical demands,” not under the separate heading for “essential functions,” (AA198 (R.85 at 17)) and the Commission further pointed out that in 2006 TriCore temporarily waived any requirement that Wagoner-Alison stand or walk when it granted her patient-registration-only duties. AA199-200 (R.85 at 18-19). The district court nevertheless held the Commission to its previous admissions, stating, “Given that the Position Description form lists standing and walking among the ‘Physical Demands’ of the position, the Court finds no genuine dispute. In light of Plaintiff’s admissions and the Position Description form, a reasonable jury cannot find that standing or walking are not necessary or required in the CLA II position.” AA341 n.2 (R.96 at 3 n.2). Turning to whether Wagoner-Alison could perform the standing and walking required in the CLA-II position, the court observed that Wagoner-Alison’s doctor limited her to, at most, “non-weight bearing *Desk Duty only* until further notice” and that Wagoner-Alison admitted in connection with re-applying for SSDI benefits that she needed an hour of rest whenever she tried to walk fifteen steps or tried to stand and walk five to ten minutes. AA343 (R.96 at 5). The court acknowledged that Wagoner-Alison’s statements to the Social Security Administration were not preclusive of ADA coverage “with regard to legal conclusions of disability.” AA344 (R.96 at 6 (citing Cleveland v. Policy Mgt. Sys. Corp., 526 U.S. 795, 798 (1999)). But the court concluded that “there is no possible explanation how Plaintiff’s representations that she cannot stand or walk 15 steps (or for 5-10 minutes) without an hour of rest is consistent with an ability to stand or walk for two-thirds of her time as a CLA-II.” Id. The district court further held that no rational jury could find that TriCore terminated Wagoner-Alison because of her disability. AA344-45 (R.96 at 6-8). In so holding, the court stated that there is no dispute that Wagoner-Alison committed numerous errors in registering patients, and that TriCore produced business records and testimony demonstrating that such errors occurred. AA345 (R.96 at 7). The court then stated that Wagoner-Alison’s statements that she does not recall meeting with supervisors about her typing speed or error rate and that she only heard about her errors more recently in the depositions are self-serving and not sufficient to create a genuine dispute of material fact. Id. And the court observed that while the EEOC argued that Wagoner-Alison is not listed on TriCore’s error log in August 2007, TriCore explained that that error log included only Registration Specialists, “a job not applicable to [Wagoner-Alison].” Id. The court concluded by granting summary judgment on the ground that “Plaintiff has failed to prove a prima facie case of discrimination under the ADA . . . .” Id. at 346 (R.96 at 8). 2. EEOC’s Claims Deemed Frivolous, Unreasonable, or Without Foundation. On a separate motion, the district court held that the EEOC’s claims were frivolous, unreasonable, and without foundation, entitling TriCore to recover attorney’s fees pursuant to Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978) . AAIII-554-59 (R.113). The court stated that despite the “black-letter law” that it was the EEOC’s burden to demonstrate that Wagoner-Alison was qualified, with or without a reasonable accommodation, to perform the essential functions of her CLA-II job, “the EEOC admitted that standing and walking were essential functions of Ms. Wagoner-Alison’s position. In doing so, the EEOC should have recognized that it was effectively admitting that it could not prove a prima facie case based on TriCore’s alleged refusal to accommodate Ms. Wagoner-Alison’s disability to the extent that the disability prevented her from standing and walking.” AAIII-558 (R.113 at 5). The district court observed that the EEOC “suggest[ed] that perhaps it should have answered TriCore’s requests for admission differently … but the record indicates that the EEOC’s answers were truthful. As such, the better approach would have been to stop litigating as soon as the EEOC realized that Ms. Wagoner- Alison was not able to perform the essential functions of the position.” Id. The court stated that the lack of merit of the EEOC’s failure-to- accommodate claim should have been clear to the EEOC when it served its answers to TriCore’s requests for admissions on April 8, 2010. Id. The district court also found the EEOC’s termination claim frivolous, unreasonable, or without foundation, holding it became clearly so on June 4, 2010, when TriCore sent the EEOC a letter asserting its views of the purported deficiencies in the EEOC’s case. AAIII-558-59 (R.113 at 5-6). The district court explained that “[t]he EEOC did not meaningfully dispute the fact that Ms. Wagoner-Alison committed numerous errors in her data entry position during the period that TriCore voluntarily accommodated her disability. Moreover, the EEOC never offered evidence in this case to indicate that TriCore or Ms. Wagoner’s individual supervisors treated her differently from other employees based on her disability.” AAIII-558- 59 (R.113 at 5-6). 3. Attorney’s Fees Awarded After the court had deemed the EEOC’s claims clearly frivolous, TriCore submitted an application for attorney’s fees with accompanying billing records and affidavits, seeking $140,571.62 for work after April 8, 2010, by two partners, an associate, two paralegals, and a document clerk at the law firm of Modrall Sperling Roehl Harris Sisak, P.A. AAIII-560-628 (R.117; R.117-1). The Commission opposed TriCore’s fee application. AAIII-632-41 (R.121). The Commission noted that it had reviewed the time records and did not dispute them, but reiterated its opposition to an award of attorney’s fees in any amount. AAIII-632 n.1 (R.121 at 1). The district court responded that “the EEOC does not properly move the court to reconsider its prior ruling, or offer any legitimate grounds upon which it might successfully do so” and thus granted TriCore’s fee application in full based on a presumption that the fees it incurred are reasonable. AAIII-649 (R.133 at 4). SUMMARY OF ARGUMENT The record in this case simply does not sustain an award of attorney’s fees. The EEOC’s case was not “frivolous, unreasonable, or without foundation,” nor did the EEOC “continue[] to litigate after it clearly became so.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978). The district court committed legal error or otherwise abused its discretion in holding to the contrary. Although the district court held the EEOC’s evidence insufficient for the case to be heard by a jury, the case is not one in which the EEOC failed to adduce any evidence supporting its claims so as to warrant the rare and extreme conclusion that the case was clearly frivolous. The Commission adduced evidence that when Wagoner- Alison attempted to return from surgery in June 2007 TriCore no longer wanted to employ her due to her disability and that it treated her accordingly. TriCore first stonewalled Wagoner-Alison in her attempt to return to work by demanding information about her limitations that it already knew instead of affirmatively engaging in an interactive process to accommodate her. Then, after finally bringing her back in a Registration Specialist position, TriCore quickly removed her from that job and then fired her while stating on her exit form that it was due to “health.” TriCore’s alleged nondiscriminatory performance-based reason is belied by TriCore’s own recognition of Wagoner-Alison’s years of good performance doing the very same duties and is not supported by the circumstantial evidence. This Court should reverse the district court’s ruling that the EEOC’s termination claim is clearly frivolous. This Court should also reverse the district court’s frivolousness ruling with respect to the EEOC’s claim that TriCore failed to reasonably accommodate Wagoner-Alison. The evidence supporting that claim overlaps with part of the evidence supporting the termination claim, viz., that although TriCore had previously accommodated Wagoner-Alison in the exact same circumstances, TriCore stonewalled Wagoner-Alison in her attempt to return to work in June 2007 by demanding information about her limitations that it already knew instead of affirmatively engaging in an interactive process to accommodate her in the CLA-II job. Reassignment was another possibility in June 2007, but TriCore did not explore reassignment for months. Given this and other evidence, the Commission’s reasonable accommodation claim never became clearly frivolous. Finally, the interrelationship between the EEOC’s termination claim and accommodation claim, and TriCore’s defense of them, precludes TriCore’s recovery of attorney’s fees unless both claims are clearly frivolous, which they are not. The Supreme Court recently held in Fox v. Vice, 131 S. Ct. 2205 (2011), that where there are multiple civil rights claims, but not all are frivolous, the defendant can only recover the fees it would not have incurred “but for” the frivolous claims. Id. at 2211. Given TriCore’s statement that its defense work was in essence overlapping and inseparable, no fees may be awarded even if one claim, but not both, became clearly frivolous during litigation. STANDARD OF REVIEW The district court’s decision to award attorney’s fees to TriCore is subject to review for abuse of discretion. EEOC v. PVNF, L.L.C., 487 F.3d 790, 807 (10th Cir. 2007). A court abuses its discretion when it commits legal error or relies on clearly erroneous factual findings or has no rational basis for its decision. E.g., Crowe & Dunlevy, P.C., 640 F.3d 1140, 1157 (10th Cir. 2011). The district court’s legal analysis providing the basis for the award is subject to de novo review. Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221, 1231 (10th Cir. 1994). ARGUMENT The district court abused its discretion and committed legal error in awarding attorney’s fees to TriCore. The Supreme Court held in Christiansburg Garment Co. v. EEOC, that a prevailing Title VII defendant is not entitled to an award of attorney’s fees unless the court finds that the plaintiff’s case was “frivolous, unreasonable, or without foundation, or that the plaintiff continued to litigate after it clearly became so.” 434 U.S. 412, 422 (1978). The same standard applies to the ADA. Cf. Roe, 124 F.3d at 1232. Importantly, the Christiansburg standard is “a difficult standard to meet, to the point that rarely will a case be sufficiently frivolous to justify imposing attorney fees on the plaintiff.” Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1203 (10th Cir. 2000) (citing Clajon Prod. Corp. v. Petera, 70 F.3d 1566, 1581 (10th Cir. 1995) (stating in context of Section 1983 action that it is a “rare circumstance[] in which a suit is truly frivolous so as to warrant an award of attorneys’ fees to the defendant”)). See also Jones v. Cont’l Corp., 789 F.2d 1225, 1232 (6th Cir. 1986) (stating that imposing attorney’s fees on an unsuccessful civil rights plaintiff is “an extreme sanction, and must be limited to truly egregious cases of misconduct”). This means that fees are improper unless the EEOC “utterly fail[ed] to produce any evidence in support of material issues necessary to withstand summary judgment” or its claims were based on “mere speculation and conjecture.” Twilley v. Integris Baptist Med. Ctr., Inc., 16 Fed. App’x 923, 926, 2001 WL 901102 at *2 (10th Cir. 2001) (emphasis in original). See also, e.g., Smith v. Smythe-Cramer Co., 754 F.2d 180, 183 (6th Cir. 1985) (“Courts have awarded attorneys fees to prevailing defendants where no evidence supports the plaintiff's position or the defects in the suit are of such magnitude that the plaintiff's ultimate failure is clearly apparent from the beginning or at some significant point in the proceedings after which the plaintiff continues to litigate”). Moreover, in a civil rights case such as this in which there are multiple claims, fees may be granted “only for costs that the defendant would not have incurred but for the frivolous claims.” Fox v. Vice, 131 S. Ct. 2205, 2211 (2011). Neither the EEOC’s termination claim nor its reasonable accommodation claim were frivolous at the outset or ever clearly became so. The district court thus erred in holding the Christiansburg standard was met in this case and in awarding attorney’s fees. A. The EEOC’s termination claim never became clearly frivolous, unreasonable, or without foundation. The EEOC’s briefs in its merits appeal explain that a rational jury could find that Wagoner-Alison’s termination was due to her disability. See generally EEOC Opening Br. and Reply Br., Appeal No. 11-2096. If this Court reverses summary judgment on the EEOC’s termination claim, the attorney’s fees issue becomes moot or at least premature. See subsection C, infra. But even if this Court affirms summary judgment on the termination claim, it still should reverse the district court’s award of fees. The Supreme Court has cautioned that courts must resist engaging in “post hoc reasoning” to conclude that the case must have been frivolous since the plaintiff did not prevail. Christiansburg, 434 U.S. at 421-22. This is not a case in which the EEOC “utterly fail[ed] to produce any evidence in support of material issues necessary to withstand summary judgment” or a case that was based on “mere speculation and conjecture” so as to warrant affirming the district court’s conclusion that the Christiansburg standard has been met. Twilley, 16 Fed. App’x at 926, 2001 WL 901102 at *2 (emphasis in original). The Commission adduced plenty of evidence in support of material issues on the termination claim. Specifically, the sequence of events and circumstances leading to Wagoner-Alison’s removal from the Registration Specialist position and ultimate termination support the claim that her disability was a factor. TriCore first stonewalled Wagoner-Alison in her attempt to return to work by demanding information about her limitations that it already had instead of affirmatively engaging in an interactive process to accommodate her. AA109 & AA269 (R.76-9 at 5 & R.85-1 at 55, Hahn Dep. 66), AA216 (R.85-1 at 2, Wagoner-Alison Decl. ¶18). Then, after finally bringing her back in a Registration Specialist position, TriCore quickly removed her from that job and then fired her while stating on her exit form that it was due to “health.” AA85 (R.76-2 at 11, McMahon Dep. 111), AA276 (R.85-1 at 62). The record also contains evidence that contradicts TriCore’s claim that it let Wagoner-Alison go for performance reasons. For example, TriCore’s assertion that Wagoner-Alison committed too many registration errors to continue as a Registration Specialist is belied by TriCore’s recognition of Wagoner-Alison’s years of good performance doing the very same duties. AA129 (R.76-14 at 4, Aguirre Dep. 77), AA242 (R.85-1 at 28, Wagoner-Alison 2006 performance evaluation subsections 7 and 11), AA247-60 (R.85-1 at 33-46, Certificates of Recognition), AA280 (R.85-1 at 66, Rogers Dep. 46). Indeed, Wagoner-Alison’s successful history registering patients was one of the reasons TriCore put her in the Registration Specialist position. AA83 (R.76-2 at 9, McMahon Dep. 94), AA107 (R.76-9 at 3, Hahn Dep. 42), AA275 (R.85-1 at 61). Wagoner-Alison’s history of consistent good performance casts doubt on TriCore’s claim of poor performance and supports pretext. Cf. Butler v. City of Prairie Village, Kan., 172 F.3d 736, 749 (10th Cir. 1999) (“The temporal proximity of Plaintiff's request for an accommodation to the decline in his work evaluations and his supervisors’ complaints about his work performance contributes to an inference that Plaintiff's position was eliminated because of his disability.”). In addition, both TriCore’s routinely generated monthly error report showing randomly selected Registration Specialists who committed errors in August 2007, and the record of verbal coaching TriCore gave Wagoner-Alison in September 2007, fail to corroborate TriCore’s nondiscriminatory explanation. The error report does not list Wagoner-Alison. AAII349 (R.86 at 1, filed under seal), AA188 (R.85 at 7 ¶49), AA301 (R.89 at 9, “Fact 49: Undisputed”)). And the record of verbal coaching does not state that Wagoner-Alison committed an inordinate number of registration errors, AA135 (R.76- 16), nor is there any indication that TriCore considered this verbal coaching alone to be grounds for termination. See AA84 (R.76-2 at 10, McMahon Dep. 105). In ruling that the EEOC’s termination claim was frivolous, the district court criticized the EEOC for “never offer[ing] evidence in this case to indicate that TriCore or Ms. Wagoner-Alison’s individual supervisors treated her differently from other employees based on her disability.” R.113 at 5-6. But this Court has recognized that comparator evidence is not required. Carter v. Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1150 (10th Cir. 2011) (in reversing summary judgment, rejecting argument that an ADA plaintiff must show that similarly situated employees were treated differently); EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1195 n.6 (10th Cir. 2000) (“[n]othing in the case law in this circuit requires a plaintiff to compare herself to similarly-situated co-workers”). The evidence the EEOC did proffer makes it abundantly clear that this is not a case in which the EEOC “utterly fail[ed] to produce any evidence in support of material issues necessary to withstand summary judgment,” or that the EEOC’s case was based on “mere speculation and conjecture.” Twilley, 16 Fed. App’x at 926, 2001 WL 901102 at *2 (emphasis in original). This Court should reverse the district court’s ruling that the termination claim ever became frivolous and vacate the fee award. B. The EEOC’s reasonable accommodation claim never became clearly frivolous, unreasonable, or without foundation. The Commission adduced plenty of evidence supporting the Commission’s reasonable accommodation claim. First and foremost, TriCore’s successful accommodation of Wagoner-Alison in 2006 is strong evidence that it could have accommodated her in 2007. When Wagoner-Alison returned from surgery on her left ankle in 2006 and was limited to “desk duty only,” AA271-72 (R.85-1 at 57-58), TriCore accommodated Wagoner-Alison by temporarily letting her perform only the patient-registration portion of her CLA-II job. AA58 (R.76-1 at 6, Wagoner-Alison Dep. 112). This is evidence that TriCore could have done the same thing in June 2007 when Wagoner-Alison tried to return to work in a temporary, “non-weight-bearing, desk-duty only” capacity. AA265 (R.85-1 at 51). The district court held that temporarily allowing Wagoner-Alison to perform only patient-registration duties would not have been a reasonable accommodation because standing and walking are essential functions of the CLA-II job. To be sure, the ADA does not require the elimination of essential functions as a reasonable accommodation. E.g., Hennagir v. Utah Dep’t of Corr., 587 F.3d 1255, 1264-65 (10th Cir. 2009). But when an employer has removed job requirements in the past – here, walking and standing – a rational jury can find that the requirements are not essential. See Kellogg v. Energy Safety Servs., Inc., 544 F.3d 1121, 1127-28 (10th Cir. 2008) (concluding that a jury properly could have found that driving was not an essential function of the job “because there was testimony that at least twice in the past, the Worland office had allowed safety supervisors who had lost their driving privileges after driving-under- the-influence infractions to work in the shop until their licenses were restored”); Skerski v. Time Warner Cable Co., 257 F.3d 273, 283 (3d Cir. 2001) (“Skerski has put forth considerable evidence that contradicts Time Warner’s assertions [that climbing is an essential function of the job of installer technician], particularly the uncontradicted fact that following his 1993 diagnosis he worked for more than three years as an installer technician for Time Warner without ever having to perform over head work.”). Accordingly, as the Commission had both factual and legal support for arguing that in 2007 TriCore could have accommodated Wagoner-Alison in the CLA-II job in the same way it accommodated her in 2006, the claim was not clearly frivolous. The district court keyed its frivolousness ruling to the date the EEOC served its admissions that standing and walking are essential functions. AAIII-558 (R.113 at 5). The Commission mistakenly made these admissions and attempted to correct its mistake.<2> But, regardless, they do not render the record wholly devoid of evidence on issues material to the accommodation claim. Moreover, the accommodation claim was plausible even if TriCore could not accommodate Wagoner-Alison in the CLA-II position. Reassignment is a potential reasonable accommodation that employers must consider. 42 U.S.C. § 12111(9)(B) (listing reassignment to a vacant position as a reasonable accommodation). There is no evidence that she could not work in other capacities in June 2007, either in a sedentary position or even one that involved only minimal walking (there is no evidence that she could not walk at all). In June 2007 when Wagoner-Alison asked for a sedentary desk job until further notice, that amounted to a request for a reassignment if she could not be accommodated in the CLA-II position, which should have triggered TriCore to engage in an interactive process to determine whether reassignment was feasible. See Smith v. Midland Brake, Inc., 180 F.3d 1154, 1171-72 (10th Cir. 1999) (holding that an employee giving the employer notice of his or her disability and limitations and a desire to remain with the company triggers a mandatory interactive process). But no such interactive process occurred. TriCore says it needed more information about what Wagoner- Alison could do. But there was no need for more information given that the nature of Wagoner-Alison’s impairment was obvious and the type of accommodation she needed – a desk-duty-only job – was relatively straightforward. See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, Q&A #8 (“Are there situations in which an employer cannot ask for documentation in response to a request for reasonable accommodation? Yes. An employer cannot ask for documentation when: (1) both the disability and the need for reasonable accommodation are obvious, or (2) the individual has already provided the employer with sufficient information to substantiate that s/he has an ADA disability and needs the reasonable accommodation requested.”).<3> TriCore had all it needed to explore reasonable accommodation options with Wagoner-Alison – the accommodation that worked the previous year (or some variant thereof), or reassignment, or perhaps something else. Yet it stonewalled her instead. The district court erred as this is not that rare and extreme scenario where the EEOC’s reasonable accommodation claim was frivolous or ever clearly became so. This Court should, accordingly, reverse that decision. C. Because both claims are not frivolous, TriCore cannot recover fees. Obviously, if this Court reverses summary judgment on the termination claim, the attorney’s fees issue would become moot as to that claim. And because there would still be a live claim, the district court’s fee award would have to be vacated because TriCore could not yet be deemed a prevailing party. See Walker v. United Parcel Serv., Inc., 240 F.3d 1268, 1279 (10th Cir. 2001) (after reversing summary judgment as to Title VII claim, but affirming summary judgment as to FMLA claim, vacating fee award and stating, “At this stage UPS no longer qualifies for prevailing party status, a determination that must await further proceedings”). Moreover, even if this Court were to affirm summary judgment on the termination claim, it still should vacate the district court’s fee award unless both the EEOC’s termination claim and accommodation claim are clearly frivolous, which they are not. This conclusion flows from the interrelated nature of the claims and TriCore’s defense of them. Under Hensley v. Eckerhart, 461 U.S. 424 (1983), when a civil rights action is comprised of multiple claims that are “distinctly different” in that they are based on “different facts and legal theories,” “the[] unrelated claims [should] be treated as if they had been raised in separate lawsuits” for purposes of determining fees for a prevailing party. Id. at 434-35. Such cases “are unlikely to arise with great frequency” in the civil rights context but, when they do, “the defendant may recover attorney’s fees incurred in responding to” an “unsuccessful claim [that was] frivolous,” even if the other claims were not frivolous or even were successful. Id. at 435 & n.10. However, when a civil rights action is comprised of multiple, interrelated claims, such that the defendant cannot delineate its defense work between them, the defendant cannot recover any fees unless all the claims were frivolous. See Fox v. Vice, 131 S. Ct. 2205 (2011). In Fox, the Supreme Court held that while “a defendant may deserve fees even if not all the plaintiff’s claims were frivolous,” in a civil rights suit “involving both frivolous and non-frivolous claims, a defendant may recover the reasonable attorney’s fees he expended solely because of the frivolous allegations. And that is all.” Id. at 2218. In other words “a defendant [may] recover reasonable attorney’s fees incurred because of, but only because of, a frivolous claim.” Id. at 2215 (emphasis added); see also id. at 2211 (fees may be granted “only for costs that the defendant would not have incurred but for the frivolous claims”) (emphasis added). Thus, “for example, [if] a defendant’s attorney conducts a deposition on matters relevant to both a frivolous and a non-frivolous claim – and . . . the lawyer would have taken and committed the same time to this deposition even if the case had involved only the non-frivolous allegation,” then the defendant cannot recover attorney’s fees for the deposition. Id. at 2215. And “the fee applicant . . . must, of course, submit appropriate documentation to meet ‘the burden of establishing entitlement to an award.’” Id. at 2216 (quoting Hensley, 461 U.S. at 437). TriCore cannot meet the Fox standard to recover fees separately for either the EEOC’s termination claim or its accommodation claim. As evidenced by the discussion in subparts A and B herein, and in the EEOC’s merits briefs, the Commission’s termination claim and accommodation claim were interrelated in that they shared common facts, such as TriCore’s stonewalling Wagoner-Alison’s attempt to return to work in June 2007 instead of affirmatively engaging in an interactive process to determine whether a reasonable accommodation was possible. The same TriCore managers who denied Wagoner- Alison’s accommodation in June 2007 were involved in bringing her back in August and forcing her out in October. Accordingly, if this Court reverses summary judgment on the EEOC’s termination claim, or affirms summary judgment on the EEOC’s termination claim but holds either that claim or the reasonable accommodation claim not frivolous, TriCore cannot recover fees. TriCore has in essence admitted as much. The district court deemed the EEOC’s reasonable accommodation claim clearly frivolous as of April 8, 2010. AAIII-558 (R.113 at 5). And it deemed the termination claim clearly frivolous as of June 4, 2010. AAIII-559 (R.113 at 6). Importantly, TriCore’s counsel stated in her affidavit supporting TriCore’s fee application that “[u]pon reviewing the invoices for professional services performed between April 9, 2010 and June 5, 2010, it was clear that none of those services related only to the discriminatory discharge claim” and instead involved various legal services related to discovery, settlement talks, and beginning to work on its summary judgment motion. AAIII-564-65 8¶ (R.117-1 at 2-3 ¶8). TriCore’s counsel’s documentation submitted in support of its fee application does not delineate work between the two claims. AAIII- 567-628 (R.117-1 at 5-66). In essence, therefore, TriCore has conceded that the interrelated nature of the EEOC’s claims and the work it performed in defending them prevents it from demonstrating any entitlement to fees for the period between April 8, 2010, and June 4, 2010. TriCore’s concession also strongly implies the same for the period after June 4, 2010, thus precluding fees for that period as well unless both claims can be deemed clearly frivolous. See Fox, 131 S. Ct. at 2217-18. Accordingly, even if this Court believes that one claim was frivolous – but not both – TriCore still would not be entitled to fees. CONCLUSION For the foregoing reasons, the Commission respectfully asks this Court to reverse the district court’s ruling deeming the EEOC’s claims frivolous, unreasonable, or without foundation, R.113, and to vacate the court’s award of fees. R.133. STATEMENT REGARDING ORAL ARGUMENT The EEOC believes that further exploration of the issues at oral argument would assist this Court in properly resolving this appeal. See Fed. R. App. P. 34(a)(1); 10th Cir. R. 28.2(C)(4). Respectfully submitted, P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel /s/ Corbett L. Anderson____ CORBETT L. ANDERSON Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E. Washington, D.C. 20507 (202) 663-4579 (phone) (202) 663-7090 (fax) corbett.anderson@eeoc.gov CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 7,611 words excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). I certify that this brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Century Schoolbook 14 point. /s/ Corbett L. Anderson____ CORBETT L. ANDERSON Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E. Washington, D.C. 20507 (202) 663-4579 (phone) (202) 663-7090 (fax) ECF CERTIFICATE I certify that: A. All required privacy redactions have been made; B. The hard copies of this brief submitted to the Clerk’s office are exact copies of the ECF filing; and C. The ECF submission was scanned for viruses with Trend Micro. According to these programs, this submission is free of viruses. /s/ Corbett L. Anderson____ CORBETT L. ANDERSON Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E. Washington, D.C. 20507 (202) 663-4579 (phone) (202) 663-7090 (fax) CERTIFICATE OF SERVICE I certify that on February 22, 2012, I filed this Appellant’s Opening Brief via the ECF system. I further certify that on February 23, 2011, I sent seven hard copies of this brief, and two hard copies of Volumes I - III of Appellant’s Appendix, by UPS for next-day delivery to: Elisabeth A. Shumaker, Clerk of Court, U.S. Court of Appeals for the Tenth Circuit, Byron White U.S. Courthouse, 1823 Stout Street, Denver, CO 80257. I certify that on February 22, 2012, I served this Appellant’s Opening Brief via the ECF system on Appellee TriCore Reference Laboratories. I further certify that on February 22, 2012, I sent one hard copy of this Opening Brief, and one hard copy of Volumes I - III of Appellant’s Appendix, by UPS for next-day delivery to Counsel for Appellee, Lisa Mann and Alex Walker, of Modrall Sperling, P.O. Box 2168, Albuquerque, NM 87103-2168. /s/ Corbett L. Anderson____ Corbett L. Anderson Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E. Washington, D.C. 20507 (202)663-4579 ADDENDA (R.113, Frivolousness Ruling; R. 133, Award of Attorney’s Fees) ********************************************************************************** <> <1> For ease of reference, in conjunction with this attorney’s fees appeal, the EEOC has reproduced Volumes I and II of its appendix in the merits appeal, case no. 11-2096, and designated them as Volumes I and II of its appendix in this appeal as well. As in the EEOC’s merits briefing, all references herein to “AA__” are to pages in Volume I. All references to “AAII-__” are to pages in Volume II, which is filed under seal. All references to “AAIII- ” are to pages in Volume III, which contains documents the parties submitted to the district court for disposition of TriCore’s two motions below related to fees. All references to “R. ” are to the corresponding docket entry on the docket sheet. <2> The mistake is evident given that, in the same set of answers, the EEOC also denied that Wagoner-Alison could no longer perform the essential functions of the CLA-II job. AA180 (R.76-27 at 2, Request for Admission No. 7). The EEOC corrected its mistake via its brief in opposition to summary judgment. AA198-99; cf. Bergemann v. United States, 820 F.2d 1117, 1120 (10th Cir. 1987) (holding United States’ response to plaintiff’s summary judgment motion and the summary judgment hearings “were, in essence, motions to withdraw [its] admissions”). The district court declined to accept the EEOC’s correction, stating that “the record indicates that [the EEOC’s answers] were truthful.” AAIII-558 (R.113 at 5). Nonetheless, as a legal matter, walking and standing cannot be essential functions of the CLA-II job because they are not the job’s fundamental job duties. Mathews v. The Denver Post, 263 F.3d 1164, 1167 (10th Cir. 2001) (citing 29 C.F.R. § 1630.2(n)(1)); Skerski, 257 F.3d at 281 (“The essential function requirement focuses on the desired result rather than the means of accomplishing it.”) (quoting 136 Cong. Rec. 11,451 (1990)). And, as a factual matter, standing and walking actually appear in TriCore’s job description under the heading “physical demands,” and not under the separate heading for “essential functions.” AA198 (R.85 at 17). See Skerski, 257 F.3d at 280 (stating that “describing climbing [in a written job description] as a requirement is not necessarily the same as denominating climbing as an essential function”). <3> Available at http://www.eeoc.gov/policy/docs/accommodation.html.