_____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________________________________ No. 07-60447 ____________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff/Appellant, v. AGRO DISTRIBUTION, LLC, Defendant/Appellee. _______________________________________________________ On Appeal from the United States District Court for the Southern District of Mississippi _______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT _______________________________________________________ RONALD S. COOPER General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel ELIZABETH E. THERAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4720 elizabeth.theran@eeoc.gov STATEMENT REGARDING ORAL ARGUMENT The EEOC requests oral argument in this case. In this appeal, the EEOC asks the Court to hold that regulation of body temperature via perspiration is a major life activity under the Americans with Disabilities Act. Oral argument would help to address any questions the Court may have about such a ruling. Additionally, oral argument would allow the Court to satisfy any concerns it may have regarding the record evidence. TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . iv STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . .1 ISSUES PRESENTED FOR REVIEW. . . . . . . . . . . . . . . . . . .2 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . .2 A. Course of Proceedings . . . . . . . . . . . . . . . . . .2 B. Statement of the Facts. . . . . . . . . . . . . . . . . .4 C. District Court's Decisions. . . . . . . . . . . . . . . 23 STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . 30 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 31 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 I. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO AGRO BECAUSE THERE IS SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT VELEZ WAS A QUALIFIED INDIVIDUAL WITH A DISABILITY, AND THAT AGRO FAILED TO PROVIDE HIM WITH A REASONABLE ACCOMMODATION. . . . . . . . . . . . . . . . . . 33 A. There is ample evidence that Velez has a physical impairment that substantially limits his body's ability to regulate its temperature.34 B. Regulating body temperature through perspiration is a major life activity.. . . . . . . . . . . . . . . . . . . . . 39 C. There is sufficient evidence to support a finding that Velez was a qualified individual with a disability, and Agro failed to grant his request for a reasonable accommodation. . . . . . . . . . . . . 43 D. The Commission satisfied its statutory duty to conciliate this case in good faith. . . . . . . . . . . . . . . . . . . . . . . 49 II. THE DISTRICT COURT ABUSED ITS DISCRETION IN AWARDING ATTORNEY'S FEES TO AGRO BECAUSE THIS LITIGATION IS NOT FRIVOLOUS . . . . . . . . . . . . . . . . . . . . . . . . . 53 A. Agro is not entitled to attorney's fees because this case is not frivolous, unreasonable, or without foundation under Christiansburg.53 B. Even if Agro were entitled to attorney's fees, the amount granted by the district court was too high. . . . . . . . . . . . . . . 55 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 58 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . 59 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . 60 TABLE OF AUTHORITIES CASES Alberti v. Klevenhagen, 896 F.2d 927, vacated in part on other grounds, 903 F.2d 352 (5th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . .55-56 B.P. Chemicals Ltd. v. Jiangsu Sopo Corp., 285 F.3d 677 (8th Cir. 2002) . . . 38 Bragdon v. Abbott, 524 U.S. 624 (1998) . . . . . . . . . . . . . . . . . .40, 42 Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978) . . . . . .2, 28, 32, 53 Cobb v. Miller, 818 F.2d 1227 (5th Cir. 1987) . . . . . . . . . . . . . . . 56 Cutrera v. Board of Supervisors of Louisiana State University, 429 F.3d 108 (5th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . 44, 49 Davis v. Fletcher, 598 F.2d 469 (5th Cir. 1979) . . . . . . . . . . . . . . . 56 Dupre v. Charter Behavioral Health System of Lafayette, Inc., 242 F.3d 610 (5th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Dutcher v. Ingalls Shipbuilding, 53 F.3d 723 (5th Cir. 1995) . . . . . . . . .35 EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256 (11th Cir. 2003) . . . 24, 52-53 EEOC v. Caterpillar, Inc., 409 F.3d 831 (7th Cir. 2005) . . . . . . . . . 54-55 EEOC v. E.I. DuPont de Nemours & Co., 480 F.3d 724 (5th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . 45 & n.11, 46 EEOC v. Keco Industries, Inc., 748 F.2d 1097 (6th Cir. 1984) . . . . . . 54, 55 EEOC v. Klingler Electric Corp., 636 F.2d 104 (5th Cir. 1981) . . . . . . 32, 50 EEOC v. Liberty Trucking Co., 695 F.2d 1038 (7th Cir. 1982) . . . . . . . 51-52 EEOC v. St. Anne's Hospital, 664 F.2d 128 (7th Cir. 1981) . . . . . . . . . 55 Fiscus v. Wal-Mart Stores, Inc., 385 F.3d 378 (3d Cir. 2004) . . . . . 37, 41-42 Georator Corp. v. EEOC, 592 F.2d 765 (4th Cir. 1979) . . . . . . . . . . . 54-55 Head v. Glacier Northwest, Inc., 413 F.3d 1053 (9th Cir. 2005) . . . . . . . .36 Heiko v. Colombo Savings Bank, F.S.B., 434 F.3d 249 (4th Cir. 2006) . . . 41-42 Hensley v. Eckerhart, 461 U.S. 424 (1983) . . . . . . . . . . . . . . . . .56-58 In re EEOC, 207 Fed. Appx. 426, 2006 WL 3420135 (5th Cir. 2006)56-57 n . . . 13 Jenkins v. Cleco Power LLC, 487 F.3d 309 (5th Cir. 2007) . . . . . . . . .40, 49 Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974) . . .55, 56, 57 Jones v. Kerrville State Hospital, 142 F.3d 263 (5th Cir. 1998) . . . . . . 45 Kapche v. City of San Antonio, 176 F.3d 840 (5th Cir. 1999) . . . . . . . 45, 46 Katz v. City Metal Co., 87 F.3d 26 (1st Cir. 1996) . . . . . . . . . . . . . .36 Loulseged v. Akzo Nobel Inc., 178 F.3d 731 (5th Cir. 1999) . . . . . . . . . 44 Marinelli v. City of Erie, 216 F.3d 354 (3d Cir. 2000) . . . . . . . . . . . .36 Marré v. United States, 117 F.3d 297 (5th Cir. 1997) . . . . . . . . . . . . 31 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1972) . . . . . . . . . . . . 54 Minter v. Great America Insurance Co., 423 F.3d 460 (5th Cir. 2005) . . . .30-31 Newsome v. EEOC, 301 F.3d 227 (5th Cir. 2002) . . . . . . . . . . . . . . . . 54 No Barriers, Inc. v. Brinker Chili's Texas, Inc., 262 F.3d 496 (5th Cir. 2001)31 Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999). . . . . . . . . . . 36-37 Taylor v. Principal Financial Group, Inc., 93 F.3d 155 (5th Cir. 1996) . .44, 48 Toyota Motor Manufacturing of Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . 35-36, 40 Wells v. City of Alexandria, 178 Fed. Appx. 430, 2006 WL 1210968 (5th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . 38-39 Workman v. Frito-Lay, Inc., 165 F.3d 460 (6th Cir. 1999) . . . . . . . . . . 42 STATUTES 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . .1 42 U.S.C. § 2000e-5(b) . . . . . . . . . . . . . . 50 42 U.S.C. § 2000e-5(f)(1) . . . . . . . . . . . . 26 42 U.S.C. §§ 12101 et seq. . . . . . . . . . . . . .1 42 U.S.C. § 12111(7) . . . . . . . . . . . . 45 n.11 42 U.S.C. § 12111(8) . . . . . . . . . . . . . . . 34 42 U.S.C. § 12112(a) . . . . . . . . . . . . . . . 33 42 U.S.C. § 12112(b)(5)(A) . . . . . . . . . . . . 33 42 U.S.C. § 12117(a) . . . . . . . . . 1, 50, 53 n.12 REGULATIONS 29 C.F.R. § 1630.2(g) . . . . . . . . . . . . . . .34 29 C.F.R. § 1630.2(h)(1) . . . . . . . . . . . . 34 29 C.F.R. § 1630.2(i) . . . . . . . . . . . . 40, 43 29 C.F.R. §§ 1630.2(j)(1)(i), (ii) . . . . . . . . 35 29 C.F.R. §§ 1630.2(n)(2)(i)-(iii) . . . . . . . . 46 29 C.F.R. § 1630.2(p) . . . . . . . . . . . . . 44-45 29 C.F.R. § 1630 app. . . . . . . . . . . . . 35, 40 RULES Fed. R. App. P. 32(a)(5) . . . . . . . . . . . . 59 Fed. R. App. P. 32(a)(6) . . . . . . . . . . . . . 59 Fed. R. App. P. 32(a)(7)(B) . . . . . . . . . . . .59 Fed. R. App. P. 32(a)(7)(B)(iii) . . . . . . . . . 59 Fed. R. Civ. P. 58(c)(2) . . . . . . . . . . . . 1, 3 OTHER AUTHORITIES EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA (Oct. 17, 2002), available at http://www.eeoc.gov/policy/docs/accommodation.html . . . . .43-44 Dr. Kara N. Shah, Ectodermal Dysplasia, EMedicine from WebMD, Nov. 8, 2006, http://www.emedicine.com/derm/topic114.htm41 Hypohidrotic Ectodermal Dysplasia, Genetics Home Reference, Aug. 2006, http://www.ghr.nlm.nih.gov/condition=hypohidroticectodermaldysplasia41 ABC News: Science of Sweat, Aug. 23, 2007, http://abcnews.go.com/GMA/Health/story?id=3514398&page=1 . . . 41 STATEMENT OF JURISDICTION This is an enforcement action brought by the EEOC pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq. The district court had jurisdiction under 28 U.S.C. § 1331 and 42 U.S.C. § 12117(a). The district court granted summary judgment to the defendant on July 28, 2006, and denied the Commission's motion for reconsideration on September 7, 2006. RE-T.3, T.5 (ROA- 2040, 2346).<1> On November 6, 2006, the district court entered an order pursuant to Fed. R. Civ. P. 58(c)(2) providing that the time to file an appeal in this case would run, for all parties, from the entry of the district court's order disposing of the defendant's motion for attorney's fees. R.205 (ROA-2513). The district court entered an order granting the defendant's motion for attorney's fees on March 30, 2007. RE- T.6 (ROA-3039). The EEOC filed a timely notice of appeal on May 25, 2007. RE-T.2 (ROA-3047). This Court has jurisdiction under 28 U.S.C. § 1291. ISSUES PRESENTED FOR REVIEW 1. Whether the district court erred in granting summary judgment to the defendant on the grounds that the charging party is not substantially limited in any major life activity within the meaning of the ADA. 2. Whether the district court erred in awarding attorney's fees to the defendant on the grounds that this suit was "frivolous, unreasonable, or without foundation" under Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978). STATEMENT OF THE CASE A. Course of Proceedings This is an appeal from a final judgment of the district court dismissing this enforcement action under the ADA and awarding attorney's fees to the defendant. The EEOC filed suit in September 2004, alleging that the defendant violated Title I of the ADA by failing to provide a reasonable accommodation to Henry Velez and terminating his employment on the basis of his disability. R.1-1 (ROA-35). The district court granted the defendant's motion for summary judgment on July 28, 2006. RE-T.1-21 (ROA-25-26). The EEOC moved for reconsideration of the district court's decision on August 10, 2006; that motion was denied on September 7, 2006. RE-T.1-21, 22 (ROA-27). While the EEOC's motion for reconsideration was pending, the defendant filed a motion for attorney's fees with the district court on August 25, 2006. RE-T.1-22 (ROA-26). The district court entered an order staying its fees decision and reopening discovery with respect to this issue on September 18, 2006. RE-T.1-23 (ROA-28). After Agro noticed the deposition of one of the EEOC's attorneys, the EEOC filed a motion for a protective order enjoining the deposition on October 12, 2006. Id. The district court denied the EEOC's motion on October 23, 2006, and also denied the EEOC's motion for a stay of the deposition pending appeal to this Court. RE-T.1-24 (ROA-29). The EEOC then filed an emergency motion for a stay of the deposition and a petition for writ of mandamus with this Court on October 24, 2006. RE-T.1-25 (ROA-30). This Court granted the EEOC's emergency stay motion on October 25, 2006. Id. On November 6, 2006, while the mandamus petition was pending, the district court entered an order pursuant to Fed. R. Civ. P. 58(c)(2) deferring the running of the time to file an appeal from the summary judgment decision until the entry of the district court's order disposing of the defendant's motion for attorney's fees. Id. After supplemental briefing, this Court granted the EEOC's petition on November 28, 2006, and issued a writ of mandamus to the district court enjoining the deposition of the EEOC's attorney. Id.; R.206. After additional briefing on attorney's fees, the district court entered an order awarding the defendant $197,859 in attorney's fees on March 30, 2007. RE-T.1-27 (ROA-33). The EEOC filed a notice of appeal from both the entry of summary judgment and the order granting attorney's fees on May 25, 2007. Id. B. Statement of the Facts 1. Velez's Medical Condition and Symptoms Henry Velez testified that he has a genetic defect called anhidrotic ectodermal dysplasia ("ED"). R.157-Exh.A-232-33 (ROA-1870-71). According to Steadman's Medical Dictionary, the hallmark of ED is the abnormal development of the skin, which results in defective or absent sweat glands in the affected individual. R.157- Exh.K (ROA-1984). However, there is a constellation of other outward symptoms of ED that accompanies the absence of sweat glands, including "smooth, finely wrinkled skin, sunken nose, malformed and missing teeth, sparse, fragile hair, and associated [] deformed nails, absent breast tissue, mental retardation, [and] syndactyly." Id. According to Agro's dermatological expert, Dr. Stephen Shapiro, the external manifestations of ED include absent or reduced sweating, thinning or absent hair all over the body, defective dentition with small, thin teeth, a square forehead with deformed bossing, a saddle nose, large nostrils, and small, low lying, anteriorly placed ears. R.157-Exh.F-16-18 (ROA-1949-51). Dr. Shapiro testified that, while these traits are all associated with ED, it would be unlikely that all of them would be manifested in one patient. Id. at 18 (ROA-1951). Dr. Shapiro also testified that an individual born with ED will have the symptoms for his entire life; there is no cure. R.145-Exh.D-20 (ROA-1426). Velez testified that he has no sweat glands and, therefore, is totally unable to sweat. R.157-Exh.A-409 (ROA-1890). According to Velez, although he had not had a test to confirm his diagnosis of ED as an adult, when he was a child his family doctor told his grandmother that he had no sweat glands. Id. at 232 (ROA-1870). Dr. Wood C. Hiatt, Agro's psychiatric expert who examined Velez, testified that Velez's features — thin, sparse hair, low-set, protruding ears, and a saddle nose — were consistent with a diagnosis of ED. R.157-Exh.G-27 (ROA-1959). Willard Griffin, the supervisor at the Hattiesburg facility who ultimately terminated Velez, testified that Velez's overall physical appearance was "not normal by any means" and that Velez was "just not normal looking. . . . I guess you could say some of his facial features are not normal looking or distorted to . . . some shape or form." R.157- Exh.C-73 (ROA-1930). In addition, Velez testified that his ED affected his teeth, and that he now wears dentures as a result. R.145-Exh.B-243 (ROA-1377). As a result of his ED and lack of sweat glands, Velez's body cannot regulate its internal temperature properly. R.157-Exh.A-232 (ROA-1870); Exh.F-16 (ROA- 1949). As Dr. Shapiro testified, sweat glands "allow you to release heat from the body so that one doesn't burn up, so to speak. So sweat glands are there essentially to help us with our heat mechanisms, thermal mechanisms." R.157-Exh.F-16 (ROA-1949). Velez testified that he cannot perform manual labor in temperatures of eighty degrees or more for more than ten or fifteen minutes before he must take steps to cool off; otherwise, he begins to experience nosebleeds, vomiting, and other symptoms. R.157-Exh.A-159, 247 (ROA-1869, 1873). When the temperature is between seventy- five and eighty degrees, Velez can perform no more than thirty minutes' hard physical labor before he must stop to cool off. R.145-Exh.B-250-51 (ROA-1384-85). Even at temperatures as low as sixty-eight or seventy-one degrees, Velez must stop working periodically to cool off, but it takes him less time to cool off when the temperature is lower. Id. at 250 (ROA-1384). When Velez overheats, he has to douse himself with water or apply towels that have been packed in ice and find a place where air is blowing or circulating, usually in front of a fan. R.157-Exh.A-159, 246-47 (ROA-1869, 1872-73); R.157-Exh.B-31 (ROA-1899). Velez testified that he has to remain in front of the fan, doused in water, for a period of fifteen minutes to a half hour, depending on how hot it is, in order to cool down sufficiently to return to work. R.145-Exh.B-249-50 (ROA-1383-84). Velez related that he still gets nosebleeds on the job approximately once a week. R.157-Exh.A-247 (ROA-1873). In his deposition, Velez testified that his ED affects his ability to perform manual labor outdoors when the temperature is too high. R.145-Exh.B-245-46 (ROA-1379-80). When defense counsel asked Velez, "[s]o I think you're telling me that it affects your ability to work," Velez answered, "Yes, sir. Even . . . in the wintertime when everybody else is bundled up with jackets and stuff like that, we're not. We just [wear] short-sleeve shirts and cotton pants[.]" RE-T.7-248 (ROA-1382). Velez also testified that his ED could potentially affect his ability to concentrate in the heat because, if he exerted himself to the point of heat stroke, he could "fall out," but that he had not pushed himself to the point of heat stroke in the past. Id. at 240- 41 (ROA-1374-75). Finally, Velez testified that the ED affects his urinary system because it results in the need to urinate more frequently. Id. at 244-45 (ROA-1378-79). 2. Velez's Employment with Agro Agro Distribution manufactures and provides agricultural products and services to farmers. R.145-Exh.I-6 (ROA-1472). Velez was originally hired by Agro as a truck driver at its Hattiesburg, Mississippi, location in February of 2000. R.157- Exh.L (ROA-1987). Agro's job description states that a truck driver is "primarily responsible to provide safe and timely delivery services to customers and other [Agro] locations; to obtain/maintain DOT and CDL licensing and registration; to be responsive and courteous to customers; and to maintain vehicles in optimum running condition." RE-T.8 (ROA-1407). The job description also lists the following responsibilities: maintaining required drivers' logs, inspecting vehicles and other operating equipment, completing vehicle maintenance and post-trip inspections, compliance with hazardous material shipping and placarding requirements, and keeping the shop, work area, and vehicle clean. Id. The job description states that "[t]he truck driver needs to stay in good physical condition to lift weight in excess of 40 lbs, climb ladders and be able to assist warehouse/plant workers with various physical duties; i.e., shrink wrapping, hand palletizing, moving barrels, sweeping, etc." Id. Lonnie Savage, the warehouse manager in Hattiesburg at the time, hired Velez on the recommendation of Johnnie Whitehead, another Agro employee. R.157-Exh.N (ROA-1989). Whitehead told Savage about Velez's lack of sweat glands, and Savage hired Velez "right off" and said that there would be no problem with Velez's condition. Id. Shortly thereafter, in April of 2000, Velez left Agro due to a family medical problem that required him to be available at home. R.157-Exh.A-390 (ROA- 1885); Exh.Q (ROA-1994). In March 2001, Velez returned to work at Agro in his former position as a truck driver. R.157-Exh.M (ROA-1988). At the time, Wesley Graham was the location manager in Hattiesburg. R.157-Exh.B-29 (ROA-1897). According to Graham, Velez was "honest with him" from the outset about his condition, and Velez never used his ED as an "excuse" not to work. Id. at 29-30, 42 (ROA-1897-98, 1904). Graham testified that everyone at the Hattiesburg location knew that Velez had medical problems and that he needed to take breaks to cool off when he was performing manual labor in hot weather. Id. at 43 (ROA-1905). Graham also testified that he allowed Velez to take whatever breaks he needed to cool himself off so long as he got his work done. Id. at 29-30 (ROA-1897-98). According to Graham, he "never had any problems with [Velez]" and, no matter what job task he told Velez to do, "he always found a way, some way of doing it." Id. at 32 (ROA-1900). At the same time, Graham related, "I didn't ask Henry to do anything that I felt like was going to endanger him." Id. Will Griffin was the Hattiesburg facility's Sales Representative when Graham was the manager. R.157-Exh.T (ROA-2002). Graham testified that he heard Griffin make derogatory comments about Velez's appearance. Specifically, he overheard Griffin tell someone, regarding Velez's appearance, "that's what comes from inbreeding." Id. On another occasion, as Graham and Griffin were traveling through Sumrall, Mississippi, where Velez lived, Griffin remarked, "‘This is the land of something hairs,' nine hairs or something like that." R.157-Exh.B-48 (ROA-1906). When Graham responded, "what are you talking about," Griffin replied, "Well, this is where Henry [Velez] lives." Id. at 48-49 (ROA-1906-07). Griffin did not deny making the "nine hairs" comment about Velez, and acknowledged that he was familiar with the term and its association with Velez and his family due to the sparse hair characteristic of people with ED. R.157-Exh.C-71-72 (ROA-1928-29). In June 2002, Graham left Agro, and Griffin took over responsibility for overseeing the day-to-day operations of the Hattiesburg facility. R.157-Exh.C-36 (ROA-1917); R.145-Exh.J (ROA-1647). Graham testified that, when he heard that Griffin had been placed in charge, he "knew that [Velez] would not be there long" because he felt that Griffin, along with several other supervisors, "had this target on [Velez]." R.157-Exh.B-51 (ROA-1908). Sometime around July 14 or 15, 2002, Griffin decided to schedule a metal trailer to be loaded with empty metal drums at the Hattiesburg facility on Tuesday, July 16. R.145-Exh.G-76 (ROA-1454); R.157-Exh.C-106 (ROA-1938). Each of the drums was "a metal container, about a 55-gallon drum basically cut in half," weighing approximately ten or fifteen pounds each when empty. R.145-Exh.G-76 (ROA- 1454). The drums were used for feeding cattle during the winter; Agro would deliver the drums, full of cattle feed, to retailers and customers, and Agro would pick them up when they were empty and return them to the Agro facility. Id. at 76-77 (ROA- 1454-55). Once the drums were returned to Agro, they would be bundled into a load and eventually loaded onto a trailer for reshipment to the manufacturer. When they were loaded manually, some workers would stand inside the trailer, others outside, and those outside would toss or pass the drums to those standing inside. Id. at 77 (ROA-1455); R.145-Exh.B-291 (ROA-1397). The trailers were made of metal and unventilated; as a result, they retained heat in the summer so that the temperature inside the trailer would be higher than outside. R.157-Exh.B-85 (ROA-1912). Velez had participated in loading trailers with empty drums on several occasions during his tenure at Agro. R.157-Exh.A-263 (ROA-1874). At least once this occurred when it was cold enough that there was ice in the drums, and Velez had no problems with the task. Id. at 274-75 (ROA-1876-77). On another occasion, Velez loaded a trailer in warmer temperatures, which made him sick. Id. at 270 (ROA- 1875). Graham testified that, because the drums were used to dispense cattle feed in the winter, the drums were a seasonal item, and therefore the need to load the empty drums onto the trailers was also seasonal, occurring primarily in the colder months. R.157-Exh.B-36-37 (ROA-1901-02). On July 15, 2002, Griffin asked the male staff, including Velez, to report for work the next day at 6:00a.m., to assist in loading the barrels onto the trailer. R.157- Exh.C-83, 87 (ROA-1933-34). Velez was in the warehouse on July 15 when Jeremy Payne, a manager, told him and a coworker that they should plan on bringing in extra clothes the next day because they would be loading the drums into the trailer. RE- T.9-280 (ROA-1878). Velez testified that, because it was July and the temperature was "hot as heck," he said to Payne, "Jeremy, you know good and well I can't get out there and load them drums." Id. According to Velez, when Payne told him that he had to participate anyway, Velez responded that "it's going to be hot, and that trailer is going to be hot; and y'all are going to try to load them drums in the morning?" Id. at 280-81 (ROA-1878-79). Velez continued, "Jeremy, as hot as it's going to be, I can't get out there and load them drums. . . . You know that crap is going to make me sick and everything else." Id. at 281 (ROA-1879). According to Velez, Payne responded that "everybody else has got to do it." Id. Velez testified that he telephoned Griffin at home on the evening of July 15 and tried to discuss the issue with him, explaining that "you know good and well I can't get out there and load them drums" because "it's going to be hot in the morning" and asking whether he could "come in and make my deliveries and, you know, . . . do my day, my stuff for the day." Id. According to Velez, Griffin responded that it would not be "fair" for Velez not to have to load the drums while everyone else had to do so. Id. Velez then told Griffin that "it's going to be hot, and I can't do it. . . . I'm not going to participate in loading the drums, . . . because I know what's going to happen." Id. at 281-82 (ROA-1879-80). Griffin responded by telling Velez, "You will participate in loading the drums or suffer the consequences." Id. at 282 (ROA-1880).<2> The next morning, on July 16, 2002, Velez did not show up to participate in loading the drums onto the trailer. R.145-Exh.G-90 (ROA-1459). The other Agro employees who had been ordered to participate began loading the barrels at 6:00a.m.; the job took approximately two hours to complete. R.145-Exh.K-7-8 (ROA-1482-83). The outside temperature at the time ranged between approximately sixty-nine degrees and seventy-one degrees,<3> but the metal trailer had been sitting outside for a day or two prior to July 16 on at least one day when the temperatures reached into the nineties. RE-T.10 (ROA-2004-07); R.145- Exh.N (ROA-1494-96); R.157-Exh.C-106 (ROA-1938). Velez called Agro at approximately 10:30a.m. to ask whether he could come in and make his deliveries for the day. R.157-Exh.A-286 (ROA-1882); Exh.D-16 (ROA-1940). At that time, Griffin told Velez that, because he did not come in to help load the drums, he could come in to pick up his paycheck and turn in his uniform: he was fired. R.157-Exh.A-287 (ROA-1883). Griffin testified that, at the time, he "knew that [Velez] had a condition that required him to cool down if he got hot, whether it was by spraying down or stopping or whatever, but that wasn't the problem. . . . The issue was that he didn't show up and be a part of the team like I had asked him to be, like everybody else." R.145-Exh.G-89-90 (ROA-1458-59). According to Griffin, sometime around July of 2002, Agro changed the procedure by which they load empty drums onto trailers. R.157-Exh.C-81 (ROA- 1932). Rather than having individual employees hand-carry or toss barrels onto trailers, the barrels are now palletized and shrink-wrapped, and a forklift is used to load the barrels onto the trailer. Id. Griffin testified that, as far as he knew, the last time that barrels were hand-loaded onto a trailer at the Hattiesburg facility was either on July 16, 2002, or the time after that. Id. at 81, 83 (ROA-1932-33). Since approximately late October 2004, Velez has worked as an assistant mechanic at Canebrake Golf Club, where he maintains the tractors, mowers, and service equipment for the golf course. R.145-Exh.B-126 (ROA-1351). When defense counsel asked Velez at his deposition whether "it has all worked out better now, because you got a great job," Velez answered, "[h]onestly, . . . it was a blessing in disguise, because it's put me at Canebrake where I'm at now, . . . and these guys are real good, you know, to me. . . . [T]here it is all about, you know, me. . . . He knows I'm a mechanic. He knows I can keep his mowers going. . . . I don't have to take a chance of getting so hot and get a nose bleed." Id. at 394-95 (ROA-1401-02). When defense counsel said to Velez, "So God tends to work things out the way they're supposed to be sometimes despite ourselves is what you're telling me?," Velez answered, "I agree, yes, sir." Id. at 395 (ROA-1402). 3. The EEOC's Investigation and Conciliation of Velez's Charge Velez filed a charge with the EEOC's Jackson Area Office on or about July 19, 2002, alleging that he had been discriminated against on the basis of his ED when Agro terminated him for refusing to help load the drums onto the trailer on July 16. R.145-Exh.W (ROA-1577-78). The charge was assigned to investigator La Ouida Small. By January of 2003, according to Ben Bradley, the Area Director for the Jackson office, the case had been given a category code of A2, meaning that it had been designated as a "possible cause" case. R.145-Exh.Q-10-11 (ROA- 1516-17). Bradley testified at his deposition that an A2 designation means that the Commission "[doesn't] know exactly what the final results will be, but they seem to be leaning towards a cause determination," and described the charge as one where "we really don't intend to file a lawsuit, but we feel that it should be one that we probably could either mediate or we could put a cause out there." Id. at 5 (ROA-1514). In early 2003, Small interviewed various witnesses and contacted Agro and Bert Ehrhardt, Agro's counsel, on several occasions to schedule an onsite visit to Agro's Hattiesburg facility. RE-T.11 (ROA-1557-58). Small left multiple voice mails for Ehrhardt in February and March of 2003, and finally succeeded in contacting him to set up an appointment for the onsite visit on April 28, 2003. Id. (ROA-1558). Small conducted her onsite visit of the Hattiesburg facility on May 22, 2003. RE-T.12 (ROA-1538-39). The next day, Ehrhardt sent a letter to Bradley detailing various complaints about Small's conduct. Id. Specifically, Ehrhardt complained that Small had "demonstrated disgust for the statements of the management witnesses she interviewed," raised her voice several times, "made insulting remarks and guttural sounds," and rolled her eyes. Id. Ehrhardt also complained that "it was clear that [Small] had already decided that the Charging Party was mistreated," and observed that, "when [she] took notes I noticed that she was only writing down half of what was said, and what she wrote appeared to be slanted against the Respondent and not fully reflective of the facts of the case." Id. Finally, Ehrhardt described a conversation where Small had requested to see "all of the personnel files at the facility," and Ehrhardt had refused and told her to serve a subpoena if she wanted to see them. Id. According to Ehrhardt, Small became angry and said, "Let's just say that your reputation precedes you, Mr. Ehrhardt," and he responded that she should discuss his reputation with Mr. Bradley, since "we have known each other for over twenty-five years, and I have had many cases with this office of the EEOC." Id. On June 17, 2003, Small sent Ehrhardt a letter summarizing the evidence obtained during the investigation and the EEOC's proposed recommendation with respect to Velez's charge. RE-T.13 (ROA-1535-37). The letter invited Ehrhardt to submit "any additional information and/or evidence you have that you believe will support your client's position in this case," and stated that "[a]ny submission received from you by June 27, 2003, will be given full consideration." Id. In a letter dated July 3, 2003, Ehrhardt disputed much of the evidence outlined in Small's letter of June 17, questioned the motivation of various witnesses, emphasized that Velez performed "manual labor" all the time and that "manual labor" was an essential function of his position, and concluded that "[t]his should be a no-cause case." RE-T.14 (ROA-1540-42). On July 22, 2003, Bradley issued a Letter of Determination finding that the evidence obtained during the investigation of Velez's charge established a violation of the ADA. RE-T.15 (ROA-1543-44). The letter invited the parties to engage in conciliation, attached a proposed conciliation agreement, and stated, "[i]f the Respondent wishes to accept this invitation to participate in conciliation efforts, it may do so at this time by reviewing the attached proposed conciliation agreement and responding to the Commission's representative within 15 days of the date of this determination."<4> Id. The letter concluded by noting that, "[s]hould there be no response from the Respondent in 14 days, we may conclude that further conciliation efforts would be futile or nonproductive."<5> Id. On Friday, August 15, 2003, Small telephoned Ehrhardt and left a message for him at his office, which Ehrhardt did not immediately return. RE-T.17 (ROA- 1548). The next Tuesday, August 19, Bradley sent a letter to Agro's in-house counsel issuing notice that conciliation had failed and that the case would be forwarded to Headquarters for possible litigation. RE-T.16 (ROA-1545). On August 22, 2003, Ehrhardt responded with a letter to Bradley stating that he had returned Small's call on Monday, August 18, and that, at that time, "the Respondent was fully prepared to meet with the Commission to discuss the case and the conciliation proposal." RE-T.17 (ROA-1548). Ehrhardt stated that "no effort to conciliate this case has been made," characterized the Commission's conciliation proposal as "really a take it or leave it proposition," and asked the Commission to contact him "if I am mistaken." Id. Bradley responded with a letter formally reopening conciliation on August 28, 2003. RE-T.18 (ROA-1549-50). The letter stated, "You have a copy of the Commission's Proposal which is fashioned to make the Charging Party whole. I welcome your reasonable comprised [sic] proposal or counter proposal. I will share it with the Charging Party and the Regional Attorney and get back with you on acceptance or rejection." Id. Bradley asked Ehrhardt for a response "within the next ten days." Id. Ehrhardt responded in a faxed letter dated September 11, 2003, in which he requested additional time to respond, and asked for clarification as to whether the Commission would consider settlement without reinstatement, full back pay, and compensatory damages. RE-T.19 (ROA-1551). Ehrhardt also asked whether the issues he raised in his letters of May 23 and July 3 — i.e., his complaints about the investigation — had been considered. Id. On September 19, 2003, Ehrhardt faxed Bradley a letter in which he noted that, in the absence of a response to the questions raised in his letter of September 11, he "assumed" that the EEOC would require reinstatement, full back pay, and compensatory damages as conditions of settlement and that no consideration would be given to his concerns about the investigation. RE-T.20 (ROA-1552). Ehrhardt stated that he had been authorized by his client to offer the Commission "the gross amount of $3,500 in settlement of [Velez's] charge," and noted that "[s]ome aspect of that amount would have to be allocated to Velez's back pay claim, thus necessitating withholding of some federal and state taxes." Id. Bradley testified in his deposition that, as far as he recalled, the EEOC never responded to this letter because, "normally, if we were asking for a figure way beyond that $3500 that was offered here and nothing else, we probably wouldn't have responded." R.145-Exh.Q-49 (ROA-1533). Approximately ten months later, on July 16, 2004, Charles Guerrier, who was then the Regional Attorney in the Birmingham District Office, sent Ehrhardt a letter summarizing the history of the conciliation efforts in the case. RE-T.21 (ROA-1563-64). The letter acknowledged Agro's $3500 offer, and observed that, "[d]espite your acknowledgment that the Commission would not entertain a settlement that did not include reinstatement, full back pay and some amount for compensatory damages, your client's proposal did not offer any of these items." Id. Guerrier informed Ehrhardt that Agro's offer was not acceptable to the Commission, but, for a third time, offered Agro another opportunity to "resolve this case without the necessity of litigation." Id. Guerrier specified that "resolution must include the reinstatement of Mr. Velez to his former position, with an accommodation; if reinstatement is not acceptable, the proposal must include an appropriate amount of front pay; compensation for his pecuniary losses (back pay, medical expenses, etc.); and some level of compensatory damages." Id. Neither Agro nor Ehrhardt ever responded to Guerrier's letter. This lawsuit was filed in the Southern District of Mississippi on September 27, 2004. The complaint alleges that Agro discriminated against Velez by "failing to provide him with a reasonable accommodation necessary to and required by his medical condition of Ectodermal Dysplasia, and discharged him because of his disability in violation of the Americans with Disabilities Act." R.1-1 (ROA-35). Specifically, the complaint alleges that, on July 15, 2002, Agro ordered Velez "to perform a task which the Defendant knew could not be performed by Mr. Velez because of his disability," that the task was not an essential function of Velez's job, and that Agro knew that it would endanger Velez's health to perform the task. Id. at 3 (ROA-36). Nonetheless, according to the complaint, when Velez sought an accommodation, Agro refused to consider it and threatened to fire him if he did not show up; when Velez ultimately refused to perform the task "because of the risk to his health and in order to mitigate the harm which would be done to him if he performed said task," Agro terminated his employment. Id. at 4 (ROA-38). On August 11, 2005, Guerrier sent Ehrhardt the EEOC's initial disclosures in the case, including the redacted investigative file for Velez's charge. R.179- Exh.A (ROA-2129). The cover letter conveying the Commission's initial disclosures stated that it was "likely" that Guerrier would be calling Ehrhardt as a witness in the case, in light of his personal observations of Ms. Small's conduct during the investigation, and noted that "this will prohibit you from continuing to act as counsel in this matter." Id. Nonetheless, discovery continued in the case and Ehrhardt, who was never called as a witness, continued to represent Agro. On or about May 6, 2006, Ehrhardt telephoned Emanuel Smith, who had replaced Guerrier as Regional Attorney in Birmingham, to discuss resolving the Agro litigation. R.179-Exh.D (ROA-2137). Ehrhardt related that, during the conversation, he reviewed Velez's deposition testimony with Smith and "called on Mr. Smith to dismiss the case or submit a realistic proposal to resolve it before the company and the taxpayers incurred additional needless expense." Id. (ROA-2137-38). Smith responded in a letter dated May 24, 2006. RE-T.22 (ROA-2139-41). Smith explained that "the litigation of this case has disclosed a stark weakness in Agro's approach to prohibiting workplace discrimination," noting that Agro had failed to file EEO-1 reports since 1999 and was not in compliance with federal anti-discrimination laws. Id. Smith also pointed out that deposition testimony revealed that Velez's symptoms were completely consistent with ED and that Agro had terminated the manager who had accommodated Velez's disability. Id. Smith went on to note that Agro had "either facilitated or participated in the disclosure of confidential medical information regarding members of Mr. Velez's family who are not involved in this litigation," as well as their financial records. Id. Smith acknowledged that "I know you believe the facts do not meet the standard for an ADA violation and that someone up the line in Washington should review the Agency's effort in this case," and explained that, "[b]efore the Commission approved it for litigation, I assure you that it was reviewed by a substantial number of attorneys who work in the field of ADA." Id. Smith concluded by enclosing a proposed consent decree, which included a settlement offer of $42,000 plus training, and stating, "Please do not accept this as some high water mark for prolonged negotiations. We would like to resolve this matter reasonably for your client and for Mr. Velez, while protecting the interest of the Commission." Id. In a declaration later filed with the district court, Ehrhardt termed Smith's offer "clearly . . . an outrageous proposal" and Agro did not accept it. R.179-Exh.D (ROA-2138). C. District Court's Decisions 1. Summary Judgment and Denial of Reconsideration In June 2006, Agro moved for summary judgment, arguing that: (1) the Commission failed to investigate and conciliate Velez's charge of discrimination in good faith; (2) Velez was neither disabled nor qualified for his position and, in any case, did not suffer an adverse employment action because of his disability; and (3) although Agro was not required under the ADA to offer Velez a reasonable accommodation because Velez was not disabled within the meaning of the statute, Agro did nonetheless allow him such an accommodation. RE-T.1-21 (ROA-25); R.146 (ROA-1601-33). The district court granted Agro's motion in July 2006. RE- T.1-21 (ROA-26); RE-T.3 (ROA-2040). With respect to the conciliation issue, the court began by noting that, "[t]o satisfy the statutory requirement of conciliation, the EEOC must (1) outline to the employer the reasonable cause for its belief that [the ADA] has been violated; (2) offer an opportunity for voluntary compliance; and (3) respond in a reasonable and flexible manner to the reasonable attitudes of the employer." RE-T.3-9-10 (ROA-2048-49) (quoting EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256, 1259 (11th Cir. 2003)). The court stated that "[t]he EEOC appears to have issued an all-or-nothing proposal in this case based on faulty facts and did not ‘respond in a reasonable and flexible manner' to the entreaties by Agro to resolve this matter. It appears that the Commission dealt in an arbitrary manner based on preconceived notions of its investigator and ignored the attempts of Agro's counsel to engage the Commission in settlement discussions." Id. at 10 (ROA-2049). The court "conclude[d] that it appears that the EEOC did not attempt conciliation in good faith," and noted that, while "summary judgment is a harsh remedy," "the Commission's actions in this case border on the imposition of just such a harsh remedy." Id. Nonetheless, the court went on to review the merits of the ADA claim on behalf of Velez, which it found to be dispositive. Id. The court began its analysis of whether Velez was disabled under the ADA by stating that, while the EEOC argued that Velez was limited in the major life activities of breathing and perspiring, Velez, in his deposition, "contends that his only life activity which has been substantially limited by his impairment is his ability to work." RE-T.3-13 (ROA-2052). The court then went on to analyze Velez's claim solely with respect to the major life activity of working, and concluded that Velez was not disabled because he was not "restricted from performing a broad range or class of jobs." Id. at 13-15 (ROA-2052-54). The court noted that there was no direct medical evidence in the record that Velez had ever been diagnosed with ED; instead, there was only Velez's testimony about what his grandmother and his family physician had told him and the medical reports of the defendant's medical experts, which "the EEOC has moved to strike." Id. at 14 (ROA-2053). The court also observed that, according to the expert reports, while Velez's symptoms and appearance are consistent with a diagnosis of ED, specific tests are required to assess whether ED is present and the extent to which a particular person is affected by the disease. Id. In any case, the court concluded, Velez's employment history included a series of jobs involving manual labor, and thus no reasonable juror could find that Velez did not "‘retain[] the ability to compete successfully with similarly skilled individuals.'" Id. at 15 (ROA-2054) (quoting Dupre v. Charter Behavioral Health Sys. of Lafayette, Inc., 242 F.3d 610, 614 (5th Cir. 2001) (internal citations omitted)). In August 2006, the EEOC moved for reconsideration of the district court's decision granting summary judgment. RE-T.1-21 (ROA-27); R.175 (ROA-2060). The Commission pointed out that it was not asserting that Velez was substantially limited in working, but rather in perspiring and breathing. R.176-1-2 (ROA-2063- 64). The EEOC also called the court's attention to the record evidence of Velez's impairment, including his own testimony and that of Agro's experts (which was still part of the record, in light of the district court's denial of the EEOC's motion to strike). Id. at 2-3 (ROA-2064-65). Finally, the Commission pointed to evidence that the EEOC met the statutory requirements for good faith conciliation, noting that it is within the EEOC's statutory authority under 42 U.S.C. § 2000e-5(f)(1) to determine whether conciliation is acceptable and when further efforts would be futile. Id. at 4-8 (ROA-2066-70). The district court denied the Commission's motion for reconsideration on September 7, 2006. RE-T.1-22 (ROA-27). The only reason given was that the Commission was simply seeking a "second bite at the apple" by attempting to reargue the same facts and legal issues. 2. Attorney's Fees The district court granted Agro's motion for attorney's fees on March 30, 2007. RE-T.1-27 (ROA-33); RE-T.6 (ROA-3039). The court began with the observation that, because Velez's charge was "coded ‘A2' within days of being assigned [to an EEOC investigator]," it was one where "the EEOC will likely determine that the case will be one that will ultimately be charged." RE-T.6-1 (ROA-3039). The court reiterated Ehrhardt's complaints about the investigation and Small's attitude, Bradley's lack of response, and the Commission's cause finding, as well as the fact that the "Conciliation Log" from the Commission's case file was blank. Id. at 2 (ROA-3040). The court noted the EEOC's position at the conciliation stage that it "would not entertain any settlement which did not include reinstatement, full back pay and some payment of compensatory damages," but then observed that, during the course of discovery in the litigation, the Commission withdrew its demand for reinstatement and back pay and only pursued a claim for compensatory and punitive damages. Id. at 3 (ROA-3041). The district court also mentioned Guerrier's August 11, 2005, letter to Ehrhardt. Id. The court went on to summarize Velez's deposition testimony, taken on March 6 and 7, 2006, as follows. According to the district court, "Velez testified that his only life activity that has been substantially limited by his alleged impairment is his ability to work." RE-T.6-3 (ROA-3041). The district court also related that Velez had testified that he "had held a variety of jobs that required manual labor," and that "one of the manual labor jobs included his current job at a golf course earning $1.00 per hour more than he made at Agro." Id. at 3-4 (ROA-3041-42). The court then summarized the settlement negotiations that took place in May 2006, including Ehrhardt's calling on Smith to dismiss the case or submit a realistic proposal to resolve it, Smith's assurance that the case had been reviewed and his offer of $42,000 plus training, and the fact that "Agro did not agree to the demands and the case continued." Id. at 4 (ROA-3042). With respect to the legal standard for attorney's fees, the district court observed that, under Christiansburg, a prevailing defendant is entitled to recover attorney's fees if the court finds that the plaintiff's action was "‘frivolous, unreasonable or without foundation even though not brought in subjective bad faith.'" RE-T.6-4 (ROA-3042) (quoting Christiansburg, 434 U.S. at 421). The court noted that "a bad faith finding is not required for an award of attorney's fees." Id. The court then summarized Agro's request for fees as follows: $274,938 in attorney's fees and $27,786.08 in costs, because: (1) "the EEOC knew or with a reasonable investigation should have known that the claim was baseless, incomplete, inadequate, biased, and faulty"; (2) "the EEOC did not engage in good faith conciliation efforts"; and (3) "the EEOC did not terminate the litigation when it knew that it had no possibility of success." Id. at 5 (ROA-3043). The court agreed with Agro's arguments. The court faulted the EEOC for making "no response" to Ehrhardt's report of Small's conduct during the investigation. RE-T.6-5 (ROA-3043). The court found Smith's response to Ehrhardt's telephone call of May 6, 2006, to be "arrogant" and to "indicate[] that he knew very little about the facts of the case and that the substantial number of attorneys who ‘worked in the field of the ADA' and who reviewed Velez's claim knew even less." Id. The court observed that "[s]tatements of witnesses were ignored by the EEOC and the Commission chose to proceed instead of folding its tent and conceding the litigation or at least attempting good faith conciliation," and concluded that "Agro had no choice but to proceed vigorously in its attempt to defend the Complaint." Id. As to the merits of the case, the court observed with respect to its summary judgment decision that "it was clear to this Court that the EEOC had not done its homework." Id. at 6 (ROA-3044). The court characterized it as a "tragedy that such significant legal and judicial resources have been wasted on this case," and concluded that "[t]his Court finds that the EEOC's actions and inactions in this case were unreasonable and frivolous. Id. With respect to the amount of attorney's fees, the district court found that Agro had sufficiently documented its billings and that the EEOC had failed to "provide any counter-affidavits or other proof showing that the fees are unreasonable or even that they are excessive." RE-T.6-6 (ROA-3044). The court observed that "the number of hours expended and listed in the itemized billings are extremely high and are clearly excessive for a case with the merits of the one before the Court," but concluded that "[t]he length of this litigation and the amount of time necessary to defend it is to be laid at the feet of the EEOC. This case should have been ended early on and the only party that could do that was the EEOC." Id. at 6-7 (ROA-3044- 45). However, the court observed, "the EEOC nevertheless has an obligation to enforce the Americans With Disabilities Act and to vigorously represent persons that it believes have been victims of violations of the Act." Id. at 7 (ROA-3045). Accordingly, the court granted Agro's motion for fees in the full amount requested from the date of May 6, 2005, onward, on the grounds that "the EEOC was absolutely unjustified in proceeding past the deposition of Mr. Velez." Id. This resulted in an award of attorney's fees in the amount of $197,859, plus costs in the amount of $27,786.08, against the Commission. Id. STANDARD OF REVIEW This Court reviews a district court's award of summary judgment de novo. Minter v. Great Am. Ins. Co., 423 F.3d 460, 464-65 (5th Cir. 2005). Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. at 464. In assessing a motion for summary judgment, the Court must view the evidence, as well as all reasonable inferences therefrom, in the light most favorable to the non-moving party. Id. at 465. This Court reviews an award of attorney's fees for abuse of discretion and the underlying factual findings for clear error. No Barriers, Inc. v. Brinker Chili's Texas, Inc., 262 F.3d 496, 498 (5th Cir. 2001). This Court reviews de novo the conclusions of law underlying an award or denial of attorney's fees. Marré v. United States, 117 F.3d 297, 301 (5th Cir. 1997). SUMMARY OF ARGUMENT Viewed in the light most favorable to the Commission, the nonmoving party on summary judgment, the record contains evidence from which a reasonable jury could find that Henry Velez was a qualified individual with a disability within the meaning of the ADA, and that Agro failed to provide him with a reasonable accommodation when it fired him for failing to participate in the barrel-loading task on the morning of July 16, 2002. Both Velez's own testimony and the testimony of Agro's medical experts are sufficient to establish that Velez has ED, an incurable genetic condition that results in significantly diminished or nonexistent sweat glands and therefore imposes a substantial limitation on the affected individual's ability to regulate his body temperature. The record also reflects that Velez requested a reasonable accommodation on July 15, 2002, when he informed Payne and Griffin that he would not be able to participate in the barrel-loading task the next morning, based on his prior experience with attempting the same task in warm temperatures. In response, Griffin flatly refused to engage in the interactive process required by the ADA, but instead simply told Velez to participate or suffer the consequences. When Velez did not participate in the barrel-loading task, based on his reasonable belief that it would make him sick, Griffin fired him. The record also reflects that the Commission's conciliation efforts in this case were more than adequately reasonable and responsive under the standard set forth in EEOC v. Klingler Electric Corp., 636 F.2d 104, 107 (5th Cir. 1981). The Commission invited Agro to the conciliation table on three occasions over the period of a year, each time asking counsel to submit a reasonable counterproposal to the agency's detailed conciliation proposal, and each time counsel failed or refused to do so. Instead, counsel belatedly submitted a single all-or-nothing settlement proposal for a nuisance sum and refused to consider any alternative. The Commission was under no obligation to agree with defense counsel's view of the merits of the case or to accept his de minimis settlement offer in order to render its statutory conciliation efforts adequate. Finally, the district court erred in awarding Agro attorney's fees because this case was not "frivolous, unreasonable, or without foundation" under Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978). Alternatively, even if this Court should find that the award of attorney's fees was justified in general, the district court awarded more fees than the defendant was entitled to, including, inter alia, the fees and costs associated with the litigation of a mandamus action before this Court on which the Commission prevailed. ARGUMENT I. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO AGRO BECAUSE THERE IS SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT VELEZ WAS A QUALIFIED INDIVIDUAL WITH A DISABILITY, AND THAT AGRO FAILED TO PROVIDE HIM WITH A REASONABLE ACCOMMODATION. Section 102(a) of the ADA prohibits discrimination against "a qualified individual with a disability because of the disability of such individual in regard to . . . discharge of employees." 42 U.S.C. § 12112(a). The term "discriminate" in § 12112(a) includes "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability" unless the employer "can demonstrate that the accommodation would impose an undue hardship on the operation of [its] business." 42 U.S.C. § 12112(b)(5)(A). As we explain in detail below, there is sufficient evidence in the record to support a finding that each element of a claim under § 102(a) was established in this case. A. There is ample evidence that Velez has a physical impairment that substantially limits his body's ability to regulate its temperature. The ADA defines a "qualified individual with a disability" as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). The Commission's regulations define "disability" as, in relevant part, "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." 29 C.F.R. § 1630.2(g). There is sufficient evidence in the record to support a finding that Velez has ED, a physical impairment that substantially limits his body's ability to regulate its temperature. There can be little question that ED, as a genetic disorder that causes abnormal development of the skin and sweat glands, constitutes a physical impairment under the statute. See 29 C.F.R. § 1630.2(h)(1) ("impairment" includes physiological disorders affecting the skin). Velez's own testimony about his early diagnostic history, his extensive testimony about his own past and current symptoms, his physical appearance and that of his relatives, the testimony of Agro's medical experts, Drs. Shapiro and Hiatt, and the medical definition of ED cited above are sufficient to support a finding that Velez has ED. As this Court has observed, whether an impairment is substantially limiting "is determined in light of (1) the nature and severity of the impairment, (2) its duration or expected duration, and (3) its permanent or expected permanent or long-term impact." Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 (5th Cir. 1995) (citing 29 C.F.R. §§ 1630.2(j)(1)(i), (ii), 1630 app.). In this case, all three factors weigh in favor of finding that Velez is substantially limited in regulating his body temperature. With respect to the nature and severity of his impairment, Velez testified that he cannot sweat at all, that he needs to take breaks to cool off at temperatures as low as sixty- eight to seventy degrees, and that the breaks need to be of longer duration as the temperature, and his exertion level, rises. R.157-Exh.A-159, 247, 409 (ROA-1869, 1873, 1890); R.145-Exh.B-250-51 (ROA-1384-85). Velez also testified about the adverse physical consequences of his condition and his failure to take breaks soon enough when exerting himself in the heat, including nosebleeds, vomiting, and the risk of heat exhaustion. R.157-Exh.A-159, 247 (ROA-1869, 1873). With respect to the duration and permanency of Velez's condition, it is undisputed that ED is a genetic condition that begins at birth and for which there is no cure. R.145-Exh.D-20 (ROA-1426). Agro argued below that all of the evidence in the record regarding the existence and effects of Velez's condition is insufficient to establish that he has a substantially limiting impairment because Velez did not undergo certain types of dermatological testing that could be used to confirm the diagnosis. However, as the Supreme Court observed in Toyota Motor Manufacturing of Kentucky, Inc. v. Williams, 534 U.S. 184, 198 (2002), "[t]he determination of whether an individual has a disability is not necessarily based on the name or diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of the individual." As described above, the lay testimony in the record is more than sufficient to establish that Velez has a physical condition that causes significant negative effects on his life. There is no requirement in the law or rules of evidence that this fact be proven through medical testimony. See, e.g., Marinelli v. City of Erie, 216 F.3d 354, 360 (3d Cir. 2000) ("‘[t]here is certainly no general rule that medical testimony is always necessary to establish disability'" (quoting Katz v. City Metal Co., 87 F.3d 26, 32 (1st Cir. 1996))); Head v. Glacier Nw., Inc., 413 F.3d 1053, 1058-59 (9th Cir. 2005) (plaintiff's testimony alone may establish a genuine issue of fact regarding the impairment of a major life activity, provided that the testimony is "not merely self- serving and . . . contain[s] sufficient detail to convey the existence of animpairment"). The fact that Velez has learned ways to compensate for his body's inability to sweat by taking measures to cool himself down does not alter the conclusion that he is substantially limited in regulating body temperature under the ADA. As the Supreme Court observed in Sutton v. United Air Lines, Inc., 527 U.S. 471, 488 (1999), "[t]he use or nonuse of a corrective device does not determine whether an individual is disabled; that determination depends on whether the limitations an individual with an impairment actually faces are in fact substantially limiting." (Emphasis in original.) The Sutton Court also noted that, in considering the effect of mitigating measures on an individual's condition, courts and employers should consider negative as well as positive effects of the corrective action. Sutton, 527 U.S. at 484; see also Fiscus v. Wal-Mart Stores, Inc., 385 F.3d 378, 386 (3d Cir. 2004) ("any evaluation of the mitigating effects of corrective measures must also consider side-effects or other collateral limitations caused by those corrective measures"). In Velez's case, the alternative measures he takes do not enable his body to regulate temperature properly, and they do not enable him to function, as the Sutton Court termed it, "identically to individuals without a similar impairment." 527 U.S. at 488. Moreover, Velez's need for breaks to cool off is permanent, persistent, and occurs in all but cold weather. His testimony reflects that he needs to take measures to cool off under most circumstances when a normal person would sweat, not just in very hot temperatures. R.157-Exh.A-159, 247 (ROA-1869, 1873); R.145-Exh.B-250- 51 (ROA-1384-85). The measures Velez utilizes to cool off are cumbersome, requiring that he soak himself in water and remain immobile in front of a fan until his body temperature returns to a safe range, often several times in a single day. R.157- Exh.A-159, 246-47 (ROA-1869, 1872-73); R.157-Exh.B-31 (ROA-1899); R.145- Exh.B-249-50 (ROA-1383-84). Accordingly, even considering the mitigating measures Velez takes, a reasonable jury could find that he is substantially limited in regulating body temperature within the meaning of the ADA. In analyzing whether Velez has a disability, the district court did not directly address the question of whether Velez is substantially limited in regulating body temperature. Instead, notwithstanding the EEOC's repeated assertions to the contrary, the district court declared that the only claim asserted is that Velez was substantially limited in working. The only explanation given by the court for recasting the EEOC's claim is its statement that Velez "contends that his only life activity which has been substantially limited by his impairment is his ability to work." RE-T.3-13 (ROA-2052). The EEOC has, from the start, argued that Velez was substantially limited with respect to perspiration and breathing, not working, and it was erroneous for the court to recast the Commission's legal theory of the case based on a supposed comment from a lay person's deposition.<6> See, e.g., B.P. Chems. Ltd. v. Jiangsu Sopo Corp., 285 F.3d 677, 685 (8th Cir. 2002) (rejecting theory that district judge has "broad discretion to recast a plaintiff's claims to fit the judge's understanding of the case"); Wells v. City of Alexandria, 178 Fed. Appx. 430, 433, 2006 WL 1210968 (5th Cir. 2006) (per curiam) (unpublished) (noting that "the plaintiff is the master of his complaint, and defendants cannot restate his claims, consistently recasting the claims against the plaintiff's consistent opposition"). In any case, the district court was incorrect about Velez's deposition testimony as a factual matter. Velez testified extensively about his limitations in sweating, and in his deposition he simply agreed that his ED, with its accompanying limitation on his ability to sweat, affected his ability to work, not that he was substantially limited in working within the meaning of the ADA. RE- T.7 (ROA-1382). Furthermore, Velez's testimony would support a finding that his ED adversely affects his ability to engage in strenuous physical activity whether he was at work or not. B. Regulating body temperature through perspiration is a major life activity. The Commission alleges in this case that Velez's ED substantially limits him in the major life activity of regulating his body temperature. In the proceedings below, neither the district court nor Agro addressed the question of whether regulating body temperature is a major life activity. Although we are aware of no court decision that has yet addressed this question directly, regulating body temperature fits comfortably within the statutory and regulatory definitions of a major life activity, and the existing case law relating to other similar impairments supports the conclusion that it is a major life activity. As both the Supreme Court and this Court have observed, "major life activities" under the ADA are activities that are of central importance to people's daily lives. See Toyota, 534 U.S. at 197 (defining "major life activities" as "those activities that are of central importance to daily life"); Jenkins v. Cleco Power, LLC, 487 F.3d 309, 315 (5th Cir. 2007) ("Major life activities refers to those activities that are of central importance to most people's everyday lives."). See also 29 C.F.R. § 1630 app., § 1630.2(i) ("‘Major life activities' are those basic activities that the average person in the general population can perform with little or no difficulty."). The Supreme Court has also observed that "‘[t]he plain meaning of the word "major" denotes comparative importance' and ‘suggest[s] that the touchstone for determining an activity's inclusion under the statutory rubric is its significance.'" Bragdon v. Abbott, 524 U.S. 624, 638 (1998) (internal citation omitted) (alterations in original); see also id. (in holding that reproduction constitutes a major life activity, noting that "[r]eproduction and the sexual dynamics surrounding it are central to the life process itself"). There can be no question that an individual's ability to regulate body temperature is of critical importance to his daily life. As Dr. Shapiro testified, sweat glands enable the human body to keep from "burning up" by dissipating heat. R.157- Exh.F-16 (ROA-1949). An individual whose ability to sweat is significantly impaired is at greatly increased risk for hyperthermia and heat exhaustion compared to the average person in the general population. See, e.g., Dr. Kara N. Shah, Ectodermal Dysplasia, EMedicine from WebMD, Nov. 8, 2006 (patients with ED are "prone to hyperpyrexia and heat exhaustion")<7> ; Hypohidrotic Ectodermal Dysplasia, Genetics Home Reference, Aug. 2006 (inability to sweat can lead to hyperthermia, which can in turn cause "life- threatening medical problems").<8> Likewise, regulating body temperature through perspiration is unquestionably an activity that the average person in the general population performs with little or no difficulty. See ABC News: Science of Sweat, Aug. 23, 2007 ("The average person has about 2.6 million sweat glands and while working out . . . can sweat out a gallon in an hour.").<9> Although no federal appellate court has yet considered whether regulating body temperature is a major life activity, several courts have held that eliminating waste from the body, an analogous life-critical function, constitutes a major life activity under the statute. Both the Third and Fourth Circuits have held that end- stage renal failure, which impairs the patient's ability to eliminate waste from the blood, constitutes an ADA disability when it substantially limits an individual's ability to eliminate waste from the blood. See Heiko v. Colombo Savs. Bank, F.S.B., 434 F.3d 249 (4th Cir. 2006); Fiscus, 385 F.3d 378. As the Third Circuit observed in Fiscus, the Supreme Court's decision in Bragdon "undercuts any dispositive conceptual difference for ADA purposes between internal, largely autonomous physical activities, on the one hand, and external, largely volitional physical activities, on the other." 385 F.3d at 383. Rather, as the Fiscus court explained, "[u]nder Bragdon, the touchstone of a major life activity is its importance or significance. An activity which is ‘central to the life process' . . . expressly meets that test. . . . [P]rocessing and eliminating waste from the blood qualifies as a major life activity because, in their absence, death results." Id. (quoting Bragdon, 524 U.S. at 638). See also Heiko, 434 F.3d at 255 (observing that eliminating body waste is "basic to any person's daily regimen," is "a daily activity that the average person can accomplish with little effort," and is of "life- sustaining importance"); cf. Workman v. Frito-Lay, Inc., 165 F.3d 460, 467 (6th Cir. 1999) (affirming jury verdict in favor of ADA plaintiff with irritable bowel syndrome, finding that "the jury could have decided that controlling one's bowels is a major life activity" and that the plaintiff's condition left her significantly restricted relative to the average person in the general population). The body's ability to regulate its internal temperature through perspiration is directly analogous to the body's ability to eliminate waste from the blood through urination: it is central to the life process, basic to every individual's daily regimen, and is an activity that the average person can accomplish with little effort. In all three respects, it is also analogous to breathing, one of the major life activities listed in 29 C.F.R. § 1630.2(i). Accordingly, we urge this Court to recognize that regulating body temperature through perspiration is a major life activity under the ADA. C. There is sufficient evidence to support a finding that Velez was a qualified individual with a disability, and Agro failed to grant his request for a reasonable accommodation. Velez testified that, after he learned of the barrel-loading plan on July 15, 2002, he asked both Payne and Griffin to excuse him from the assignment because, in light of his medical condition, it would be too hot for him to participate. RE-T.9-280-81 (ROA-1878-79). Although Agro disputed the content of Velez's conversations with Payne and Griffin, the district court was required to credit Velez's testimony in deciding Agro's motion for summary judgment. Viewed in the light most favorable to the Commission, Velez's conversations with Payne and Griffin constituted a request for a reasonable accommodation under the ADA because he let Agro know that he needed a modification at work for a reason related to his inability to sweat, a medical condition. See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA (Oct. 17, 2002), at 8 (individual requesting accommodation "must let the employer know that s/he needs an adjustment or change at work for a reason related to a medical condition"; individual "may use ‘plain English' and need not mention the ADA or use the phrase ‘reasonable accommodation'").<10> Once an employee requests an accommodation, according to this Court, that request "triggers the employer's obligation to participate in the interactive process of determining one." Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 165 (5th Cir. 1996). "[W]hen an employer's unwillingness to engage in a good faith interactive process leads to a failure to reasonably accommodate an employee, the employer violates the ADA." Cutrera v. Bd. of Supervisors of La. St. Univ., 429 F.3d 108, 112 (5th Cir. 2005); Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 736 (5th Cir. 1999). In this case, the accommodation Velez sought was both reasonable and relatively minimal. Velez was merely asking to be excused from the barrel- loading task on one day in July when the temperature was high, not all the time or from manual labor generally. Honoring Velez's request would not have cost the company a cent and, as the record reflects, would not have kept the Hattiesburg staff from accomplishing the task of getting the barrels loaded. R.145-Exh.K-7-8 (ROA-1482-83). For the same reasons, Agro cannot show that it would have imposed an undue hardship on its business operations to have accommodated Velez's disability. See 29 C.F.R. § 1630.2(p) (defining "undue hardship" as "significant difficulty or expense incurred by a covered entity," when considered in light of factors including the nature and net cost of accommodation, overall financial resources of the facility and of the covered entity, type of operation, and impact of the accommodation on the operation). Agro argued to the district court that it was not required to accommodate Velez because loading barrels onto trailers was an essential function of his job as a truck driver. The ADA does not require an employer to remove an essential function of an individual's job in order to reasonably accommodate a disability. E.g., Jones v. Kerrville State Hosp., 142 F.3d 263, 265 (5th Cir. 1998) ("As a matter of law, it is an unreasonable accommodation for the employer to have to exempt the employee from performance of an essential function of the job.").<11> "Essential functions are the fundamental duties of the job at issue and do not include the job's ‘marginal functions.'" EEOC v. E.I. DuPont de Nemours & Co., 480 F.3d 724, 730 (5th Cir. 2007) (quoting Kapche v. City of San Antonio, 176 F.3d 840, 843 (5th Cir. 1999)). In Kapche, this Court observed that, according to the Commission's implementing regulations, "a job function may be considered essential if, for example, (1) the purpose of the position is the performance of that function, (2) only a limited number of employees are available among whom the performance of that function can be delegated, or (3) an employee is hired because of his expertise or ability to perform a specialized function." 176 F.3d at 843 (citing 29 C.F.R. § 1630.2(n)(2)(i)-(iii)). The evidence in the record reflects that, under this standard, the task of loading drums onto unventilated trailers in the summer heat was not an essential function of Velez's job as a truck driver, and was one as to which Agro readily could have granted Velez a reasonable accommodation. This Court has said that, "[w]hen considering whether a function is essential, a court may hear a variety of evidence, including ‘(1) the employer's judgment as to which functions are essential, (2) written job descriptions prepared before advertising or interviewing applicants for the job, (3) the amount of time spent on the job performing the function, and (4) the work experience of both past and current employees on the job.'" DuPont, 480 F.3d at 730 (quoting Kapche, 176 F.3d at 843). In the "Nature and Scope" section of Velez's written position description, the entire first paragraph pertains to vehicle driving, maintenance, documentation, and customer service. RE-T.8 (ROA-1407). The second paragraph states, in relevant part, that the truck driver "needs to stay in good physical condition to lift weight in excess of 40 lbs., climb ladders and be able to assist warehouse/plant workers with various physical duties; i.e., shrink wrapping, hand palletizing, moving barrels, sweeping, etc." Id. The third paragraph simply states that the truck driver should discuss any "problems or unusual circumstances" that arise outside of the guidelines in the job description with the location manager prior to taking action. Id. Of the eleven "key job elements" listed in the next section, none mention loading or unloading drums from trailers; the only one that even arguably pertains to the task at issue is number 9, "[a]ssists warehouse/plant workers with various duties at the location." Id. The deposition testimony in the record supports the characterization in the written job description — the barrel-loading task was a relatively minimal part of Velez's truck driving job, performed, at most, a few times a year, and usually in colder weather, when it did not present any trouble for Velez. R.157-Exh.A-263, 270, 274-75 (ROA-1874-77); R.157-Exh.B-36-37 (ROA-1901-02). Moreover, Griffin himself testified that, shortly after the incident that resulted in Velez's termination, Agro began using forklifts for this task, thus obviating the need for it at all at the Hattiesburg facility. R.157-Exh.C-81, 83 (ROA-1932-33). Accordingly, the evidence would support a finding that Velez's request to be excused from the barrel-loading because of his medical condition was a request for a reasonable accommodation within the meaning of the ADA. Velez's conversations with Payne and Griffin triggered Agro's "obligation to participate in the [ADA's] interactive process." Taylor, 93 F.3d at 165. The uncontroverted evidence reflects that Agro flatly refused to engage in any interactive process whatsoever with Velez; instead, Griffin admits that he simply told Velez to show up the next morning to load the barrels into the trailer. R.145- Exh.G-87 (ROA-1457). When Velez did not participate in loading the barrels, which he knew from past experience would make him ill due to his disability, Griffin terminated Velez's employment immediately because "he didn't show up and be a part of the team like I had asked him to be, like everybody else." R.145- Exh.G-89-90 (ROA-1458-59). Agro blatantly, and by its own admission, failed to live up to its obligation to engage in the ADA's required interactive process with Velez. Agro argued below that it had always accommodated Velez's disability by allowing him to take breaks and cool off on the job prior to July 16, 2002, and, accordingly, Velez should have shown up to the barrel-loading job that morning. However, the record reflects that, on the previous occasion when Velez had loaded barrels into a trailer during the warm season, it had in fact made him ill, even when he had been able to take breaks (R.157-Exh.A-270 (ROA-1875)). Thus, it was reasonable for him to believe that loading barrels in the heat would make him ill this time as well. In any case, when Velez telephoned Griffin on the evening of July 15 and informed him that he could not participate in loading the barrels because of the heat, Velez was requesting an accommodation under the ADA, and, as this Court has clearly explained, it was Agro's responsibility to engage in a dialogue with him and find out what he needed — not to refuse to communicate with him and simply tell him to show up or suffer the consequences. See, e.g., Cutrera, 429 F.3d at 112 ("[T]he employee's initial request for an accommodation triggers the employer's obligation to participate in the interactive process."); Jenkins, 487 F.3d at 316 (citing cases holding that employer has an affirmative duty to engage in good-faith interactive process with employee seeking accommodation). D. The Commission satisfied its statutory duty to conciliate this case in good faith. Although the district court expressly based its grant of summary judgment to Agro on the merits of the case rather than on its conciliation history, we anticipate that Agro will argue on appeal that the Commission's failure to engage in good faith conciliation of this case constitutes an alternate ground for affirmance. However, the record reflects that the Commission fully satisfied its statutory obligation to conciliate this case. The ADA and Title VII provide that "[i]f the Commission determines after [] investigation that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion." 42 U.S.C. § 2000e-5(b); 42 U.S.C. § 12117(a). In EEOC v. Klingler Electric Corp., 636 F.2d 104 (5th Cir. 1981), this Court observed that, "[i]n evaluating whether the EEOC has adequately fulfilled this statutory requirement, the fundamental question is the reasonableness and responsiveness of the EEOC's conduct under all the circumstances." Id. at 107 (internal citation omitted). The Klingler Court continued, "[t]he EEOC has fulfilled its statutory duty to attempt conciliation if it outlines to the employer the reasonable cause for its belief that [the ADA] has been violated, offers an opportunity for voluntary compliance, and responds in a reasonable and flexible manner to the reasonable attitudes of the employer." Id. (internal citation omitted). The standard in Klingler was plainly met in this case. From the outset, Agro's counsel, Mr. Ehrhardt, made it clear to the Commission that he thought this case was of no merit whatsoever and was highly resistant to engaging in any negotiations beyond the Commission's either conceding the case or accepting a small nuisance settlement. RE-T.14 (ROA-1540-42) (disputing the Commission's evidence, characterizing the issue as whether Velez could perform manual labor, and stating that "[t]his should be a no-cause case"); RE-T.20 (ROA-1552) (even "assuming" that the EEOC would require reinstatement, full back pay, and compensatory damages as conditions of settlement, offering "the gross amount of $3,500 in settlement of [Velez's] charge," including federal and state taxes to be withheld). The Commission sent Ehrhardt three separate letters on three occasions over the period of a year asking him to submit a reasonable counterproposal to the agency's detailed conciliation proposal, and each time he failed or refused to do so. RE-T.15 (ROA-1543-44); RE- T.18 (ROA-1549-50); RE-T.21 (ROA-1563-64). Instead, Ehrhardt belatedly submitted a single all-or-nothing settlement proposal for a nuisance sum, and refused to budge from that single offer. RE-T.20 (ROA-1552). Indeed, when the Commission came back a fourth time, in May 2006, offering again to enter into settlement negotiations in response to Ehrhardt's latest demand that the agency dismiss the case, Ehrhardt responded by deeming the Commission's proposal "clearly outrageous" and again refusing to negotiate. R.179-Exh.D (ROA-2137); RE-T.22 (ROA-2139-41). The Commission was under no obligation to accede to Ehrhardt's demands to dismiss the case or accept a settlement for a nuisance sum in order to render our conciliation efforts adequate. See EEOC v. Liberty Trucking Co., 695 F.2d 1038, 1041 (7th Cir. 1982) ("Conciliation agreements are voluntary contracts containing terms upon which the employer, the employee, and the EEOC agree. . . . An employer who believes he has not discriminated or that the terms proposed either by the EEOC or the employee are unfair is free to refuse to agree. (Indeed, every proper direct enforcement action brought by the EEOC reflects the failure of the parties to agree to terms of conciliation.)"). This case is readily distinguishable from EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256 (11th Cir. 2003), cited by the district court in its analysis. In Asplundh, the court found the following facts: After a thirty-two month investigation in which the employer cooperated with the Commission, the EEOC sent the employer a broad and vague conciliation proposal and gave the employer an arbitrary deadline of only twelve business days to respond. Id. at 1258. When the employer responded belatedly and asked to continue the conciliation process, the Commission refused, closed conciliation, and commenced litigation only days later. Id. at 1258-59. In this case, on the other hand, what appears to have happened is that the initial letter closing conciliation for lack of a timely response by Ehrhardt (dated 8/19/03) crossed paths with the telephone messages Small and Ehrhardt left for each other on August 15 and 18, 2003. RE-T.17 (ROA-1548); RE-T.16 (ROA-1545). However, as soon as the Commission received Ehrhardt's belated response expressing interest in continuing conciliation, Area Director Bradley immediately reopened conciliation. RE-T.18 (ROA-1549-50). Indeed, it was precisely the Commission's failure to respond in this way that the Asplundh court singled out in faulting the conciliation efforts in that case. 340 F.3d at 1260-61. The fact that conciliation ultimately failed in this case, largely due to Agro's own inflexible position, is in no way attributable to the Commission. II. THE DISTRICT COURT ABUSED ITS DISCRETION IN AWARDING ATTORNEY'S FEES TO AGRO BECAUSE THIS LITIGATION IS NOT FRIVOLOUS. A. Agro is not entitled to attorney's fees because this case is not frivolous, unreasonable, or without foundation under Christiansburg. If this Court agrees that summary judgment was improperly granted, it must vacate the award of attorney's fees. However, even if this Court were to affirm the summary judgment, it should reverse the decision to grant attorney's fees to the defendant in this ADA enforcement action. As the Supreme Court held in Christiansburg Garment Co. v. EEOC, "a district court may in its discretion award attorney's fees to a prevailing defendant in a Title VII case upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." 434 U.S. 412, 421 (1978).<12> In so holding, the Court noted, "it is important that a district court resist the understandable temptation to engage in post hoc reasoning that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation. This kind of hindsight logic could discourage all but the most airtight claims, for seldom can a prospective plaintiff be sure of ultimate success." Id. at 421-22. All of the reasoning advanced above as to why summary judgment was inappropriate applies doubly to the attorney's fees issue. However, even assuming arguendo that summary judgment was appropriate based on the evidence in the record, the Commission advanced substantial evidence and argued a valid legal theory in support of its claim on behalf of Mr. Velez. Even if this case ultimately should not be successful, it is not "frivolous, unreasonable, or without foundation." In addition, insofar as the district court relied on any of Ehrhardt's complaints about the Commission's investigation of Velez's charge in concluding that this lawsuit was frivolous, it was legally inappropriate for the court to do so. While parties have a right to a trial de novo on the merits of their claims, see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798 (1972), they have no right in federal court to challenge the adequacy of the Commission's investigation, to quarrel with its conclusions, or to otherwise seek a mini-trial relating to the Commission's administrative process. As this Court has put it, "‘the nature and extent of an EEOC investigation into a discrimination claim is a matter within the discretion of that agency.'" Newsome v. EEOC, 301 F.3d 227, 231 (5th Cir. 2002) (quoting EEOC v. Keco Indus., Inc., 748 F.2d 1097, 1100 (6th Cir. 1984)). See also, e.g., Georator Corp. v. EEOC, 592 F.2d 765, 767 (4th Cir. 1979) ("the court will not determine whether substantial evidence supported the Commission's pre- adjudication finding of reasonable cause"); EEOC v. Caterpillar, Inc., 409 F.3d 831, 832 (7th Cir. 2005) (observing that "[n]o case holds that the scope of the EEOC's investigation is a justiciable issue in a suit by the EEOC, and [Georator, 592 F.2d at 767] holds that it is not") (emphasis in original); id. (holding that "[t]he existence of probable cause to sue is generally and in this instance not judicially reviewable"); Keco Indus., 748 F.2d at 1100 (holding that district court erred in "inquir[ing] into the sufficiency of the Commission's investigation"); EEOC v. St. Anne's Hosp., 664 F.2d 128, 131 (7th Cir. 1981) (rejecting defendant's claim that the EEOC's investigation was inadequate; noting that "[a] reasonable cause determination is not to adjudicate a claim but to notify an employer of the Commission's findings"). B. Even if Agro were entitled to attorney's fees, the amount granted by the district court was too high. As a final point, the district court abused its discretion in granting the amount of attorney's fees that it did: $197,859. The district court failed to engage in any detailed analysis of the specific issues raised by the Commission as to why the fee award was excessive, and it failed to adequately consider the twelve factors set forth in Johnson v. Georgia Highway Express, 488 F.2d 714, 717-19 (5th Cir. 1974), in calculating the amount of attorney's fees to be awarded to the defendant. See also Alberti v. Klevenhagen, 896 F.2d 927, 933, vacated in part on other grounds, 903 F.2d 352 (5th Cir. 1990) (observing that a court must "carefully scrutiniz[e] the fee petition to see if particular hours claimed were reasonably expended") (emphasis in original); Cobb v. Miller, 818 F.2d 1227, 1232 (5th Cir. 1987) (appellate court is not "required to reverse summarily a district court finding that omits one of the Johnson factors so long as the record clearly indicates that the district court has utilized the Johnson framework as the basis of its analysis, has not proceeded in a summary fashion, and has arrived at an amount that can be said to be just compensation"). This Court has repeatedly held that attorney's fee awards must be accompanied by the court's explanation of the factors, whether those set forth in Johnson or others, that contributed to the fee award; such an explanation provides the court of appeals with "some assurance that the court has arrived at a just compensation based upon appropriate standards." Davis v. Fletcher, 598 F.2d 469, 470-71 (5th Cir. 1979) (per curiam). That assurance is lacking here, and for significant reasons. First, the court awarded Agro the full $53,203.71 it claimed for its efforts to depose EEOC attorney Prisca DeLeonardo and the subsequent mandamus action that it lost before this Court, without consideration for the fact that this was both a completely separable issue and one on which Agro unquestionably did not succeed.<13> See Hensley v. Eckerhart, 461 U.S. 424, 440 (1983) (holding that "[w]here the plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee") (emphasis added); Johnson, 488 F.2d at 718 (listing "results obtained" as factor number 8). Moreover, the Commission raised other specific objections to various fees and costs claimed by Agro, as to which the district court engaged in no analysis and made no response. We specifically objected to Agro's claims for fees and costs pertaining to basic legal research and research on issues completely collateral to this case, fees and costs pertaining to discovery of medical and financial records for Velez's family members, who were not parties to this lawsuit and which were of no relevance to this lawsuit, and fees and costs for continuances sought by Agro and for which the Commission was not responsible. In Hensley, the Supreme Court directed district courts to exclude from fee calculations all hours that are not "reasonably expended," 461 U.S. at 434, and emphasized that "the fee applicant bears the burden of establishing entitlement to an award," id. at 437. The district court failed to consider the Commission's objections or to undertake the required analysis, and instead simply awarded Agro the fees it sought, minus a "discount" for the Commission's enforcement mission, based on its extremely negative view of the merits of this case. CONCLUSION For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings; the award of attorney's fees to the defendant should be vacated. Respectfully submitted, RONALD S. COOPER General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel ______________________________ ELIZABETH E. THERAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4720 elizabeth.theran@eeoc.gov CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 13,865 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 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 Times New Roman 14 point. Elizabeth E. Theran Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4720 elizabeth.theran@eeoc.gov Dated: September 5, 2007 CERTIFICATE OF SERVICE I, Elizabeth E. Theran, hereby certify that I filed one original and six hard copies of the foregoing brief, plus one electronic copy in PDF format on a 3.5-inch diskette, with this Court this 5th day of September, 2007, by overnight delivery, postage pre-paid. I also certify that I served two hard copies of the foregoing brief, plus one electronic copy in PDF format on a 3.5-inch diskette, this 5th day of September, 2007, by overnight delivery, postage pre-paid, to the following counsel of record: Counsel for Defendant: Herbert C. Ehrhardt, Esq. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 100 Concourse, Suite 204 1052 Highland Colony Parkway Ridgeland, MS 39157 (601) 360-8444 Elizabeth E. Theran Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4720 elizabeth.theran@eeoc.gov *********************************************************************** <> <1> “RE-T.[#]” refers to tabbed material in the EEOC’s Record Excerpts. “R.[#]” refers to the district court docket entry. “ROA-[#]” refers to the paginated, certified Record on Appeal. <2> Griffin’s account of his conversation with Velez is different. According to Griffin, he asked Velez whether the heat was going to be a problem for him, and Velez told him “no,” but said that he didn’t believe that he should have to participate in the task because he and Savage had had to do it before and no one else had. R.145-Exh.G-87 (ROA-1457). Griffin testified that he told Velez that he expected him to come in nonetheless and hoped to see him there. Id. <3> The district court, in its summary judgment opinion, stated that, “on the morning of July 16, 2002, the temperature for Hattiesburg did not exceed 70° before 8:00 A.M. and did not reach 80° until approximately 11:00 A.M.” RE-T.3-4 (ROA-2043). However, the meteorological data reflected that the temperature was already 71.06° as of 7:53a.m. on July 16, and had reached 82.04° by 9:53a.m. RE-T.10 (ROA-2004-07). <4> The proposed conciliation agreement requested $25,629 in back pay plus interest, $10,907 in out-of-pocket medical expenses, $120,000 in compensatory damages, reinstatement with accommodation, posting of a notice, and reporting requirements relating to requests for and granting of accommodations. R.177-Exh.2 (ROA-2094-97). <5> The correspondence described herein was among the contents of the charge file. Also in the file was a “conciliation log.” R.145-Exh.Q-exh.10 (ROA-1546-47). The conciliation log contains the charge number and the names of the respondent and charging party, but is otherwise blank. <6> On appeal, the Commission is not advancing the theory that Velez is substantially limited with respect to breathing. <7> At http://www.emedicine.com/derm/topic114.htm. <8> At http://www.ghr.nlm.nih.gov/condition=hypohidroticectodermaldysplasia. <9> At http://abcnews.go.com/GMA/Health/story?id=3514398&page=1. <10> Available at http://www.eeoc.gov/policy/docs/accommodation.html. <11> Conversely, an individual who cannot perform the essential functions of a job even with reasonable accommodation is not a “qualified individual with a disability” under the ADA. See 42 U.S.C. § 12111(7) (a qualified individual with a disability is one who “with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires”); DuPont, 480 F.3d at 730. Because barrel-loading in the heat was not an essential function of Velez’s job, his inability to perform that specific task did not render him unqualified. <12> Attorney’s fees in ADA cases are governed by § 706(g) of Title VII. See 42 U.S.C. § 12117(a). <13> Agro argued below that it was entitled to full compensation for its pursuit of DeLeonardo’s deposition because it was “reasonable” and because this Court supposedly “found” in its mandamus decision that Agro’s efforts to gain information from DeLeonardo somehow advanced its claim for attorney’s fees. Insofar as this Court mentioned the merits of Agro’s fees claim in its mandamus decision, it was simply reciting Agro’s allegations to weigh them against the Commission’s assertion of privilege. The panel went out of its way to emphasize that it was not expressing any view as to the merits of Agro’s fees claim. In re EEOC, 207 Fed. Appx. 426, 430 n.3, 2006 WL 3420135 (5th Cir. 2006) (“Nothing in this opinion should be construed as a comment one way or the other on the merits of Agro’s motion for attorneys’ fees. We leave that decision to the district court.”); R.206. Accordingly, Agro’s fruitless pursuit of DeLeonardo’s testimony did not advance its fees claim in any way.