IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 02-13571-EE ________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. ASPLUNDH TREE EXPERT COMPANY, Defendant-Appellee. _______________________________________________________ On Appeal from the United States District Court for the Northern District of Florida, Gainesville Division District Court No. 1:99cv121 MMP _______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT _______________________________________________________ NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel SUSAN R. OXFORD Attorney EQUAL EMPLOYMENT OPPORTUNITY COMM. 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4791 EEOC v. Asplundh Tree Expert Co., No. 02-13571-E page C-1 of 1 CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT Pursuant to 11th Cir. R. 26.1-1, I hereby certify that the following persons or entities have an interest in the outcome of this case: Asplundh Tree Expert Co., Defendant Lorraine C. Davis, Assistant General Counsel, EEOC Equal Employment Opportunity Commission, Plaintiff Delner Franklin-Thomas, Regional Attorney, EEOC Nicholas M. Inzeo, Acting Deputy General Counsel, EEOC Robert E. Larkin, III, Co-Counsel for Defendant Robert B. Lewis, Charging Party Michael Mattimore, Esq., Co-Counsel for Defendant Susan R. Oxford, Attorney, EEOC Hon. Maurice M. Paul, Senior U.S. District Judge, N.D.Fla. Gwendolyn Young Reams, Associate General Counsel, EEOC Gedety N. Serralta, Senior Trial Attorney, EEOC Philip B. Sklover, Associate General Counsel, EEOC Pursuant to Fed. R. App. P. 26.1, the Equal Employment Opportunity Commission, as a government agency, is not required to file a corporate disclosure statement. _____________________________ Susan R. Oxford STATEMENT REGARDING ORAL ARGUMENT The Equal Employment Opportunity Commission (EEOC) respectfully requests that oral argument be granted in this case. The district court's award of attorney's fees and costs to the Defendant-Respondent Asplundh Tree Expert Company (Asplundh) on the ground that EEOC failed to adequately conciliate the matter is inconsistent with the standards established by the United States Supreme Court for an award of fees against a plaintiff in an action brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. Given the substantial size of the fees awarded here, the district court's ruling has the potential to interfere significantly with EEOC's future conduct of enforcement litigation, by discouraging EEOC from filing litigation where there is any doubt concerning whether a court may subsequently conclude, on the eve of trial, that EEOC's prior efforts at conciliation were insufficient in a particular case. EEOC previously requested oral argument in its related appeal from the district court's dismissal of this action, EEOC v. Asplundh Tree Expert Co. (Asplundh I), No. 02-12386-E. That appeal has now been consolidated with this appeal pursuant to this Court's order of August 30, 2002. EEOC respectfully submits that oral argument will assist this Court in a proper resolution of the important issues arising in these consolidated appeals. TABLE OF CONTENTS page CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT . . . . . . . . . . . . C-1 STATEMENT REGARDING ORAL ARGUMENT TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . i TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . iii STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . 1 STATEMENT OF ISSUES . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . 2 1. Nature of the Case and Course of Proceedings . . . . . 2 2. Statement of Facts - Underlying Action . . . . . . . . 4 3. Decision Below - Underlying Action . . . . . . . . . . 8 4. Statement of Facts - Application for Fees and Costs . . 11 5. Decision Below - Fees and Costs . . . . . . . . . . . . 11 STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . 12 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . 13 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . 16 I. THE DISTRICT COURT ERRED IN AWARDING ATTORNEY'S FEES TO ASPLUNDH BECAUSE EEOC SATISFIED TITLE VII'S CONCILIATION REQUIREMENTS AND EVEN ASSUMING, ARGUENDO, THAT CONCILIATION WAS INADEQUATE, THE PROPER REMEDY WOULD HAVE BEEN TO STAY THE LITIGATION TO PERMIT FURTHER CONCILIATION . . . . . . . . . . . 16 II. THE COURT BELOW ERRED IN AWARDING ATTORNEY'S FEES TO THE DEFENDANT BECAUSE ASPLUNDH WAS NOT A PREVAILING PARTY ON THE MERITS, THE COMMISSION'S CLAIMS WERE NOT FRIVOLOUS OR UNREASONABLE, AND THE COMMISSION DID NOT ACT IN BAD FAITH . . . . . . . . . . . . . . . . . . 18 A. Asplundh is not Entitled to an Award of Attorney's Fees and Expert Costs Under Title VII . . . . . . . . . . . . . . . . . . . 18 1. Asplundh Is Not a Prevailing Party within the Meaning of Section 706(k) . . . . . . . 21 2. The District Court's Findings Do Not Meet the Christiansburg Standard for an Award of Fees to a Prevailing Title VII Defendant 25 B. To the Extent the District Court Based its Fee Award on its Belief that EEOC Ignored the Sampo Letter and Could Recover Only Limited Monetary Damages in this Case, the Court Committed an Abuse of Discretion . . . . . . . . . . . . . . . 33 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . 35 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . 36 CERTIFICATE OF SERVICE APPENDIX Order of District Court dated June 12, 2002, in EEOC v. Asplundh Tree Expert Co., Civil No. 1:99cv121 MMP, awarding attorney's fees and costs (R. 99) . . . . . . . . . . . . . . . . . . 1a Judgment of District Court dated Junes 12, 2002, in EEOC v. Asplundh Tree Expert Co., Civil No. 1:99cv121 MMP, awarding attorney's fees and costs (R. 100) . . . . . . . . . . . . . . . 2a Order of this Court dated August 30, 2002, in EEOC v. Asplundh Tree Expert Co, Appeal Nos. 02-12386-EE and 02-13571-EE, consolidating appeals on the Court's own motion . . . . . . . . . . 3a Burke v. Furniture House of North Carolina, Inc., No. C-89-169-S, 1990 WL 209662 (M.D.N.C. Sept. 13, 1990) . . . . . . . . . . . . . . 4a TABLE OF AUTHORITIES CASES page Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) . . . 19 Bonner v. City of Prichard, 661 F.3d 1209 (11th Cir. 1981) (en banc) . . . . . . . . . . . . . 13 Bonner v. Mobile Energy Services Co., 246 F.3d 1303 (11th Cir. 2001)(per curiam) . . . . . . . . . . . . 26 Bruce v. City of Gainesville, 177 F.3d 949 (11th Cir. 1999) . . . . . . . . . . . . . . . . . . 27 Buckhannon Board and Care Home, Inc. v. West Virginia Dep't of Health and Human Resources, 532 U.S. 598 (2001) . . . . . . . . . . . 18 Burke v. Furniture House of North Carolina, No. C-89-169-S, 1990 WL 209662 (M.D.N.C. Sept. 13, 1990) . . . . . . . . . . . . . . . . . . 22 Chacon v. Ezekiel, 957 F. Supp. 1265 (S.D. Fla. 1997) . 23 * Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978) . . . . . . . . . . 14, 19, 20, passim * DeShiro v. Branch, 183 F.R.D. 281 (M.D. Fla. 1998) . . . . . . . 21, 23, 24 * EEOC v. Bruno's Restaurant, 13 F.3d 285 (9th Cir. 1993) . . . . 12, 27, 28, 30, 31, 34 EEOC v. First Alabama Bank of Montgomery, 595 F.2d 1050 (5th Cir. 1979) . . . . . . . . . . . . 28 EEOC v. Kenneth Balk & Assoc., 813 F.2d 197 (8th Cir. 1987) . . . . . . . . . . . . . . . . . . . 28 * EEOC v. Klingler Electric Corp., 636 F.2d 104 (5th Cir. 1981) . . . . . . . . . . . . 13 EEOC v. L.B. Foster, 123 F.3d 746 (3d Cir. 1997) . . . . . . . . . 25, 26, 28 EEOC v. Pierce Packing Co., 669 F.2d 605 (9th Cir. 1982) . . . . . . . . . . . . . . . . . . . 30 * EEOC v. Reichhold Chemicals, Inc., 988 F.2d 1564 (11th Cir. 1993) . . . . . 12, 19, 20, 21, 28 EEOC v. Zia, 582 F.2d 527 (10th Cir. 1978) . . . . . . . 24 Ferroni v. Teamsters, Chauffeurs & Warehousemen Local No. 222, 297 F.3d 1146 (10th Cir. 2002) . . . . 26 Hanrahan v. Hampton, 446 U.S. 754 (1980) . . . . . . . 21 Hughes v. Rowe, 449 U.S. 5 (1980) . . . . . . . . . . . 21 Jane L. v. Bangerter, 61 F.3d 1505 (10th Cir. 1995) . . 26 Jones v. Texas Tech University, 656 F.2d 1137 (5th Cir. Unit A Sept. 1981) . . . . . . . . . . . 25, 28 * Marquart v. Lodge 837, Int'l Ass'n of Machinists and Aerospace Workers, 26 F.3d 842 (8th Cir. 1994) . . . . . . . . 12, 21, 23, 24 * Sayers v. Stewart Sleep Center, Inc., 140 F.3d 1351 (11th Cir. 1998) . . . . . . . . . . . 27, 34 * Sullivan v. School Board of Pinellas County, 773 F.2d 1182 (11th Cir. 1985) . . . . . . . . . 25, 26, 32 Turlington v. Atlanta Gas Light Co., 135 F.3d 1428 (11th Cir. 1998) . . . . . . . . . . . . . . . . . . . 12 * Walker v. NationsBank of Florida, 53 F.3d 1548 (11th Cir. 1995) . . . . . . . . . . . . . 19, 21, 25, 26 STATUTES page 28 U.S.C. 1291 . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. 1331 . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. 1345 . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. 1988 . . . . . . . . . . . . . . . . . . . . . 21 42 U.S.C. 2000e et seq. . . . . . . . . . . . . . . . . 3 42 U.S.C. 2000e-5(f)(1) . . . . . . . . . . . . . . . 1, 25 42 U.S.C. 2000e-5(f)(3) . . . . . . . . . . . . . . . . 1 42 U.S.C. 2000e-5(k) . . . . . . . . . . . 2, 13, 14, 18, 21 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 02-13571-EE ________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. ASPLUNDH TREE EXPERT COMPANY, Defendant-Appellee. ______________________________________________________ On Appeal from the United States District Court for the Northern District of Florida, Gainesville Division BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS PLAINTIFF-APPELLANT ______________________________________________________ STATEMENT OF JURISDICTION The district court had jurisdiction pursuant to 28 U.S.C. 1331 & 1345 and 42 U.S.C. 2000e-5(f)(1) & (3). The district court's order and judgment entered on June 12, 2002, R. 99, 100, constitute a final decision which this Court has jurisdiction to review pursuant to 28 U.S.C. 1291. The Equal Employment Opportunity Commission ("EEOC" or "Commission") filed a timely notice of appeal on June 28, 2002. R. 102. STATEMENT OF ISSUES 1. Whether the district court erred in awarding attorney's fees against EEOC because EEOC's actions satisfied the conciliation requirements of Title VII and even assuming, arguendo, that EEOC ended conciliation prematurely, the appropriate remedy would have been to stay the matter for further conciliation and an award of fees would be improper in connection with such a stay. 2. Whether the award of attorney's fees against EEOC was improper under 42 U.S.C. 2000e-5(k) because Asplundh is not a "prevailing party" under that provision and EEOC's claims were not "frivolous, unreasonable or without foundation." 3. Whether the district court abused its discretion in awarding attorney's fees to Asplundh because EEOC reasonably believed that it had adequately conciliated this matter before filing suit and the district court's finding that EEOC failed to satisfy Title VII's conciliation requirement was based, in critical part, on a clearly erroneous view of the facts and potential relief. STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings This is an appeal from the district court's June 12, 2002, award of attorney's fees to Defendant-Appellee Asplundh Tree Expert Company, R. 99, 100, following the district court's February 20, 2002, decision to dismiss the Commission's cause of action based on the court's finding that EEOC did not satisfy the conciliation requirement of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. (Title VII). R. 90, 91. On May 12, 1999, EEOC filed a complaint against Asplundh alleging that former Asplundh employee Robert B. Lewis was subjected to harassment at the workplace because of his race (African-American) and was subjected to retaliation, in violation of Title VII, when Asplundh terminated him after he complained of the harassment. R. 1 (EEOC's Complaint). EEOC's complaint alleged that Lewis filed a charge with the Commission more than 30 days prior to institution of this lawsuit and that "[a]ll conditions precedent to the institution of the lawsuit have been fulfilled." Id. at 2-3. In its Answer, Asplundh admitted that Lewis had filed a charge with the EEOC at least 30 days before EEOC instituted suit, but denied the Commission's remaining allegations pertaining to the Commission's satisfaction of the conditions precedent to suit. R. 5 (Asplundh's Answer) at 2. The Commission moved for partial summary judgment on the issue of conciliation, R. 67, and Asplundh opposed the motion. R. 77, 78. On February 20, 2002, the district court held that the Commission did not satisfy the conciliation requirements of Title VII and dismissed EEOC's lawsuit, R. 90, 91, and the Commission appealed that decision. R. 93. In its February 20, 2002, decision, the district court also indicated that Asplundh was entitled to its costs, expenses and attorney's fees in defending the action, and reserved jurisdiction to enter the same. R. 90 at 11-12; R. 91. Asplundh thereafter moved for attorney's fees and costs in the amount of $235,308.71. R. 92. On June 12, 2002, the district court sustained the Commission's objection to costs related to the court-ordered mediation and awarded fees and costs to Asplundh in the reduced amount of $231,265.82. R. 99, 100. This appeal followed. R. 102. 2. Statement of Facts - Underlying Action On August 26, 1996, Robert B. Lewis filed a Charge of Discrimination against Asplundh alleging that Asplundh subjected him to racial harassment, paid Black employees lower wages than White employees and denied Black employees pay increases, and discharged him in retaliation for complaining about race discrimination. RE42. Asplundh had hired Lewis to perform work in connection with a three-year contract between Asplundh and the Gainesville Regional Utilities ("GRU") to install underground cable. The alleged harasser was a GRU electric utility inspector who inspected the site daily to ensure Asplundh's contractual compliance. Among other forms of racial harassment, Lewis claims that on one occasion two of Lewis's co-workers witnessed the alleged harasser place a noose around Lewis's neck, point to a nearby tree with "branches that resembled 'monkeys,'" and "t[ell] Lewis that he would hang him up there with the 'rest of your family.'" R. 90 at 3-4. The Commission investigated the charge, conducted a pre- determination interview with Asplundh on March 4, 1999, and issued a Letter of Determination ("LOD") on March 31, 1999, finding cause on Lewis's charges of racial harassment and retaliation, but not on the wage issue. The LOD invited the parties to engage in "informal methods of conciliation," and enclosed EEOC Form 153 ("Invitation to Participate in Settlement Discussions") for the parties to fill out and return indicating their interest in conciliation. Lewis returned the form indicating his willingness to engage in settlement discussions; Asplundh did not return the form. On April 7, 1999, EEOC sent Asplundh's General Counsel a proposed Conciliation Agreement for his "review and consideration," with a cover letter asking Asplundh to respond by April 23, 1999. The EEOC's letter advised Asplundh that an executed Agreement, a specific counter proposal, or a decision to enter into no agreement must be submitted [to the attention of EEOC Investigator Debora West] no later than the close of business on April 23, 1999. Asplundh did not respond in any way to the Commission's proposed Conciliation Agreement by the designated date. Almost a week later, on April 29, 1999, the Commission sent the defendant a letter stating that efforts to conciliate were unsuccessful based on Asplundh's failure to return the Form 153 or respond to the April 7th conciliation proposal by the designated date. That same day, EEOC investigator Debora D. West received a letter from Peter L. Sampo dated April 28, 2002. Sampo identified himself as Defendant's newly retained outside counsel and said that he wanted to discuss the case with West so he could "attempt to understand the Commission's basis for its determination" and "provide informed advice" to Asplundh on the issue. The letter further asked West to "extend the time for responding to the proposed Conciliation Agreement" until Sampo had an opportunity to review the matter and discuss the issues with West. The letter made no attempt to explain why it took Asplundh approximately one month to contact the Commission after the agency first extended an invitation to the parties to conciliate. Investigator West thereafter attempted, without success, to reach Sampo by telephone. As indicated by West's telephone and correspondence log, which Asplundh appended as an exhibit to its response to the Commission's motion, West made the first call to Sampo the same day she received his letter. A few days later, Sampo returned her call and left a telephone message for West. West thereafter returned Sampo's telephone call and left him a voice message advising him that "the case is out of my hands" and that any further communications about the status of the case should be directed to the Regional Attorney. Sampo never contacted the Regional Attorney after West left this message. EEOC filed suit on May 12, 1999, alleging that Asplundh violated Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991 by subjecting Robert Lewis to racial harassment and retaliatory discharge. In its Answer, Asplundh admitted that Lewis had filed a charge with the EEOC at least 30 days before suit was filed, but denied that the Commission met the other conditions precedent to suit. Discovery proceeded, and a trial date was set. On February 6, 2001, the parties engaged in a day-long mediation session, see R. 92, Ex. 4, but were not able to resolve the matter. The Commission moved for partial summary judgment, asking the district court to rule that the Commission had satisfied Title VII's conciliation requirement. R. 67. Asplundh opposed the motion, arguing that the Commission 1) did not adequately explain the basis for its determination, 2) denied Asplundh an adequate opportunity to make a counter-offer to the Commission's conciliation proposal, and 3) never responded to Asplundh's request for more information and for an extension of time. R. 77. Asplundh asked the court to dismiss the litigation on this basis. 3. Decision Below - Underlying Action On February 20, 2002, the district court held that EEOC had failed to satisfy the conciliation requirement of Title VII. R. 90. The court recognized that in similar circumstances, courts have stayed litigation to permit the parties to engage in further conciliation. The court concluded that in this case, however, EEOC did not act in good faith. R. 90 at 10-11. Therefore, the court dismissed the action and indicated that Asplundh is entitled to its costs, expenses and attorney's fees in defending the action. R. 90 at 11-12, R. 91. In concluding that EEOC did not conciliate this case adequately, the court stated that Sampo forwarded a letter to Investigator West on April 28, 1999, and that the Commission mailed the notice stating that conciliation was unsuccessful the next day. R. 90 at 5-6, 9-10. The court considered that the Sampo letter "[c]learly . . . establishe[d] an intent on behalf of the Defendant to resolve the matter outside of the courtroom." Id. at 10. Before this Court, Asplundh now concedes that EEOC responded to Sampo's letter. See discussion in EEOC's Reply Brief in EEOC v. Asplundh I, No. 02-12386-E, at 3-6. In ruling against the Commission on February 20, 2002, however, the district court accepted Asplundh's repeated, erroneous representations, based on the sworn affidavit of Peter Sampo, that EEOC never responded to Sampo's letter or even acknowledged having received it. R. 90 at 6; see EEOC's Reply Brief in EEOC v. Asplundh I, No. 02-12386-E, at 4-5 and n.2. Based on this clearly erroneous view of the facts, the lower court concluded that EEOC "arbitrarily created a deadline and was particularly inflexible in enforcing [it]." Id. at 10. As noted in EEOC's opening brief in EEOC v. Asplundh I, the district court was also influenced by its perception that Lewis would be entitled only to limited damages, even if the Commission prevailed in this case. The court stated: In addition to the foregoing, and what makes this particular case so egregious and the need to negotiate before filing suit so essential, the employee, Lewis, even assuming that the defendant retaliated by firing him, would have been out of a job in 4 months, as well as all other Asplundh employees on the Gainesville project, because at that time the GRU contract would have expired, and did expire, by its own terms. Id. at 10 [emphasis omitted]. Based on all these considerations, the court held that EEOC "act[ed] in a grossly arbitrary manner and engage[d] in unreasonable conduct in failing to fulfill its statutory requirement to conciliate the matter." Ibid. Significantly, the district court made no findings on the merits of EEOC's claims of racial harassment and retaliation. Although the district court had before it Asplundh's motion for summary judgment, R. 65, 71, EEOC's response, R. 74, 75, 82, and Asplundh's reply, R. 88, 89, the district court expressly declined to address the motion, R. 90 at 12, R. 91, and did not address the merits of EEOC's claims in conjunction with its discussion of conciliation. 4. Statement of Facts - Application for Fees and Costs In response to the district court's statement that Asplundh was entitled to attorney's fees and costs, Asplundh filed a Statement of Costs, Expenses and Attorneys' Fees seeking fees and costs totaling $235,308.17. R. 92. EEOC, reserving its right to challenge the propriety of fees and costs in their entirety on appeal, objected specifically to Asplundh's application for costs incurred to attend the court-ordered mediation on February 6, 2001. R. 95 at 2-3. 5. Decision Below - Fees and Costs On June 12, 2002, the district court issued its decision awarding attorney's fees and costs to Asplundh. The district court sustained EEOC's objection to the mediation-related costs and then awarded attorney fees of $207.666.50 and costs in the amount of $23,599.32, for a total of $231,265.82. R. 99, 100. The district court did not issue any separate findings or legal conclusions to support the award of fees and costs, apart from the February 20, 2002, order dismissing the Commission's action and stating that Asplundh was entitled to fees and costs. R. 90. In its June 12, 2002, order, the district court, again, made no findings concerning the merits of EEOC's claims. See R. 99. STANDARD OF REVIEW This case raises the question whether, as a matter of law, a district court may award attorney's fees and costs to a Title VII defendant when dismissal of EEOC's lawsuit was based solely on the district court's conclusion that EEOC failed to conciliate the claims fully before filing suit, where the district court made no findings with respect to the merits of the EEOC's underlying claims. This Court reviews de novo the legal basis for a district court's decision to award attorney's fees to a defendant in an employment discrimination case. Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1437 (11th Cir. 1998); see also Marquart v. Lodge 837, Int'l Ass'n of Machinists, 26 F.3d 842, 844-45 (8th Cir. 1994). Where a particular case falls within the appropriate legal standards for an award of attorney's fees, this Court reviews the district court's award of fees under an abuse of discretion standard. EEOC v. Reichhold Chemicals, Inc., 988 F.2d 1564, 1569 (11th Cir. 1993); see also EEOC v. Bruno's Restaurant, 13 F.3d 285, 287 (9th Cir. 1993)(court of appeals reviews district court's award of attorney's fees for abuse of discretion, but reviews de novo correctness of legal standards applied). SUMMARY OF ARGUMENT The district court's award of fees and costs to Asplundh is improper in this instance for several reasons. First, as explained in the Commission's opening and reply briefs in EEOC v. Asplundh I, No. 02-12386-E, the Commission conciliated this case adequately under the standards established by this Court in EEOC v. Klingler Electric Co., 636 F.2d 104 (5th Cir. Feb. 1981). In concluding otherwise, the district court misapplied the Klingler standard and relied on Asplundh's misrepresentation of the facts. Since EEOC's conciliation efforts were adequate, the district court had no basis to award attorney's fees against the EEOC. Even assuming, arguendo, that this Court concludes the Commission ended conciliation prematurely, dismissal was improper because it is too harsh a remedy under these circumstances. The appropriate remedy would have been to stay the litigation so the parties could conciliate the matter further, and an award of attorney's fees would be improper under such circumstances. Second, the district court's award of attorney's fees against the Commission cannot be sustained under 42 U.S.C. 2000e-5(k) because the district court never reached the merits of EEOC's underlying Title VII claims of racial harassment and retaliation when it determined that EEOC did not adequately conciliate this case before filing suit. Without a determination in its favor on the merits, Asplundh is not a "prevailing party" and, therefore, fees cannot be awarded to Asplundh under Title VII's fee-shifting provision. In addition, this case does not meet the stringent standards established under Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), for an award of fees to a Title VII defendant. Under Christiansburg, fees are properly awarded to a Title VII defendant only where the district court finds the plaintiff's claims "frivolous, unreasonable or without foundation." The district court made no such finding here with respect to EEOC's claims of racial harassment and retaliation, nor is there any basis for such a finding. Even if the Christiansburg standards are applied to the Commission's conciliation efforts, as opposed to the merits of EEOC's lawsuit, the evidence establishes that the Commission had a reasonable basis to believe the steps it took to conciliate this matter before filing suit satisfied the conciliation requirements of Title VII. Thus, wholly apart from the fact that Asplundh is not a "prevailing party" within the meaning of 2000e-5(k), Christiansburg's strict standards for an award of fees to a Title VII defendant are not met here. Finally, the district court's dismissal and, presumably, its award of attorney's fees was premised on the district court's erroneous view of the facts surrounding the conciliation of this case and the nature of EEOC's claims. The district court's conclusion that EEOC did not conciliate in good faith relied, in critical part, on the lower court's beliefs that EEOC ignored Asplundh's response to the Commission's conciliation proposal and that the case involved only minimal potential monetary relief (approximately four months of backpay). As explained in EEOC's opening and reply briefs in EEOC v. Asplundh I, No. 02-12386-E, both of these beliefs are unfounded. The district court's belief that EEOC never responded to, or even acknowledged having received, Asplundh's belated response to EEOC's conciliation proposal was based on Asplundh's repeated assertions to that effect in opposition to the Commission's motion for partial summary judgment. Asplundh now concedes that EEOC responded to the Sampo letter by attempting to reach Sampo by telephone. The district court also improperly relied on the potential monetary relief in this case as a factor in assessing whether conciliation was adequate, and erred in its assessment of the potential relief where EEOC alleges racial harassment based on an incident involving a noose. Thus, there is no foundation for the critical underpinnings of the district court's conclusion that EEOC did not conciliate this case in good faith. ARGUMENT I. THE DISTRICT COURT ERRED IN AWARDING ATTORNEY'S FEES TO ASPLUNDH BECAUSE EEOC SATISFIED TITLE VII'S CONCILIATION REQUIREMENTS AND EVEN ASSUMING, ARGUENDO, THAT CONCILIATION WAS INADEQUATE, THE PROPER REMEDY WOULD HAVE BEEN TO STAY THE LITIGATION TO PERMIT FURTHER CONCILIATION. The Commission relies on and expressly incorporates herein its opening and reply briefs in EEOC v. Asplundh I, No. 02-12386- E, at pp 14-31 (Opening Brief) and 3-23 (Reply Brief), in support of its position that the district court erred in holding that the Commission failed to satisfy the conciliation requirements of Title VII in this case. Since the Commission's conciliation efforts were adequate here, there is no basis for the district court's dismissal of EEOC's lawsuit against Asplundh and, likewise, no basis for the district court's award of attorney's fees and costs against the Commission. The Commission similarly relies on and expressly incorporates herein its opening and reply briefs in EEOC v. Asplundh I, No. 02-12386-E, at pp 31-40 (Opening Brief) and 23-29 (Reply Brief), in support of its position that the district court erred in dismissing this case, even assuming, arguendo, that the Commission's conciliation efforts were insufficient. As EEOC explained in its opening and reply briefs in Asplundh I, EEOC commenced conciliation with respect to each of the claims that formed the basis of this litigation. EEOC then waited an appropriate period of time before concluding that Asplundh's non- response to both EEOC's general invitation to conciliate (in the Letter of Determination) and EEOC's specific conciliation proposal indicated the company's lack of interest. EEOC reasonably concluded that Sampo's letter, arriving after conciliation had ended, did not provide a basis for re-opening conciliation, and telephoned Sampo instead. Even if this Court disagrees and concludes that EEOC should have re-opened conciliation upon receipt of the Sampo letter, the proper remedy, under such circumstances, would be to stay the litigation pursuant to 42 U.S.C. 2000e-5(f)(1) to allow the parties to engage in further conciliation. Clearly, an award of attorney's fees would be inappropriate in connection with such a stay. II. THE COURT BELOW ERRED IN AWARDING ATTORNEY'S FEES TO THE DEFENDANT BECAUSE ASPLUNDH WAS NOT A PREVAILING PARTY ON THE MERITS, THE COMMISSION'S CLAIMS WERE NOT FRIVOLOUS OR UNREASONABLE, AND THE COMMISSION DID NOT ACT IN BAD FAITH. The district court did not specify, in either its February 20, 2002, or June 12, 2002, decisions, the statutory basis or factual foundation for awarding attorney's fees to Asplundh. The Commission submits that the award of attorney's fees in this case lacks any proper statutory basis and is not factually warranted under these circumstances. A. Asplundh is not Entitled to An Award of Attorney's Fees and Expert Costs Under Title VII. It is well-established that "parties are ordinarily required to bear their own attorney's fees [and] the prevailing party is not entitled to collect from the loser" absent explicit statutory authority. Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Resources, 532 U.S. 598, 602 (2001) (citations omitted). Such statutory authorization does exist in section 706(k) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-5(k). That provision, however, does not warrant an award of fees to Asplundh in this instance. Section 706(k) provides, in pertinent part: "In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee . . . ." Although a prevailing plaintiff in a Title VII action is generally entitled to an award of fees as a matter of course, Christiansburg Garment Co.v. EEOC, 434 U.S. 412, 416-17 (1978), a more stringent standard applies with respect to an award of fees to a prevailing defendant. EEOC v. Reichhold Chemicals, Inc., 988 F.2d 1564, 1568 (11th Cir. 1993); see also Walker v. NationsBank of Florida, 53 F.3d 1548, 1558 (11th Cir. 1995). In construing section 706(k) in the context of reviewing a district court's refusal to award attorney's fees against the EEOC, the Supreme Court held that "a plaintiff should not be assessed his opponent's attorney's fees unless a court finds that [the plaintiff's] claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so." Christiansburg Garment Co., 434 U.S. at 422. Applying this standard, the Court concluded that the district court properly declined to award fees against the EEOC. The Supreme Court has reminded us that the use of a more stringent standard for determining whether to award attorney's fees to a prevailing defendant furthers important congressional goals. The presumptive award of attorney's fees to a prevailing plaintiff is consistent with the fact that Congress chose Title VII plaintiffs as the means to vindicate a public policy "that Congress considered of the highest priority" (namely, enforcement of the provisions of Title VII). Id. at 418-19. Imposing a more stringent standard on an award of attorney's fees to a prevailing defendant, on the other hand, is justified by the fact that "a fee award to a plaintiff is assessed against a violator of federal law" and serves a deterrent effect on future violations, "whereas a fee award to a defendant is determined against a merely improvident litigant." Reichhold Chemicals, 988 F.2d at 1568 (citing Christiansburg, 434 U.S. at 418). The standard articulated by the Court in Christiansburg thus serves to discourage plaintiffs from filing claims that appear, at the outset, to have little chance of success, without "discourag[ing plaintiffs from filing] all but the most airtight claims." 434 U.S. at 422. Recognizing that the course of litigation is rarely predictable, the Court cautioned district courts to resist "the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation." Id. at 421-22; Walker v. NationsBank, 53 F.3d at 1558. The Court noted that even where the law or facts appear questionable at the outset, a plaintiff may have an entirely reasonable ground for bringing suit. Christiansburg, 434 U.S. at 421-22; Reichhold Chemicals, 988 F.2d at 1568-69. There are two separate reasons why Asplundh is not entitled to an award of attorney's fees in this instance. First, Asplundh is not a "prevailing party" within the meaning of 42 U.S.C. 2000e-5(k). Second, even apart from this defect, the circumstances below do not satisfy the stringent Christiansburg standards for an award of fees to a Title VII defendant. Each of these reasons is discussed in turn. 1. Asplundh Is Not a Prevailing Party Within the Meaning of Section 706(k). An award of fees under 42 U.S.C. 2000e-5(k) is reserved for a "prevailing" party. A prevailing party, for purposes of this section, is a party that prevailed on some aspect of the merits of the case. See Hanrahan v. Hampton, 446 U.S. 754, 756- 58 & n. 4 (1980); Marquart v. Lodge 837, Int'l Ass'n of Machinists, 26 F.3d 842, 852 (8th Cir. 1994). As the Eighth Circuit noted in Marquart, proof that a plaintiff's claims are frivolous, unreasonable or groundless "is not possible without a judicial determination of the plaintiff's case on the merits." Ibid. That determination never happened here. The court below never found that the Commission's claims of racial harassment and retaliation lacked merit. Indeed, the district court expressly refrained from addressing Asplundh's then-pending motion for summary judgment, see R. 90 at 1, 12; R. 91, and made no findings concerning the merits of EEOC's underlying claims of discrimination and retaliatory discharge in conjunction with its dismissal of EEOC's lawsuit in response to the Commission's motion for partial summary judgment on the issue of conciliation. Thus, Asplundh is not entitled to an award of fees under section 706(k) because it was not a "prevailing party" within the meaning of that section. There do not appear to be any reported decisions addressing this issue in the context of a finding that EEOC did not adequately conciliate a case before filing suit. A number of courts, however, have considered whether a defendant is a "prevailing party" for purposes of a fee award when a lawsuit is resolved on some procedural ground, such as on a plaintiff's motion for voluntary dismissal or a court's determination that it lacks jurisdiction. These courts have concluded that the defendant, in those instances, is not entitled to an award of attorney's fees because there was no determination on the merits. In Chacon v. Ezekiel, 957 F. Supp. 1265 (S.D. Fla. 1997), for instance, the court denied the defendants' application for attorney's fees after the court granted the plaintiff's motion for voluntary dismissal. The defendants had argued that the plaintiff's action had been brought "without foundation" based on indications that plaintiff's discrimination charges had been untimely filed with EEOC and the local agency. Relying on the Eighth Circuit's decision in Marquart, the court reasoned that the defendants could not be deemed to be a prevailing party under section 706(k) because "[t]he court did not adjudicate the case on the merits prior to Plaintiff's electing to dismiss her claims." Id. at 1267. The court further stated that "[s]ince Defendants are not prevailing parties it is immaterial whether Plaintiff's suit was frivolous, unreasonable, or without foundation." Ibid. Similarly, in DeShiro v. Branch, 183 F.R.D. 281 (M.D. Fla. 1998), the district court denied an award of fees to the defendant after the court dismissed the plaintiffs' Title VII claims for lack of subject matter jurisdiction (inability to establish that the defendant employed the requisite number of employees to be a covered employer under Title VII), id. at 285- 86, and allowed plaintiffs to take a voluntary dismissal on their other, state law claims. Id. at 283. The district court noted that it was necessary to consider, as a threshold matter, whether the defendant qualified as a prevailing party, id. at 285, and concluded that it did not. Id. at 286. Relying on Marquart and a number of other decisions from other jurisdictions, id. at 285- 86, the court reasoned that regardless of whether the disposition of a plaintiff's claim is under a voluntary dismissal or a dismissal for lack of subject matter jurisdiction, "the defendant cannot then be said to have 'prevailed' if any of the claims that are being defended have met that fate." Ibid. If a defendant is not entitled to attorney's fees where a Title VII suit was dismissed for lack of subject matter jurisdiction, as was the case in DeShiro, then it should be even more clear that a defendant is not entitled to recover attorney's fees in a case, such as this, where the alleged deficiency is not even one of jurisdiction but rather involves a filing prerequisite which can be cured by a stay of proceedings under 42 U.S.C. 2000e-5(f)(1). 2. The District Court's Findings Do Not Meet the Christiansburg Standard for an Award of Fees to a Prevailing Title VII Defendant. Even apart from the fact that Asplundh was not a "prevailing party" here within the meaning of section 706(k), the district court's findings do not meet the standard under Christiansburg for an award of attorney's fees to a defendant. Attorney's fees are not awarded to a prevailing Title VII defendant as a matter of course, but are awarded "only sparingly," EEOC v. L.B. Foster, 123 F.3d 746, 751 (3d Cir. 1997)(citation omitted), and only upon a finding that the plaintiff's claims were frivolous, groundless or without foundation. Christiansburg, 434 U.S. at 421-22; Walker v. NationsBank, 53 F.3d at 1558. This Court has said that "[i]n determining whether a suit is frivolous, 'a district court must focus on the question [of] whether the case is so lacking in arguable merit as to be groundless or without foundation rather than whether the claim was ultimately successful.'" Sullivan v. School Bd. of Pinellas County, 773 F.2d 1182, 1189 (11th Cir. 1985)(quoting Jones v. Texas Tech Univ., 656 F.2d 1137, 1145 (5th Cir. Unit A Sept. 1981); see also Walker v. NationsBank, 53 F.3d at 1558 ("[I]n determining whether a prevailing defendant is entitled to attorney's fees under Title VII, the district court must focus on the question of whether the case is seriously lacking in arguable merit.")(citing Sullivan, supra). Even civil rights claims that are dismissed for failure to state a claim are not automatically deemed frivolous. See, e.g., Ferroni v. Teamsters, Chauffeurs & Warehousemen Local No. 222, 297 F.3d 1146, 1153 (10th Cir. 2002)(citing Jane L. v. Bangerter, 61 F.3d 1505, 1513 (10th Cir. 1995). As this Court noted in Sullivan, where findings of "frivolity" have been sustained on appeal, the plaintiffs typically did not introduce any evidence to support their claims. 773 F.2d at 1189; see also EEOC v. L.B. Foster, 123 F.3d at 751. Where a plaintiff, on the other hand, presents evidence that arguably supports its claim, a finding of "frivolity" will not be warranted even if the factfinder ultimately does not believe plaintiff's evidence, as long as the district court does not find the plaintiff's evidence "to be absolutely incredible and pure fabrication." Sullivan, 773 F.2d at 1189-90; see also Bruce v. City of Gainesville, 177 F.3d 949, 952 (11th Cir. 1999)(citing Sullivan)(reversing award of fees to a prevailing ADA defendant under Christiansburg/Sullivan standards). The reason for limiting fee awards against Title VII plaintiffs to cases that meet this rigorous standard is the important role that Title VII plaintiffs play in enforcing federal civil rights laws, and the critical need to avoid discouraging the filing of all but the most airtight claims. Christiansburg, 434 U.S. at 418, 422; Sayers v. Stewart Sleep Center, Inc., 140 F.3d 1351, 1353 (11th Cir. 1998)("Policy concerns militate against awarding attorney's fees to defendants in civil rights cases because such practice may discourage plaintiffs from bringing civil rights lawsuits."). The same considerations apply when EEOC is the losing plaintiff in a Title VII action. Christiansburg, 434 U.S. at 422 n.20. Assessing fees against EEOC simply because it did not prevail in a Title VII claim would undermine Congressional efforts "to promote vigorous enforcement of the provisions of Title VII." EEOC v. Bruno's Restaurant, 13 F.3d 285, 290 (9th Cir. 1993)(reversing fee award against EEOC). Therefore, a fee assessment against the Commission, as with any Title VII plaintiff, must be limited to those circumstances where EEOC's claims clearly lack any "arguable legal merit or factual support." See Jones v. Texas Tech Univ., 656 F.2d at 1145-46. EEOC's identification of admissible evidence to support its discrimination claims will defeat a Title VII defendant's claim for fees, even if EEOC's evidence later turns out to be insufficient to prevail, because under those circumstances EEOC's lawsuit would not be baseless. See EEOC v. Reichhold Chemical, 988 F.2d at 1571 (reversing fee award against EEOC on grounds that "plaintiff merely must establish a credible claim, not a successful one"); see also EEOC v. Kenneth Balk & Assoc., 813 F.2d 197, 198 (8th Cir. 1987) (reversing fee award against EEOC because "[h]owever unpersuasive the EEOC's evidence ultimately proved to be, this evidence provided 'some basis' for the EEOC's claim."); EEOC v. L.B. Foster, 123 F.3d at 751 (reversing fee award against EEOC and listing other cases in which fee awards against EEOC were reversed on appeal). This case does not meet the stringent standards established by the Supreme Court and this Court for an award of fees to a Title VII defendant. As a threshold matter, the district court failed to make any findings that EEOC's claims lacked merit. This alone is a fatal flaw in the district court's fee award decision. See EEOC v. Bruno's Restaurant, 13 F.3d at 288; see also EEOC v. First Alabama Bank of Montgomery, 595 F.2d 1050, 1059 (5th Cir. 1979)(Rubin, C.J., dissenting). Indeed, it is noteworthy that the lower court recounted in some detail, and without significant criticism, many of the factual allegations underlying the Commission's claims in its February 20, 2002, order dismissing the EEOC's lawsuit. See R. 90 at 2-4. Among other things, the district court noted that Robert Lewis began working for Asplundh as a laborer in November 1995 and that, while Lewis was employed by Asplundh, Pete Evans, an inspector employed by the Gainesville Regional Utilities, made daily inspection visits to the Asplundh worksite. Id. at 2. The district court further noted that Lewis asserted he was subjected to several incidents of racial harassment by Evans leading up to an incident on April 1, 1996, when Evans came up behind Lewis, placed a noose around his neck, pointed to a nearby tree and told Lewis he would "hang him up there with the 'rest of your family.'" Id. at 3-4. Two other Asplundh employees, including Lewis's immediate foreman, witnessed the incident. Id. at 3. Evans thereafter allegedly made similar comments to other employees and referenced the incident with Lewis, stating that "he [Evans] would hang [these other employees] up in the 'tree with the rest of the monkeys--just ask Robert.'" Id. at 4. Lewis stated that he complained to company representatives, id. at 3-4, that sometime thereafter the General Foreman suggested his job was in jeopardy as a result and, two months later, Lewis was fired. Id. at 4. It is evident from this brief summary in the district court's February dismissal decision that the EEOC's factual allegations assert a claim for both harassment based on race and retaliation under Title VII. Whether these allegations would be credited by a fact-finder, given Asplundh's contrary version of some of these events, has not yet been tested. For purposes of this appeal, however, it is clear that EEOC's claims of racial harassment and retaliation have not been and, indeed, could not be found to be frivolous, unreasonable or wholly without foundation, as Christiansburg requires for a fee award to a Title VII defendant. The Commission has identified only one Court of Appeals that applied the Christiansburg standard to EEOC's conciliation actions, but even that case supports the Commission's position that the award of fees here was improper. In EEOC v. Bruno's Restaurant, supra, the district court dismissed EEOC's claims at the close of EEOC's case-in-chief at trial, finding that EEOC failed to present credible evidence of discriminatory conduct. The court went on to find, as a separate matter, that EEOC had also failed to conciliate the "pattern and practice" claims. In awarding attorney's fees to the defendant, the district court stated that either finding was sufficient for the court to conclude that the action was "frivolous, unreasonable, or without foundation." Id. at 287-88. The Court of Appeals reversed the award of fees, finding that the district court had failed to heed Christiansburg's warning against engaging in post hoc reasoning that, because a plaintiff did not ultimately prevail, his action must have been unreasonable from the outset. Id. at 290. With respect to the district court's findings on conciliation, the Ninth Circuit stated that it "need not decide whether the EEOC in fact conciliated the pattern and practice claim" but only "whether [EEOC's] belief that it had done so was reasonable." Id. at 288- 89; see also id. at 290 ("To justify an award of attorney's fees, the district court would have had to find not merely that the EEOC failed to conciliate adequately, but that its belief that its conciliation efforts were adequate was unreasonable."). Concluding that EEOC could have reasonably believed that its efforts to conciliate were sufficient, the Ninth Circuit reversed the award of fees to the defendant. Id. at 289. Applying the Christiansburg standard to EEOC's conciliation efforts in this instance leads to a similar conclusion that EEOC's decision to end conciliation when it did and proceed with the filing of this lawsuit was not unreasonable, frivolous or without foundation. In light of the absence of any explanation from Asplundh for its belated response to the Commission's conciliation proposal, the absence of any indication in the Sampo letter that the company actually wanted to settle the claims, and Sampo's failure to follow up by contacting the EEOC Regional Attorney, the Commission reasonably believed, at the time, that it had fully complied with the conciliation requirements of Title VII. Even if it is determined ultimately that the Commission should have done more, the Commission's reasonable belief that its actions were appropriate makes the award of attorney's fees improper here under Christiansburg's rigorous standards. As this Court noted in Sullivan v. School Bd. of Pinellas County, "[e]ven when the law or the facts appear questionable . . . at the outset, a party may have an entirely reasonable ground for bringing suit." 773 F.2d at 1189 (quoting Christiansburg, 434 U.S. at 422). B. To the Extent the District Court Based its Fee Award on its Belief that EEOC Ignored the Sampo Letter and Could Recover Only Limited Monetary Damages in this Case, the Court Committed an Abuse of Discretion. The apparent bases for the district court's award of attorney's fees its view that EEOC never responded to, or even acknowledged receiving, the Sampo letter, and its belief that EEOC could recover only limited monetary damages for Lewis in this case are both critically flawed. With respect to EEOC's response to the Sampo letter, Asplundh now concedes that EEOC telephoned Sampo after it received his letter. Although Asplundh now argues that EEOC should have done more, the district court did not have the opportunity to assess that argument because Asplundh never advanced it in the court below. In any event, the award of fees against the Commission cannot stand where it rests on a clearly erroneous factual premise. Moreover, even assuming, arguendo, that this Court considers Asplundh's belated argument and concludes the Commission should have done more after it received Sampo's letter, the assessment of attorney's fees against the Commission would still not be justified because, as noted above at pp 30-31, supra, the question, in the context of a fee award, is not whether EEOC erred in concluding that conciliation was adequate, but whether EEOC's determination that it adequately conciliated had a reasonable basis. See EEOC v. Bruno's Restaurant, 13 F.3d at 289-90. In this instance, EEOC reasonably believed that its conciliation efforts satisfied Title VII. See discussion at 32, supra. In light of this reasonable belief, the district court abused its discretion in awarding attorney's fees to Asplundh. With respect to the lower court's view on the amount of potential monetary relief, EEOC submits that the amount of damages potentially at issue in a Title VII case is not a proper factor in determining whether conciliation was adequate or whether attorney's fees should be awarded to the defendant. See EEOC's Opening Brief in EEOC v. Asplundh I at 35-37; see also Sayers v. Stewart Sleep Center, Inc., 140 F.3d at 1354 (amount of damages plaintiff sought in litigation not a proper factor in considering whether to award fees to defendant after jury returned verdict in defendant's favor). The district court's view of the potential damages in this case is, however, not only irrelevant, but also legally flawed. In concluding that EEOC could recover only limited monetary damages on Lewis's behalf (four months of backpay, see R. 90 at 10), the district court ignored the potentially extensive compensatory and punitive damages that a jury might award for EEOC's claim that Asplundh failed to take effective steps to address GRU Inspector Evans' racial harassment of Lewis at the worksite. See EEOC's Opening Brief in EEOC v. Asplundh I at 37- 39 (discussing egregious nature of racial harassment based on nooses and threats of lynching in the workplace); 42 U.S.C. 1981a (compensatory and punitive damages available in Title VII action against a defendant who engaged in unlawful intentional discrimination). Accordingly, the lower court's views on the amount of monetary damages recoverable in this case was not only an improper factor in determining whether to grant fees to Asplundh, but was legally unsupportable, as well. CONCLUSION For all of the foregoing reasons, the EEOC respectfully submits that the district court erred when it awarded attorney's fees and costs against the Commission and in favor of Asplundh. That fee award should be reversed and the matter should be remanded to the district court for entry of an appropriate order. Respectfully Submitted, NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel SUSAN R. OXFORD September 13, 2002 Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4791 CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the type-volume limitations set forth in F.R.A.P. 32(a)(7)(B)(i). The brief contains 7974 words. Susan R. Oxford CERTIFICATE OF SERVICE I hereby certify that on this 13th day of September, 2002, I caused two copies of the attached brief, along with an electronic version on floppy disk, to be sent by Federal Express, next day delivery, to the following counsel of record: Robert E. Larkin, III, Esq. Michael Mattimore, Esq. ALLEN, NORTON & BLUE, P.A. 906 North Monroe Street Tallahassee, Florida 32303 In addition, on this same date I caused two copies of the attached brief and an electronic version on floppydisk to be hand-delivered to the following counsel for Amici Curiae Equal Employment Advisory Counsel (EEAC) and the Chamber of Commerce of the United States: Stephen A. Bokat, Esq. Reginald E. Jones, Esq. Robin S. Conrad, Esq. Steven R. Semler, Esq. NATIONAL CHAMBER LITIGATION OGLETREE, DEAKINS, NASH, SMOAK CENTER, INC. & STEWART 1615 H Street, N.W. 2400 N Street, N.W., Fifth Fl. Washington, D.C. 20062 Washington, D.C. 20037 Ann Elizabeth Reesman, Esq. Rae T. Vann, Esq. McGUINESS, NORRIS & WILLIAMS 1015 Fifteenth Street, N.W., Suite 1200 Washington, D.C. 20005 Susan R. Oxford ______________________________________________________________________ 1. Citations to the record refer to the district court docket entries and are abbreviated “R.” followed by the district court’s docket number. Citations to the Record Excerpts are abbreviated “RE” followed by the page number in Appellant EEOC’s Record Excerpts filed with this Court on June 17, 2002, in conjunction with EEOC’s opening brief in EEOC v. Asplundh I, No. 02-12386-E, which has now been consolidated with this appeal. 2. West’s log indicates, specifically, that West received a fax from “RR” (Respondent’s representative, or Sampo) on 4/29/99 and then called Sampo the same day and left a message. The log further indicates that on 5/5/99 Sampo returned West’s call and left a message on West’s voice mail. The log indicates that West returned Sampo’s call three business days later, on 5/10/99, and left a message “to contact the Regional Attorney because the case is out of my hands.” RE67. Asplundh presented a different version of these facts to the court below. In his March 8, 2001, affidavit, R. 81, Sampo indicated that after he sent the letter, he “never received any communication from Ms. West, or from anyone with the EEOC.” Id. at ¶9 (RE63). 3. The court did not reach two other matters pending before it at the time: Asplundh’s motion for summary judgment and EEOC’s motion for partial summary judgment regarding a number of the defendant’s affirmative defenses. R. 90 at 1, 12. 4. The court also stated, erroneously, that the Commission filed this lawsuit the day after Sampo sent his letter. See R. 90 at 10 (“The EEOC’s response to the [Defendant’s letter of April 28, 1999] was the filing of the instant lawsuit one day thereafter.”). This statement is clearly erroneous, and is inconsistent not only with the undisputed facts but also with statements the district court made elsewhere in its opinion. 5. This Court has adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. See Bonner v. City of Prichard, 661 F.3d 1209 (11th Cir. 1981) (en banc). 6. The factual basis on which the district court premised its award of attorney’s fees is not clear because the court did not issue any separate findings of fact or conclusions of law in conjunction with its June 12, 2002, order and judgment awarding fees and costs. See R. 99, 100. The lower court’s failure to make specific findings regarding the applicable legal standards leaves this Court (and the parties) at a distinct disadvantage in their respective efforts to review (and present arguments) concerning the propriety of the award of fees. We can only assume the court awarded fees for the same reasons that it dismissed EEOC’s lawsuit, as reflected in the court’s February 20, 2002, order (R. 90). 7. The Court in Christiansburg found it “established” that “under § 706(k) of Title VII a prevailing plaintiff ordinarily is to be awarded attorney’s fees in all but special circumstances.” 434 U.S. at 417 (emphasis in original; citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 415 (1975); other citations omitted). 8. The Supreme Court made clear in Christiansburg that although it was announcing a general standard for awarding attorney’s fees to prevailing Title VII defendants, the same standard applied where EEOC was the plaintiff. See 434 U.S. at 422 n.20. 9. Although Hanrahan involved an award of attorney’s fees under 42 U.S.C. § 1988, the Supreme Court has applied the same standards to fee awards under § 2000e-5(k) and § 1988, see Hughes v. Rowe, 449 U.S. 5, 14 (1980), and the reasoning in Hanrahan has been applied to petitions for attorney’s fees brought by defendants in Title VII actions. See, e.g., DeShiro v. Branch, 183 F.R.D. 281, 285 (M.D. Fla. 1998); see also Burke v. Furniture House of North Carolina, No. C-89-169-S, 1990 WL 209662 (M.D.N.C. Sept. 13, 1990)(copy attached). 10. See, e.g., EEOC v. Zia, 582 F.2d 527, 533 (10th Cir. 1978)(adequacy of conciliation not a matter of jurisdiction). 11. This Court, in Sullivan, identified several additional factors to be considered, including: (1) whether a plaintiff established a prima facie case; (2) whether the defendant offered to settle; and (3) whether the trial court dismissed the case prior to trial or held a full-blown trial on the merits.” 773 F.2d at 1189. This Court has emphasized, however, that these are “general guidelines only, not hard and fast rules,” and that “[d]eterminations regarding frivolity are to be made on a case-by-case basis.” Ibid.; Walker v. NationsBank, 53 F.3d at 1559. As this Court recently noted in reversing a fee award to a Title VII defendant following summary judgment in the defendant’s favor, “Sullivan does not create a bright line checklist nor does it permit of a mechanical application.” Bonner v. Mobile Energy Servs. Co., 246 F.3d 1303, 1304 n.9 (11th Cir. 2001)(per curiam)(citations omitted). 12. Bruno’s Restaurant cited EEOC v. Pierce Packing Co., 669 F.2d 605, 609 (9th Cir. 1982), for the principle that “failure to conciliate can be a basis for awarding attorney’s fees to a defendant in a Title VII case.” 13 F.3d at 288. Although Pierce also applied the Christiansburg standard in awarding fees against the Commission, 669 F.2d at 609, the case is factually distinguishable from the present matter because in Pierce EEOC was attempting to enforce a pre-reasonable cause settlement agreement with an employer without first investigating a charge, issuing a reasonable cause finding, and then engaging in conciliation on the asserted claims. See discussion in EEOC’s Reply Brief in EEOC v. Asplundh I at 26 n.16.