EEOC v. Asplundh Tree Expert Co., 11th Cir. Brief as Appellant Filed IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 02-12386-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. 02-12386-EE 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 respectfully requests that oral argument be granted in this case. The district court's dismissal of this case on the grounds that the EEOC failed to adequately conciliate the matter is inconsistent with the standards established by this Court and the rulings of courts in other jurisdictions applying the same standard. The district court's ruling also has the potential to interfere significantly with the Commission's administrative processing of charges and the Commission's conduct of enforcement litigation, by undermining the authority and discretion placed by the statute in the Commission to determine when conciliation efforts are sufficient in any particular case. The Commission submits that oral argument will assist this Court in reviewing these important issues. TABLE OF CONTENTS page CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT . . . . . . . . . . . i STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . ii TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . iii TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iv STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . 1 STATEMENT OF ISSUES . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 2 1. Nature of the Case and Course of Proceedings . . . . 2 2. Statement of Facts . . . . . . . . . . . . . . . . . 3 3. Decision Below . . . . . . . . . . . . . . . . . . . 8 4. Statement of Standard of Review . . . . . . . . . . 10 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 10 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . 14 I. THE DISTRICT COURT COMMITTED LEGAL ERROR IN CONCLUDING THAT THE COMMISSION FAILED TO SATISFY THE CONCILIATION REQUIRMENTS OF TITLE VII IN THIS CASE . . . . . . . 14 II. DISMISSAL OF THIS ACTION WAS INAPPROPRIATE, EVEN IF THE COMMISSION'S CONCILIATION EFFORTS WERE INSUFFICIENT, BECAUSE THE PROPER REMEDY UNDER TITLE VII IS TO STAY THE LITIGATION TO PERMIT THE PARTIES TO ENGAGE IN FURTHER CONCILIATION . . . . . . . . . 31 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . 40 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . 41 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES page Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) . . 25 Bonner v. City of Prichard, 661 F.3d 1209 (11th Cir. 1981) (en banc) . . . . . . . . . . . . . . 15 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) . . . . . 10 Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978) . . . . . . . . . . . . . . . . . 13 DeShiro v. Branch, 183 F.R.D. 281 (M.D. Fla. 1998) . . . 13 Dressler v. Jenne, 87 F. Supp. 2d 1308 (S.D. Fla. 2000) . . . . . . . . 26 EEOC v. Bruno's Restaurant, 13 F.3d 285 (9th Cir. 1993) . . . . . . . . . . . . . 13 EEOC v. Dial Corp., 156 F. Supp. 2d 926 (N.D. Ill. 2001) . . . . . 21, 22, 34 * EEOC v. Die Fliedermaus, 77 F. Supp. 2d 460 (S.D.N.Y. 1999) . . . . . . . 19, 34 EEOC v. Dolphin Cruise Line, Inc., 945 F. Supp. 1550 (S.D. Fla. 1996) . . . . . . . . . 15 EEOC v. First Midwest Bank, 14 F. Supp. 2d 1028 (N.D. Ill. 1998) . . . . . . . . 21 EEOC v. Golden Lender Financial Group, 2000 WL 381426 (S.D.N.Y. 2000) . . . . . . . . . . 21, 35 * EEOC v. Keco Industries, Inc., 748 F.2d 1097 (6th Cir. 1984) . . . . . . . . . . . 14, 23 * EEOC v. Klinger Electric Corp., 636 F.2d 104 (5th Cir. 1981) . . . . . . . . . 10, 15, 17 passim page EEOC v. New Cherokee Corp., 829 F. Supp. 73 (S.D.N.Y. 1993) . . . . . . . . . . 34, 35 EEOC v. Newtown Associates, 647 F. Supp. 957 (E.D. Va. 1986) . . . . . . . . . . 14 EEOC v. North Central Airlines, 475 F. Supp. 667 (D. Minn. 1979) . . . . . . . . . . 14 EEOC v. Northwest Airlines, Inc., 188 F.3d 695 (6th Cir. 1999) . . . . . . . . . . . . 39 EEOC v. One Bratenahl Place Condominium Ass'n, 644 F. Supp. 218 (N.D. Ohio 1986) . . . . . . . . 20, 34 EEOC v. Optical Cable Corp., 169 F. Supp. 2d 539 (W.D. Va. 2001) . . . . . . . . 14 EEOC v. Pet, Inc., 612 F.2d 1001 (5th Cir. 1980) . . . 19, 32 EEOC v. Prudential Federal S&L Ass'n, 763 F.2d 1166 (10th Cir. 1985) . . . . . . . . . . . . 34 EEOC v. Shelbyville Mixing Center, Inc., Civil No. 00-66-JMH (E.D. Ky. March 16, 2002) . . . . 31 EEOC v. Waffle House, Inc., 534 U.S. 279 (2002) . . . . 39 EEOC v. Zia Co., 582 F.2d 527 (10th Cir. 1978) . . . . 22, 23 Fletcher v. Screven County, Ga., 92 F. Supp. 2d 1377 (S.D. Ga. 2000) . . . . . . . . . 26 Jones v. Firestone Tire & Rubber Co, Inc., 977 F.2d 527 (11th Cir. 1992) . . . . . . . . . . 10, 25 Little v. Nat'l Broadcasting Co., ___ F. Supp. 2d ___, 2002 WL 655168 (S.D.N.Y. 2002) . . . . . . . . . . . . 37 * Massey v. Congress Life Insurance Co., 116 F.3d 1414 (11th Cir. 1997) . . . . . . . . . . 26, 27 page Sayers v. Stewart Sleep Center, Inc., 140 F.3d 1351 (11th Cir. 1998) . . . . . . . . . . . . 36 Sledge v. Goodyear Dunlop Tires No. Amer., 275 F.3d 1014 (11th Cir. 2001) . . . . . . . . . . . . 27 * Vance v. Southern Bell Tel. & Tel. Co., 983 F.2d 1573 (11th Cir. 1993) . . . . . . . . . . 37, 38 * Williams v. New York City Housing Authority, 154 F. Supp. 2d 820 (S.D.N.Y. 2001) . . . . . . . 37, 38 STATUTES 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1345 . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. §§ 2000e et seq. . . . . . . . . . . . . . . . . 2 42 U.S.C. § 2000e-5(b) . . . . . . . . . . . . . . . . . . 14 42 U.S.C. § 2000e-5(f)(1) . . . . . . . . 1, 13, 14, 31, 32 42 U.S.C. § 2000e-5(f)(3) . . . . . . . . . . . . . . . . 1 42 U.S.C. § 2000e-5(k) . . . . . . . . . . . . . . . . . . 13 COURT RULES Fed. R. Civ. P. 56(c) . . . . . . . . . . . . . . . . . . 10 OTHER AUTHORITIES 10A Charles Alan Wright, Arthur R. Miller & May Kay Kane, Federal Practice and Procedure § 2720 (3d ed. 1998) . 26 8 Fair Empl. Prac. Man. (BNA) 431:28 . . . . . . . . . . . 4 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 judgment entered on February 20, 2002, R. 91,<1> constitutes 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 April 19, 2002. R. 93. STATEMENT OF ISSUES 1. Whether the district court erred in denying the Commission's motion for partial summary judgment and dismissing this case, because the Commission's actions satisfied the conciliation requirements of Title VII. 2. Whether the district court erred in dismissing this case because even if the Commission's conciliation efforts were inadequate, the proper course of action under these circumstances would have been a stay of the litigation to permit the parties to engage in additional conciliation. STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings This is an appeal from the district court's February 20, 2002, decision dismissing 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. EEOC filed a complaint against Defendant-Appellee Asplundh Tree Expert Company ("Asplundh") alleging that Robert B. Lewis was subjected to harassment because of his race (African American) and retaliated against by being terminated after he complained of the harassment, in violation of Title VII. R. 1 (EEOC's Complaint). The 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 ¶6, pp2- 3 (RE17-RE18). In its Answer, Asplundh generally denied the allegations of race harassment and retaliatory discharge. R. 5 (Asplundh's Answer) at 2-3 (RE23-RE24). Asplundh admitted that Lewis had filed a charge with the EEOC at least 30 days before EEOC instituted suit, but denied the remaining allegations pertaining to the Commission's satisfaction of the conditions precedent to suit. Id. at ¶6 (RE23). The Commission moved for partial summary judgment on the issue of conciliation. R. 67. 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.<2> R. 90, 91. This appeal followed. R. 93. 2. Statement of Facts On August 26, 1996, Robert B. Lewis ("Charging Party" or "Lewis") filed a Charge of Discrimination against Defendant Asplundh Tree Expert Company. RE42. The charge alleged that Asplundh subjected Lewis to racial harassment, paid Black employees lower wages than White employees, and discharged Lewis in retaliation for complaining about race discrimination. Ibid. 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. RE69. The alleged harasser was a GRU electric utility inspector who inspected the site daily to ensure Asplundh's contractual compliance. RE69-RE70. 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.'" RE70-RE71. The Commission investigated the charge, conducted a pre- determination interview ("PDI") with Asplundh on March 4, 1999 (RE66),<3> and issued a Letter of Determination ("LOD") on March 31, 1999, finding cause on Lewis's charges of race discrimination and retaliation, but not on the wage issue. RE44-RE45. 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. Ibid. Lewis returned the form indicating his willingness to engage in settlement discussions (RE56); 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. RE46-RE55. 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. RE46. Asplundh did not submit a counter-offer or 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 memorializing the district director's determination that efforts to conciliate had been unsuccessful based on Asplundh's failure to return the Form 153 or respond to the conciliation proposal within the designated timeframe. RE57. That same day, EEOC investigator Debora D. West received a letter from Peter L. Sampo dated April 28, 1999. RE58. 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. Ibid. 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, RE64-RE67, West made the first call to Sampo the same day she received his letter. RE67. 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.<4> Ibid. 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. RE16-RE21. 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. RE23. Discovery proceeded, and a trial date was set. In February 2001, the parties engaged in a day-long mediation session, but were not able to resolve the matter. See R. 60 (court order extending time until 2/16/01 to conduct mediation). The Commission moved for partial summary judgment, asking the 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 a brief extension of time. R. 77. Although Asplundh did not cross-move for summary judgment on this issue,<5> Asplundh asked the court to dismiss the lawsuit on this basis. Id. at 1, 12. 3. Decision Below. On February 20, 2002, the 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 (RE77-RE78). Therefore, the court dismissed the action and indicated that Asplundh is entitled to its costs, expenses and attorney's fees in defending the action.<6> R. 90 at 11-12 (RE78-RE79), R. 91 (RE80). 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. RE72-RE73, RE76-RE77. 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," RE77, and accepted Sampo's erroneous representation that EEOC never responded to the letter or even acknowledged having received it. RE73, RE77. In the court's view, the EEOC "arbitrarily created a deadline and was particularly inflexible in enforcing [it]." RE77. The court further concluded that the proposed Conciliation Agreement and Investigator West's cover letter both failed to identify the Commission's theory of liability for Asplundh's alleged race discrimination. RE76. Based on all of 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." RE77. The 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. RE77 [emphasis omitted]. STANDARD OF REVIEW This Court reviews a district court's grant of summary judgment de novo, applying the same legal standards that control the district court's determination. Jones v. Firestone Tire & Rubber Co., Inc., 977 F.2d 527, 535-56 (11th Cir. 1992). A district court will grant a motion for summary judgment only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). SUMMARY OF ARGUMENT The Commission's conciliation was adequate in this case under the standard established by this Court in EEOC v. Klinger Electric Co., 635 F.2d 104 (5th Cir. 1981). The Commission outlined to Asplundh the basis for EEOC's belief that Title VII had been violated, offered Asplundh an opportunity for voluntary compliance in the form of two separate invitations to conciliate, and deemed conciliation to have failed only after Asplundh did not respond, or even request additional time to respond, for almost a month after the Commission first contacted the company about conciliation. Moreover, when Asplundh finally did respond, it was with a letter requesting an opportunity to discuss the case with the investigator "to attempt to understand the Commission's basis for its determination" and seeking a belated extension of time to respond to EEOC's proposed conciliation agreement. Although Asplundh's response did not even signal that Asplundh was actually interested in discussing settlement of the case, the documentary evidence shows that the Commission promptly made efforts to contact Asplundh's representative and remained open to voluntary resolution of the matter. Asplundh, however, neglected to avail itself of this opportunity. Clearly, the Commission's efforts to engage Asplundh in conciliation were more than adequate. It is the Commission's position that, under these circumstances, conciliation was adequate here, regardless of the circumstances surrounding the Sampo letter. In concluding otherwise, the district court misapplied the standard set by this Court for determining when conciliation is adequate. Even if this Court concludes that the timing of the Sampo letter and what the Commission did upon receipt of the letter are significant in determining the adequacy of the Commission's conciliation efforts in this case, the district court's inadequate conciliation determination is still incorrect because the court made findings contrary to the documentary evidence, erroneously failed to draw all reasonable inferences in the Commission's favor, and improperly made factual findings on disputed questions. In particular, the district court was obligated, on this record, to assume that Investigator West did not receive the Sampo letter until after EEOC issued the notice that conciliation was deemed to have failed. Thereafter, according to the documentary evidence placed into the record by Asplundh, West promptly attempted to contact Asplundh's counsel by telephone (as Sampo had requested) and advised Sampo, in West's second such attempt, to contact the EEOC regional attorney because the case was out of her hands. When Asplundh failed to follow up or make any effort to contact the Commission thereafter, the Commission quite reasonably continued its statutory responsibilities to process the claim, assuming that the company did not wish to pursue the matter further. The district court committed reversible error in making findings in Asplundh's favor concerning these facts. Finally, the "sanction" imposed by the district court – dismissal of EEOC's lawsuit -- is wholly inappropriate in any event. If the Commission's conciliation efforts did not fully satisfy the requirements of Title VII, the appropriate remedy would have been to stay the litigation to provide the parties with an opportunity to conciliate further. In this instance, however, the parties have already engaged in a day-long, court- ordered mediation session, without resolving the matter. Thus, it appears unlikely that a stay would have served any useful purpose here. Given these circumstances, the district court should have simply granted the Commission's motion for partial summary judgment. ARGUMENT I. THE DISTRICT COURT COMMITTED LEGAL ERROR IN CONCLUDING THAT THE COMMISSION FAILED TO SATISFY THE CONCILIATION REQUIRMENTS OF TITLE VII IN THIS CASE. Before the Commission files a lawsuit alleging a violation of Title VII, the Commission must "endeavor to eliminate any such alleged unlawful employment practices by informal methods of conference, conciliation, and persuasion." 42 U.S.C. § 2000e- 5(b). The Commission may file a civil action against a respondent where "the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission . . . ." 42 U.S.C. § 2000e-5(f)(1). Properly construed, this language provides a narrow scope of judicial review over the Commission's conduct of conciliation. See, e.g., EEOC v. Keco Industries, Inc., 748 F.2d 1097, 1102 (6th Cir. 1984)(district court should only determine whether EEOC attempted conciliation; form and substance of conciliation is within EEOC's discretion and beyond judicial review).<8> This Court has adopted this basic approach in examining the Commission's conciliation efforts. In reversing a district court's determination that EEOC's conciliation efforts were inadequate, this Court stated that "the fundamental question is the reasonableness and responsiveness of the EEOC's conduct under all the circumstances." EEOC v. Klinger Electric Corp., 636 F.2d 104, 107 (5th Cir. 1981).<9> The Court stated, in Klinger, that the Commission satisfies the statutory requirement to conciliate if it: 1) outlines to the employer the reasonable cause for its belief that Title VII has been violated; 2) offers an opportunity for voluntary compliance; and 3) responds in a reasonable and flexible manner to the reasonable attitudes of the employer. Ibid.; see also EEOC v. Dolphin Cruise Line, Inc., 945 F. Supp. 1550, 1556 (S.D. Fla. 1996). The Commission met this standard here. 1. The Commission satisfied the first Klinger element by outlining for Asplundh the basis for the Commission's belief that Title VII was violated in this case. The Commission initially sent Asplundh a copy of Lewis's August 1996 charge which set forth the specific bases for his claims. RE38-RE39, RE42-RE43. The charge identified two forms of race discrimination: racial harassment, and "different terms and condition[s] of employment" (differential treatment between Black and White employees with respect to wages and pay increases). RE42. With respect to the claim of racial harassment, the charge identified the approximate dates when the harassment occurred and the name of the alleged harasser. With respect to the additional claim of retaliation, the charge alleged that Lewis's discharge on June 20, 1996, was in retaliation for complaining of race discrimination. Ibid. On March 4, 1999, the investigator assigned to this case conducted a pre-determination interview with a representative of Asplundh. RE39, RE66. Thereafter, the Commission sent Asplundh a copy of the March 31, 1999 Letter of Determination. RE44-RE45. The LOD referenced the allegations in the original charge and then stated: Examination of the evidence indicates that the Respondent's articulated reasons for the Charging Party's lay off have been found to be pretextual and the Commission's investigation disclosed evidence of race discrimination and retaliation. I have determined that the evidence obtained during the investigation establishes that there is a reasonable cause to believe that a violation of the statute(s) has occurred.<10> [RE44] The Commission's March 31, 1999, finding of discrimination, combined with the information in Asplundh's possession as a result of its prior receipt of Lewis's discrimination charge, outlined to Asplundh the basis for EEOC's reasonable cause belief that Lewis had been subjected to race discrimination and unlawful retaliation. The district court apparently believed, erroneously, in our view, that the Commission was required to go beyond this and "identify the theory of Asplundh's liability for Lewis' alleged race discrimination." See R. 90 (slip op.) at 5, 9. Arguably, this is precisely what the Commission has done here. But to the extent the district court construed this as a heightened standard to prescribe some further explication of legal theories, there is no support for such a requirement in Klinger or in any of the cases cited by the court below. This Court's requirement that the Commission outline the reasonable cause for its belief that Title VII has been violated, 636 F.2d at 107, was amply satisfied in this case by the summary of Lewis's claims in the original charge and the Commission's statement of its findings in the LOD. Nothing more was required here to satisfy the first Klinger element. 2. The court below did not question that the Commission met the second element of the Klinger standard, which requires the EEOC to offer the employer an opportunity for voluntary compliance. In fact, the Commission extended Asplundh two formal invitations to conciliate. The Commission sent Asplundh the first invitation to conciliate in the March 31, 1999, Letter of Determination ("LOD"), which expressly invited the parties to engage in settlement discussions and enclosed a form by which the parties could indicate their willingness or unwillingness to enter into such discussions. RE44-RE45. The Commission extended a second invitation to conciliate when it sent Asplundh a proposed conciliation agreement by cover letter dated April 7, 1999, informing Asplundh that the terms of the proposed conciliation agreement were subject to negotiation, and inviting Asplundh to accept or reject the proposal or offer a counter- proposal. RE46. Thus, the Commission satisfied the second Klinger requirement by offering Asplundh an opportunity for voluntary compliance. 3. The Commission also satisfied the final Klinger element, because EEOC responded to Asplundh in a manner that was unquestionably reasonable, flexible and appropriate under the circumstances. Asplundh never replied to the Commission's first formal invitation to conciliate on March 31, 1999 (the EEOC Form 153 enclosed with the LOD).<11> Asplundh did not acknowledge or respond to the Commission's second formal invitation to conciliate (the April 7th proposed conciliation agreement) until April 28, 1999, almost a week after the specified April 23rd response date indicated in the April 7th letter, and almost a month after the Commission first contacted Asplundh about conciliation. When Asplundh finally did respond, it was not with an acceptance of, or counteroffer to, the Commission's conciliation proposal. Asplundh's response did not even state that it wished to discuss settlement of the case. Rather, Sampo's letter deferred taking any position one way or the other until after Sampo had an opportunity to discuss the case with the investigator "and attempt to understand the Commission's basis for its determination." RE58. Thus, Asplundh's response to the April 7th conciliation proposal makes this case different in critical ways from cases where the Commission's reaction to an employer's response in conciliation prompted other courts to conclude that the Commission's conciliation efforts were insufficient. See e.g., EEOC v. Pet, Inc., 612 F.2d 1001, 1002 (5th Cir. 1980)(per curiam)(conciliation inadequate where EEOC ended conciliation after employer expressed willingness to conciliate broad issues but refused to discuss relief for individual claimant); EEOC v. Die Fliedermaus, 77 F. Supp. 2d 460, 466-67 (S.D.N.Y. 1999)(court held that EEOC did not respond in "reasonable and flexible manner" when EEOC ended conciliation after employer agreed to 3 out of 5 terms in EEOC's proposed conciliation agreement and asked for additional, specific information before responding to last 2 items); EEOC v. One Bratenahl Place Condominium Ass'n, 644 F. Supp. 2d 218, 219-21 (N.D. OH 1986)(conciliation not conducted in good faith where employer specifically asked to meet with EEOC to attempt conciliation and EEOC, instead, sent letter deeming conciliation unsuccessful because employer would not agree, before meeting, to offer the full relief proposed by EEOC). The lower court erred when it characterized Sampo's letter in this case as an expression of Asplundh's willingness to conciliate. RE77. The Commission's conciliation efforts were sufficient irrespective of the Sampo letter. Certainly, the Commission was not required to reopen or extend conciliation to provide additional information about Lewis's claims in response to Sampo's request, because Lewis's claims were clear from the face of the charge and the LOD. This factor distinguishes the present case from those in which an employer's request for additional information during conciliation was found to be justified. For example, where the Commission is seeking monetary relief on behalf of a class of workers and the Commission has not yet identified the class members or their specific damages, some courts have construed the "reasonableness" standard to require the Commission to provide information that an employer requests during conciliation to assess the value of class-wide damages. See, e.g., EEOC v. Golden Lender Financial Group, 2000 WL 381426 *5-*6 (S.D.N.Y. 2000)(unpublished decision)(copy appended at A- 1); EEOC v. First Midwest Bank, 14 F. Supp. 2d 1028, 1031-32 (N.D. Ill. 1998). In contrast, the present case is like those where courts have concluded that conciliation was adequate even though EEOC did not provide information requested by an employer during conciliation, because the employer could determine the information it needed to effectively engage in conciliation from the charge, the LOD, and the information exchanged during the Commission's investigation. See, e.g., EEOC v. Dial Corp., 156 F. Supp. 2d 926, 939-43 (N.D. Ill. 2001)(even though EEOC did not provide company with information it requested during conciliation about additional victims for whom EEOC sought relief, court concluded that company could reasonably surmise enough information to have made a conciliation proposal on EEOC's "class" claims). In this case, it is even more clear than in Dial that Asplundh had sufficient information to engage in conciliation. Lewis's claims are individual in nature and are plainly set forth in the charge he filed with the Commission. Similarly, the Commission's finding of "pretext" is clearly set forth in the LOD. These factors amply support the reasonableness of the Commission's decision not to reopen or extend conciliation in response to Sampo's request "to discuss the case and understand the Commission's basis for its determination." Although the Commission has the authority to reopen conciliation, as it did in Klinger, see 636 F.2d at 106, and as it has done in other appropriate cases, the Commission was not required to reopen conciliation under these circumstances. Conciliation is "a flexible and responsive process which necessarily differs from case to case." EEOC v. Zia Co., 582 F.2d 527, 533 (10th Cir. 1978); see also EEOC v. Dial Corp., 156 F. Supp. 2d at 940. The "reasonableness" standard set forth by this Court leaves the details of the conciliation process, including when it is appropriate to reopen conciliation, to the Commission to determine in each individual case, in light of the particular circumstances, and does not dictate that the Commission follow a particular formula in every instance. The Commission's decision not to reopen conciliation under these circumstances was reasonable. The Commission first contacted Asplundh about conciliation on March 31, 1999, and then waited almost a month before determining that the case should move to the next enforcement stage. The April 28, 1999, Sampo letter, lacking any commitment on the part of Asplundh to engage in conciliation and, at most, suggesting that Asplundh might consider discussing conciliation at some unspecified future point, did not signal to the Commission that the EEOC's other enforcement steps should be halted. Such conduct on the part of Asplundh does not reflect the "reasonable attitudes of the employer" that this Court referenced in Klinger. See 636 F.2d at 107. Nothing in this Court's decisions or in any of the cases cited by the court below suggests that "good faith conciliation" requires the Commission to engage in negotiations of a particular duration, to grant extensions of time after the fact, or to reopen or extend conciliation when an employer responds belatedly, not with an offer to discuss settlement, but with a request for information that should be plain from the face of the charge and the LOD. EEOC has broad discretion to determine how to conduct conciliation in a particular case, see EEOC v. Keco, 748 F.2d at 1102; EEOC v. Zia Co., 582 F.2d at 533, and that discretion was exercised reasonably in this instance. Nevertheless, the Commission did respond to the Sampo letter in a prompt and appropriate manner. As the documentary evidence indicates (RE67), West attempted to reach Sampo by telephone on April 29, the same day she received his letter. Sampo apparently received her message, because he telephoned her back several days later and left her a voice message. When West was still unable to reach Sampo in her second attempt, which she undertook in response to his voice message, she left him a message advising him "to contact the Regional Attorney because the case is out of my hands." Ibid. Sampo never did. In sum, the Commission acted reasonably here and well within its discretion when it deemed conciliation to have failed after Asplundh: 1) waited almost a month to contact the Commission after the Commission first extended the invitation to discuss settlement of the case; 2) failed to contact the Commission within the reasonable time frame designated in the second invitation to conciliate; 3) offered no excuse or explanation for its failure to respond earlier despite ample time to do so; and 4) failed, even in its belated response, to indicate a definite interest in discussing settlement. Indeed, the reasonableness of the Commission's actions here is bolstered by the fact that West immediately tried to reach Sampo by telephone the same day she received his letter and, on the second such attempt, advised Sampo to contact the Regional Attorney because the case was out of her hands. Sampo never attempt to contact the regional attorney. Indeed, at no time did Asplundh ever advance any kind of a proposal or counteroffer for the Commission to consider, either within the Commission's designated timeframe for conciliation or thereafter. The district court therefore erred in concluding that EEOC's conciliation was inadequate under these circumstances. This holds true even if the question of when the Commission received Sampo's letter and what it did thereafter is somehow considered relevant to the assessment of the Commission's conciliation efforts. As a threshold matter, we note that the adequacy of the EEOC's conciliation efforts came before the district court on the Commission's motion for partial summary judgment.<7> In addressing a motion for summary judgment, the district court is required to determine whether there is a genuine issue as to any material facts and to deny summary judgment if the material facts are in dispute. See Jones v. Firestone Tire & Rubber Co, Inc., 977 F.2d 527, 535 (11th Cir. 1992). As this Court has stated: "The trial judge is not to weigh the evidence at summary judgment to determine the truth of the matter but to determine whether there is a genuine issue for trial." Ibid. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Although Asplundh did not cross-move for summary judgment on this issue,<12> the court below did not simply deny the Commission's motion, but effectively granted summary judgment for Asplundh, sua sponte, and dismissed the Commission's case. Whenever a court believes that a nonmoving party may be entitled to judgment, the court must take particular care to ensure the original movant "has had an adequate opportunity to show that there is a genuine issue [of fact] and that the opponent is not entitled to judgment as a matter of law." 10A Charles Alan Wright, Arthur R. Miller & May Kay Kane, Federal Practice and Procedure § 2720, at 352-53 (3d ed. 1998). This Court has said that before a district court grants summary judgment against a moving party, the court must provide the moving party the 10-day notice contemplated in Rule 56 of the Federal Rules of Civil Procedure and allow the litigant an opportunity "to formulate and prepare their best opposition to an impending assault upon the continued viability of their claim . . . ." Massey v. Congress Life Insurance Co., 116 F.3d 1414, 1417 (11th Cir. 1997). See, e.g., Dressler v. Jenne, 87 F. Supp. 2d 1308, 1322-23 (S.D. Fla. 2000)(district court gave notice and 10-day opportunity to respond before entering partial summary judgment against moving party); Fletcher v. Screven County, Ga., 92 F. Supp. 2d 1377, 1382-83 (S.D. Ga. 2000)(district court gave notice and 15-day opportunity to respond before entering partial summary judgment against moving party). In these circumstances, the standard rule that the court view the evidence in the light most favorable to the nonmoving party, draw all justifiable inferences in the nonmovant's favor, and resolve reasonable doubts about the facts in favor of the nonmoving party, Sledge v. Goodyear Dunlop Tires No. Amer., 275 F.3d 1014, 1019 (11th Cir. 2001), must be applied in the reverse. In other words, where the court is contemplating entering judgment against the moving party, the court must view the facts in the light most favorable to the moving party, and draw all justifiable inferences in the movant's favor. The district court did not follow this procedure here. The district court failed, before ruling against the Commission, to give the Commission notice that it was contemplating granting judgment sua sponte to dismiss the case. In so failing, the court below deprived the Commission of an opportunity "to formulate and prepare [its] best opposition to an impending assault upon the continued viability of [the EEOC's] claim . . . ." See Massey v. Congress Life Insurance Co., 116 F.3d at 1417. Wholly aside from the question of notice, the district court additionally failed to view the facts in the light most favorable to the Commission, decided facts contrary to the documentary evidence, and improperly resolved disputed material facts in Asplundh's favor concerning the third element of the Klinger standard -- the requirement that EEOC "respond in a reasonable and flexible manner to the reasonable attitudes of the employer." See, e.g., Klinger, 636 F.2d at 107 (summary judgment reversed and case remanded for further proceedings because impossible for district court to properly evaluate adequacy of conciliation efforts without more thorough inquiry into relevant facts of conciliation negotiations). There are two facts, in particular, that the lower court referenced in holding that conciliation was inadequate here. First, the district court apparently believed that EEOC's April 29, 1999, decision deeming conciliation to have failed was made after the Commission received Sampo's April 28th letter, referring to the fact that Sampo says he faxed the letter to the Commission on April 28th. RE76-RE77. It must be remembered, however, that the April 29, 1999, letter from EEOC District Director Costales indicating that the Commission deemed conciliation to have failed was just the ministerial embodiment of a decision that, necessarily, had to have been made sometime prior in order for the clerical function of preparing the letter to have been accomplished by April 29th. Moreover, Investigator West attested in her declaration that the Commission sent Asplundh the Notice of Conciliation Failure on April 29, 1999, and then received Peter Sampo's letter "[s]ubsequently," RE40, a factual contention that Asplundh admitted below.<13> West's log for this charge verifies that she received the Sampo letter on April 29th (referring to it as "fax from RR").<14> The second and, we believe, most critical fact involves Asplundh's contention that EEOC never responded to the Sampo letter.<15> The district court adopted this contention and relied on it in concluding that EEOC acted in bad faith here. The court stated in its decision: "The EEOC at no time responded to the Defendant's faxed letter or acknowledged having received such letter." RE73. As noted above, this assertion is contradicted by the log that Investigator West maintained for this case, which indicates that West telephoned Sampo and left messages for him twice in response to his letter, the first time on the same day she received his letter. The log further indicates that Sampo returned West's first telephone call and left her a voice message. When West called Sampo back, she left him a message to contact the Regional Attorney if Asplundh wished to pursue the matter further. See p.6 n.4, supra. Since West's second telephone call to Sampo directed him to contact the regional attorney if he wanted to pursue the matter further, and Sampo never did, the Commission reasonably believed that Asplundh was not interested in pursuing the matter further. For the reasons previously explained, the Commission submits that the Sampo letter and the circumstances surrounding its receipt and the Commission's response are not relevant to a determination of the adequacy of EEOC's conciliation efforts in this case. However, to the extent the Sampo letter might be viewed as relevant to this inquiry, the district court should not have resolved, against the Commission, the facts concerning when West received the Sampo letter in relation to when the Commission issued the notice of conciliation failure and what the Commission did after receiving the letter. Rather, if the court below believed that the evidence did not support a finding in the Commission's favor, the court should have reserved these factual questions for the factfinder to determine.<16> Since the district court apparently believed that these facts were material to its determination that EEOC acted in bad faith here, the district court erred in deciding these facts against the Commission on summary judgment. II. DISMISSAL OF THIS ACTION WAS INAPPROPRIATE, EVEN IF THE COMMISSION'S CONCILIATION EFFORTS WERE INSUFFICIENT, BECAUSE THE PROPER REMEDY UNDER TITLE VII IS TO STAY THE LITIGATION TO PERMIT THE PARTIES TO ENGAGE IN FURTHER CONCILIATION. Title VII provides that "[u]pon request, the court may, in its discretion, stay further proceedings [in court] for not more than sixty days pending . . . further efforts of the Commission to obtain voluntary compliance." 42 U.S.C. § 2000e-5(f)(1). The district court's dismissal of the Commission's lawsuit here, where the Commission initiated conciliation and gave the employer almost a month to respond, is not only inconsistent with this statutory provision, but is also completely contrary to precedent in this Circuit as well as other jurisdictions. The court below acknowledged that EEOC initiated conciliation here, but concluded that the Commission ended conciliation prematurely, after receipt of the Sampo letter. In Klinger, the Court held that "summary judgment is far too harsh a sanction to impose on the EEOC even if the court should ultimately find that conciliation efforts were prematurely aborted." 636 F.2d at 107; see also EEOC v. Pet, Inc., 612 F.2d at 1002-03 (same). The Court in Klinger remanded the matter for a further inquiry into the facts surrounding the conciliation negotiations, but noted that if the district court should find, on remand, that EEOC had not adequately attempted conciliation, "the appropriate remedy . . . would be the stay permitted by 42 U.S.C. § 2000e-5(f)(1)." 636 F.2d at 107. The district court in this case rejected this remedy, distinguishing Klinger on the ground that the conciliation negotiations in Klinger had lasted 20 months. As noted above, the lower court here was influenced by its erroneous belief that EEOC ended the conciliation after receiving from Asplundh an indication, in the court's view, that the company was willing to engage in conciliation. RE75-RE76. In Klinger, this Court suggested a general standard for when dismissal might conceivably be appropriate: where the Commission's conduct was "grossly arbitrary and unreasonable" or where there was "substantial prejudice to the defendant." 636 F.2d at 107. The Commission's actions in this instance were not "grossly arbitrary and unreasonable," but were a reasonable response to Asplundh's unexplained failure to respond during the designated time frame despite being given ample opportunity to do so. Moreover, Asplundh has never suggested that the Commission's failure to extend or reopen conciliation in response to the Sampo letter prejudiced it in any way, let alone created "substantial prejudice." Indeed, Asplundh could have, but did not, attempt to contact the Regional Attorney after Investigator West telephoned Sampo and informed him that the file had been transferred to the legal unit. Asplundh had a further opportunity to discuss resolution of this matter during the court-ordered mediation session in which the parties engaged in February 2001. Thus, Asplundh does not allege, and it is difficult to imagine how it could, that it was substantially prejudiced by the Commission's April 29, 1999 determination that conciliation had failed. Since Klinger was decided, courts have uniformly held that dismissal is appropriate, if at all, only where EEOC has made absolutely no effort to undertake conciliation on a particular issue or claim. Where EEOC has initiated conciliation but then terminated it prematurely (as the court concluded here), courts have consistently held that "the case should be stayed to allow sufficient time for the parties to engage in more serious conciliation discussions." See, e.g., EEOC v. Die Fliedermaus, 77 F. Supp. 2d at 467, citing EEOC v. New Cherokee Corp., 829 F. Supp. 73, 81 (S.D.N.Y. 1993); see also EEOC v. Dial Corp., 156 F. Supp. 2d at 942 n.11 (listing cases); EEOC v. One Bratenahl Place Condominium Ass'n, 644 F. Supp. at 221; cf. EEOC v. Prudential Federal S&L Ass'n, 763 F.2d 1166, 1169 (10th Cir. 1985) (construing conciliation requirement under ADEA and reaching same result). The facts in Die Fliedermaus are particularly instructive. In that case, EEOC sent a proposed conciliation agreement to the employer on February 23, 1999, outlining five terms. The employer responded three days later, agreeing to the first three items and requesting further information in order to respond to the last two items. Instead of providing the requested information, EEOC sent a letter on March 3, 1999, indicating that "efforts to conciliate have been unsuccessful" and filed suit on March 9, 1999. The district court found that the Commission had not met the conciliation requirement of Title VII, but concluded that dismissal was not warranted because (as in the present matter) "it is not the case here that `the EEOC has made absolutely no efforts' to conciliate . . . ." 77 F. Supp. 2d at 467, citing New Cherokee, 829 F.Supp. at 81. See also EEOC v. Golden Lender Financial Group, 2000 WL 381426 (S.D.N.Y. 2000)(court declined to dismiss action and, instead, stayed litigation for 30 days to permit additional conciliation where employer had agreed to most of the terms of the proposed conciliation agreement the same day it was sent but requested additional information on unidentified victims, and EEOC terminated conciliation the next day)(unpublished decision appended at A-1). For the same reasons that the courts in the above-noted cases declined to dismiss the Commission's claims upon a finding that conciliation was inadequate, the district court in this case erred in dismissing the Commission's complaint against Asplundh. Moreover, the court below acknowledged that its finding that the Commission did not conciliate adequately and in good faith here was influenced, at least in part, by its perception that this case involved very little by way of potential monetary damages. See RE77, discussed at pp9-10, supra. On this point, the court simply misunderstood the thrust and import of the Commission's claims. The district court stated that what made this particular case so egregious and the need to negotiate before filing suit so essential was the fact that Asplundh's contract with GRU expired approximately four months after Asplundh terminated Lewis. RE77. The court appears to have believed that since Lewis would have been out of a job anyway in four months, damages in this case would be minimal even if EEOC prevailed. There are two distinct problems with this reasoning. First, the comparative measure of damages is not pertinent to the question of whether the Commission adequately conciliated a case.<17> The pertinent consideration, as noted above, is whether the Commission offered the respondent an opportunity to conciliate and then responded reasonably throughout the conciliation process. To the extent the district court took the potential damages into account in concluding that conciliation was inadequate here, the court erred. Cf. Sayers v. Stewart Sleep Center, Inc., 140 F.3d 1351, 1354 (11th Cir. 1998)(in reversing district court's award of attorney's fees in Title VII action, this Court "decline[d] to consider the amount of damages sought in determining whether [defendant] was entitled to attorney's fees" upon dismissal of plaintiff's sex harassment claims). Second, the court is just wrong in its conclusion that damages would necessarily be minimal in this case because the contract was due to expire in four months. In focusing on the limited back pay at issue in this case, the court improperly discounted the Commission's allegations of heinous harassment based on race, and the potential compensatory and punitive damages that could flow from such a claim. In fact, the ongoing racial harassment alleged in this case includes, among other incidents, one of the most egregious forms of workplace racial harassment against African Americans - the harasser's allusion to a lynching when he placed a noose around Mr. Lewis's neck, pointed to a nearby tree, and pulled on the rope. See, e.g., Williams v. New York City Housing Authority, 154 F. Supp. 2d 820, 824 (S.D.N.Y. 2001)(noose "is among the most repugnant of all racist symbols, because it is itself an instrument of violence"); Little v. Nat'l Broadcasting Co., ___ F. Supp. 2d ___, 2002 WL 655168 *48 (S.D.N.Y. 2002)(same; citing Williams). In Williams, the court noted that "[r]acially motivated physical threats and assaults are the most egregious form of workplace harassment" and concluded that the mere display of a noose in the workplace falls within this category of egregious intimidating conduct. 154 F. Supp. 2d at 825; see also Vance v. Southern Bell Tel. & Tel. Co., 983 F.2d 1573, 1783 (11th Cir. 1993)(Fay, dissenting)("The noose in th[e] context [of the workplace] is a symbol not just of racial discrimination or of disapproval, but of terror. . . . No less than the swastika or the Klansman's hood, the noose in this context is intended to arouse fear."). As the court in Williams noted: The hangman's noose remains a potent and threatening symbol for African-Americans, in part because the grim specter of racially motivated violence continues to manifest itself in present day hate crimes. The court in Williams further concluded that the intimidating effect of a noose is "obviously intensifie[d]" when it is displayed by a white supervisor. Id. at 825-26. The courts in both Williams and Vance were addressing the severity of the implicit threat created by the display of a noose in the workplace, within view of African American employees. The Commission's claims in this case present an even more egregious example of racial harassment, since they include the allegation that the GRU inspector actually placed a noose around Lewis's neck, pointed to a nearby tree, and told Lewis he would hang him up there with the "rest of your family" (apparently referring to the configuration of tree branches as resembling monkeys). Clearly, the Commission's complaint alleges a form of racial harassment that is not just offensive, but physically threatening and psychologically intimidating, as well. In discounting the significance of the Commission's claim on the basis that backpay might be limited to four months, the district court not only ignored the extensive compensatory and punitive damages that can arise in cases of harassment, but also ignored the important public interest in the government's enforcement of such a claim, regardless of the amount of monetary damages that may be recovered. See, e.g., EEOC v. Northwest Airlines, Inc., 188 F.3d 695, 701-02 (6th Cir. 1999)(noting, in context of recognizing the broad enforcement interest that EEOC pursues in its litigation, that "[c]learly the presence of nooses and Ku Klux Klan symbols in the workplace, if ignored by [an employer], is the type of discriminatory conduct that might warrant general injunctive relief"). The fact that Lewis would not be barred from pursuing a private lawsuit if the Commission's suit is dismissed, see slip op. at 11 n.4 (RE78), is irrelevant. The issue here is the Commission's enforcement authority distinct and apart from whatever remedies a charging party may seek privately. See EEOC v. Waffle House, Inc., 534 U.S. 279, 122 S.Ct. 754, 765-66 (2002)(in reiterating that EEOC's claims are not merely derivative of claims of individual employees, Court recognized that whenever EEOC brings a lawsuit "the agency may be seeking to vindicate a public interest . . . ."). Thus, even if the district court was correct in concluding that the EEOC's conciliation efforts were inadequate here, the proper remedy would have been to stay the litigation to permit additional conciliation to take place. The district court's dismissal of this case has absolutely no basis in law or in fact, especially in light of the absence of any demonstration of bad faith on the Commission's part, Asplundh's failure to demonstrate that it was prejudiced in any way, and the importance of the claims of egregious race harassment that the Commission seeks to advance in this case. CONCLUSION For all of the foregoing reasons, the EEOC respectfully submits that the district court erred when it held that EEOC did not conciliate this case adequately. The Commission urges this Court to reverse that ruling and remand for further proceedings. Respectfully Submitted, 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 COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 June 17, 2002 (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 9122 words. Susan R. Oxford CERTIFICATE OF SERVICE I hereby certify that on this 17th day of June, 2002, two copies of the attached brief, along with an electronic version on floppy disk, were sent by first-class mail, postage prepaid, 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 Susan R. Oxford A P P E N D I X APPENDIX TABLE OF CONTENTS PAGE 1. EEOC v. Golden Lender Financial Group, Civil Action No. 99 cv 8591 (JGK) (S.D.N.Y. 2000)(unpublished) 2000 WL 381426 . . . . . . . . . . . . . . . . . A-1 2. EEOC v. Shelbyville Mixing Center, Inc. Civil Action No. 00-66-JMH (E.D. Ky. May 16, 2002) . . . . . . . . . . . . . . A-6 *********************************************************************** <> <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. <2> The district court also indicated that Asplundh is entitled to its costs, expenses and attorney’s fees in defending the action, and reserved jurisdiction to enter the same. R. 90 (slip op.) at 11-12 (RE78-RE79); R. 91 (RE80). On June 12, 2002, the district court issued its decision awarding fees and costs to Asplundh in the total amount of $231,265.82. R. 100 (RE83). Since the February 20, 2002, order and judgment was not a final order on the issue of attorney’s fees and cost, that issue is not addressed in this appeal, and will be addressed on appeal from the court’s June 12, 2002, ruling. <3> A pre-determination interview, or PDI, occurs after the investigator has completed the investigation and before the Commission issues the Letter of Determination. If the investigative evidence supports a finding of reasonable cause, the investigator will contact the respondent employer, advise the company that a determination is going to be issued soon, and invite the employer to provide any additional information that it believes would be helpful to the Commission’s determination in the case. 8 Fair Empl. Prac. Man. (BNA) 431:28. In this instance, Investigator West conducted the PDI by contacting Kristi Beck on March 4, 1999, and advised her that Asplundh could submit any additional information by March 15th. <4> West’s log indicates, specifically, that West received a fax from “RR” (Respondent’s representative, or Sampo) on 4/29/99 and then called “RR” (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 below. In his March 8, 2001, affidavit, R. 81, Sampo asserted that after he sent his April 28, 1999, letter, he “never received any communication from Ms. West, or from anyone with the EEOC.” Id. at ¶ 9 (RE63). Sampo’s affidavit directly contradicts the documentary evidence, West’s log, which Asplundh placed into the record. <5> It is notable that Asplundh not only never moved or cross-moved for summary judgment on the issue of conciliation, it never even alleged, in its answers to interrogatories during discovery, that conciliation had been inadequate. See, e.g., Plaintiff’s Exhibit D to EEOC’s Motion for Partial Summary Judgment on the Issue of Conciliation, Letter from Robert E. Larkin III to Gedety Serralta dated December 30, 1999)(RE36-37). <6> 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. RE68, RE79. <7> Although this appeal does not address the district court’s award of fees and costs to Asplundh, which only became final on June 12, 2002, the EEOC also takes issue with the fee determination, which the district court signaled in its February 20, 2002, decision. Asplundh is not a “prevailing party” on the merits here, so it is not entitled to an award of attorney’s fees under 42 U.S.C. § 2000e-5(k). Cf. DeShiro v. Branch, 183 F.R.D. 281, 285-86 (M.D. Fla. 1998)(defendant in Title VII action not entitled to attorney’s fees because all of plaintiff’s claims were disposed of under voluntary dismissal or dismissal by court for lack of subject matter jurisdiction). Where, as happened here, the district court dismissed the case without ever reaching the merits, based on an alleged deficiency that is not even one of jurisdiction and that can be cured by a stay of proceedings under 42 U.S.C. § 2000e-5(f)(1), it should be even more clear than in DeShiro that fees are not properly awarded to the defendant. Even if a defendant could be awarded fees where a court concludes that conciliation was inadequate, the evidence in this case does not support a finding that EEOC’s lawsuit “was frivolous, unreasonable or without foundation,” see Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421-22 (1978), nor does the evidence support a finding that the EEOC acted unreasonably or in “bad faith.” See EEOC v. Bruno’s Restaurant, 13 F.3d 285, 289-90 (9th Cir. 1993). Thus, an award of fees is not appropriate here. <8> See also EEOC v. Optical Cable Corp., 169 F. Supp. 2d 539, 543 (W.D. Va. 2001) (courts should give substantial deference to EEOC’s determination that conciliation efforts have failed); EEOC v. North Central Airlines, 475 F. Supp. 667, 669 (D. Minn. 1979)(same); EEOC v. Newtown Associates, 647 F. Supp. 957, 959 (E.D. Va. 1986) (court has “exceedingly narrow” scope of judicial review over the Commission’s conduct of conciliation). <9> The Eleventh Circuit has adopted as binding precedent all decisions of the former Fifth Circuit handed down by that court 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). Klinger was decided on February 5, 1981. <10> The LOD expressly stated that the evidence obtained by the Commission was insufficient to establish a violation with respect to the wage issue. RE45. The wage claim was, therefore, not part of the EEOC’s conciliation efforts and was not included in this lawsuit. See R. 1. <11> Lewis, on the other hand, returned the form on April 14, 1999, indicating his willingness to conciliate. RE56. <12> As noted at p.8 n.5, supra, Asplundh never moved for summary judgment on the issue of conciliation or even asserted this issue in its answers to interrogatories. This raises a question as to whether Asplundh actually perceived the Commission’s actions to be unreasonable or inappropriate at the time the Commission deemed conciliation to have failed. <13> Specifically, Paragraphs 9 and 10 of EEOC’s Statement of Material Facts Not In Dispute stated that the Commission’s conciliation failure letter was sent on April 29, 1999, and that the letter from Peter Sampo was received “subsequently.” RE30. Asplundh admitted this timeframe in paragraphs 9 and 10 of its Response to Plaintiff’s Statement of Material Facts Not In Dispute on the Issue of Conciliation. RE60. <14> Whether the faxed copy of the Sampo letter arrived on April 28th does not alter the fact that Investigator West, as the Commission’s agent for purposes of investigating and conciliating this charge, did not receive the letter until the next day, after the Commission’s issuance of the notice of conciliation failure. In fact, although the Commission enclosed, with its motion, a copy of the mailed original Sampo letter, stamped “received” on April 29, 1999, at 2:13 p.m., see Plaintiff’s Exhibit 6 attached to West’s affidavit (RE58), the Commission has since located the facsimile version of Sampo’s letter, which was received by the Commission’s fax machine on April 28th. This does not alter the fact that, according to documents which Asplundh apparently views as reliable inasmuch as it placed them in the record, West, the investigator responsible for conciliating the matter, did not receive the letter until April 29th. RE67. <15> Asplundh argued below that “EEOC’s refusal to respond to its April 28th correspondence is indicative of its bad faith concerning its conciliation efforts. Although the EEOC acknowledges that it received Mr. Sampo’s letter, it offers no explanation for failing to respond.” See R. 77 (Defendant’s Memorandum in Opposition to Plaintiff’s Motion for Partial Summary Judgment on Issue of Conciliation) at 3. <16> In the alternative, the district court could have followed the procedure utilized recently in EEOC v. Shelbyville Mixing Center, Inc., Civil No. 00-66-JMH (E.D. Ky. March 16, 2002)(copy appended at A-6). The court in that case initially denied the Commission’s motion for partial summary judgment on the issue of conciliation and allowed the parties an opportunity to conduct limited discovery on the relevant factual questions. Slip op. at 1-2 (A-6 to A-7). The court thereafter entertained a motion from the defendant employer for summary judgment on this issue, slip op. at 2 (A-7), which the court then denied. A-12. <17> Even if it is reasonable to believe that the potential for limited damages, if true, might suggest that settlement may be easy to achieve, this idea apparently escaped Asplundh, as the company failed to offer even this nominal amount in conciliation.