Nos. 09-16019, 09-16769 _______________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT _______________________________________________________ U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant and Plaintiff-Appellee, v. BANNER HEALTH, d/b/a Banner Good Samaritan Medical Center, an Arizona corporation, Defendant-Appellee and Defendant-Appellant. _______________________________________________________ On Appeal from the United States District Court for the District of Arizona (2:07-cv-1424-FJM) The Honorable Frederick J. Martone, Presiding _______________________________________________________ THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION'S REPLY BRIEF AS APPELLANT AND RESPONSE BRIEF AS APPELLEE ON ATTORNEY'S FEES _______________________________________________________ JAMES L. LEE Deputy General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel CORBETT L. ANDERSON Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, D.C. 20507 (202) 663-4579 (phone) (202) 663-7090 (fax) corbett.anderson@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iv REPLY BRIEF AS APPELLANT (No. 09-16019) . . . . . . . . . . . . . . . . . . . . 1 INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. . . . . . . . The EEOC Proffered Evidence Sufficient to Establish a Prima Facie Case . . . 2 B. A Reasonable Jury Could Find Banner's Reason for Terminating the Rosaleses to be a Pretext for Age Discrimination . . . . . . . . . 6 RESPONSE BRIEF AS APPELLEE (No. 09-16769) . . . . . . . . . . . . . . . . . . 13 STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . 13 A. . . . . . . . Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 B. District Court Decision . . . . . . . . . . . . . . . . . . . . . . 16 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION BY DENYING BANNER'S REQUEST FOR ATTORNEY'S FEES AND NON- TAXABLE COSTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 A. Prior to Commencing Litigation, the EEOC Satisfied its Statutory Obligation to Attempt to Conciliate in Good Faith . . . . . . . . . . . 19 B. The District Court Did Not Abuse its Discretion in Finding the Commission Did Not Litigate This Case in Bad Faith . . . . . . . . . . 23 C. The ADEA Precludes Attorney's Fees as a Sanction . . . . . . . . . . . . 30 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 TABLE OF AUTHORITIES Cases Alyeska Pipeline Serv. Co. v. Wilderness Soc., 421 U.S. 240 (1975) . . . . . .31, 32 Chambers v. NASCO, Inc., 501 U.S. 32 (1991). . . . . . . . . . . . . . . . . . . 24 Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978). . . . . . . . . . . . . 32 Coghlan v. Am. Seafoods Co. LLC, 413 F.3d 1090 (9th Cir. 2005) . . . . . . . . . . 8 Connecticut v. Teal, 457 U.S. 440 (1982) . . . . . . . . . . . . . . . . . . . . . 6 Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) . . . . . . . . . . . . . . . . . 6 Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201 (9th Cir. 2008) . . . . . . . . . 2 EEOC v. Bruno's Restaurant, 13 F.3d 285 (9th Cir. 1993) . . . . . . . . . 17, 22, 27 EEOC v. Clay Printing Co., 13 F.3d 813 (4th Cir. 1994) . . . . . . . . . . . . . 33 EEOC v. Hendrix Coll., 53 F.3d 209 (8th Cir. 1995) . . . . . . . . . . . . . . . 33 EEOC v. Keco Indus., Inc., 748 F.2d 1097 (6th Cir. 1984) . . . . . . . . . . . . 20 EEOC v. Maricopa County, 339 Fed. Appx. 688, . . . . . . . . . . . . . . . .2009 WL 1974294 (9th Cir. 2009) . . . . . . . . . 32 EEOC v. Pape Lift, Inc., 115 F.3d 676 (9th Cir. 1997). . . . . . . . . . . . . . 21 EEOC v. Pierce Packing Co., 669 F.2d 605 (9th Cir. 1982) . . . . . . . . . . . . 20 EEOC v. O&G Spring and Wire Forms Specialty Corp., . . . . . . . . . . . . . . . .38 F.3d 872 (7th Cir. 1994) . . . . . . . . . 32, 33 EEOC v. The Boeing Co., 577 F.3d 1044 (9th Cir. 2009). . . . . . . . . . . . . . . 9 EEOC v. Zia Co., 582 F.2d 527 (10th Cir. 1978) . . . . . . . . . . . . . . . 20, 22 Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). . . . . . . . . . . . . . 6, 10 Gadda v. Ashcroft, 377 F.3d 934 (9th Cir. 2004). . . . . . . . . . . . . . . . . 24 Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993). . . . . . . . . . . . . . . 21, 29 In re Keegan Mgmt. Co., Sec. Lit., 78 F.3d 431 (9th Cir. 1996) . . . . . . . . . 24 Kelley v. Airborne Freight Corp., 140 F.3d 335 (1st Cir. 1998) . . . . . . . . . . 5 Lindahl v. Air France, 930 F.2d 1434 (9th Cir. 1981) . . . . . . . . . . . . . . . 2 Local No. 93, Int'l Ass'n of Firefighters v. Cleveland, 478 U.S. 501 (1986) . . . 30 McGinest v. GTE Serv. Corp., 360 F.3d 1103 (9th Cir. 2004) . . . . . . . . . . 8, 12 Primus Auto. Fin. Servs., Inc. v. Batarse, 115 F.3d 644 (9th Cir. 1997) . . . . . 19 Rajah v. County of Clark, 313 Fed. Appx. 8, 2008 WL 2476704 (9th Cir. 2008) . . . 8 Reed v. Livingston Auto Ctr., Inc., 146 Fed. Appx. 93 (9th Cir. 2005) . . . . . . 32 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) . . . . . . 2, 10, 27 Richardson v. Alaska Airlines, Inc., 750 F.2d 763 (9th Cir. 1984) . . . . . . 31, 32 Rose v. Wells Fargo & Co., 902 F.2d 1417 (9th Cir. 1990) . . . . . . . . . . . . . 4 Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). . . . . . . . . . . 10 Turlington v. Atlanta Gas Light Co., 135 F.3d 1428 (11th Cir. 1998) . . . . . . 33 U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711 (1983) . . . . . . 6, 12 Wallis v. J.R. Simplot, 26 F.3d 885 (9th Cir. 1994). . . . . . . . . . . . . . . . 3 Statutes 28 U.S.C. § 1927 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 29 U.S.C. § 623(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 29 U.S.C. § 626(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 29 U.S.C. § 626(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21, 31 Regulations 29 C.F.R. § 1626.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 29 C.F.R. § 1626.15(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Other Authorities EEOC Regional Attorney's Manual. . . . . . . . . . . . . . . . . . . . . . . 28, 30 REPLY BRIEF AS APPELLANT (No. 09-16019) INTRODUCTION The U.S. Equal Employment Opportunity Commission ("EEOC" or "Commission") alleges that Banner Health, d/b/a Banner Good Samaritan Medical Center ("Banner") discriminated against Fernando and Maria Rosales because of their age when Banner terminated them on or about January 3, 2006, in violation of Section 623(a)(1) of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 623(a)(1) ("ADEA"). Specifically, the evidence that the Rosaleses were sixty-one years old, were performing their jobs satisfactorily, were discharged, and shortly thereafter Banner hired several significantly younger persons to work in the same jobs, on the same shift, under the same supervisor, and treated a significantly younger co-worker who engaged in comparable conduct much more leniently than the Rosaleses establishes a prima facie case. Although the Rosaleses' manager, Danny Armstrong, purported to have terminated them for taking unapproved extended leave, the evidence that Armstrong had actually approved the Rosaleses' leave request but attempted to cover up that fact by whiting out "granted" on Fernando Rosales's paid-time-off (PTO) form is additional evidence of pretext. As the EEOC argued in its opening brief ("EEOC Opening Br."), when the evidence is viewed as a whole and in the light most favorable to the EEOC, a jury could reasonably infer age discrimination. Notably, Banner's brief ("Banner Br.") makes virtually no reference to the rule of law applicable to its summary judgment motion, viz., that the evidence of the nonmovant, here the EEOC, must be taken as true and the record must be viewed in the light most favorable to the EEOC. E.g., Lindahl v. Air France, 930 F.2d 1434, 1436-37 (9th Cir. 1981). Instead, Banner makes the same error as the district court: standing the summary judgment standard on its head by crediting Banner's witnesses, drawing inferences in Banner's favor, and viewing the evidence in the light most favorable to Banner. However, under a proper application of summary judgment principles and the Supreme Court's decision in Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000), the EEOC's evidence is sufficient to put the case to a jury. ARGUMENT A. The EEOC Proffered Evidence Sufficient to Establish a Prima Facie Case The prima facie element at issue in this case is whether the Rosaleses were "either replaced by substantially younger employees with equal or inferior qualifications or discharged under circumstances otherwise giving rise to an inference of age discrimination," such as proof that employees not in the protected class were treated more favorably. Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207-08 (9th Cir. 2008). As the EEOC argued in its opening brief, this prima facie element is satisfied with proof that Armstrong hired substantially younger persons between the ages of twenty-one and fifty for the same jobs as the Rosaleses in the three weeks after their terminations (EEOC Opening Br. at 17- 20), and Armstrong treated Lydia Sewere, a thirty-four-year-old coworker of the Rosaleses who engaged in absenteeism of comparable seriousness far more leniently (id. at 20-23). Banner admits that Armstrong hired several significantly younger persons to work under him to do the same jobs as the Rosaleses shortly after he terminated them. Banner Br. at 37-38. However, Banner argues that the district court was correct in holding that the new hires were not the Rosaleses' replacements because the EEOC "has not shown any of the newly hired employees assumed their job duties." Banner Br. at 38 (quoting ER-I at 3).<1> The Commission agrees that a replacement is someone who is hired or reassigned to perform the Rosaleses' duties. However, as explained in the EEOC's opening brief at 17-20, the EEOC's evidence that Banner hired significantly younger persons into the same positions as the Rosaleses, for the same shift, under the same supervisor, is more than sufficient to meet this standard. The prima facie burden is minimal. E.g., Wallis v. J.R. Simplot, 26 F.3d 885, 889 (9th Cir. 1994) ("The requisite degree of proof necessary to establish a prima facie case for Title VII and ADEA claims on summary judgment is minimal and does not even need to rise to the level of a preponderance of the evidence."). More specificity is not required. In any event, the prima facie case must be adapted to the circumstances and the nature of the EVS tech job and Banner's assignment practices are such that more specificity would not even be possible in this case. ER-II at 64-65, 80-81, 85, and 118 (McLarney Dep. 73:15-19). Banner relies on Rose v. Wells Fargo & Co., 902 F.2d 1417 (9th Cir. 1990), in support of the district court's decision, but Rose was a reduction-in-force case in which the plaintiffs could not demonstrate specific replacements or a continuing need for their services because their jobs were eliminated. Rose, 902 F.2d at 1421. Here, the Rosaleses' jobs were not eliminated and Banner admits there was a continuing need for their skills and services which the new hires helped to satisfy. Banner Br. at 40. Banner also argues that "[e]ven if the EEOC could show that younger workers were hired after the Rosaleses were fired, the EEOC would have to show that these younger workers were hired over other qualified older applicants to raise a specter of age discrimination." Banner Br. at 23. This simply is incorrect and Banner cites no authority for this prima facie standard. Banner's attempt to distinguish Sewere as not similarly situated to the Rosaleses also is unconvincing. Banner argues that Sewere and the Rosaleses were not similarly situated because Banner's attendance policy gave the decisionmaker, Danny Armstrong, discretion on whether to terminate Sewere. Yet it is undisputed that, under Banner's absenteeism policy, Sewere's 7.0 "occurrences" and the Rosaleses' alleged no calls/no shows were both terminable offenses. Banner Br. at 41; ER-II at 90 (¶III.E.1), 92, 95. In addition, it is undisputed that Armstrong similarly had discretion to decide whether to terminate the Rosaleses for violation of the policy's no call/no show provision. Banner Br. at 41 (quoting provision stating employees "may be considered" terminated for three consecutive absences). Armstrong's exercise of discretion also should have included consideration of the Rosaleses' "length of service, previous attendance, and performance record" in formulating the level of discipline (ER-II at 93 ¶V.E.1), but there is no evidence that he considered these factors, further supporting an inference of discrimination. See Kelley v. Airborne Freight Corp., 140 F.3d 335, 346 (1st Cir. 1998) (holding that management's "failure to follow a written company policy that required managers to take specific steps prior to discharging poorly performing employees was relevant" to whether discrimination occurred). So, the issue on this point is whether the evidence that Armstrong elected not to exercise his discretion to terminate the significantly younger Sewere, while exercising that same discretion to terminate the older Rosaleses – without taking into account mitigating factors as called for by Banner's policy – gives rise to an inference of age discrimination. Clearly it does. B. A Reasonable Jury Could Find Banner's Reason for Terminating the Rosaleses to be a Pretext for Age Discrimination Even though this is a pretext case, Banner argues that the EEOC's case must fail because there is no "direct evidence," "age-related policies," "age-related comments by Armstrong or any other Banner managerial personnel," or pattern or statistical evidence suggesting age discrimination. Banner Br. at 28. However, it is Banner's argument that fails. It is well settled that direct evidence is neither necessary nor particularly favored in proving discrimination. See Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003) ("The reason for treating circumstantial and direct evidence alike is both clear and deep-rooted: ‘Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.'") (citation omitted); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983) ("There will seldom be ‘eyewitness' testimony as to the employer's mental processes."). Similarly, statistical evidence of a pattern of discrimination is not required to prove discrimination against particular individuals. Cf. Connecticut v. Teal, 457 U.S. 440, 455 (1982) ("Congress never intended to give an employer license to discriminate against some [persons in a protected class] merely because he favorably treats other members of the employees' group."); Furnco Constr. Corp. v. Waters, 438 U.S. 567, 579 (1978) ("A racially balanced workforce cannot immunize an employer from liability for specific acts of discrimination."). Cases of employment discrimination long have been proven based on circumstantial evidence, such as evidence that the employer's legitimate, nondiscriminatory reason is pretextual. The EEOC's evidence of pretext is sufficient for this case to withstand summary judgment. Banner purports to have terminated the Rosaleses for several consecutive no shows/no calls after Christmas 2005. The decisionmaker, Armstrong, says he met with all employees and told them that no extended leave would be given and says he disapproved the Rosaleses' requests for leave and did so in writing. ER-II at 72. There are several indications that Armstrong's explanation is unworthy of credence. First, contrary to Armstrong's testimony, the Rosaleses state that Armstrong orally granted their leave and orally confirmed it more than once. ER-II at 6, 17, 29, 48-50. As Maria Rosales testified, after the date Armstrong says he met with employees and told them no extended leave would be given, Armstrong told her a returned PTO form (showing the leave was granted) would not be needed for their holiday leave. ER-II at 18-19. Moreover, there is no documentary evidence corroborating Armstrong's version of events although Armstrong claims he disapproved the Rosaleses' PTO directly on their forms, and he testified that those forms should be in Banner's files. ER-II at 72-73. Despite repeated discovery requests, Banner has never produced the PTO forms on which Armstrong says he denied the Rosaleses' leave. ER-II at 126 ¶3. This raises an inference of pretext. See McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1123 (9th Cir. 2004) ("[T]he absence of any documentation confirming that a company hiring freeze was in place during the relevant time period is sufficient to raise a genuine factual dispute as to whether the asserted reason was pretextual."). Indeed, the only PTO forms in the record support the inference that Armstrong in fact granted the Rosaleses' leave and later attempted to cover up his approval by whiting out his marking of "granted" on Fernando Rosales's form. ER-II at 73 (Armstrong Dep. 67:21-25); EEOC SER at 1 (Armstrong Dep. 68:1-22). When viewed in the light most favorable to the EEOC, the EEOC's pretext evidence is sufficient for a reasonable jury to infer age discrimination, particularly when combined with the evidence establishing the prima facie case. See EEOC Opening Br. at 23-26. Banner's arguments to the contrary are unpersuasive. Banner argues that the fact that Armstrong gave the Rosaleses positive performance reviews "disproves pretext" as a matter of law with respect to his later decision to terminate them, relying on Rajah v. County of Clark, 313 Fed. Appx. 8, 2008 WL 2476704 (9th Cir. 2008). Banner Br. at 30. While it is true that in some cases a "strong inference" against bias can be drawn "when the actor who allegedly discriminated against [an employee] had previously shown a willingness to treat the plaintiff favorably," Coghlan v. Am. Seafoods Co. LLC, 413 F.3d 1090, 1097 (9th Cir. 2005), it is not a mandatory presumption even if it were to apply. Id. at 1098. And, in any case, the law does not require a plaintiff to show that a discriminatory decisionmaker always mistreats his target in all matters. It is conceivable, indeed likely, that a biased decisionmaker might fairly evaluate an employee who is performing well and later discriminate when he perceives a better, more strategic, opportunity. See EEOC v. The Boeing Co., 577 F.3d 1044, 1051-52 (9th Cir. 2009) (holding fact that same actors who discharged employee had twice given her RIF scores high enough to avoid vulnerability to discharge did not preclude liability, stating the "logic [of the same-actor inference] differs when applied to less overtly ‘positive' employment decisions, such as refraining from firing an employee at the earliest opportunity"). Nor is the same actor inference particularly strong when comparative evidence – such as Armstrong's treatment of thirty-four-year-old Lydia Sewere in this case – raises an inference of bias. Id. at 1052 (stating "[a] strong inference is also inappropriate here because none of the employees who the supervisors ranked lower than Wrede . . . ultimately suffered as a result"). Thus, it does not "defy logic," as Banner asserts, that a manager would acknowledge two older employees' good performance yet later treat the older employees far more severely than a younger coworker for comparable conduct, terminate them when the opportunity arises, and then hire significantly younger persons to do their jobs. A jury may conclude that age discrimination explains this treatment. Banner makes much of the Rosaleses' testimony during their depositions that no member of management made ageist statements toward them and they believe they were discriminated against because there was no other reason why they would be terminated. Banner Br. at 13-14, 30; EEOC SER at 85 (F. Rosales Dep. 88:3-18); id. at 87 (M. Rosales Dep. 44:24-45:3). Contrary to Banner's suggestion, this testimony is fully supportive of the EEOC's case. It is precisely the lack of a legitimate reason under these circumstances which gives rise to an inference of discrimination. See, e.g., Reeves, 530 U.S. at 147 ("Proof that the defendant's explanation is unworthy of credence . . . may be quite persuasive."); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54, 256 (1981) (stating minimal prima facie case raises inference of discrimination because it "eliminates the most common nondiscriminatory reasons" and that if employer provides a legitimate, nondiscriminatory reason, an inference of discrimination can be drawn if that reason is "unworthy of credence"); Furnco, 438 U.S. at 577 (stating prima facie case raises inference of discrimination if the adverse action is "otherwise unexplained"). Moreover, the Rosaleses' inference of discrimination was supported by their knowledge that Banner's explanation not only was false, but was a lie. EEOC SER at 87 (M. Rosales Dep. 44:12-13) ("[H]e lied because he authorized our vacation, and then he said that he hadn't."); see Reeves, 530 U.S. at 147 (stating that mendacity strengthens the inference of discrimination drawn from falsity of employer's explanation). Banner asserts that "the EEOC concedes that Banner Health has an official policy of requiring the return of approved PTO forms and that [the Rosaleses] did not receive any such forms." Banner Br. at 32. The EEOC acknowledges, as the district court stated, that Banner has made an "assertion" of such a policy. ER-I at 4. The substantive point is that, regardless of what Banner's official policy may have been, there is evidence that Armstrong actually approved the leave and did so orally, consistent with the way Armstrong gave the Rosaeleses leave for Thanksgiving in 2005 – orally, without requiring a returned PTO form. ER-II at 6-7, 20-21, 29, 47, 105a. Indeed, Armstrong admitted he did not always follow the prescribed PTO procedure, ER-II at 69-70, and Banner admitted in its summary judgment motion that its "process for approval of requests for time off may have been confusing or even flawed." Doc. 83 at 10:1-2. Banner attempts to minimize the considerable evidence of pretext by characterizing this as a simple "he said, she said" dispute and arguing that evidence of Armstrong's treatment of the Rosaleses must be viewed as "simple error" and cannot, as a matter of law, be viewed as discriminatory. Banner Br. at 32-33, 34-36. This is wholly inconsistent with well-established summary judgment principles. To be sure, this case involves circumstantial evidence on both sides that must be weighed, but the Commission is entitled to have a factfinder decide "which party's explanation of the employer's motivation it believes." Aikens, 460 U.S. at 716. In sum, Banner's brief cites no dispositive undisputed fact in the record, and no dispositive rule of law, mandating summary dismissal of the Commission's case. The district court should not have abandoned its role of "zealously guarding [the Commission's] right to a full trial, since discrimination claims are frequently difficult to prove without a full airing of the evidence and an opportunity to evaluate the credibility of the witnesses." McGinest, 360 F.3d at 1112, 1124 (reversing summary judgment because "uncertainty at the summary judgment stage must be resolved in favor of the plaintiff"). The district court's summary judgment decision should be reversed. RESPONSE BRIEF AS APPELLEE (No. 09-16769) STATEMENT OF THE ISSUE Whether the district court abused its discretion in denying Banner's motion for attorney's fees and non-taxable costs based on its finding that the EEOC did not pursue this litigation in bad faith. STATEMENT OF THE CASE A. Statement of Facts This EEOC lawsuit was preceded by an administrative process that began with Maria and Fernando Rosales filing charges of age and national origin discrimination with the EEOC's Phoenix District Office, which triggered an EEOC investigation. EEOC SER at 61 (Cruz Decl. ¶¶1-2). The investigation revealed that the Rosaleses' age discrimination allegations had merit, as described in the Commission's opening brief. The investigation also included an interview with a co-worker of the Rosaleses, Eva Ortiz, who stated that she refused the request of lead housekeeper Sylvia Gonzales to sign a false statement that Ortiz overheard Maria Rosales say that if her vacation was not granted she was going to leave and take vacation anyway. EEOC SER at 62, 67 (Cruz Decl. ¶6 & Attch. 1).<2> The Commission made an administrative determination that there was reasonable cause to believe that the Rosaleses were discriminated against on the basis of age and invited Banner to participate in conciliation. EEOC SER at 63 (Cruz Decl. ¶13); II SER 15-16, 20-21. During conciliation, the Commission informed Banner that it had discovered the PTO form on which Armstrong's approval of Fernando Rosaleses' leave had been whited out; informed Banner that a witness had confidentially told the Commission she was asked to sign a false statement against the Rosaleses; and provided nine pages of information to Banner demonstrating the efforts of the Rosaleses to obtain employment and showing their earnings after their terminations. EEOC SER at 70-71 (Rivera Decl. ¶¶5-7). The Commission and Banner exchanged proposals and counter-proposals during conciliation but could not reach a meeting of the minds. EEOC SER 63-66 (Cruz Decl. ¶¶12-25); id. at 71-72 (Rivera Decl. ¶¶8-10). The Commission's Supervisory Trial Attorney assigned to the case reviewed the EEOC's conciliation efforts and had "no doubt that the conciliation met the standards for good faith set out by the courts." EEOC SER 3, 4-5 (Lopez Decl. ¶¶1, 6). The Commission filed the instant lawsuit on July 24, 2007. ER-II at 1. The filing of the lawsuit was accompanied by a press release informing the public on whose behalf the EEOC litigates that suit had been filed against Banner under the ADEA and providing other general information, such as the nature of the allegations, the general nature of the relief sought, and the importance of the case. II SER 59. After suit was filed, Commission attorneys met with Banner's attorney on October 24, 2007, to discuss settlement and the possibility of early resolution. EEOC SER at 6-7 (Lopez Decl. ¶18). The case did not settle at the meeting on October 24, 2007, and as the litigation progressed the parties continued to discuss the possibility of settlement but could not reach mutually acceptable terms. EEOC SER at 7-12, 25-45, 50, 52 (Lopez Decl. ¶¶19-36 & Attchs. 4-8, 10, 11). On April 15, 2008, the Commission presented Banner a proposed consent decree, accompanied with a letter stating that "we are still fairly early in the litigation and are willing to explore the possibility of settlement, including the possibility of mediation." EEOC SER at 7, 25-37 (Lopez Decl. ¶21 and Attch. 4, 5). Banner responded by letter on April 28, 2008, rejecting the EEOC's consent decree offer as unrealistic in its view, but Banner did not provide a counter-proposal or respond to the EEOC's suggestion that the parties mediate. EEOC SER at 7 (Lopez Decl. ¶22); II SER 48. On September 24, 2008, the EEOC reiterated its suggestion of a settlement conference or mediation and stated it would be productive for Banner to provide a specific counter-proposal to the EEOC's proposed consent decree in order to "bridge as many differences as possible." EEOC SER at 8, 39-40 (Lopez Decl. ¶23 & Attch. 6). On September 29, 2008, over five months after the EEOC's consent decree proposal, Banner provided a counteroffer to settle for $5000 to each of the Rosaleses, but it was conditioned on settling without a consent decree and on the EEOC and the Rosaleses agreeing to keep the settlement a secret. EEOC SER at 8, 43 (Lopez Decl. ¶24 & Attch. 7). On December 1, 2008, Banner made an "offer" giving the EEOC until 5:00 PM the following day to agree to a settlement by which the EEOC would move to dismiss its case with prejudice. EEOC SER at 8-9, 45 (Lopez Decl. ¶25 & Attch. 8). On December 2, 2008, the EEOC reiterated its willingness to discuss the resolution of this case on mutually acceptable terms, and that while the EEOC would not simply dismiss the case or resolve it confidentially, the EEOC "remain[ed] willing to negotiate the monetary and non- monetary terms of any resolution." EEOC SER at 9, 50 (Lopez Decl. ¶28 & Attch. 10). Banner filed its summary judgment motion on December 3, 2008. Doc. 83. Banner never moved for a stay of the litigation to return to conciliation but did state that it intended to "use" the issue of conciliation as part of its planned fee application. EEOC SER at 14 (Lopez Decl. Attch. 1). B. District Court Decision The district court denied Banner's motion for attorney's fees and non- taxable costs. I SER 1-4. The court stated that if attorney's fees were to be awarded, it would have to be based on a finding of bad faith, and that there is "nothing in the record to indicate that the EEOC pursued this action in bad faith or to purposely oppress the defendant." Id. at 2. The court declined to engage in post hoc reasoning to conclude that the EEOC acted in bad faith just because the court viewed the EEOC's evidence as insufficient to survive Banner's summary judgment motion. Id. at 2-3. Moreover, the district court rejected Banner's efforts to obtain attorney's fees due to the parties' failure to reach a conciliation agreement, as "[e]ven where a showing of bad faith is not necessary, ‘[t]o justify an award of attroney's fees, [we] would have . . . to find not merely that the EEOC failed to conciliate, but that its belief that its conciliation efforts were adequate was unreasonable.' EEOC v. Bruno's Restaurant, 13 F.3d 285, 290 (9th Cir. 1993) (Title VII claim)." Id. at 3. The court stated that "although the parties were unable to reach an agreement, we cannot conclude that the EEOC's belief that its conciliation efforts were adequate was unreasonable." Id. The court further observed that this case does not present the type of egregious conduct involved in the cases cited by Banner in which an award of attorney's fees for a prevailing ADEA defendant had been upheld. Id. SUMMARY OF ARGUMENT Of course, should the Commission prevail on the merits of its appeal from the grant of summary judgment, Banner's appeal of the denial of its fee petition would be moot. In any case, Banner makes no valid argument for reversing the district court's decision denying attorney's fees in this case. The district court correctly found that there was no bad faith on the EEOC's part. The EEOC's investigative staff found reasonable cause to believe the Rosaleses' charges of age discrimination were true and attempted to conciliate in good faith. Even Banner did not think at the time that the EEOC conciliated in bad faith since it declined to seek a stay of the litigation to return to conciliation or to dismiss EEOC's claims stating that such a motion would not be appropriate because there were clearly factual issues in dispute. The district court also did not abuse its discretion in finding that the EEOC did not litigate this case in bad faith after its good faith conciliation efforts failed. Although the district court did not believe the EEOC's evidence was sufficient to get to a jury, that fact alone is not the equivalent of bad faith. Having reviewed the entire record, the district court determined that while in its view the evidence was weak, the circumstances of this case did not warrant a finding of bad faith. Banner's arguments in favor of reversal simply lack merit. For example, Banner argues that the EEOC acted in bad faith because it issued a standard press release at the commencement of the litigation and because once litigation ensued the EEOC refused to enter into a secret settlement. However, no bad faith can be inferred from the Commission's conduct, as the EEOC is a government litigator with a responsibility to operate in full public view without concealing its litigation or the results thereof in secrecy. Nor can the EEOC's desire to settle this case pursuant to a consent decree be deemed in bad faith – the EEOC prefers to settle cases with consent decrees for the enhanced enforcement options they provide. Lastly, even if this court reverses the district court's finding that the EEOC did not act in bad faith, the ADEA's one-way fee shifting scheme evinces Congress's intent that attorney's fees not be available to prevailing defendants even in response to a plaintiff's perceived bad faith. ARGUMENT THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION BY DENYING BANNER'S REQUEST FOR ATTORNEY'S FEES AND NON-TAXABLE COSTS Reversal of the district court's denial of attorney's fees would require this Court to decide that the district abused its discretion in finding that the EEOC did not act in bad faith. Banner has not demonstrated, and cannot demonstrate, bad faith on the part of the EEOC. As the "bad faith requirement sets a high threshold," which Banner has not met, the district court's decision on attorney's fees should be affirmed. Primus Auto. Fin. Servs., Inc. v. Batarse, 115 F.3d 644, 649 (9th Cir. 1997). A. Prior to Commencing Litigation, the EEOC Satisfied its Statutory Obligation to Attempt to Conciliate in Good Faith Upon finding reasonable cause to believe a charge of discrimination is true, the ADEA requires the Commission to "seek to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion." 29 U.S.C. § 626(d). A good faith attempt at conciliation is a prerequisite to an EEOC suit. See 29 U.S.C. § 626(b); EEOC v. Pierce Packing Co., 669 F.2d 605, 608 (9th Cir. 1982) (Title VII). However, judicial review of the details of the conciliation process is limited. See EEOC v. Keco Indus., Inc., 748 F.2d 1097, 1102 (6th Cir. 1984) (Title VII); EEOC v. Zia Co., 582 F.2d 527, 533 (10th Cir. 1978) (Title VII); EEOC v. Hometown Buffet, Inc., 481 F. Supp. 2d 1110, 1114-15 (S.D. Cal. 2007) (Title VII). The district court considered Banner's arguments for fees as well as the record evidence and concluded that the EEOC did not conciliate this case in bad faith. That decision was not an abuse of discretion and the factual findings on which it rests are not clearly erroneous. The record shows that the EEOC and Banner exchanged proposals and counter-proposals and discussed conciliation over several months but were simply unable to come to a meeting of the minds, with sticking points being both the monetary terms and whether or not Banner would reinstate the Rosaleses. EEOC SER at 64-66 (Cruz Decl. ¶¶16-25); id. at 70-72 (Rivera Decl. ¶¶5-10). The EEOC ended its conciliation efforts after the EEOC's two alternative conciliation proposals in January 2007 did not garner a counter-proposal and Banner said the parties might be "at the end of the road" and that Banner was "not in the ballpark" of the EEOC's proposals. EEOC SER at 65- 66 (Cruz Decl. ¶¶22-25); id. at 71-72 (Rivera Decl. ¶¶8-10). While the parties were unable to come to an agreement, as the district court stated, the record does not support a finding that the EEOC conciliated in bad faith. Banner argues that the EEOC exhibited bad faith by attempting to obtain a type of relief in conciliation – compensatory damages – that is unavailable under the ADEA. This argument too should fail. The ADEA authorizes the recovery of back pay, as well as "liquidated damages" in an amount equal to back pay in cases of a willful violation. 29 U.S.C. § 626(b). Willfulness is a question for the jury, and it can be found in cases, such as here, in which circumstantial evidence is used to establish a violation. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 617 (1993) ("Once a ‘willful' violation has been shown, the employee need not additionally demonstrate that the employer's conduct was outrageous, or provide direct evidence of the employer's motivation, or prove that age was the predominant, rather than a determinative, factor in the employment decision."); EEOC v. Pape Lift, Inc., 115 F.3d 676, 682 (9th Cir. 1997) (holding plaintiff may show willfulness "using the same evidence that was used to establish the underlying ADEA violation," and reversing district court's JMOL on this point). Despite the EEOC investigator's error in labeling part of the relief sought as "compensatory damages," the actual amount of relief sought by the Commission during conciliation was within the ballpark of the available monetary relief under the ADEA. Maria and Fernando Rosales each were full time Banner employees who earned hourly wages of $9.16/hr. and $9.61/hr., respectively, plus benefits. ER-II at 5-6 (M. Rosales Decl. ¶¶3-4); id. at 28 (F. Rosales Decl. ¶¶4-6). This means that on August 8, 2006, the EEOC investigator's opening proposal to conciliate both Rosaleses' charges for $37,944 (EEOC SER at 64 (Cruz Decl. ¶16)) fell under the roughly $46,000 in lost hourly wages and liquidated damages potentially recoverable by the Rosaleses at that time ($9.61/hr. + $9.16/hr. x 40 hours x 31 weeks x 2 for liquidated damages = $46,549.60). The EEOC's subsequent conciliation offers did not seek compensatory damages. Hyperbole and bluster aside, Banner provides no evidence that the EEOC's attempt to conciliate this case prior to litigation was not in good faith or that the EEOC did not believe its efforts were in good faith. See EEOC v. Bruno's Rest., 13 F.3d 285, 288-89 (9th Cir. 1993) ("The mere fact that the EEOC may have failed to conciliate is not enough to find that bringing suit was unreasonable. . . . [W]e need only determine whether its belief that it had done so was reasonable."). Indeed, Banner's conduct in this litigation betrays the argument it now attempts to make. When a defendant believes the EEOC failed adequately to conciliate, the defendant may seek a stay of the action to engage in further conciliation efforts. See Zia, 582 F.2d at 533 ("The inquiry into the duty of ‘good faith' on the part of the EEOC is relevant to whether the court should entertain the claim, or stay the proceedings for further conciliation efforts . . . ."). However, Banner did not seek a stay to reopen conciliation. Furthermore, in explaining why it viewed moving for dismissal of EEOC's claims for failure to conciliate adequately would be inappropriate, Banner stated that "there are clearly factual issues in dispute." EEOC SER 4, 5, 14 (Lopez Decl. at ¶¶5, 7 & Attch. 1). In other words, by admitting that reasonable minds can differ as to whether the EEOC satisfied its statutory obligation to conciliate in good faith, Banner in effect concedes, at a minimum, that the EEOC did not conciliate in bad faith. Banner's attempt now to backtrack and to "use" the conciliation issue to obtain the extraordinary sanction of attorney's fees should be rejected. B. The District Court Did Not Abuse its Discretion in Finding the Commission Did Not Litigate This Case in Bad Faith The district court considered Banner's arguments alleging that the EEOC litigated this case in bad faith and correctly rejected them. As the district court found, the record does not "indicate that the EEOC pursued this action in bad faith or to purposely oppress the defendant." I SER 2. Banner's allegations of bad faith rest on its view of the merits and its characterization of the EEOC's motivation in issuing a press release upon commencement of the litigation and refusal to settle in secret or without a consent decree. All of Banner's arguments are unavailing. With respect to the merits, Banner argues that the district court erred by requiring a showing of "spite" in order to award attorney's fees, and then makes the extraordinary accusation that this is a case of "institutional bad faith and tactics."<3> Banner Br. at 44-45. Banner is incorrect – the district court did not require spite; rather, it simply noted correctly that in this case there was no egregious conduct that would warrant a fee sanction, distinguishing this from a case in which spite happened to be present. I SER 3. There is no evidence that the EEOC litigated this case pursuant to any improper purpose, including spite. Nor, as discussed below, does this case involve institutional bad faith or tactics. Banner reprises its reliance on Maria and Fernando Rosaleses' testimony during their depositions – that they believed they were discriminated against because there was no legitimate reason why they would be terminated – to argue there was no evidence of age discrimination. Banner Br. at 45. As explained in the EEOC's opening brief and reply brief, supra, there is good reason to infer age discrimination. Even if this Court agrees with the district court that the evidence was not adequate to withstand summary judgment, that fact alone does not establish bad faith. Banner also contends that testimony of Banner witnesses stating that they heard the Rosaleses say they planned to take leave even if Armstrong were to deny it – which is disputed by the Rosaleses (EEOC SER at 86, 89-90) – somehow demonstrates that EEOC continued litigation in bad faith. Banner Br. at 45. Banner cites no authority for the proposition that the EEOC – let alone the jury – is required to believe Banner's witnesses instead of the Rosaleses. The EEOC was certainly free not to believe Banner's witnesses, and a jury would be free to do the same. All four witnesses whose testimony Banner cites were employed by Banner at the time of their depositions and had been Banner employees for between five and thirty-three years. EEOC SER at 73 (Jiminez Dep. 5:4-18); id. at 79-80 (Arenivar Dep. 4:16-5:5); id. at 82 (Place Dep. 4:19-24); id. at 83 (Valenzuela Dep. 4:25-5:7). This raises the specter that they were protecting the company, their jobs, or both. Notably, moreover, Jiminez<4> and Arenivar both had leadership positions under Armstrong. If they actually had heard the Rosaleses planning to be insubordinate by taking extended leave, one would have expected them to inform Armstrong or other management prior to the Rosaleses' leave, but there is no evidence they did. Instead, it was Armstrong – the very person whose discrimination is at issue in this case – who orchestrated the original statements made by Jiminez and Arenivar while the Rosaleses were away. EEOC SER at 74 & 76 (Jiminez Dep. 41:1-18 & Exh. 2); id. at 81 (Arenivar Dep. Exh. 2). Banner employee Eva Ortiz told the EEOC during the investigation of this case that, in order to protect Armstrong, lead housekeeper Sylvia Gonzalez asked her to sign a statement similar in substance to these witnesses' testimony – i.e., that Maria Rosales stated that if Armstrong did not approve her leave she was still going to leave and take vacation anyway – but that Ortiz refused to sign because it was false. EEOC SER at 62-63, 67 (Cruz Decl. ¶¶3-8 & Attch. 1). Ortiz's statement to the EEOC investigator, while not part of the summary judgment record, nevertheless underscores why the EEOC's disbelief of Banner's witnesses on this point was far from bad faith and in fact was very reasonable. Banner alleges the EEOC characterized Ortiz as a "secret witness" and engaged in "tactical lying" by not disclosing Ortiz's identity during the investigation and conciliation phases. Banner Br. at 45-46. However, no lie occurred. The EEOC did not refer to Ortiz as a "secret witness" and was simply honoring Ortiz's request to provide information confidentially because she was an employee of Banner and feared retaliation. EEOC SER at 62-63, 70 (Cruz Decl. ¶8; Rivera Decl. ¶6). The Commission's ADEA regulations explicitly state that a witness's request for confidentiality will be respected during the administrative investigation and conciliation processes. See 29 C.F.R. § 1626.4 ("The identity of a . . . confidential witness . . . ordinarily will not be disclosed without prior written consent, unless necessary in a court proceeding."), 29 C.F.R. § 1626.15(b) ("In the process of conducting any investigation or conciliation under this Act, the identity of persons who have provided information in confidence shall not be disclosed except in accordance with § 1626.4."). Banner fails to acknowledge that during discovery the Commission disclosed Ortiz's identity as well as the investigator's notes containing the substance of Ortiz's statements to the EEOC. EEOC SER at 5-6 (Lopez Decl. ¶12). The EEOC has never contended that the EEOC's case is airtight, but of course "an airtight claim is not prerequisite to bringing suit." EEOC v. Bruno's Restaurant, 13 F.3d 285, 290 (9th Cir. 1993) (holding employer could not recover attorney's fees even under Title VII's lower, frivolousness standard unless "EEOC should have anticipated at the outset that none of its evidence of discriminatory conduct was credible"). The EEOC's consistent position has been that this is a circumstantial evidence case entitled to be heard by a jury pursuant to Reeves. While the district court ultimately disagreed, the court did agree that the Commission's belief in the case was not in bad faith. Apart from the merits, Banner in essence argues that the EEOC acted in bad faith by not agreeing to settle this case in secrecy for minimal relief (or by not agreeing simply to drop the case altogether). In support of this argument, Banner contends that the EEOC improperly "used this lawsuit as a public relations device" because the EEOC's filing of the instant lawsuit was accompanied by a press release. Banner Br. at 47. Banner also contends that the EEOC sought "to use meritless litigation to put notches on its belt and socially engineer innocent employers" because the EEOC was unwilling to settle this case without a consent decree. Id. at 48. To the contrary, the Commission has used this litigation for one, and only one, purpose: to secure relief for the Rosaleses and obtain other lawful remedies warranted by Banner's discrimination if proved. The EEOC litigates in the public interest and has an obligation to do so in full view of the public. EEOC SER at 4 (Lopez Decl. ¶3). Pursuant to detailed procedures, the Commission routinely issues press releases at the commencement of litigation consistent with ethical considerations. See EEOC Regional Attorney's Manual, Part 1, Sec. I.C.<5> Banner offers extraordinarily weak evidence of bad faith with respect to the EEOC's press release. First, Banner objects to the EEOC's statement that the Rosaleses "had performed their jobs satisfactorily and had no reason to believe they would be fired." Banner Br. at 47; II SER 59. This, however, is fully consistent with the EEOC's theory of the case (as well as the evidence which was later developed in discovery). Second, Banner also objects to the general statement that employers must "refrain from age-based stereotypes about older workers." Banner Br. at 47; II SER 59. However, while evidence of stereotyping is not required to prove a case of age discrimination, protection from age-based stereotyping is at the core of what Congress sought to protect. See, e.g., Hazen Paper, 507 U.S. at 610 ("It is the very essence of age discrimination for an older employee to be fired because the employer believes that productivity and competence decline with old age. . . . Congress's promulgation of the ADEA was prompted by its concern that older workers were being deprived of employment on the basis of inaccurate and stigmatizing stereotypes."). No bad faith can or should be inferred from the EEOC informing the public, in a press release announcing the filing of an ADEA lawsuit, that the ADEA protects persons from age-based stereotypes. This was an accurate statement of the law. Banner also attacks the EEOC's initial desire to settle this case, if at all, pursuant to a consent decree, stating that the EEOC took this position in order "to publicize the settlement." Banner Br. at 47. Banner is wrong. The desire for "publicity" is not the reason the Commission seeks to settle cases pursuant to consent decrees. Rather, consent decrees have key advantages over settlement contracts, namely that they are easier to enforce and provide the court "a more flexible repertoire of enforcement measures." Local No. 93, Int'l Ass'n of Firefighters v. Cleveland, 478 U.S. 501, 523 n.13 (1986) (citations and quotation marks omitted). See also EEOC's Regional Attorney's Manual, Part 3, Sec. IV.A.2.a. ("To ensure effective enforcement of Commission resolutions, the agency's practice is that settlements be in the form of a consent decree.").<6> The EEOC's trial counsel never discussed the publicity of any settlement or any EEOC plans to issue a press release. EEOC SER at 10 (Lopez Decl. ¶31). It was Banner's demand for "confidentiality," not the EEOC's desire for "publicity," that prevented the parties from having more productive settlement discussions during the litigation of this matter, including discussing the form a settlement might take. In any case, the Commission's practice of conducting its litigation in full public view and not agreeing to secret settlements can hardly be deemed bad faith. C. The ADEA Precludes Attorney's Fees as a Sanction Fees should not be awarded to Banner even if this court reverses the district court's finding of no bad faith. Ordinarily the parties to a lawsuit are responsible for their own attorney's fees pursuant to the so-called "American Rule," absent an enforceable contract or statute stating otherwise. Alyeska Pipeline Serv. Co. v. Wilderness Soc., 421 U.S. 240, 247, 256 (1975). Courts do, however, have inherent equitable powers to assess attorney's fees when the losing party has acted "in bad faith, vexatiously, wantonly, or for oppressive reasons . . . unless forbidden by Congress." Id. at 258-59 (quotation marks and citations omitted). Congress, in enacting the ADEA, incorporated the Fair Labor Standards Act ("FLSA") provision pertaining to attorney's fees. See 29 U.S.C. § 626(b); Richardson v. Alaska Airlines, Inc., 750 F.2d 763, 765-66 (9th Cir. 1984). Because the FLSA, by its terms, does not permit a prevailing defendant-employer to recover fees, neither does the ADEA. See Richardson, 750 F.2d at 767 ("A prevailing employer may not recover fees in an action under the FLSA or the ADEA. . . . Congress chose its words carefully to foreclose the possibility of recovery by an employer who has successfully defended himself against an accusation of age discrimination.") (emphasis in original). The ADEA/FLSA's one-way fee shifting scheme evinces a Congressional intent to preclude fees for a prevailing defendant even upon a finding of bad faith. As the Supreme Court has stated, albeit in dicta, the type of intentional, one-way fee shifting scheme in the ADEA/FLSA supports an argument that "the congressional action ha[s] preempted the common-law rule, and that, therefore, a successful defendant [cannot] recover attorney's fees even against a plaintiff who ha[s] proceeded in bad faith." Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 419 n.13 (1978). Indeed, one circuit court has cited Richardson v. Alaska Airlines, Inc., 750 F.2d 763 (9th Cir. 1984), as suggesting that this Court views the FLSA as precluding an award of fees to a prevailing defendant. See EEOC v. O&G Spring and Wire Forms Specialty Corp., 38 F.3d 872, 883 (7th Cir. 1994). Thus, even if it could be determined that the district court abused its discretion in concluding that the Commission did not act in bad faith, attorney's fees are not an appropriate sanction under the ADEA/FLSA statutory scheme. Cf. Alyeska, 421 U.S. at 260 & n.33, 262 (noting the FLSA as a statute for which Congress has made "specific and explicit provisions for the allowance of attorney's fees" and stating that the "circumstances under which attorney's fees are to be awarded and the range of discretion of the courts in making those awards are matters for Congress to determine"). This Court should reject Banner's request to override Congress's intent that attorney's fees not be available to prevailing defendants.<7> CONCLUSION For the foregoing reasons and those in the EEOC's opening brief, the EEOC respectfully requests that this Court reverse the district court's order granting Banner's motion for summary judgment and remand the case for trial. Should this Court affirm the grant of summary judgment, it should also affirm the district court's order denying Banner's motion for attorney's fees and non-taxable costs. Respectfully submitted, JAMES L. LEE Deputy General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel _/s/ Corbett L. Anderson_____ CORBETT L. ANDERSON U.S. EEOC Office of General Counsel 131 M Street, N.E., 5th Floor Washington, D.C. 20507 (202) 663-4579 (phone) (202) 663-7090 (fax) corbett.anderson@eeoc.gov CERTIFICATE OF COMPLIANCE I certify, pursuant to Fed. R. App. P. 28.1(e)(2)(A)(i) & (e)(3), that this brief contains 7,545 words. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6) in that it is proportionally spaced in 14-point font. _/s/ Corbett L. Anderson________ CORBETT L. ANDERSON Attorney CERTIFICATE OF SERVICE I hereby certify that on January 4, 2010, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system, and that service of the foregoing document will be accomplished by that system on Bennett Evan Cooper, counsel for Banner Health, whom I have determined is a registered appellate CM/ECF user. In addition, I dispatched to FedEx for overnight delivery four paper copies of the EEOC's Supplemental Excerpts of Record to the Clerk of Court and dispatched one paper copy of the same to FedEx for overnight delivery to: Bennett Evan Cooper Steptoe & Johnson LLP Collier Center 201 East Washington Street, Suite 1600 Phoenix, Arizona 85004-2382 (602) 257-5200 _/s/ Corbett L. Anderson________ CORBETT L. ANDERSON Attorney *********************************************************************** <> <1> All references to “ER-I” and “ER-II” are to the corresponding pages in Volumes I and II of the EEOC’s Excerpts of Record. References to “EEOC SER” are to the EEOC’s Supplemental Excerpts of Record. References to “I SER,” “II SER” and “III SER” are to Banner’s Supplemental Excerpts of Record. <2> Banner’s characterization of Ortiz as a “secret witness” (Banner Br. at 17, 45-46) is inaccurate. While the EEOC granted Ortiz’s request for confidentiality during the investigation, it later disclosed her identity and the substance of her statement during litigation and never characterized her as a “secret witness.” EEOC SER at 70 (Rivera Decl. at ¶6); id. at 5-6 (Lopez Decl. ¶12). <3> Although Banner has invoked 28 U.S.C. § 1927 as one of the bases for its fee application, it is clear that that statute, by its terms, only provides courts with authority to sanction an “attorney or other person” who “multiplies the proceedings unreasonably and vexatiously” such that the conduct warrants having them “satisfy personally” excess fees and costs. 28 U.S.C. § 1927. The statute does not permit fees to be assessed against the EEOC, which is the party to this action. See Chambers v. NASCO, Inc., 501 U.S. 32, 48 (1991) (“[A]llowing an assessment of fees against an attorney says nothing about a court’s power to assess fees against a party.”); Gadda v. Ashcroft, 377 F.3d 934, 943 n.4 (9th Cir. 2004) (noting that 28 U.S.C. § 1927 provides courts authority to hold attorneys “personally liable”). In any event, as discussed above, EEOC’s attorneys did not act with “subjective bad faith” in this case. In re Keegan Mgmt. Co., Sec. Lit., 78 F.3d 431, 435 (9th Cir. 1996) (stating subjective bad faith means “knowingly or recklessly raises a frivolous argument, or argues a meritorious claim for the purpose of harassment”) (citations and quotation marks omitted). <4> As Banner notes (Banner Br. 14 n.5), Jiminez made ageist comments to Fernando Rosales, although Rosales did not take offense. ER-II at 44. <5> Available at http://www.eeoc.gov/eeoc/litigation/manual/1-1-c_dissemin_of_info.html. <6> Available at http://www.eeoc.gov/eeoc/litigation/manual/3-4-a_settlement_standards.html#section2a. <7> To our knowledge, this Court has not squarely decided whether the ADEA/FLSA’s one-way fee shifting scheme precludes a court from awarding a prevailing defendant attorney’s fees as a sanction for a plaintiff’s bad faith conduct. See EEOC v. Maricopa County, 339 Fed. Appx. 688, 2009 WL 1974294, at *1 (9th Cir. 2009) (reversing district court’s award of attorney’s fees for prevailing defendant as abuse of discretion because no bad faith present without deciding whether ADEA precludes award of attorney’s fees even for a plaintiff’s bad faith); Reed v. Livingston Auto Ctr., Inc., 146 Fed. Appx. 93 (9th Cir. 2005) (non-precedential decision, stating that “[a]ttorneys fees are also available to prevailing defendants under the FLSA, within the limits of Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978)”). Other circuit courts have held that, despite the ADEA/FLSA one-way fee shifting scheme, an award of fees to a prevailing ADEA defendant is permissible pursuant to a court’s inherent power or pursuant to the Equal Access to Justice Act, which was not invoked in this case. See, e.g., Turlington v. Atlanta Gas Light Co., 135 F.3d 1428 (11th Cir. 1998) (inherent power); EEOC v. Hendrix Coll., 53 F.3d 209 (8th Cir. 1995) (EAJA); EEOC v. Clay Printing Co., 13 F.3d 813 (4th Cir. 1994) (EAJA); EEOC v. O&G Spring and Wire Forms Specialty Co., 38 F.3d 872 (7th Cir. 1994) (EAJA).