Certificate of Interested Persons
No. 11-30770, Equal Employment Opportunity Commission v.
Boh Brothers
Construction Company, L.L.C.
The undersigned counsel of record certifies that the
following listed persons and entities as described in the fourth sentence of
Rule 28.2.1 have an interest in the outcome of this case. These representations
are made in order that the judges of this court may evaluate possible
disqualifications or recusal.
Boh Brothers Construction Co., L.L.C. Defendant–Appellant
Christy, Walter W. Counsel
for Boh Bros.
Credeur, Jacob C. Counsel
for Boh Bros.
Equal Employment Opportunity Commission Plaintiff–Appellee
Fidelity & Deposit Co. of Maryland Boh
Bros.’ surety bonder
Goldman, Tanya L. Counsel
for EEOC
Juge, Gregory T. Counsel
for EEOC
Lopez, P. David Counsel
for EEOC
Ramshaw, Paul D. Counsel
for EEOC
Sacher, James P. Counsel
for EEOC
Vail, Daniel T. Counsel
for EEOC
Wheeler, Carolyn L. Counsel
for EEOC
Woods, Kerry Charging
party
s/
Paul D. Ramshaw
Paul
D. Ramshaw
Attorney
of record for Appellee EEOC
Rule 35(b) Statement
In Price Waterhouse v. Hopkins,
490 U.S. 228 (1989), the Supreme Court ruled that discrimination “because of
sex” within the meaning of Title VII of the Civil Rights Act of 1964 includes
discrimination grounded in beliefs about gender expectations or stereotypes.
The core point of this part of Price Waterhouse was to stop companies
from discriminating based on irrelevant gender norms – to prohibit them from
punishing workers (who are perfectly capable of doing their jobs) simply
because the company believes the worker does not conform to its subjective
vision of how a man or woman should be or act.
The panel opinion in this case turns
this well-established doctrine on its head. The panel reversed the verdict of a
jury that had concluded that a male worker had been illegally harassed by his
male boss for failing to conform to the boss’s view of what a “real” man is.
The panel effectively held that a plaintiff may not use gender-stereotyping
evidence to show discrimination was based on sex unless the victim in fact fails
to conform to our society’s gender expectations. Thus, under the panel’s view,
a harasser may now harass a male employee with impunity for not being “macho”
enough as long as the victim is in fact “macho” (by some
difficult-to-divine objective measure). According to the panel, Title VII – a
statute designed to deter and combat employer use of sex-based stereotypes –
only protects “effeminate” but not “masculine” men from same-sex harassment.
Because this interpretation of Title VII conflicts with Supreme Court case law,
rehearing en banc is warranted. See Fed. R. App. P. 35(b).
Table
of Contents
Certificate of Interested Persons. ii
Rule 35(b) Statement iv
Table of Contents. vi
Table of Authorities. vii
Statement of the Issue. 1
Course of Proceedings and Disposition of the Case. 1
Statement of Facts. 2
Argument 5
The Court should rehear this case en banc because the
panel’s opinion conflicts with Supreme Court case law recognizing that a Title
VII plaintiff can prove sex-based discrimination through evidence that the
discriminator was motivated by subjective gender-based stereotypes. 5
Conclusion. 15
Certificate of Service. 16
Certificate of Compliance with Rules 32 and 35. 17
Table of Authorities
|
Cases
|
|
Baisden v. I’m Ready Products, Inc., ___ F.3d ___ , 2012 WL 3765087
(5th Cir. Aug. 31, 2012)
|
11
|
|
Black·v.·Pan·American·Laboratories,·646·F.3d·254·(5th·Cir.·2011)
|
8
|
|
Brown v. Bryan County, Okla., 219 F.3d 450 (5th Cir. 2000)
|
11
|
|
Capaci v. Katz & Besthoff, Inc., 711 F.2d 647 (5th Cir. 1983)
|
9
|
|
Cherry v. Shaw Coastal, Inc., 668 F.3d 182 (5th Cir. 2012)
|
14
|
|
Davis v. Chevron USA, Inc., 14 F.3d 1082 (5th Cir. 1994)
|
6
|
|
EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306 (4th Cir. 2008)
|
14
|
|
EEOC v. WC&M Enterprises, Inc., 496 F. 3d 393 (5th Cir. 2007)
|
7
|
|
Healy v. New York Life Inurance. Co., 860 F. 2d 1209 (3d Cir. 1988)
|
7
|
|
Jackson v. Quanex Corp., 191 F.3d 647 (6th Cir. 1999)
|
14
|
|
Jones v. UPS Ground Freight, 683 F. 3d 1283 (11th Cir. 2012)
|
7
|
|
La Day v. Catalyst Technology, Inc., 302 F.3d 474 (5th Cir. 2002)
|
5
|
|
Laxton v. Gap Inc., 333 F.3d 572 (5th Cir. 2003)
|
9
|
|
McBeth v. Carpenter, 565 F.3d 171 (5th Cir. 2009)
|
11
|
|
Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986)
|
5
|
|
Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864
(9th Cir. 2001)
|
12
|
|
Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999)
|
7
|
|
Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998)
|
5, 14
|
|
Pond v. Braniff Airways, Inc., 500 F.2d 161 (5th Cir. 1974)
|
6
|
|
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)
|
iii, 1, 6, 10
|
|
Raytheon Co. v. Hernandez, 540 U.S. 44 (2003)
|
6
|
|
U.S. Postal Service Board of Governors v. Aikens,
460 U.S. 711 (1983)
|
7
|
|
|
|
|
|
|
Statutes and Rules
|
|
42
U.S.C. § 2000e-2(a)
|
5
|
|
Federal
Rule of Civil Procedure 50(b)
|
2, 11
|
|
|
|
|
Other
|
|
EEOC Compliance Manual
|
10
|
Statement
of the Issue
Whether the panel opinion conflicts
with the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490
U.S. 228 (1989), which recognized that a Title VII plaintiff can prove
sex-based discrimination through evidence that the discriminator was motivated
by subjective gender-based stereotypes – whether or not the victim actually
defies gender norms.
Course
of Proceedings and Disposition of the Case
This is an enforcement action brought
by the U.S. Equal Employment Opportunity Commission (EEOC or Commission) under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The
EEOC alleged that Boh Bros. violated Title VII when Chuck Wolfe, the
superintendant of an all-male bridge-maintenance crew, created a hostile
environment by harassing his subordinate, iron worker/welder Kerry Woods,
because of his sex, and Boh Bros. failed to prevent and correct this
harassment. R-1. The theory of the EEOC’s case was that Wolfe harassed Woods
because Wolfe subjectively believed that Woods did not conform to Wolfe’s
vision of how a man should be or act.
The parties tried the case before a
jury for three days. During the charge conference, Boh Bros. did not object to
the court’s proposed instructions on the Commission’s hostile environment claim
– including the instruction explaining that the harassment had to occur because
of Woods’s sex. 5C-2328–29. The jury then found Boh Bros. liable for a hostile
environment, returning a verdict in favor of the Commission and awarding
$450,000 in compensatory and punitive damages. The district court reduced the
compensatory damages to comply with the statutory cap, but denied the company’s
Rule 50(b) motion for judgment as a matter of law. The district court entered
judgment in the Commission’s favor on this claim. Boh Bros. appealed.
A panel of this court overturned the
jury’s verdict. Slip op. at 8. The panel acknowledged that the EEOC’s theory
was that “Wolfe harassed Woods because Woods did not, in Wolfe’s view,
conform to the male stereotype.” Id. at 5 (emphasis added). But the
panel then ruled that the EEOC could not prevail unless it proved that Woods in
fact – objectively – failed to conform to gender norms. See id.
at 7 (“[A] plaintiff may not recover based on nonconformance to gender
stereotypes unless the plaintiff conforms to nonconformance gender
stereotypes.”). Finding insufficient evidence on this point to sustain the
jury’s verdict, the panel ordered the district court to dismiss the case.
Statement
of Facts
Woods worked for Boh Bros. on a five-man bridge-maintenance crew.
5C-1733, 1735. Chuck Wolfe supervised this all-male crew. 5C-1877, 2163. The
Commission introduced evidence at trial that Wolfe treated Woods differently
from the other workers. 5C-1738, 1746, 1940.
Wolfe regularly directed certain
epithets at Woods that he did not direct at other crew members. Wolfe addressed
Woods almost every day with degrading sex-based epithets like “faggot,”
“queer,” “gay,” “pussy,” and “princess.” 5C-1737–39, 1804, 1932, 1937, 1940–41.
Wolfe acknowledged that he called Woods “faggot,” “queer,” “pussy,” and
“princess.” 5C-1932, 1937, 1940–41. Woods testified that Wolfe was “attacking”
him with these epithets. 5C-1738. Notably, while Wolfe might have called
another crew member “pussy,” 5C-2114, he conceded that he never called any
other iron worker “queer” and may never have called anyone else “faggot.”
5C-1940. The record contains no evidence that Wolfe used degrading epithets as
often, or as harshly, with any other worker.
The harassment took other forms, as
well. Two to three times a week, while Woods was bent over to perform his
assigned tasks, Wolfe came up close behind him and simulated having anal
intercourse with him. 5C-1744. Wolfe exposed his penis to Woods about ten
times. 5C-1745. Wolfe urinated off (and sometimes on) the bridge and called out
Woods’s name while urinating so that when Woods responded by turning toward his
superintendant, Woods saw his penis. 5C-1745. One day, after Woods had taken a
nap in his car during a break, Wolfe told him, “If your [car] door wouldn’t
have been locked, my dick would have probably been in your mouth.” 5C-1739–40.
Wolfe may have “humped” another crew member, 5C-2125–26, but nothing in the
trial record indicates that Wolfe exposed himself to any others. The trial
record contains no evidence that Wolfe told any other workers he might put his
penis in their mouths.
The Commission introduced evidence that Wolfe harassed Woods as severely
as he did because Wolfe viewed Woods as not “manly” enough. Wolfe told his
manager, Wayne Duckworth, that he “didn’t care for” Woods because Woods was
sensitive and “different” and “didn’t fit in.” 5C-1857–58. Wolfe taunted Woods
about being gay and feminine because he sometimes used “Wet Ones” instead of
toilet paper. 5C-1743. Wolfe testified that he believed that using wet wipes
“seemed kind of gay,” and that when he called Woods “gay” and “faggot,” he was
saying Woods was feminine. 5C-1933. The epithets Wolfe called Woods explicitly
described Woods as feminine or effeminate (“pussy” and “princess”) or as gay
(“queer” and “faggot”). Wolfe acknowledged that “pussy” means “not manly,” and
he conceded that he called Woods “queer” and “faggot” because he thought Woods
was “not manly” and “feminine” because he used wet wipes. 5C-1935, 1940–41.
To help the jury understand the nature of the same-sex harassment that
sometimes occurs in all-male work environments, the EEOC introduced the expert
testimony of Dr. Liza Gold, a medical-school professor, board-certified
psychiatrist, and expert on sexual harassment. 5C-2194–96. At trial, Dr. Gold
summarized what researchers have learned about same-sex harassment motivated by
perceived non-conformance with gender stereotypes (as opposed to harassment
motivated by sexual desire). According to Dr. Gold, gender-stereotype
harassment is based on the victim’s perceived non-conformance with
stereotypically masculine behavior and occurs most frequently in all-male
settings (such as on constructions sites). 5C-2203–05. Dr. Gold testified that
in these scenarios, the harasser often insults and degrades the victim by
stating or implying he is gay or feminine. 5C-2200–01. By using such
humiliating epithets, Dr. Gold testified, the harasser isolates and asserts his
power over the victim, and seeks to bond with the other men around their shared
masculinity. 5C-2200–01.
Argument
The Court should rehear this case en banc because the
panel’s opinion conflicts with Supreme Court case law recognizing that a Title
VII plaintiff can prove sex-based discrimination through evidence that the
discriminator was motivated by subjective gender-based stereotypes.
Title VII prohibits discrimination in the workplace
“because of” sex. 42 U.S.C. § 2000e-2(a). This prohibition includes harassment
based on gender that is severe or pervasive enough to create an objectively
hostile work environment. Meritor Savings Bank, FSB v. Vinson, 477 U.S.
57, 66 (1986). Same-sex harassment – like the harassment in this case – is
likewise prohibited. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S.
75, 79–80 (1998); La Day v. Catalyst Tech., Inc., 302 F.3d 474, 477–78
(5th Cir. 2002).
The Supreme Court in Price Waterhouse v. Hopkins
held that discrimination motivated by the actor’s belief that the victim is not
conforming to gender expectations or norms is discrimination “because of” sex. The Court ruled that “we are beyond
the day when an employer could evaluate employees by assuming or insisting that
they matched the stereotype associated with their group . . . .” 490 U.S.
at 251. As the panel here explained:
Ann
Hopkins alleged that she had been denied partnership in her accounting firm
because some of the partners felt, in words attributed to them, that she was
“macho,” needed “a course at charm school,” and should “walk more femininely,
talk more femininely, dress more femininely, wear make-up, have her hair
styled, and wear jewelry.” [Price Waterhouse, 490 U.S.] at 235. In
explaining how those words might evince discrimination because of sex, a
plurality of the Court stated that “an employer who acts on the basis of a
belief that a woman cannot be aggressive, or that she must not be, has acted on
the basis of gender.” Id. at 250.
Slip Op. at 6.[1]
In “stereotyping” cases like this
one, what matters is whether the harasser subjectively perceived
that the victim failed to conform to a gender norm – not whether the
victim in fact objectively did. Cf. Raytheon Co. v. Hernandez,
540 U.S. 44, 52 (2003) (plaintiff alleging disparate treatment must establish
“the employer’s subjective intent to discriminate”) (emphasis added); U.S.
Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983) (inquiry
in intentional discrimination cases focuses on the actor’s “state of mind”). A
victim alleging discrimination based on gender non-conformity is not and should
not be required to prove – and often cannot prove – that a harasser’s
perception of the victim is reasonable, or even rational. Cf. Olmstead
v. L.C. ex rel. Zimring, 527 U.S. 581, 611 (1999) (Kennedy, J., concurring)
(“Underlying much discrimination law is the notion that animus can lead to
false and unjustified stereotypes, and vice versa.”); Healy v. New York Life
Ins. Co., 860 F. 2d 1209, 1218 (3d Cir. 1988) (describing age, race, or sex
bias as “irrational”).
The focus is on the decision
maker’s beliefs or assumptions about the victim, not the empirical
accuracy of those views. See, e.g., Jones v. UPS Ground Freight,
683 F. 3d 1283, 1299–300 (11th Cir. 2012) (where black truck driver alleged
race-based hostile environment, jury could consider adverse treatment by
trainer even though trainer wrongly believed driver was Indian); EEOC v.
WC&M Enters., Inc., 496 F. 3d 393, 401 (5th Cir. 2007) (EEOC offered
sufficient evidence of hostile environment based on employee’s national origin
(Indian) even though harassers did not know he was from India). “Discrimination
against an individual based on a perception of his or her race [or sex]
violates Title VII even if that perception is wrong.” EEOC Compliance Manual
§ 15-II (2006), § 13-II.B (2002). What is relevant is the
discriminator’s motivation – not whether the motive makes sense.
This is obvious, and not at all
controversial, in analogous contexts. Suppose, for example, a manager refused
to hire a black applicant because the manager believed blacks are
intellectually inferior. No court would allow the employer to escape liability
for this obviously race-based decision, grounded in a racial stereotype, by
arguing that this particular black applicant was not actually
intellectually inferior. And no court would require the black plaintiff to
prove that he is in fact intellectually inferior to show the manager’s failure
to hire him was race-based. All that matters is that the manager believed
the applicant was intellectually inferior because of his race, and thus refused
to hire him.
This court has recognized that the
same basic approach applies in a case involving impermissible sex-based
stereotypes. In Black v. Pan American Laboratories, this court affirmed
a jury verdict for a female plaintiff who alleged she was fired because of her
sex. See 646 F.3d 254, 260 (5th Cir. 2011). The plaintiff had introduced
evidence that decision makers uttered comments such as that “women were a
detriment to the company,” that they “‘get hired on, get married, and/or get
pregnant and they leave,’” and that the plaintiff did not need a sales quota
because she was not the “‘breadwinner anyway.’” Id. Despite an apparent
lack of evidence that any of these assumptions or assertions were actually
true, this court concluded that “there was ample evidence to support the jury’s
finding of sex discrimination.” Id.; see also id. at 274 (Dennis,
J., dissenting in part and concurring in part) (pointing out that the
“breadwinner” comment was “undeniably sex-related, viz., it
reflects a patent sex-based stereotype,
which, parenthetically, was not true for Black, who worked while her husband
was retired”).[2]
Here, while the panel acknowledged
that the Commission’s argument was that “Wolfe harassed Woods because Woods did
not, in Wolfe’s view, conform to the male stereotype,” Slip op. at 5
(emphasis added), the panel reversed the jury’s verdict because it did not
believe there was sufficient proof that Woods was in fact insufficiently
masculine. In vacating the judgment, the panel repeatedly emphasized that a
jury could not find that Woods actually violated stereotypical male gender
norms. See id. at 1 (“There is no claim or evidence that . . . Woods is
homosexual or effeminate.”) (emphasis added); id. at 2 (“There is . . .
no evidence that [he] was homosexual or attracted to homosexuals”)
(emphasis added); id. at 6 (“The case before us today stands in sharp
contrast to Price Waterhouse, in which there was considerable evidence
that the plaintiff did not conform to the female stereotype.”) (emphasis
added).
The panel held that “it is a circular truth that a plaintiff may not
recover based on nonconformance to gender stereotypes unless the plaintiff
conforms to nonconformance gender stereotypes.” Id. at 7. It stated that
“Wolfe testified that he did not view Woods as feminine,” and found “there is
no evidence except the ‘Wet Ones’ that he did, and that does not strike us
as overtly feminine.” Id. (emphasis added). Thus, the panel concluded
that “the evidence is insufficient to support the jury’s verdict that Woods was
discriminated against ‘because of . . . sex. . . .’” Id. at 7–8.
This result cannot be squared with Price Waterhouse. The issue
there, as here, was not whether there was sufficient evidence of actual
gender non-conformity (although, to be sure, in Price Waterhouse there
was). Instead, the Court focused on the plaintiff’s evidence demonstrating that the discriminators believed the
victim failed to conform to appropriate gender norms. See 490 U.S. at
250 (“In the specific context of sex stereotyping, an
employer who acts on the basis of a belief that a woman cannot be aggressive,
or that she must not be, has acted on the basis of gender.”) (emphasis added).
Thus, if Wolfe had refused to hire Woods because Wolfe believed Woods
was too effeminate and “wouldn’t fit in” with his all-male crew, Boh Bros.
would have violated Title VII. So, too, here, in this harassment case (and
there is no plausible basis for concluding a different standard should apply
simply because this case alleged harassment, as opposed to some other adverse
job action). Wolfe harassed Woods because Wolfe believed Woods was feminine.
Whether Woods actually was effeminate, gay, or macho is irrelevant.
Applying the proper legal standard, there was legally sufficient evidence
for the jury to find for the Commission here. In fact, given the procedural
posture of this case – an appeal from a favorable jury verdict – the panel’s
ruling dismissing this case is especially disturbing. This court reviews de
novo a district court ruling on a Rule 50(b) motion for judgment as a
matter of law. McBeth v. Carpenter, 565 F.3d 171, 176 (5th Cir. 2009).
However, the “standard of review with respect to a jury verdict is especially
deferential.” Brown v. Bryan County, Okla., 219 F.3d 450, 456 (5th Cir.
2000). Judgment as a matter of law is only proper if “the facts and inferences
point so strongly and overwhelmingly in the movant’s favor that reasonable
jurors could not reach a contrary conclusion.” Baisden v. I’m Ready Prods.,
Inc., F.3d , 2012 WL 3765087, part II.A (5th Cir. Aug.
31, 2012) (punctuation and citation omitted). This court “cannot reverse a
denial of a [Rule 50(b) motion] unless the jury’s factual findings
are not supported by substantial evidence, or if the legal conclusions implied
from the jury’s verdict cannot in law be supported by those findings.” Id.
(punctuation and citation omitted).
The panel did not adhere to this strict standard of review. The jury was
properly instructed that to find liability, it had to find that Wolfe harassed
Woods because of his sex. And the jury deliberated and found that he did. In
casting this verdict aside, the panel improperly usurped the jury’s role.
For example, the panel concluded that “Wolfe testified that he did not
view Woods as feminine, and there is no evidence except the ‘Wet Ones’ that he
did . . . .” Slip op. at 7. But that is not accurate. Here,
contrary to the panel’s factual finding, Wolfe unambiguously testified that he did
think Woods was feminine. 5C-1933 (“Q. [W]hen you said that Mr. Woods was
‘kind of gay’ for using Wet Ones, . . . you were saying he was feminine,
correct? A. Yes. . . . Q. You meant that he was not being manly; is
that correct? A. Yes, sir.”), 1937. Whether society or this court would
consider the use of wet wipes to be effeminate is immaterial. Wolfe did.
The jury obviously credited this testimony, and concluded that Wolfe harassed
Woods because Wolfe viewed Woods as insufficiently masculine. This court should
not have substituted its view of the evidence for the jury’s.
While the panel concluded that the EEOC only offered evidence about “wet
wipes,” that, too, is incorrect. The egregious epithets Wolfe used make clear
on their face that Wolfe saw Woods as gender non-conforming. See, e.g., Nichols
v. Azteca Rest. Enters., Inc., 256 F.3d 864, 870, 875 (9th Cir. 2001)
(concluding that verbal abuse, including the use of the epithet “faggot,”
“occurred because of sex”). Indeed, Wolfe conceded that “pussy” means a man who
is not manly, 5C-1941, and that he called Woods “princess” and “faggot” because
he thought Woods was “feminine.” 5C-1933, 1937, 1941. The panel ignored the
evidence establishing that Wolfe did not direct some of these slurs to anyone
else. 5C-1940.
Further, the panel decision acknowledged that Wolfe told his supervisor,
Wayne Duckworth, that “he ‘didn't care for’ Woods because he [Woods] was
‘different’ and ‘didn't fit in,’” but then immediately noted that “the jury
heard that Woods was not a member of the union, as were the other workmen,
including Wolfe.” Slip op. at 5. There was no evidence, however, that Wolfe was
referring to Woods’s non-union status when he said that Woods “didn’t fit in.”
In fact, Wolfe testified that he was not “a big pro-union person” and implied
strongly that he had no problems with Woods’s non-union status. 5C-1924–25. And
Duckworth testified that Wolfe told him that his [Wolfe’s] problems with Woods
had nothing to do with the union. 5C-1858.
In short, Wolfe complained that Woods was “different” and “didn’t fit
in,” admitted he thought Woods was feminine, and used epithets that patently
connote gender non-conformance to insult and isolate Woods. Given all this
evidence, the jury reasonably could have concluded – and did conclude – that
Wolfe committed all the harassment at issue here (including simulated
anal sex, genital exposure, and a threat of fellatio) because of Woods’s sex.
Indeed, Dr. Gold, the EEOC’s expert witness, testified that same-sex harassment
in all-male settings usually involves a harasser degrading and abusing a man
the harasser views as insufficiently masculine. The jury could reasonably have
found that Wolfe harassed Woods in precisely that manner. In
disregarding this evidence altogether, the panel failed to view the evidence in
the light most favorable to the EEOC, as it was obliged to do. Cf. Cherry v.
Shaw Coastal, Inc., 668 F.3d 182, 188 (5th Cir. 2012) (“Taking the facts in
the light most favorable to the verdict, the evidence supports the conclusion
that the harassment was explicitly or implicitly sexual in nature.”).[3]
Conclusion
For the foregoing reasons, we
respectfully request that the Court rehear this case en banc.
Respectfully
submitted,
P. David
Lopez
General Counsel
Carolyn L.
Wheeler
Acting Associate General Counsel
Daniel T.
Vail
Acting Assistant General Counsel
s/ Paul D. Ramshaw
Paul D.
Ramshaw
Attorney
Equal
Employment
Opportunity Commission
Office of General Counsel
131 M St., NE, Room 5SW18K
Washington, DC 20507
(202)
663-4737
Certificate
of Service
I certify that Walter W. Christy,
counsel for appellant Boh Bros., is a registered CM/ECF user and will be served
by receiving an electronic copy of this brief from the Court today, September
10, 2012.
s/ Paul D. Ramshaw
Attorney
Equal Employment
Opportunity Commission
Office
of General Counsel
131
M St., NE, Room 5SW18K
Washington, DC 20507
September 10, 2012
Certificate of Compliance with
Rules 32 and
35
This brief complies with the length limitation of Fed. R.
App. P. 35(b)(2) because, after excluding the parts of the brief exempted by
rule 32(a)(7)(B)(iii), it does not exceed 15 pages.
It also complies with the typeface requirements of rule
32(a)(5) and the type-style requirements of rule 32(a)(6) because it uses
14-point Times New Roman, a proportionally spaced font.
s/ Paul D. Ramshaw
Attorney
Equal Employment
Opportunity Commission
Office
of General Counsel
131
M St., NE, Room 5SW18K
Washington, DC 20507
September 10, 2012
