____________________________________________ Appeal No. 08-2018 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ____________________________________________ U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee v. CENTRAL WHOLESALERS, INC., Defendant-Appellant. _______________________________________________________ On Appeal from the United States District Court for the District of Maryland The Honorable Peter J. Messitte, Presiding _______________________________________________________ RESPONSE BRIEF OF PLAINTIFF-APPELLEE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION _______________________________________________________ RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E. Room 5NW14P Washington, D.C. 20507 (202) 663-4571 (phone) (202) 663-7090 (fax) daniel.vail@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 B. District Court Decision. . . . . . . . . . . . . . . . . . . . . . . . 15 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DENYING CW'S MOTION FOR ATTORNEY'S FEES. . . . . . . . . . . . . . . . . . . . . 20 A. The Applicable Standard of Review Is "Abuse of Discretion.". . . . . . 20 B. The District Court Did Not Abuse Its Discretion In Finding That the Commission's Case Was Not "Frivolous, Unreasonable, Or Without Foundation.". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 REQUEST FOR ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . 44 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . C-1 CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . C-2 TABLE OF AUTHORITIES Cases Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975). . . . . . . . . . . . . . . . . . . . . 24 Arnold v. Burger King Corp., 719 F.2d 63 (4th Cir. 1983). . . . . . . . . 21, 25, 35, 42, 43 Associated Dry Goods Corp. v. EEOC, 720 F.2d 804 (4th Cir. 1983). . . . . . . . . . . . . . . 30 Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761 (4th Cir. 2003). . . . . . . . . . . . . . 16, 20 Blue v. U.S. Dep't of Army, 914 F.2d 525 (4th Cir. 1990). . . . . . . . . . . . . . . 43 Brodziak v. Runyon, 145 F.3d 194 (4th Cir. 1998). . . . . . . . . . . . . . . 21 Bryant Woods Inn, Inc. v. Howard County, Md., 124 F.3d 597 (4th Cir. 1997). . . . . . . . . . . . . . . 25 Canady v. Crestar Mortgage Corp., 109 F.3d 969 (4th Cir. 1997). . . . . . . . . . . . . . . 28 Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978). . . . . . . . . . . . . . . . . . passim EEOC v. Caterpillar, Inc., 409 F.3d 831 (7th Cir. 2005). . . . . . . . . . . . . . . . 31 EEOC v. Gen. Elec. Co., 532 F.2d 359 (4th Cir. 1976). . . . . . . . . . . . 30, 31, 32 EEOC v. Keco Indus., Inc., 748 F.2d 1097 (6th Cir. 1984). . . . . . . . . . . . . . . 32 EEOC v. Raymond Metal Prods. Co., 530 F.2d 590 (4th Cir. 1976). . . . . . . . . . . . . . 30, 32 EEOC v. St. Anne's Hosp., 664 F.2d 128 (7th Cir. 1981). . . . . . . . . . . . . . . 32 Evans v. Davie Truckers, Inc., 769 F.2d 1012 (4th Cir. 1985). . . . . . . . . . . . . . . 43 Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994). . . . . . . . . . . . . . . 25 Frahm v. United States, 492 F.3d 258 (4th Cir. 2007). . . . . . . . . . . . . . . 22 Georator Corp. v. EEOC, 592 F.2d 765 (4th Cir. 1979). . . . . . . . . . . . . . 30, 31 Glymph v. Spartanburg Gen. Hosp., 783 F.2d 476 (4th Cir. 1986). . . . . . . . . . . . 26, 34, 41 Harris v. L & L Wings, Inc., 132 F.3d 978 (4th Cir. 1997). . . . . . . . . . . . . . . 20 Hughes v. Rowe, 449 U.S. 5 (1980). . . . . . . . . . . . . . . . . . . . 41, 42 Hunter v. Earthgrains Co. Bakery, 281 F.3d 144 (4th Cir. 2002). . . . . . . . . . . . 21-22, 42 Johnson v. Hugo's Skateway, 974 F.2d 1408 (4th Cir. 1992). . . . . . . . . . . . . . . 21 Martin v. Cavalier Hotel Corp., 48 F.3d 1343 (4th Cir. 1995). . . . . . . . . . . . . . . 21 Newman v. Piggie Park Enters., Inc., 390 U.S. 400 (1968). . . . . . . . . . . . . . . . . . . . . 25 Newsome v. EEOC, 301 F.3d 227 (5th Cir. 2002). . . . . . . . . . . . . . . 31-32 United Food & Commercial Workers Local 400 v. Marval Poultry Co., 876 F.2d 346 (4th Cir. 1989). . . . . . . . . . . . . . . 22 Statutes 28 U.S.C. § 1291. . . . . . . . . . . . . . . 1 28 U.S.C. § 1331. . . . . . . . . . . . . . . 1 28 U.S.C. § 1337. . . . . . . . . . . . . . . 1 28 U.S.C. § 1343. . . . . . . . . . . . . . . 1 28 U.S.C. § 1345. . . . . . . . . . . . . . . 1 42 U.S.C. § 2000e-5(f)(1). . . . . . . . . 1 42 U.S.C. § 2000e-5(f)(3). . . . . . . . . 1 42 U.S.C. § 2000e-5(k). . . . . 20, 23, 24, 29 Regulations 29 C.F.R. § 1601.22. . . . . . . . . . . . 36 TABLE OF AUTHORITIES (con't) Rules Fed. R. App. P. 4(a)(1)(B). . . . . . . . . 1, 2 Fed. R. App. P. 32(a)(5). . . . . . . . . C-1 Fed. R. App. P. 32(a)(6). . . . . . . . . C-1 Fed. R. App. P. 32(a)(7)(B). . . . . . . . . C-1 Fed. R. App. P. 32(a)(7)(B)(iii). . . . . . C-1 Miscellaneous Section 83, Disclosure of Information in Open Files, 1 EEOC Compliance Manual (rev. May 1992) (BNA 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 STATEMENT OF JURISDICTION Plaintiff-Appellee the U.S. Equal Employment Opportunity Commission ("EEOC" or "Commission") filed this enforcement action against Defendant- Appellant Central Wholesalers, Inc. ("Central" or "CW") under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. ("Title VII"). See 42 U.S.C. § 2000e-5(f)(1). The EEOC filed this lawsuit in the U.S. District Court for the District of Maryland. (R.1; JA7-11)<1> The district court had jurisdiction over the EEOC's suit under 42 U.S.C. § 2000e-5(f)(3) and 28 U.S.C. §§ 1331, 1337, 1343, and 1345. On December 4, 2007, the district court entered final judgment against the EEOC disposing of all claims. (R.40; JA507) CW filed a post-judgment motion for attorney's fees, which the EEOC opposed. (R.41; R.49; R.51) On July 8, 2008, the district court denied CW's motion for fees. (R.54; JA670-72) CW then filed a timely notice of appeal of this district court order. (R.58) See Fed. R. App. P. 4(a)(1)(B). This Court now has appellate jurisdiction under 28 U.S.C. § 1291. STATEMENT OF THE ISSUE Whether the district court abused its discretion in denying CW's motion for attorney's fees. STATEMENT OF THE CASE On June 29, 2006, the EEOC filed a complaint in the district court, alleging that CW violated Title VII by subjecting charging party La Tonya Medley to a race- and sex-based hostile work environment. (R.1; JA9¶7) The EEOC contended that CW also constructively discharged Medley. (R.1; JA9¶7) The EEOC requested injunctive relief, back pay, compensatory and punitive damages, and costs. (JA9-10¶¶A-H) The Commission also requested a jury trial. (JA10-11) CW later filed a motion for summary judgment with respect to all claims. (R.27) The Commission responded to this motion on September 17, 2007. (R.32) The district court held a hearing on CW's summary judgment motion on December 3, 2007. (R.39; JA445) At the conclusion of this hearing, in an oral ruling from the bench, the district court granted CW's motion. (R.39; JA505) On December 4, 2007, the district court entered final judgment against the EEOC on all claims. (R.40; JA507) The EEOC filed a timely notice of appeal of this judgment on January 31, 2008. (R.52; JA508) See Fed. R. App. P. 4(a)(1)(B). This Court docketed the EEOC's merits appeal as Appeal No. 08-1181. After the district court denied CW's post-judgment motion for attorney's fees, this appeal followed. (R.54; R.58) STATEMENT OF FACTS A. Background<2> In December 2002, CW hired Medley as a representative in the Customer Service department at CW's Laurel, Maryland, facility. (JA322,328,330,410) In September 2004, Medley was transferred to CW's "Inside Sales" division. (JA410) All Inside Sales representatives reported to Lynette Wright. (JA16,384) Wright reported directly to company President Drew Denicoff. (JA16,383-84) There were seven Inside Sales representatives, including Tony Monaghan, Mike Monaghan (Tony's son), and Doug Green - all white males. (JA114-16,396- 97,411) Tony, who was Wright's assistant, had an office next to Wright's, and "one cube down" from Medley's cubicle. (JA69-70,214) Mike and Doug worked in cubicles right next to Medley's. (JA70,132) Medley was the only female and the only African American Inside Sales representative. (JA411) From the time Medley first began working in Inside Sales she was exposed to regular race-based and sex-based comments and conduct. (JA30) According to Medley: My fellow co-workers ignored all the entreaties I made to cease and desist. Then I became the object of the scorn of my fellow employees because of my insistence that the use of this language was inappropriate and unbusinesslike. Instead of ceasing from the profanity, it increased with added racial jokes and ethnic slurs. (JA411) Medley said employees coming through the Inside Sales work area from the CW warehouse made racial comments or slurs "pretty often." (JA33-34) She said "I don't like saying these words, but I mean it was the N word [i.e., "nigger"], it was the B word [i.e., "bitch"], it was calling people spics" - "things along that line." (JA35,76) Medley said that her co-workers Tony, Mike, and Doug also made racial comments and slurs. (JA32,69-70) Tony used racial terms, including the "N" word, "quite often" and "whenever he was talking about the people who worked in the warehouse." (JA75,78) Medley was "certain" Tony used the "N" word. She said he used it "pretty much every day." (JA77-78) Medley said she also heard Doug use the "N" word. She said "I don't know how many exact times" but "it was used within the department." (JA79-80) Tony displayed a "mop-head" doll with a noose around its neck, hanging from the file cabinet in his office. (JA98,348) Medley said this was offensive to her because "that particular thing was done to black people years ago and to me that is what the doll represented." (JA99) Medley was specifically asked in her deposition if she believed the doll with the noose around its neck was "some type of racial statement." (JA348) She replied, "[a] doll with a noose around its neck the way they had it hanging from the file cabinet and seeing how blacks were lynched with - with a noose around their neck hanging from trees, yes." (JA348) Tom DaBay, who was the supervisor of the CW lock shop, also kept a mop- head doll with a noose around its neck hanging from a shelf near his desk. (JA63,65,295,348). James Nedd, a black man who worked for DaBay, confirmed this. (JA63,292,363,365,421,443) DaBay said Mike (Medley's co-worker) had given him the doll. (JA436-37) Medley testified that Tony, Mike, and Doug also subjected her to offensive comments of a sex-based nature. (JA84-86) She testified that "it just came out of them just like it was just their regular conversation" and that "sometimes if a female would come into the department they would automatically call them a B [i.e., "bitch"]." (JA153) Mike referred to women as "bitches." (JA86) He did this "whenever he was referring to a female." (JA86) Medley said Mike used the term "definitely on a daily basis." (JA87) Mike's father Tony also used the term "on a daily basis." (JA88-89) Doug also referred to women as "bitches." (JA88) Mike also had a Playboy calendar of nude women and Playboy magazines on his desk. (JA97,106,130,411) He also put a Playboy poster on his cubicle wall. (JA97,106,130,411) Medley asked Mike "politely" to remove these items. (JA258,411) He refused, said "fuck this," and walked away from Medley. (JA411) Mike also put a screensaver on his computer that featured various images of partially nude women (e.g., the women "would have their nipple area showing and their vagina area showing"). (JA101-03,132-33,177) Mike testified that he had downloaded it from a male magazine's website. (JA177) Medley testified that pictures like these were "degrading to women." (JA130) She complained to Mike about the screensaver but he did not remove it. (JA104) Medley also heard Mike watching pornography in his cubicle. (JA93,130) She did not see the pornography playing on his computer (because she did not want to "stick my head around there" and look), but she heard people "moaning or making noises." (JA95-97,130) Medley said one time, Mike "yelled over to Doug Green [to] come over and see." (JA93) Medley told Mike, "that's not right what you're doing" and "you really need to stop" it. (JA93) Mike again just said, "F this" in response. (JA93-94) Medley said it "definitely affected me to be cursed out the way I was" and to "see a woman's private parts every day" and to be told "F you, basically" when she asked that the pornography be removed. (JA353-54) CW has an anti-harassment policy as part of its employee handbook. (JA18- 19). The policy's "Complaint Procedure" encourages victims of harassment to notify the perpetrators that the behavior is unwelcome and/or to notify either their supervisor, or the company's Equal Employment Opportunity Officer, General Manager, Operations Manager, or President. (JA18) Medley complied with this policy. She complained about the profanity, pornography, and racial slurs repeatedly, orally and by e-mail. (JA59) Medley stated she "complained about the work condition and hostile work environment verbally and in writing" to Wright, company President Denicoff, and Lisa Beall, a CW human resources representative. (JA411) Medley testified that she "[d]efinitely" complained about the racial slurs in Inside Sales to "Lynette Wright and then to Drew Denicoff." (JA34-36) According to Medley, she complained to Wright "about all of it" - including that people in Inside Sales were making "racial comments" and using the "N" word, specifically. (JA35,80,83)<3> She made such complaints "a number of times." (JA81) She said when she first started working in Inside Sales "I complained to her about it and then as it escalated, I kept on - I went back more, but I don't exactly know how many times." (JA80-82) Medley also told Denicoff directly about what was happening. (JA36-37,82- 83) Medley explained: When I made known my complaints orally and in writing to Mr. Denicoff, the response I received from upper management was to shrug off my complaints with such comments as: "You will not be in that [Inside Sales] department for long, only until an Administrative Position was available"; "You should expect that type of language and conduct when you work with a bunch of guys"; "At this point in your life you should be use[d] to profanity"; and "You should transfer to accounting until another position is available[.]" (JA411) Medley said she was "certain" she told Denicoff she heard people using racial slurs. (JA38) She said she is "sure" she told Denicoff that Tony, Mike, and Doug were using the "N" word, specifically. (JA36-37,38-39,82-83) She said "I don't know how many times, but I did make him aware of it." (JA82) She indicated that Denicoff at first "seemed concerned" about this allegation, and said he would talk to the perpetrators. (JA37-38) However, Medley also indicated that she ultimately stopped complaining about Tony's use of the "N" word because "I had been complaining before and they were still doing it." (JA77-78) She said it seemed like when she complained "it escalated." (JA77-78) After Mike failed to remove his screensaver featuring nude women, Medley complained to Wright orally and in writing about that, too. (JA104) She said that despite these complaints Mike continued to display the screensaver. (JA104) She also complained to Wright about the pornography Mike played on his computer. (JA94) She told Wright "I can hear literally people having sex from his area" and that it was not right "that I had to come to work . . . and hear that." (JA94) Wright said she would address it with Mike. (JA94) However, Medley continued to hear pornography coming from Mike's cubicle even after she complained to Wright about it. (JA94-95) She then told Denicoff about it. (JA96,197) Denicoff's response was that it was not possible for Mike to be watching pornography at work. (JA96) Wright eventually did require Mike to take down his screensaver. Mike's internet access also was taken away, allegedly to stop him from visiting pornographic websites. (JA105,133,196) However, Medley testified that at some point, Mike "did get his Internet access back" because he "started up the same thing he had done before." (JA104,133-34) Medley said he continued to look at pornography on his computer and she continued to overhear it. (JA134) Denicoff testified that he "walk[ed] around the department a few times to make sure that there was nothing left." (JA202-04) He said he "found nothing." (JA203) However, the harassment continued unabated. On October 5, 2004, Medley sent another e-mail to Denicoff again complaining about the continuing profanity and pictures of partially nude women in the workplace. (JA108,172). Medley also explained that Wright had indicated to Medley that Wright did not really know how to handle the situation. (JA108,172) According to a company memo dated October 6, 2004, Wright told Denicoff that she thought Mike might still have a Playboy calendar hidden, and Wright offered to go look for it. (JA249) Denicoff told her to hold off on conducting such a search. (JA249) Denicoff and David Baxley, CW's Vice President of Operations, then met with Medley. (JA249,291) Medley told them that Mike still had the calendar on his desk, and that she found it offensive. (JA249) Medley said she believed that they had done nothing about her original complaint. (JA249) She told them there is still "a huge quantity of profanity, in her opinion, in the department." (JA249) She said the "main source" of it was Mike, and said that "much of it probably occurs while no management is around." (JA249) During this meeting, Denicoff, Baxley, and Medley discussed steps that could be taken to address the problems. (JA249) Medley said after their meeting she felt "that the things that were going on with Mike would actually stop." (JA157.) According to Medley, when Baxley later walked through the workplace, he "not only found a Playboy calendar but several other Playboy items such as the magazine and the Poster." (JA155) She said "David was pretty livid when he saw what Mike had on his desk" and he "removed the items." (JA107-08,158) On November 10, 2004, Wright directed Medley to see DaBay (the CW locksmith who, like Tony, had a doll with a noose around its neck) to find out about some lock pieces a customer had ordered. (JA394-95) Medley told Wright she did not feel comfortable asking for DaBay's help, given his reputation for treating co-workers in a hostile manner. (JA412) Wright directed Medley to go see DaBay anyway. (JA412,413) When Medley arrived at his office, DaBay was on the phone. (JA412) Medley waited. (JA412) DaBay then asked her abruptly, "What do you want?" (JA412) Medley started to tell DaBay what she needed and he "rudely" interrupted her and said he did not know anything about the locks in question. (JA412) Medley asked, "Are you sure?" (JA412) DaBay then stood up "in [Medley's] face yelling, "Are you fucking stupid?" "I just told you I don't know about the locks." "Are you a dumb fuck?" "Can't you understand anything?" (JA412) DaBay then left his office, calling Medley a "stupid motherfucker" as "loudly as he could." (JA412) Medley said DaBay "was constantly calling me the N word, he was constantly calling me the B word, he was just constantly calling me all type of names." (JA39)<4> Medley fled to CW's warehouse to see if the lock pieces in question might be there. (JA412) When Medley later walked back by DaBay's office, Nedd (DaBay's assistant) saw Medley and offered to help her locate the lock pieces. (JA412) DaBay then came back. (JA412) Medley soon turned to walk away and DaBay again started yelling at her, saying, "You motherfucker, why did you have him [Nedd] looking for that fucking [set of locks]?" "You black stupid bitch!" "I should kick your mother fucking ass." (JA412) DaBay "continue[d] to swear." (JA412) Medley testified that DaBay called her a "black nigger." (JA40) She said he also called her a "black stupid nigger" and a "fucking nigger." (JA40,275) Nedd told DaBay that he had offered to help Medley. (JA41-42) DaBay then cursed at Nedd. (JA42,411) Medley testified that DaBay also used the "N" word in front of Nedd, and even called Nedd the "N" word (though Nedd later denied this). (JA41-42,241,265,267,275-76,443) Medley said DaBay was "so angry" he said it "more than once." (JA42) Medley started again to walk away and DaBay came down the hallway after her, "calling [her] names and threatening" her, yelling, "Bitch if I tell you something you better listen." (JA46,411) He said "Fuck you if you don't believe me when I tell you something." (JA412) At that point, CW employee Gary Corle was in the hallway between Medley and DaBay. (JA412-13) DaBay yelled at Corle, telling him, "You better school that bitch and let her know she better stay out of my face before something happens to her." (JA413) Medley testified that she was "sure" that Corle also heard DaBay use racial epithets against her, including the "N" word. (JA46-47) Managers in the CW Executive Offices also heard the altercation in the hallway "because the yelling was so loud." (JA47,413) CW Sales Manager Britt August came around the corner "looking around like there was something going on." (JA47,413) However, he did not do anything to discipline DaBay or address the altercation. (JA413) Medley then told Wright what had happened. (JA413) Wright went to find DaBay in his office. (JA413) DaBay screamed at Wright "at the top of his lungs" things like, "If that dumb bitch does not believe me then fuck her." "I told that bitch I did not have the locks." "Tell her to kiss my ass and fuck off." (JA413)<5> By this time, Medley was in tears. (JA413) She went to the office of Joanne Starner (her former supervisor). (JA375,413) Medley told Starner "the names and everything that he had called me" including that DaBay had called her a "black N and a black stupid N." (JA327) Medley said she sat in the back of Starner's office, in the corner, where no one could see her crying. (JA413) While Medley was there, Wright came in "laughing" and said to Starner, "guess what Tom did to La Tonya?" (JA413) (Apparently Wright did not see Medley in the back of Starner's office. (JA413)) Medley jumped up and exclaimed "this was not funny! I was just threatened and cursed out unnecessarily." (JA327,413) Later, Medley went to Wright's office and told her she was leaving for the day "because I was threatened and did not feel that I was in a safe working environment." (JA413) Medley sent an e-mail from home to Wright and copied Denicoff and Beall (the human resources representative). (JA413) The e-mail stated: After the events that occurred today with Tom DaBay, I want to make a formal complaint against him related to the violent and hostile environment I was subjected to. I also want to document, that . . . I left today at 2:53 p.m. due to Tom's threatening, intimidating behavior and abusive language [which] left me feeling threaten[ed] to the point I got so upset I wasn't feeling well due to the situation. (JA256) No one from CW ever responded to Medley's e-mail. (JA413-14) Medley then resigned. (JA51,53,167,257-59,414) DaBay testified that he was upset with Medley that day and said he was "sure" he yelled at her. (JA304) He said her reaction was to "kind of shrink away." (JA307) He also said he thought she was scared of him "to a certain degree." (JA307) He admitted he "most likely" called Medley a "bitch." (JA305) He said he "probably" called her a "stupid bitch." (JA305) He was specifically asked if he called her a "stupid black bitch" and he replied, "I doubt that very seriously." (JA305,309) He said "I just don't say that at work." (JA305) He indicated he did not use the "N" word at work either. (JA305) However, DaBay said "oh sure" when asked if he uses the "N" word. (JA305-06) He said the "N" word did "not really" bother him. (JA306) B. District Court Decision In a letter order dated July 8, 2008, the district court denied CW's motion for attorney's fees.<6> (JA670-72) The district court relied heavily upon Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), in which the Supreme Court held that a prevailing Title VII defendant can only be awarded attorney's fees if the plaintiff's case was "frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." Id. at 421. Applying this legal rule, the district court rejected CW's contention that the EEOC had "abused its governmental authority" by pursuing this action since "it should have known from all the information available to it, both from its own pre- filing investigation and discovery, that its claim could not succeed for lack of supporting evidence." (JA670) According to the district court, "Central's argument that the EEOC should have known its case was without merit from the alleged scarcity of evidence" was itself "without merit." (JA671) The district court explained that "'[e]ven when the law or the facts appear questionable or unfavorable at the outset, a party may have an entirely reasonable ground for bringing suit.'" (JA671 (quoting Christiansburg, 434 U.S. at 421-22)) The district court then "recognized the bona fides of the EEOC in bringing this [particular] lawsuit." (JA672) The district court rejected CW's argument that the grant of summary judgment in its favor demonstrated the EEOC's case was groundless, ruling that a loss on the merits "is not enough, standing alone, to warrant attorneys' fees." (JA671) The district court reiterated the reasoning in Christiansburg that prevailing Title VII defendants are not entitled to fees "'simply [because] the plaintiff [has ultimately] lost his case.'" (JA671 (quoting Christiansburg, 434 U.S. at 421)) Here, the district court ruled, "[a]lthough the evidence may not have sufficed to satisfy the EEOC's burden of proof on summary judgment, the EEOC nonetheless presented evidence beyond the allegations made by Medley, such as the testimony of former Central employees about displays and occasional language spoken at Central." (JA671 (citing Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761, 768 (4th Cir. 2003)) SUMMARY OF ARGUMENT A prevailing Title VII defendant is entitled to attorney's fees in only the rarest of circumstances. The Supreme Court in Christiansburg ruled that a losing plaintiff should only be forced to pay its opponent's fees where the plaintiff's case was "frivolous, unreasonable, or without foundation" - that is, where the plaintiff's claims had no factual or legal basis. Where, as here, a district court properly applies this Christiansburg standard, this Court will review the district court's decision on fees for abuse of discretion. In this case, as the EEOC explained in its merits briefs in Appeal No. 08- 1181, the district court erred in granting summary judgment to CW. If this Court concurs and remands this case for trial, it will not have to reach the question of whether the district court abused its discretion in denying CW its attorney's fees. That question will be moot, as CW will no longer be a "prevailing party," a prerequisite for any entitlement to fees under Title VII. However, even if this Court affirms the district court's summary judgment ruling on the merits, this Court should also affirm the district court's order denying CW's petition for fees. The fact that the same district court that ruled against the Commission at summary judgment subsequently found that the Commission's case was meritorious enough to preclude an award of fees strongly suggests the district court's fees decision is entitled to considerable deference. Indeed, to reverse, this Court would have to find in the first instance that the Commission acted unreasonably or litigated a frivolous case, even though the record reveals that Medley was subjected to an almost-daily barrage by her co-workers of the "B" word, to their frequent uttering of the "N" word, to various forms of pornography, and even to the presence of nooses in the workplace. Given this record, it hardly can be said that the district court abused its discretion in finding that the Commission's sex-based and race-based hostile work environment claims were not frivolous, unreasonable, or without foundation. CW provides no persuasive rationale for reversal. First, CW focuses exclusively on the alleged lack of evidence substantiating the Commission's Title VII race claim, thereby completely ignoring that the EEOC also brought a Title VII sex claim, as well. CW has therefore waived any argument that it is entitled to fees incurred in defending against this sex-based claim. As for the Commission's race- based claim, CW errs in attacking the EEOC's administrative investigation, reasonable cause determination, and conciliation efforts. In claiming that the Commission should have known that this case was frivolous because, unlike a non- governmental litigant, it is obligated to (and did) conduct a pre-filing investigation, CW appears to be arguing that the EEOC should be held to a higher fees standard than the ordinary private plaintiff. However, the Supreme Court in Christiansburg categorically rejected placing any such heightened burden on the EEOC when the Commission is forced to defend against a petition for attorney's fees. Moreover, this Court has repeatedly refused to entertain challenges alleging improprieties in the Commission's administrative proceedings. The EEOC has no adjudicatory authority to resolve private sector charges, and the Commission's investigative findings and reasonable cause determinations do not impose any legal obligations on respondent-employers. A Title VII defendant is not required to accept the EEOC's efforts to conciliate a resolution to a charge; it is free to wait to defend against a Title VII claim if and when the EEOC sues it in federal court (where proceedings begin anew and the claim is reviewed de novo). Thus, CW has no grounds for objecting to the Commission's pre-litigation activities, which are irrelevant to the question of whether, post-litigation, a defendant is entitled to its attorney's fees. In any event, CW's post hoc nit-picking of the Commission's factfinding is belied by the actual facts (e.g., CW claims nothing in the administrative file suggests that the "N" word was used, but one of CW's contemporaneous corporate memoranda indicates exactly the opposite). Nothing that emerged during the EEOC's investigation remotely suggested that this case was frivolous, unreasonable, or without foundation. Moreover, the evidence the EEOC amassed through discovery amply substantiated the Commission's claims. CW alleges that Medley's deposition somehow undermines the EEOC's entire case. For instance, CW over-emphasizes that Medley testified that she believed all profanity is a racial slur. But the fact that Medley may have had an erroneous understanding of the precise definition of "profanity" in no way compels the conclusion that real racial slurs were not frequently used at Central, particularly in light of the abundant evidence the EEOC adduced on this point. CW ultimately appears to be contending that the Commission should have to pay its legal bills because the EEOC lost this case at summary judgment. The district court rightly rejected this line of reasoning. The Supreme Court in Christiansburg and this Court have specifically clarified that that is not the proper standard for determining whether a prevailing Title VII defendant is entitled to attorney's fees, and have strongly cautioned against assuming a case must be frivolous, unreasonable, or without foundation simply because it was not legally sufficient to survive summary judgment. To the extent CW is inviting this Court to make such an impermissible assumption, this Court should decline the invitation. ARGUMENT THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DENYING CW'S MOTION FOR ATTORNEY'S FEES. A. The Applicable Standard of Review Is "Abuse of Discretion." A prevailing defendant who seeks to overturn a district court's decision to deny attorney's fees in a Title VII case faces a formidable burden. The denial of a request for attorney's fees is reviewed for abuse of discretion. See 42 U.S.C. § 2000e-5(k) (providing that a district court may "in its discretion" allow a prevailing party a reasonable attorney's fee); see also E.I. Dupont de Nemours & Co., 324 F.3d at 766; Harris v. L & L Wings, Inc., 132 F.3d 978, 985 (4th Cir. 1997). Applying this standard, this Court has ruled that "[t]he fixing of attorneys' fees is peculiarly within the province of the trial judge, who is on the scene and able to assess the oftentimes minute considerations which weigh in the initiation of a legal action." Arnold v. Burger King Corp., 719 F.2d 63, 65-66 (4th Cir. 1983). This Court has also held that a district court's decision on fees should be affirmed "'even though [this Court] might have exercised that discretion quite differently,'" and that reversal for abuse of discretion "is reserved for those instances in which the court is "'clearly wrong.'" Brodziak v. Runyon, 145 F.3d 194, 196 (4th Cir. 1998) (quoting Johnson v. Hugo's Skateway, 974 F.2d 1408, 1418 (4th Cir. 1992) (en banc)); cf. Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1359 (4th Cir. 1995) (explaining that "[b]ecause the exercise of discretion in awarding attorneys fees typically is based on first-hand knowledge of the case and factors bearing on the reasonableness of a fee, we will not ordinarily disturb the award even though we might have exercised that discretion quite differently" (citing Hugo's Skateway, 974 F.2d at 1418)). CW claims that the abuse of discretion standard is inapplicable in this appeal because the district court allegedly committed legal error "by failing to properly apply the controlling standard under Christiansburg." CW Br. at 11. Thus, CW contends, this Court may review the district court's fees decision de novo. Id. This contention is without merit. To be sure, if a district court commits a legal error it has by definition also committed an abuse of its discretion. Hunter v. Earthgrains Co. Bakery, 281 F.3d 144, 150 (4th Cir. 2002). But CW does not explain what exactly the district court's alleged legal error is here, other than to express its disagreement with the district court's ultimate determination that it is not entitled to fees. Of course, such a conclusory assertion is insufficient to demonstrate actual legal error. Even a quick reading of the district court's fees order reveals that the district court cited, quoted, and applied Christiansburg over half-a-dozen times in its three-page ruling. (JA670-71) The district court obviously applied the correct legal standard on this issue. Accordingly, its ultimate finding - that the Commission's case was not frivolous, unreasonable, or without foundation within the meaning of Christiansburg - is reviewed by this Court for abuse of discretion.<7> See Frahm v. United States, 492 F.3d 258, 263 (4th Cir. 2007) (while legal determinations justifying an award of attorney's fees, such as whether a plaintiff is a "prevailing party," are reviewed de novo, the ultimate decision of a district court of whether to award fees is reviewed for abuse of discretion). CW also asserts, citing no authority, that de novo review "is proper here because the district court had no better vantage point than does this Court" since the district court "based its denial of attorney's fees solely on the summary judgment pleadings, which are simultaneously before this Court for de novo review." CW Br. at 12. Taken to its logical conclusion, CW's contention would mean that the standard of review should be de novo anytime (indeed, every time) a district court grants summary judgment in a Title VII case and subsequently denies the prevailing party its attorney's fees. Not surprisingly, there is nothing in this Court's case law carving out such a special category for fees rulings in cases disposed of at summary judgment, placing them all beyond abuse-of-discretion review. To the contrary, the Supreme Court in Christiansburg itself applied the abuse of discretion standard to review a district court attorney's fees order the district court issued after dismissing the case at summary judgment. See Christiansburg, 434 U.S. at 414-15, 424 (ruling that the district court "exercised its discretion squarely within the permissible bounds of [42 U.S.C. § 2000e-5(k)]" in denying a post-summary judgment motion by the defendant for attorney's fees). CW's contention that the de novo standard of review is applicable here is erroneous. B. The District Court Did Not Abuse Its Discretion In Finding That the Commission's Case Was Not "Frivolous, Unreasonable, Or Without Foundation." CW cannot clear the high abuse-of-discretion hurdle here. As explained at length in our briefs on the merits in Appeal No. 08-1181, the district court's initial decision to grant summary judgment on the merits was reversible error. If this Court agrees and remands this case for trial, the issue of whether the district court abused its discretion in denying CW's motion for attorney's fees will become moot. See 42 U.S.C. § 2000e-5(k) (authorizing the district court to award attorney's fees only to a prevailing party). However, even if this Court does not reverse the district court's ruling on the merits, it should still affirm the district court's attorney's fees finding. Under Christiansburg, prevailing Title VII defendants may only recover attorney's fees in the most extraordinary of cases. This simply is not one of them. In Christiansburg, the Supreme Court (affirming a decision of this Court) recognized that a plaintiff who prevails in a Title VII action "ordinarily is to be awarded attorney's fees in all but special circumstances." Christiansburg, 434 U.S. at 417 (citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 415 (1975)). The Supreme Court reasoned that there are two primary policy reasons for this rule: First, a Title VII plaintiff is "the chosen instrument of Congress to vindicate 'a policy that Congress considered to be of the highest priority.'" Id. at 418 (quoting Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402 (1968)). And second, when a district court awards counsel fees to a prevailing Title VII plaintiff, "it is awarding them against a violator of federal law." Id. By stark contrast, the Supreme Court explained, these equitable considerations are "wholly absent" in the case of a prevailing Title VII defendant. Christiansburg, 434 U.S. at 418; see also Bryant Woods Inn, Inc. v. Howard County, Md., 124 F.3d 597, 606 (4th Cir. 1997) (citing Fogerty v. Fantasy, Inc., 510 U.S. 517, 522-23 (1994)) (recognizing the policy rationale for treating plaintiffs and defendants differently with respect to the availability of attorney's fees in Title VII actions)). The Christiansburg Court concluded that Congress intended to allow defendants to recover fees only so that they would be protected "from burdensome litigation having no legal or factual basis." Christiansburg, 434 U.S. at 420 (emphasis added). Accordingly, the Supreme Court ruled, in Title VII cases "a plaintiff should not be assessed his opponent's attorney's fees unless a court finds that [the plaintiff's] claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so." Id. at 422. This Court, applying Christiansburg, has warned of the "chilling effect" that an award of attorney's fees to a prevailing defendant can have on prospective Title VII plaintiffs. See Arnold, 719 F.2d at 65. This Court has read Christiansburg to mean that the award of attorney's fees to a prevailing Title VII defendant is "a conservative tool, to be used sparingly in those cases [in] which the plaintiff presses a claim which he knew or should have known was groundless, frivolous or unreasonable." Id. (emphasis added); see also Glymph v. Spartanburg Gen. Hosp., 783 F.2d 476, 479 (4th Cir. 1986) (reiterating that "[d]istrict courts should award such fees sparingly"). Applying these legal principles to the facts of this case, the district court certainly did not abuse its discretion in refusing to award CW its attorney's fees. The EEOC's merits briefs demonstrate that the Commission advanced substantial evidence and argued valid legal theories in support of the sex-based and race-based harassment claims it brought on behalf of Medley. To reverse the district court in this case, this Court would have to find that the EEOC had no legal or factual basis for bringing these claims, despite abundant evidence that Medley was required to work in an environment where (among other things) co-workers frequently uttered the "N" word and other racist epithets, hanged nooses (powerful anti-black symbols), called women the "B" word on a daily basis, and displayed and played pornography flagrantly, without consequence. In light of this record, there is no cause for this Court to conclude that the district court abused its discretion in finding that the Commission's case was not frivolous, unreasonable, or without foundation. In fact, win or lose on our merits appeal, given the abundance and the specific nature of the evidence the EEOC adduced at summary judgment in this case, CW's attorney's fees appeal itself borders on the frivolous. None of the reasons given by CW for reversing the district court comes close to establishing that the district court abused its discretion in denying CW's motion for fees. First, it bears emphasizing that CW's entire attorney's fees appeal brief focuses on the alleged lack of evidence of the use of racial slurs at CW. From reading CW's brief in a vacuum, one would get the impression that the Commission's entire case was about only that. Yet while the race-based hostile work environment the EEOC challenged was caused primarily by the use of racist epithets, it was intensified by the presence of nooses in Medley's workplace and by the assault Medley suffered at the hands of DaBay. In painting the picture in its appeal brief that the Commission's case was baseless, CW never mentions this potent proof of race-based harassment - evidence which played a significant part in the Commission's decision to pursue this case. Further, and critically, the EEOC also brought this lawsuit to allege that CW created and/or condoned a sex-based hostile work environment. The sex-based harassment in question here involved the daily use of sexist slurs, frequent exposure to pornography, and DaBay's abuse. Again, CW never confronts or accounts for these facts in its appeal brief. Indeed, CW makes no attempt whatever to argue that the Commission litigated a frivolous sex-based harassment claim. Accordingly, at the least, this Court should find that CW has waived any argument that the district court abused its discretion in ruling that CW was not entitled to attorney's fees incurred in defending against this Title VII sex discrimination claim. See, e.g., Canady v. Crestar Mortgage Corp., 109 F.3d 969, 973-74 (4th Cir. 1997) (arguments not raised in appeal brief are waived). In focusing exclusively on the Commission's race-based claim, CW repeatedly attacks the Commission's investigation, the EEOC's determination letter finding reasonable cause to believe CW committed intentional discrimination, and its conciliation efforts. More specifically, CW, citing only miscellaneous district court opinions for support, alleges that fees are appropriate here because the Commission's administrative investigation of Medley's charge should have put the EEOC on notice that its race claim was frivolous. It stresses that the Commission, unlike a private plaintiff, "had the opportunity to conduct, and it did conduct, a pre-lawsuit administrative investigation, during which Central supplied the EEOC with numerous documents directly refuting Medley's allegations and further demonstrating that no liability could be imputed to Central as a matter of law." CW Br. at 9. Yet in advancing this argument, CW comes awfully close to suggesting that because it is statutorily obligated to carry out an administrative investigation before filing suit, the Commission has to satisfy some heightened legal standard - something more stringent than the "frivolous, unreasonable, or without foundation" test applicable to private plaintiffs - to stave off the payment of attorney's fees when it loses a Title VII suit. Of course, in Christiansburg itself, the Supreme Court roundly rejected this very view. See Christiansburg, 434 U.S. at 422 n.20 ("[A]lthough a district court may consider distinctions between the Commission and private plaintiffs in determining the reasonableness of the Commission's litigation efforts, we find no grounds for applying a different general standard whenever the Commission is the losing plaintiff." (emphasis added));<8> cf. 42 U.S.C. § 2000e-5(k) (providing that "the Commission and the United States shall be liable for costs the same as a private person"). Not surprisingly, the district court in this case similarly dismissed CW's suggestion that the Commission should be held to a higher fee-shifting standard than the ordinary private litigant. (JA670 (acknowledging, but ultimately refusing to accept, CW's contention that "the EEOC abused its governmental authority by pursuing the action when it should have known from all the information available to it, both from its own pre-filing investigation and discovery, that its claim could not succeed for lack of supporting evidence")). Moreover, it would be legally inappropriate for this Court to rely on any of CW's criticisms of the EEOC's administrative processing of Medley's charge to reverse the district court's fees finding. A Title VII respondent-employer is not compelled to accept the results of the EEOC's investigation, the Commission's finding of reasonable cause, or its conciliation demands. See EEOC v. Gen. Elec. Co., 532 F.2d 359, 367 n.20a, 370 (4th Cir. 1976) (explaining that the EEOC "has no adjudicatory power" and "[i]ts proceedings are not binding on the employer"); Georator Corp. v. EEOC, 592 F.2d 765, 768 (4th Cir. 1979) (citing Gen. Elec. Co., 532 F.2d at 370) (same); see also Associated Dry Goods Corp. v. EEOC, 720 F.2d 804, 812 (4th Cir. 1983) (noting that "no rule or decision of the Commission . . . can affect the rights or impose any on any party"). Instead, the respondent to a charge may choose to wait and defend against any Title VII claim the Commission ultimately decides to pursue in federal court, where the proceedings begin anew and judicial review of the claim is de novo. See EEOC v. Raymond Metal Prods. Co., 530 F.2d 590, 594 (4th Cir. 1976) (noting that "a respondent who has rejected conciliation can defend in a trial de novo a complaint that he has [violated Title VII]"); see also Gen. Elec. Co., 532 F.2d at 367 n.20a, 370 (similarly recognizing that the Commission cannot bind a respondent and "when it sues to enforce its findings, the judicial trial is de novo"); Georator Corp., 592 F.2d at 769 ("The Commission's determination of reasonable cause, while final in itself, has no effect until either the Commission or the charging party brings suit in district court" and the respondent-employer "will have an opportunity at that time to be heard and defend against the charges." (footnote omitted)). Consequently, any defendant to a Title VII suit generally, and CW specifically, has no occasion to challenge the adequacy of the Commission's investigation, to quarrel with its conclusions, or to otherwise seek a mini-trial relating to the Commission's administrative process. As this Court has explained, Title VII: does not provide for preliminary review of the Commission's determination of reasonable cause. Even when suit is brought later by either the EEOC or the charging party, the trial is de novo, and the court will not determine whether substantial evidence supported the Commission's preadjudication finding of reasonable cause. . . . [T]he EEOC's determination of reasonable cause . . . [s]tanding alone . . . is lifeless, and can fix no obligation nor impose any liability on the plaintiff. It is merely preparatory to further proceedings. If and when the EEOC or the charging party files suit in district court, the issue of discrimination will come to life, and the [employer accused of discrimination] will have the opportunity to refute the charges. Georator Corp., 592 F.2d at 767, 768 (citing Gen. Elec. Co., 532 F.2d at 370); EEOC v. Caterpillar, Inc., 409 F.3d 831, 832 (7th Cir. 2005) (observing that "[n]o case holds that the scope of the EEOC's investigation is a justiciable issue in a suit by the EEOC" and recognizing that this Court's ruling in Georator "holds that it is not") (emphasis in original)); Newsome v. EEOC, 301 F.3d 227, 231 (5th Cir. 2002) (citing Gen. Elec. Co.) (recognizing that the nature and extent of an EEOC investigation into a discrimination claim is a matter within the discretion of that agency); EEOC v. Keco Indus., Inc., 748 F.2d 1097, 1100 (6th Cir. 1984) (holding that district court erred in "inquir[ing] into the sufficiency of the Commission's investigation"); EEOC v. St. Anne's Hosp., 664 F.2d 128, 131 (7th Cir. 1981) (rejecting defendant's claim that the EEOC's investigation was inadequate, and noting that "[a] reasonable cause determination is not to adjudicate a claim but to notify an employer of the Commission's findings"). Accordingly, CW's conclusory claim that the Commission never gave it an opportunity to respond to various allegations that formed the basis for the Commission's cause finding, CW Br. at 6-7, even if true (and it is not), is irrelevant at this stage. See Gen. Elec. Co., 532 F.2d at 370 ("That the procedure followed by the EEOC prevented the defendant from commenting on the [relevant evidence] before the EEOC made its reasonable cause determination resulted in no prejudice to the defendant [because] the employer still has the chance to present its side of the story in court" (internal quotation marks omitted)). CW's complaint that the EEOC's determination letter "demonstrates the utter lack of basis for the EEOC's position," CW Br. at 5, is similarly unavailing. Cf. Raymond Metal Prods. Co., 532 F.2d at 368 n.21 (the Commission's administrative reasonable cause determination "is neither binding on the [c]ourt in the de novo trial to which under [Title VII] the defendant is entitled nor reviewable by the [c]ourt"). In denying CW's fees request, the district court rightly refused to second-guess the Commission's administrative activities. As Christiansburg makes clear, the only inquiry the district court had to undertake - and the only question this Court needs to answer on appeal - is whether the EEOC litigated a baseless case. To answer this question, this Court need not - indeed should not - look backwards by Monday-morning quarterbacking the EEOC's administrative enforcement process or miring itself in the minutiae of the Commission's handling of Medley's charge. In any event, nothing revealed in the Commission's administrative investigation remotely suggests that the EEOC acted unreasonably in deciding to bring this lawsuit. From what is actually in the record in this case, it is clear that CW's critique of the Commission's investigation is factually flawed. For instance, CW emphasizes that the Commission's investigator failed to speak to Nedd, who indicated that he never heard DaBay refer to Medley by the "N" word, and that the EEOC "blindly accept[ed]" Medley's allegations on this point instead. CW Br. at 3-4, 5, 10. CW assumes that Nedd's testimony is somehow hopelessly at odds with Medley's in some dispositive way, and thus that the Commission must have been bound-and-determined to believe that DaBay used the "N" word despite all evidence to the contrary. But there is not even necessarily an irreconcilable conflict in the relevant testimony (e.g., Medley could have honestly believed that Nedd overheard DaBay use the "N" word even though Nedd actually was not around at the precise moments during the altercation when DaBay used it). And in any case, the EEOC did not just "blindly" take Medley at her word. CW neglects to inform this Court that the Commission's investigator did try to reach Nedd and that Nedd did not return the investigator's phone call. (JA599) Further, as CW acknowledges, the Commission possessed the memorandum prepared by CW management documenting its own interview with Nedd, and the Commission's investigator thus did not "ignore," but was well aware of, Nedd's point of view. CW Br. at 3 (referring to JA594-95); id. at 10. Of course, even to the extent that the testimony of various witnesses may have conflicted, it was not unreasonable for the Commission ultimately to credit Medley's version of events instead of Nedd's or CW's. Indeed, making such credibility determinations is inherent in administrative factfinding (as embodied by the Commission's determination letter in this case). The mere fact that the Commission concluded that Medley was more believable than other witnesses and credited her testimony in no way compels the conclusion that the Commission acted unreasonably in bringing this case. Cf. Glymph, 783 F.2d at 480 (ruling that even where a plaintiff's case "depended almost wholly on her oral testimony to the effect that she was forced to resign" and where the defendant-employer "presented a strong defense that she voluntarily resigned, which was accepted by the district court" her case was not frivolous, unreasonable, or without foundation, and concluding "we do not think that such cases should subject unsuccessful plaintiffs to the award of attorneys' fees under Christiansburg"); cf. Arnold, 719 F.2d at 65 (stating that Christiansburg "made no attempt to quantify the evidence an unsuccessful plaintiff must produce to avoid an award of attorneys' fees to the defendant" and that "[t]here was no occasion for such formalistic line-drawing"). Along the same lines, CW misleads this Court by alleging that there "is not a single document in the EEOC's entire pre-filing investigative file produced to Central - not even the notes of the EEOC investigator - that reflects the use of the 'n-word.'" CW Br. at 4. To the contrary, at least one of CW's own internal investigative memoranda (prepared soon after the DaBay incident) reveals that Medley contemporaneously complained that DaBay called her a "fucking Nigger." (JA275) Medley's charge statement specifically refers to the multitude of "racial jokes and ethnic slurs" at CW, and also reveals that DaBay called her a "black stupid bitch." (JA602,603) The Commission's reasonable cause determination on Medley's charge also cites "testimonial evidence [which] supports that [Medley] complained that a white coworker called her a "Black Nigger" and "Black Stupid Nigger." (JA620) Contrary to CW's assertions, CW Br. at 5 n.2, 6-7 (citing JA595,622-23), the fact that the EEOC may not have revealed the source of this information to CW during the EEOC's investigation in no way establishes that the Commission acted unreasonably in bringing this case, much less that the case itself was frivolous or without foundation. Nothing requires the Commission to divulge the source of information it has obtained during the investigation of a charge to the respondent-employer. Cf. 29 C.F.R. § 1601.22 (indicating the Commission may do so where such "disclosure is deemed necessary to secure appropriate relief" for the charging party). To the contrary, the Commission's policies contemplate that such disclosure ordinarily should not occur pre-litigation. See Section 83, Disclosure of Information in Open Files, 1 EEOC Compliance Manual (rev. May 1992) (BNA 2008), at § 83.4(b) (directing that Commission investigators may disclose information contained in a charge file to the respondent only if suit has already been filed in court). CW also faults the EEOC for allegedly failing to acknowledge in its investigation and reasonable cause determination that CW took adequate preventive and corrective measures in response to Medley's complaints, and for "blindly accept[ing] Medley's conclusory allegation that 'nothing was done'" about them. CW Br. at 7-8; id. at 10. However, as amply explored in our merits briefs, EEOC Opening Br. at 47-56 & EEOC Reply Br. at 18-29, the Commission's view is that CW ultimately failed to meet its legal burden to halt the harassment in question. Most importantly, there is evidence in the record that CW did not take adequate steps to prevent and correct the discriminatory conduct alleged. Apparently, CW is of the opinion that the Commission should simply have taken CW at its word that CW did enough to prevent and correct the hostile work environment at Central, and that if the Commission disagrees on this point, then it has ipso facto unreasonably litigated a frivolous case. CW Br. at 7-8. It should go without saying that the EEOC is not precluded from finding reasonable cause just because a respondent-employer has proffered self-serving assurances that it has complied with its legal obligations. Here, the EEOC has recognized that CW took some corrective action in this case. EEOC Opening Br. at 49 & EEOC Reply Br. at 22, 23. Nevertheless, our position was (and still is) that a reasonable jury could find that CW's response to Medley's repeated complaints was legally insufficient. Our merits briefs demonstrate that the Commission's view on this issue is supported by abundant evidence obtained during both the administrative investigation and discovery in this case. EEOC Opening Br. at 47-56 & EEOC Reply Br. at 18-29. In addition to suggesting that the EEOC should have known its case was baseless from the results of its administrative investigation, CW also criticizes the Commission for "doggedly" continuing to litigate here even after discovery allegedly confirmed that the EEOC had no valid claim. CW Br. at 8. CW contends that the "groundless nature" of the Commission's case "was certainly obvious after Medley's deposition[s]." CW Br. at 10; id. at 17. In this appeal, CW persists (as it did in its merits response brief) in propagating a fictional view of the evidence in claiming that "Medley's own deposition testimony made clear that she never complained to Central management that a white coworker called her a 'Black Nigger,' 'Black Stupid Nigger,' or any other racial slur." CW Br. at 6 n.2. But that is just not accurate. None of the citations CW provides in support of this misleading proposition say what CW suggests they say. CW Br. at 5-6 n.2 (citing JA155-56, 249-50, 467-69). And contrary to CW's claims, this fact was not "established on summary judgment." CW Br. at 6 n.2. The district court never concluded as a matter of law that Medley failed to complain about the use of the "N" word. Nor could it have. As we explained in our merits briefs, EEOC Opening Br. at 47-49 & EEOC Reply Br. at 18-19, Medley complained on numerous occasions to her supervisor, human resources, and even the company President about the pervasive use of the "N" word and other racial (and sexist) slurs at CW. In light of the abundant evidence on this point carefully delineated in the EEOC's merits briefs, it is somewhat astonishing that CW continues to insist otherwise. CW also continues to cling to Medley's statement that "all profanity is a racial slur" as proof that the EEOC's case was clearly baseless. CW Br. at 8, 18- 19. Indeed, this assertion appears to be the crux of CW's case for fees. Yet this testimony hardly renders the Commission's entire case frivolous, unreasonable, or without foundation. The fact that Medley may have mistakenly believed that certain race-neutral profane words were also "racial slurs" does not logically imply that actual racial epithets were not actually used at Central. As we already explained in our merits brief, EEOC Reply Br. at 11, CW is intentionally over- emphasizing Medley's misunderstanding of "profanity" and ignoring all the other unambiguous evidence that Medley's co-workers at CW frequently used real racial slurs, including the "N" word, specifically. Indeed, Medley explicitly testified that after she complained about the "profanity" in Inside Sales, it "increased with added racial jokes and ethnic slurs." (JA411 (emphasis added)) Given all the evidence the EEOC adduced at summary judgment, it is just preposterous for CW to suggest, as it does repeatedly, that one confusing deposition comment by Medley rendered the Commission's entire case baseless and should have compelled the EEOC to immediately drop its suit. CW stresses that "when the EEOC could not support [its] conclusory 'findings' with actual evidence" the district court rejected the Commission's claim at summary judgment. CW Br. at 5. Actually, the district court did no such thing. The district court's summary judgment ruling was not premised on any lack of "actual evidence," but rather on the district court's belief that the evidence actually adduced simply was not legally sufficient to establish a sex-based or race-based hostile work environment. (JA501-05) Moreover, in its ruling denying CW's motion for fees, the district court specifically acknowledged that the Commission's case was not baseless (if not, in its view, sufficiently meritorious to survive summary judgment). In fact, the district court ruled that "Central's argument that the EEOC should have known its case was without merit from the alleged scarcity of evidence" was itself "without merit." (JA671) The district court also "recognized the bona fides of the EEOC in bringing this lawsuit." (JA672) There is simply no basis in the record upon which this Court could conclude that these district court findings represent an abuse of discretion. It seems CW essentially is arguing here that the EEOC should have to pay Central's attorney's fees because the Commission lost at summary judgment. CW contends, tellingly, that the Commission "blindly accept[ed] Medley's conclusory, unsupported allegations . . . which, as the district court's summary judgment decision concluded, failed as a matter of law to create even a disputed issue of material fact." CW Br. at 10. But CW should know better. The mere fact that the district court granted CW's summary judgment motion does not mean the Commission's case was ever frivolous, unreasonable, or without foundation. Indeed, in Christiansburg (which affirmed a district court's post-summary judgment denial of a prevailing defendant's motion for attorney's fees), the Supreme Court was careful to caution that for a defendant to get its fees, a plaintiff's case has to be meritless. See Christiansburg, 434 U.S. at 421. The Supreme Court emphasized that this term "is to be understood as meaning groundless or without foundation, rather than simply that the plaintiff has ultimately lost his case . . . ." Id. (emphasis added); see also Hughes v. Rowe, 449 U.S. 5, 14-15 (1980) (same). The Supreme Court warned that: a district court [must] resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation. This kind of hindsight logic could discourage all but the most airtight claims, for seldom can a prospective plaintiff be sure of ultimate success. No matter how honest one's belief that he has been the victim of discrimination, no matter how meritorious one's claim may appear at the outset, the course of litigation is rarely predictable. Decisive facts may not emerge until discovery or trial. The law may change or clarify in the midst of litigation. Even when the law or the facts appear questionable or unfavorable at the outset, a party may have an entirely reasonable ground for bringing suit. . . . To . . . assess[] attorney's fees against plaintiffs simply because they do not finally prevail would substantially add to the risks inhering in most litigation and would undercut the efforts of Congress to promote the vigorous enforcement of the provisions of Title VII. Christiansburg, 434 U.S. at 421-22; see also Hughes, 449 U.S. at 14 ("The fact that a plaintiff may ultimately lose his case is not in itself a sufficient justification for the assessment of fees."); Glymph, 783 F.2d at 479-80 (finding that an award of attorney's fees to a Title VII defendant "cannot result solely because the plaintiff did not ultimately prevail on the merits of the lawsuit" and emphasizing that because "the results of many lawsuits are not predictable, plaintiffs are not to be discouraged from bringing suit just because it is less than airtight"); Arnold, 719 F.2d at 65 (Christiansburg "directed the district court to be particularly sensitive to the broad remedial purposes of Title VII and the danger that attorneys' fee awards in favor of defendants can discourage 'all but the most airtight claims'"); cf. Earthgrains Co. Bakery, 281 F.3d at 151 (citing Christiansburg, 434 U.S. at 421- 22) ("[I]t is axiomatic that asserting a losing legal position, even one that fails to survive summary judgment, is not of itself sanctionable conduct." (emphasis added)).<9> Here, the district court correctly recognized that "Central's argument that the grant of summary judgment in its favor demonstrates that the action was without foundation is not enough, standing alone, to warrant attorneys' fees." (JA671) As the district court explained, even if "the evidence may not have sufficed to satisfy the EEOC's burden of proof on summary judgment, the EEOC nonetheless presented evidence beyond the allegations made by Medley, such as the testimony of former Central employees about displays and occasional language spoken at Central." (JA671) As our merits briefs amply demonstrate, on this record, such an evidentiary finding by the district court can hardly be called an abuse of discretion. See Blue v. U.S. Dep't of Army, 914 F.2d 525, 538 (4th Cir. 1990) (ruling that the "'assessment[s] of frivolousness and attorneys' fees are best left to the sound discretion of the trial court after a thorough evaluation of the record and appropriate factfinding'" (quoting Arnold, 719 F.2d at 65-66)); Evans v. Davie Truckers, Inc., 769 F.2d 1012, 1014 (4th Cir. 1985) (finding no abuse of discretion in the district court's decision not to award attorney's fees to a prevailing defendant). CONCLUSION For all the foregoing reasons, the EEOC respectfully requests that this Court affirm the district court's denial of CW's motion for attorney's fees. REQUEST FOR ORAL ARGUMENT Given the detrimental impact reversal of the district court's order denying attorney's fees would have on the EEOC's Title VII enforcement efforts, we respectfully request oral argument. Respectfully submitted, RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel _____________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E. Room 5NW14P Washington, D.C. 20507 (202) 663-4571 (phone) (202) 663-7090 (fax) daniel.vail@eeoc.gov CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 10,567 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). I certify that this brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. ______________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E. Room 5NW14P Washington, D.C. 20507 (202) 663-4571 (phone) (202) 663-7090 (fax) daniel.vail@eeoc.gov Date: December 12, 2008 CERTIFICATE OF SERVICE I certify that on December 12, 2008, I electronically filed this response brief with the Clerk of Court using the CM/ECF System, which will send notice of such filing to the following registered CM/ECF users: Fred S. Sommer Meredith S. Campbell Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 11921 Rockville Pike Third Floor Rockville, MD 20852-2743 I further certify that on December 12, 2008, I served the requisite number of paper copies of this brief via Federal Express for overnight delivery to: Clerk of Court United States Court of Appeals for the Fourth Circuit Lewis F. Powell, Jr. United States Courthouse Annex 1100 E. Main Street, Suite 501 Richmond, VA 23219-3517 ______________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E. Room 5NW14P Washington, D.C. 20507 (202) 663-4571 (phone) (202) 663-7090 (fax) daniel.vail@eeoc.gov *********************************************************************** <> <1> All references to "R." are to the corresponding entry on the district court's docket sheet. All references to "JA" are to the corresponding page in the parties' Joint Appendix. <2> This statement of facts is an abbreviated version of the statement of facts contained in the EEOC's Opening Brief in Appeal No. 08-1181. EEOC Opening Br. at 3-28. We have highlighted here those facts most relevant to the issues raised by CW's Opening Brief in this attorney's fees appeal. <3> At one point in her deposition, Medley did say that she never complained about the nooses in the workplace because she "wanted to keep some type of good relationship instead of La Tonya complained about this and La Tonya complained about that . . . ." (JA99-100) However, later in her deposition, she indicated that she had "said something" about Tony's and DaBay's dolls to Joanne Starner, who had been Medley's supervisor when she worked in the Customer Service department. (JA16,329,348) <4> She said she did not specifically indicate that he used the "N" word in her EEOC statement because she "didn't feel comfortable writing the word down." (JA40) <5> Wright would later tell Denicoff and Baxley that Medley had said DaBay had called her a "fucking bitch" and said she was "fucking stupid." (JA260,267) Wright said that when she asked DaBay about the incident, he called Medley "the stupid bitch." (JA260,398) Wright testified that she could not remember her response when DaBay told Wright he had called Medley a "stupid bitch." (JA398) Wright was asked in her deposition if DaBay's name-calling made her upset. She replied "[n]o." (JA398) <6> At the same time, the district court also ruled that CW could recover costs associated with the taking of certain depositions in this case. (R.54; JA672) The district court has not yet fixed the precise amount of costs to be awarded to CW and has stayed enforcement of its costs order, pending the disposition of the Commission's merits appeal. (R.55; R.56) <7> To support its theory of de novo review, CW cites United Food & Commercial Workers Local 400 v. Marval Poultry Co., 876 F.2d 346 (4th Cir. 1989). CW Br. at 11-12. But Marval Poultry actually undermines, rather than supports, CW's position. This Court in Marval Poultry explained that where the district court's fees ruling is infected by an error of law, then this Court will review that ruling de novo. Marvel Poultry, 876 F.2d at 351. Critically, however, this Court also explained that if "the claim of error goes exclusively to the impropriety of an ultimate exercise of available discretion" it is reviewable "solely under the abuse of discretion standard." Id. (emphasis added). Here, there can be no question that the district court applied the correct law (i.e., Christiansburg); the only issue is whether the court, in applying the proper legal standard, ultimately exercised its discretion to award or deny attorney's fees in an inappropriate way. Therefore, under Marval Poultry, this Court should employ the abuse of discretion standard of review in this appeal. <8> In effectively urging a different standard for fee awards in EEOC enforcement actions, CW re-writes this part of Christiansburg. CW contends that Christiansburg states that "a court should 'consider distinctions between the Commission and private plaintiffs in determining the reasonableness of the Commission's litigation efforts," CW Br. at 13 (quoting Christiansburg, 434 U.S. at 422 n.20) (emphasis added). However, the Supreme Court merely said that courts "may" do so. See Christiansburg, 434 U.S. at 422 n.20. <9> Indeed, the Supreme Court has ruled that even cases that are dismissed for failure to state a claim are not necessarily "frivolous, unreasonable, or without foundation." See Hughes, 449 U.S. at 15-16 (even "allegations that were properly dismissed for failure to state a claim" which "deserved and received careful consideration" are not necessarily "groundless" or "without foundation" simply because they prove "legally insufficient to require a trial").