No. 11-2057 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ____________________________________________ MIRNA E. SERRANO, Plaintiff, and EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. CINTAS CORPORATION, Defendant-Appellee. ____________________________________________ On Appeal from the United States District Court for the Eastern District of Michigan, No. 04-40132 The Honorable Sean F. Cox ____________________________________________ OPENING BRIEF OF APPELLANT EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ____________________________________________ P. DAVID LOPEZ General Counsel U.S. EQUAL EMPLOYMENT CAROLYN L. WHEELER OPPORTUNITY COMMISSION Acting Associate General Counsel Office of General Counsel 131 M Street, NE JENNIFER S. GOLDSTEIN Washington, DC 20507 Attorney (202) 663-4733 Jennifer.goldstein@eeoc.gov ORAL ARGUMENT REQUESTED TABLE OF CONTENTS Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii Statement in Support of Oral Argument. . . . . . . . . . . . . . . . . . . . . 1 Jurisdictional Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Statement of the Issue. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Investigation, Cause Determination, and Conciliation . . . . . . . . . . . . . . .3 a. Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 b. Determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 c. Conciliation and Continued Investigation. . . . . . . . . . . . . . . . . . 5 Litigation History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Summary of Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Argument The district court abused its discretion in awarding attorneys' fees against EEOC because EEOC's action was not frivolous, unreasonable, or without foundation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16 A. The district court's §706 ruling departed from settled precedent and cannot support the fee award . . . . . . . . . . . . . . . . . . . . . . . . 19 B. Denying amendment of EEOC's complaint was an abuse of discretion and cannot support the fee award. . . . . . . . . . . . . . . . . . . 23 C. The district court's mistaken view of EEOC's authority to seek relief for individual victims of discrimination cannot support the fee award . . . 25 D. EEOC's lack of success on some motions cannot, as a matter of law, support the fee award . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38 Certificate of Compliance Certificate of Service Designation of Relevant District Court Documents Not Under Seal TABLE OF AUTHORITIES CASES Balmer v. HCA, Inc., 423 F.3d 606 (6th Cir. 2005). . . . . . . . . . . . 18, 19, 32 Bridgeport Music, Inc. v. Universal-MCA Music Publ'g, 583 F.3d 948 (6th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978) . . . 18, 19, 23, 32, 37 EEOC v. Bruno's Rest., 13 F.3d 285 (9th Cir. 1993). . . . . . . . . . . . . . . 28 EEOC v. CRST Van Expedited, Inc., 611 F.Supp.2d 918 (N.D. Iowa 2009) . . . . 10, 22 EEOC v. CRST Van Expedited, Inc., 2009 WL 2524402 (N.D. Iowa Aug. 13, 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . 10 EEOC v. Gen. Tel. Co. of the Nw., 885 F.2d 575 (9th Cir. 1989). . . . . . . . . 20 EEOC v. Int'l Profit Assocs., 2007 WL 844555 (N.D. Ill. Mar. 16, 2007). . . . . .21 EEOC v. J.P. Morgan Bank, N.A., 2011 WL 3328737 (S.D. Ohio July 6, 2011). . . . 28 EEOC v. Keco Indus., 748 F.2d 1097 (6th Cir. 1984). . . . . . . . . . . . 27, 29 EEOC v. Monarch Mach. Tool Co., 737 F.2d 1444 (6th Cir. 1980). . . . . . . . 11, 21 EEOC v. Rhone-Poulenc, Inc., 876 F.2d 16 (3d Cir. 1989). . . . . . . . . . . . 29 EEOC v. Robert L. Reeves & Assocs., 262 Fed. Appx. 42 (9th Cir. 2007) . . . . . .32 EEOC v. St. Louis-S.F. Ry., 743 F.2d 739 (10th Cir. 1984) . . . . . . . . . . . 21 EEOC v. Waffle House, Inc., 534 U.S. 279 (2002). . . . . . . . . . . . . . . 30, 31 Fox v. Vice, 131 S.Ct. 2205 (2011) . . . . . . . . . . . . . . . . . . . . . . . 18 Garner v. Cuyahoga Cnty. Juvenile Court, 554 F.3d 624 (6th Cir. 2009) . . . . . .23 Gen. Tel. Co. of Nw. v. EEOC, 446 U.S. 318 (1980) . . . . . . . . . . . . 3, 20, 30 Greenberg v. Hilton Int'l Co., 870 F.2d 926 (2d Cir. 1989) . . . . . . . . . . . 32 Int'l Bhd. of Teamsters v. U.S., 431 U.S. 324 (1977). . . . . . . . . 8, 21, 33, 35 McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352 (1995) . . . . . . . . . 37 Melendez-Arroyo v. Cutler-Hammer de P.R. Co., 273 F.3d 30 (1st Cir. 2001) . . . 36 Moore v. City of Paducah, 790 F.2d 557 (6th Cir. 1986). . . . . . . . . . . . . .24 Newman v. Piggie Park Enters., 390 U.S. 400 (1968) . . . . . . . . . . . . . . . 18 Noyes v. Channel Prods., Inc., 935 F.2d 806 (6th Cir. 1991) . . . . . . . . .17, 18 Smith v. Smythe-Cramer Co., 754 F.2d 180 (6th Cir. 1985) . . . . . . . . . 23, 25 Wrenn v. Gould, 808 F.2d 493 (6th Cir. 1987) . . . . . . . . . . . . . . . . . . 19 STATUTES, RULES and LEGISLATIVE HISTORY 28 U.S.C. §1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. §1292(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 28 U.S.C. §1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. 42 U.S.C. §2000e-4(g)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 42 U.S.C. §2000e-5 (section 706). . . . . . . . . . . . . . . . . . . . . . .passim 42 U.S.C. §2000e-5(f)(1). . . . . . . . . . . . . . . . . . . . . . . . 2, 4, 7, 26 42 U.S.C. §2000e-5(f)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 7 42 U.S.C. §2000e-5(k). . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 32 42 U.S.C. §2000e-6 (section 707). . . . . . . . . . . . . . . . . . . . . . .passim Fed.R.Civ.P. 15(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24 Fed.R.App.P. 4(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 Statement in Support of Oral Argument EEOC requests oral argument in this appeal from an attorneys' fee award of $2,638,443.93, and further requests that the argument be combined with oral argument in the appeal of the 21 opinions that comprise the merits judgment (Appeal No. 10-2629). In those opinions, the district court ruled in favor of defendant Cintas Corporation, holding, inter alia, that when EEOC sues under the general authorizing provision of Title VII, it may not prove its case using the pattern-or-practice framework. The court also ruled that EEOC's investigation, determination, and conciliation on behalf of women denied jobs by Cintas were inadequate because EEOC did not focus on each individual woman at the administrative stage. This latter ruling formed the basis of the court's fee award. In so ruling, the district court dismissed as inapplicable binding Sixth Circuit precedent holding that EEOC must be accorded discretion to conduct investigations and conciliations in the manner it deems most effective. The court instead relied on a recent opinion from a district court in Iowa, currently on appeal to the Eighth Circuit. The district court's rulings, if allowed to stand, would effectively overturn Sixth Circuit precedent and would undermine EEOC's ability to conduct investigations and conciliations of systemic, large-scale discrimination. Because of the importance of these issues, EEOC respectfully requests oral argument. Jurisdictional Statement The district court had jurisdiction pursuant to 28 U.S.C. §1331 and 42 U.S.C. §2000e-5(f)(1), (3). The court issued final judgment on August 18, 2011. R.1080.<1> EEOC filed a timely notice of appeal on August 24, 2011. R.1081; see Fed.R.App.P. 4(a)(1)(B). This Court has jurisdiction pursuant to 28 U.S.C. §1291. Statement of the Issue Whether the district court abused its discretion in awarding attorneys' fees where EEOC's action was not frivolous, unreasonable, or without foundation. Statement of the Case EEOC adopts the Statement of the Case from its opening brief in Appeal No. 10-2629, at pages 3-5. After the October 18, 2010, final judgment giving rise to Appeal No. 10-2629, Cintas filed a bill of costs, R.942, and a motion for attorneys' fees. R.943. The district court granted the fees motion on August 4, 2011, awarding Cintas fees, expenses, and costs in the amount of $2,638,443.93. R.1079. The court issued final judgment on August 18, 2011. R.1080. Statement of Facts EEOC's opening brief in Appeal No. 10-2629, at pages 5-14 and 20-31, sets out the evidence EEOC produced showing that Cintas regularly discriminated against female applicants for the position of service sales representative (SSR) across Cintas locations in the State of Michigan, based on hiring managers' widespread belief that the SSR position was "male-only." Because the district court did not base the fee award upon the quantity or strength of EEOC's evidence, R.1079 at 8, EEOC will not revisit that evidence in this brief. Investigation, Cause Determination, and Conciliation The basis for the district court's fee award was its view that EEOC failed to satisfy the administrative prerequisites to suit. As discussed in EEOC's opening brief in Appeal No. 10-2629 (at 14-17), EEOC conducted a class-based investigation, made a class determination, and conducted a class-based conciliation.<2> Those administrative proceedings began with Mirna Serrano's EEOC charge, filed in April 2000, alleging she applied "numerous times" to Cintas; Cintas did not hire her because she was a woman; and "[t]here are no female Drivers at either of their locations." R.48-2 at 2. a. Investigation Cintas responded to the initial EEOC request for information with hiring data from one Cintas location. The data indicated that all 18 individuals Cintas hired for the SSR position since July 1999 were men. R.48-5 at 7; R.47 at 7 (Def. Mem. at 3). After EEOC received this information, EEOC's investigation expanded to add a class-focused approach: EEOC requested more comprehensive data from Cintas about the composition of its SSR workforce, including all applications submitted for the SSR position from January 1, 1999, to the present. R.48-4. Cintas responded with some information, but only data on one hiring location, R.48-6, and so EEOC made explicit that it was expanding its investigation in a letter requesting information about Cintas' SSR hiring at all its Michigan facilities. R.48-8 at 3. After Cintas refused to produce the comprehensive data, EEOC issued a subpoena for the information, specifically requesting data from "all of [Cintas'] facilities in the State of Michigan." R.48-7 at 3. Cintas petitioned EEOC to revoke or modify the subpoena, arguing, inter alia, that it should not have to supply information beyond the one facility at which Serrano applied. R.48-8. EEOC largely denied Cintas' petition on the ground that the information received indicated a lack of female hires at one facility, thus leading to questions about Cintas' hiring practices at other facilities, and about other "similarly-situated" women potentially affected by those practices. R.48-9 at 4. EEOC clarified that the information EEOC sought would not extend beyond Cintas' Michigan facilities. Id. at 5-6. Thereafter, Cintas began producing the documents EEOC sought. b. Determination On July 3, 2002, EEOC issued a determination letter indicating not only its finding as to Serrano, but also its class discrimination finding. R.876-6. The letter stated there was reasonable cause to believe Serrano's "allegations are true" and, in addition, that Cintas "discriminated against females as a class by failing to hire them as Route Sales Drivers/Service Sales Representatives." R.876-6 at 1 (emphasis added). In subsequent documents, Cintas explicitly recognized the class-based nature of the EEOC determination. For example, in a November 2002 letter responding to an EEOC request for additional information or clarification about a number of Michigan facilities, Cintas noted that EEOC had issued a determination "that Cintas discriminated on the basis of gender with respect to SSR hiring concerning Charging Party and females as a class." R.49-2 at 1 (emphasis added). c. Conciliation and Continued Investigation With the determination letter EEOC included an invitation to engage in conciliation, and attached a draft conciliation agreement "containing the types of relief necessary to remedy the violation of the statute." R.876-6 at 1. The attached document stated that "there is reasonable cause to believe that [Cintas] discriminated against females as a class." R.876-7 at 1 (emphasis added). In the relief section, EEOC proposed that Cintas "offer employment to the women listed below and to other similarly situated qualified female applicants who sought employment with [Cintas]." Id. at 5 (Draft Agr. at 3) (emphasis added). EEOC also proposed that Cintas pay back wages to the women listed and "to other similarly situated females who sought employment with [Cintas]." Id. at 6 (Draft Agr. at 4). The list contained the names of 112 women who had applied at two facilities in Michigan; included in that list were six women who EEOC subsequently identified as claimants during litigation. Id. at 5-6 (Draft Agr. at 3- 4). As Cintas acknowledged, the 112 women listed were only "part of Ms. Serrano's 'class.'" R.836 at 10 n.2 (Omnibus Mot. at 4 n.2). Thereafter, during conciliation, EEOC continued to seek information from Cintas after it learned that Cintas had not provided all applications from various Michigan locations. R.49-2 & at 2; R.48-14; R.836-5 at 18 (Sankovich Dep. at 117-19). Once it acquired the additional material, EEOC was able to make a written, concrete, class-based conciliation proposal, including suggested hiring rates and other relief. R.876-10 at 6 (Angiano Dep. at 235). Cintas never made a counter-proposal. R.876-11 at 4-5 (Morelli Dep. at 213-14). On April 14, 2005, EEOC issued a letter stating that "efforts to conciliate this charge ... have been unsuccessful," and that "further conciliation efforts would be futile or non- productive." R.876-8. Litigation History In December 2005, EEOC filed a complaint-in-intervention pursuant to §§705(g)(6) and 706(f)(1), (3) of Title VII, 42 U.S.C. §§2000e-4(g)(6) and 2000e- 5(f)(1), (3). R.98. The complaint alleged that Cintas denied employment to "a class of women as alleged in [private] Plaintiffs' Second Amended Complaint...." R.98 ¶8. That referenced "Second Amended Complaint" alleged Cintas engaged in a "policy, pattern, or practice" of denying SSR positions to women. R.70 ¶1. Shortly after EEOC filed its complaint, "Cintas served ... discovery requests relating to EEOC's pattern or practice claim," as Cintas consistently phrased it in papers filed throughout most of this litigation. R.702 at 9 (Br. at 2) (emphasis in original). Cintas undertook other discovery that was focused on EEOC's allegation that Cintas engaged in a pattern or practice of discrimination against a class of women. For example, Cintas engaged a statistical expert who produced a lengthy report that focused on disputing the existence of a pattern of discrimination. See A-909 ("Our analyses of the hiring decisions ... do not support the Plaintiffs' allegations that there is a common pattern of hiring decisions adverse to females") (emphasis added); A-956 ("these results are inconsistent with the allegation of a common SSR hiring pattern that is adverse to women") (emphasis added). Most discovery and other activity relating to EEOC's claim were put on hold in the three-and-a-half years that ensued, however, when the district court ruled that private plaintiffs' class certification efforts should take precedence over EEOC's claim. See R.145 at¶ 16 (discovery and scheduling order stating that "[t]he scheduling of the merits phase of discovery and other remaining dates will take place after the motion for class certification is resolved"); see also R.130, R.162 (scheduling orders). Even during the class certification phase, EEOC continued to express its eagerness to pursue the claim of systemic discrimination. During the class certification oral argument in February 2009, an EEOC attorney attended and told the court that EEOC had found "a powerful case involving a pattern or a practice of sex discrimination in hiring. We will vigorously represent the interest of the gender class. We intend to do so." R.878 at 38 (emphasis added). When class certification proceedings ended, the district court held a scheduling conference on August 10, 2009, during which the court and parties discussed bifurcation of EEOC's case pursuant to International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977). The district court entered a scheduling order the next day, noted in the district court docket sheet as "SCHEDULING ORDER AS TO EEOC PATTERN AND PRACTICE ACTION." D-77 (entry R.646). The district court requested additional briefing on the timing of the private plaintiffs' case vis-à-vis "EEOC's 'pattern or practice' action." R.647 at 1 (emphasis added). The court indicated in its order that it had already "set a scheduling order for [EEOC's] 'pattern or practice' action against the Defendant." R.647 at 1; see also id. (court questioned whether private plaintiffs' case "should only proceed after the EEOC's 'pattern or practice' action had been adjudicated," as the plaintiffs wished, or whether it should proceed contemporaneously). EEOC accordingly filed a brief on August 21, 2009, discussing Teamsters, and what EEOC would have to show in the first stage - namely, that Cintas "engaged in a pattern or practice of discrimination." R.651 at 2 (emphasis added). EEOC also explained how the second phase would proceed if EEOC were successful in showing "'discrimination was the company's standard operating procedure.'" Id. (quoting Teamsters, 431 U.S. at 336). On the same day, Cintas filed a brief arguing the private plaintiffs should not be allowed to delay proving their claims "until the pattern or practice claim that is being pursued by ... EEOC ... is resolved." R.653 at 1; see also id. at 1-2 (arguing against delay "[b]ecause the success or failure of the EEOC's pattern or practice claim has no bearing on the Individual Plaintiffs' ability to prove their individual claims"); id. at 2 (noting that "EEOC has ... raised a claim that Cintas engaged in a pattern or practice of discriminatory hiring"); id. at 4 (private plaintiffs cannot avoid testing claim "before adjudication of the EEOC's pattern or practice claim"); id. at 5 (referring to "EEOC's pattern or practice action").<4> During this time period, in the spring and summer of 2009, a district court in Iowa issued several rulings adverse to EEOC in a sex harassment case in which discovery had revealed ever-increasing numbers of female truck drivers sexually harassed by their male co-drivers or trainers. See EEOC v. CRST Van Expedited, Inc., 611 F.Supp.2d 918 (N.D. Iowa 2009); EEOC v. CRST Van Expedited, Inc., 2009 WL 2524402 (N.D. Iowa Aug. 13, 2009), on appeal, Nos. 09-3764, 09-3765, 10-1682 (8th Cir.). Relying extensively on language from the Iowa district court, Cintas moved for judgment on the pleadings with respect to EEOC's "Pattern or Practice Discrimination Claim" on October 21, 2009. R.662. Cintas argued that EEOC can only pursue a claim alleging a pattern or practice of discrimination when EEOC brings suit under §707 of Title VII, 42 U.S.C. §2000e-6. Because EEOC filed its discrimination claim under §706, 42 U.S.C. §2000e-5, Cintas contended, it cannot invoke the Teamsters, bifurcated-trial model for proving hiring discrimination. R.662. EEOC responded to Cintas' motion by pointing out that, whatever a district court in Iowa might opine about Title VII's statutory enforcement scheme, it has long been settled within the Sixth Circuit that §706 provides ample authority for EEOC to pursue a claim alleging a pattern or practice of discrimination. R.664 at 10-11 (Resp. at 6-7) (citing EEOC v. Monarch Mach. Tool Co., 737 F.2d 1444 (6th Cir. 1980)). Cintas' motion remained pending for some four months. In the meantime, Cintas appeared to operate under the assumption that EEOC would proceed under the pattern-or-practice framework. In two filings in January 2010, for example, Cintas acknowledged that "EEOC is proceeding on its Michigan-only pattern or practice claim," and argued EEOC should produce certain information before "Cintas will face a trial in the pattern or practice claim." R.702 at 11, 28 (Br. at 4, 17); see also R.715 at 1 (arguing for production of information because it "is relevant to the pattern or practice question"). The district court ultimately ruled in Cintas' favor: in February 2010, the district court relied on dicta in CRST and held that EEOC may not prove its claim under the Teamsters pattern-or-practice framework when it brings suit pursuant to §706. R.723. One week later, on February 16, 2010, EEOC moved to certify the §706 issue for interlocutory review, arguing that Sixth Circuit case law created "substantial ground for difference of opinion." R.728; 28 U.S.C. §1292(b). The district court denied EEOC's motion on March 12, 2010. R.752. Only 11 days later, on March 23, 2010, EEOC moved to amend its complaint to specify that EEOC was instituting this action pursuant to §707. R.765. Although the district court acknowledged authority that a court should give leave to amend a complaint freely to ensure cases are tried on their merits, not on the technicalities of pleadings, it nonetheless denied the motion on June 2, 2010. R.829 at 5, 13 (amended on October 18, 2010, R.940). The focus of the case shifted from proof of a pattern or practice of discrimination to proof of discrimination against individual women. Cintas filed an "omnibus" motion to dismiss EEOC's claim on behalf of individual women, arguing that EEOC's investigation and conciliation of its claim were inadequate. R.836. Shortly thereafter, Cintas moved for summary judgment on each of the 13 women and, on September 3, 2010, the district court began issuing orders granting Cintas' motions. R.923-R.924; R-926-R.935; A-873. The court granted Cintas' "omnibus" motion last, on September 20, 2010. R.936. The court again relied on a district court decision in CRST and deemed Sixth Circuit precedent irrelevant because, in the court's view, "this case is not now, nor has it ever been, a class- based lawsuit." R.936 at 10-11. Cintas moved for attorneys' fee and costs on October 18, 2010, seeking an award of $5,693,351.26 from EEOC. R.943. The amount Cintas sought included more than two-and-a-half million dollars in fees and costs Cintas incurred defending against the claim brought by the private plaintiffs (largely their efforts to gain class certification), not the claim brought by EEOC. R.943 at 16. The district court denied fees and costs for the time period prior to the denial of class certification, when EEOC had only a "minimal" involvement in the litigation, but ordered EEOC to pay Cintas $2,638,443.93 in fees and costs. R.1079.<6> SUMMARY OF ARGUMENT In Appeal No. 10-2629, EEOC has urged this Court to reverse the judgment of the district court and remand the case for trial. If this Court agrees and remands the case for trial, it would not need to address the merits of the fee award at issue in this appeal because Cintas would no longer be a "prevailing party" eligible for fees and costs. Even if this Court were to affirm the rulings of the district court, it should reverse the fee award. Attorneys' fees may be awarded against a Title VII plaintiff, including EEOC, only if its action was frivolous, unreasonable, or without foundation. This standard is set high so that fees are awarded only in the rare, "egregious" case. This case - a case in which EEOC proceeded in accordance with what it reasonably believed was long-settled Supreme Court and Sixth Circuit precedent - is not one in which EEOC pursued a frivolous claim, and the district court abused its discretion in ruling to the contrary. EEOC filed suit under §706 alleging that Cintas engaged in a pattern or practice of discriminating against female applicants for the SSR position in Michigan. It sought to prove its case under the pattern-or-practice, bifurcated framework, the same framework that the Supreme Court in General Telephone and this Court in Monarch Machine held EEOC could use in a §706 case. The district court discounted this case law in precluding EEOC from using the pattern-or- practice framework, but EEOC acted reasonably when it relied upon longstanding Supreme Court and Sixth Circuit precedent. EEOC promptly sought to amend the complaint to add reference to §707, while otherwise pursuing the exact same claim under the exact same proof framework. Despite the liberal amendment standard in the Federal Rules, the lack of undue delay, and the lack of undue prejudice, the district court denied EEOC's motion. Again, the court failed to heed Sixth Circuit precedent in its ruling. EEOC did not act unreasonably in relying on that precedent. EEOC then sought to prove discrimination against individual claimants. The district court again rejected EEOC's claim, this time holding that EEOC had failed to investigate, issue a determination, or conciliate on the individuals' behalf during the administrative phase of the case. The district court was wrong - EEOC undisputedly investigated, issued a determination, and conciliated on behalf of unsuccessful female applicants in Michigan, and all 13 claimants undisputedly fell within this well-defined class. Sixth Circuit precedent holds that EEOC has the discretion to conduct its administrative proceedings in this manner, without identifying all claimants at the administrative stage. Though squarely on point, the district court rejected that Sixth Circuit precedent and its progeny as inapplicable, and instead relied on an Iowa district court opinion. Whatever the merits of this district court's ruling, EEOC acted reasonably in relying on Sixth Circuit precedent. Finally, the district court chastised EEOC for filing unsuccessful motions, and held fees were warranted as a result. Title VII authorizes fees against a plaintiff only if that plaintiff's claim is frivolous; the number of motions filed in prosecuting a non-frivolous claim does not factor into the Title VII fee analysis. Regardless, EEOC acted reasonably in filing and defending against motions. EEOC prevailed in full or in part with respect to several motions, some were mooted by the court's §706 ruling, and EEOC is challenging several adverse rulings on its motions in Appeal No. 10-2629. EEOC did not act frivolously in filing or defending against motions in this litigation. ARGUMENT The district court abused its discretion in awarding attorneys' fees because EEOC's action was not frivolous, unreasonable, or without foundation. Whether this Court need review the district court's fee award depends upon the outcome of Appeal No. 10-2629 because prevailing party status is a necessary precondition to a Title VII fee award: In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee (including expert fees) as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person. 42 U.S.C. § 2000e-5(k). If this Court were to reverse the district court rulings on §706 and/or the motion to amend the complaint (R.723; R.829), and remand the case so that EEOC could proceed under the pattern-or-practice framework, Cintas would cease to be the prevailing party. Since the fees and costs award presupposed Cintas' status as a prevailing party, R.1079 at 11, that award accordingly would have to be reversed. Similarly, if this Court affirmed the §706 and complaint-amendment rulings, but reversed the "omnibus" ruling on administrative prerequisites to an EEOC suit (R.936), this Court also would have to reverse the fee award. Reversal would be warranted because the district court made explicit that it awarded fees not because it viewed EEOC's claim on behalf of the 13 individuals as without merit, but because it believed EEOC failed to conduct an adequate investigation, to issue reasonable cause determinations, or to conciliate on an individual basis.<7> R.1079 at 8. Only if this Court were to affirm the rulings of the district court would this Court need to consider the propriety of the fee award. This Court should reverse the rulings of the district court for the reasons discussed in EEOC's briefs in Appeal No. 10-2629. Even if this court affirms, however, it should reverse the fee award as an abuse of the district court's discretion because of the underlying errors of law and fact in the fee decision and because the high standard for awarding fees against a Title VII plaintiff was not met. See Noyes v. Channel Prods., Inc., 935 F.2d 806, 810 (6th Cir. 1991) (Title VII fee award reviewed for abuse of discretion); see also Bridgeport Music, Inc. v. Universal-MCA Music Publ'g, 583 F.3d 948, 953 (6th Cir. 2009) (abuse of discretion to "rely on erroneous findings of fact, apply the wrong legal standard, misapply the correct legal standard, or make a clear error in judgment"). Fees awarded to Title VII plaintiffs are on a different footing than fees awarded against Title VII plaintiffs. A court typically will award fees to a prevailing plaintiff because "the plaintiff is the chosen instrument of Congress to vindicate 'a policy that Congress considered of the highest priority' [and because] when a district court awards counsel fees to a prevailing plaintiff, it is awarding them against a violator of federal law." Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 418 (1978) (quoting Newman v. Piggie Park Enters., 390 U.S. 400, 402 (1968)). These considerations are absent when the defendant has prevailed, and the Christiansburg Court accordingly instructed that a far more exacting standard must apply before fees may be awarded against a Title VII plaintiff. The Court held that a district court may award attorneys' fees to a prevailing defendant only "upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation," or that "the plaintiff continued to litigate after it clearly became so." Christiansburg, 434 U.S. at 421-22. In applying this standard, the Court stressed 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." Id. at 421-22. To do otherwise, observed the Court, could discourage "all but the most airtight claims." Id. at 422. The same standards apply when EEOC is the Title VII plaintiff. Id. at 423 n.20. This Court has heeded the instructions of Christiansburg, and accordingly has observed that "[a]ttorneys' fees should be awarded only in the most egregious of circumstances." Balmer v. HCA, Inc., 423 F.3d 606, 616 (6th Cir. 2005), overruled on other grounds, Fox v. Vice, 131 S.Ct. 2205 (2011); see also Noyes, 935 F.2d at 810 ("attorneys' fees should be awarded to defense counsel in Title VII actions only in the most 'egregious circumstances'") (citation omitted); Wrenn v. Gould, 808 F.2d 493, 504 (6th Cir. 1987) ("attorney fees should rarely be awarded to defendants in discrimination cases . . ."). Moreover, a claim is not "groundless just because it was ultimately unsuccessful." Balmer, 423 F.3d at 615 (citing Christiansburg, 434 U.S. at 421-22).<8> The Christiansburg standard was not met in this case and, in holding to the contrary, the district court abused its discretion in four principal respects. A. The district court's §706 ruling departed from settled precedent and cannot support the fee award. The court's pattern-or-practice ruling was premised on its belief that because EEOC brought suit under §706 rather than §707, EEOC could not seek to prove that Cintas engaged in a pattern or practice of discrimination against a class of women. The court accordingly required EEOC to demonstrate it engaged in an investigation and conciliation focused on individuals. R.1079 at 6-7. As discussed in EEOC's briefs in Appeal No. 10-2629 (Opening Br. at 36-49, Reply Br. at 1-13), the district court erred in holding that §706 gives EEOC only narrow authority to pursue discrimination claims, rather than the authority to challenge any form of discrimination prohibited under the statute, and to prove its case using whatever framework is most appropriate. Even if EEOC were incorrect in its belief about the authority that §706 confers, however, its belief was not unreasonable. At the time EEOC filed its complaint, EEOC reasonably believed it was settled law that EEOC "need look no further than §706 [of Title VII] for its authority to bring suit ... for the purpose ... of securing relief for a group of aggrieved individuals." Gen. Tel. Co. of Nw. v. EEOC, 446 U.S. 318, 324 (1980). In General Telephone, the employer challenged EEOC's ability to pursue its claim in bifurcated proceedings, using the pattern-or- practice proof framework, when it filed suit pursuant to §706. The Supreme Court rejected the employer's argument and held that EEOC is not merely a proxy for individuals when it brings suit under §706. Id. at 325. EEOC went on to use the pattern-or-practice framework in General Telephone on remand, and the Ninth Circuit affirmed the lower court's judgment. See EEOC v. Gen. Tel. Co. of the Nw., 885 F.2d 575 (9th Cir. 1989). Following the Supreme Court's ruling, this Court squarely held that §706 gives EEOC authority to pursue a claim under the pattern-or-practice framework. See EEOC v. Monarch Mach. Tool Co., 737 F.2d 1444, 1446-49 (6th Cir. 1980); see also EEOC v. St. Louis-S.F. Ry., 743 F.2d 739, 743-44 (10th Cir. 1984) (General Telephone clarified that Congress intended to give EEOC "broad enforcement powers" under §706; EEOC therefore may seek class-wide relief when it brings suit under §706); EEOC v. Int'l Profit Assocs., 2007 WL 844555, *9 (N.D. Ill. Mar. 16, 2007) (EEOC may use pattern-or-practice framework when it brings suit under §706). The actions of Cintas and of the district court reveal that both initially operated in accordance with this understanding of EEOC authority. When EEOC filed its motion to intervene in late 2005, Cintas did not raise any objection to EEOC's allegation that Cintas engaged in a pattern or practice of discrimination, nor did it raise any objection to the form of EEOC investigation and conciliation. R.85. During the initial August 2009 scheduling conference, the court and parties discussed bifurcation of EEOC's case pursuant to Teamsters, 431 U.S. 324. The district court then entered a "SCHEDULING ORDER AS TO EEOC PATTERN AND PRACTICE ACTION." D-77 (entry R.646). In subsequent briefing, Cintas made arguments about the timing of the private plaintiffs' case vis-à-vis "the pattern or practice claim that is being pursued by ... EEOC." R.653 at 1. It was only after an out-of-Circuit district court issued a decision containing dicta on the §706 issue that Cintas was spurred to argue that EEOC had proceeded improperly. Cintas' arguments relied heavily on language from that one decision. Compare R.662 at 5-9 (Cintas motion) with CRST, 611 F.Supp.2d at 929-33. EEOC submits that the CRST court misread the statute and relied on case law overruled by General Telephone, but even if the CRST dicta were correct, EEOC's reliance on Supreme Court and Sixth Circuit precedent that predated the CRST decision was reasonable. <9> In its §706 ruling, the district court acknowledged that, prior to the court's own decision, no court ever had held that EEOC is precluded from using the Teamsters model of proof in §706 systemic discrimination actions. R.723 at 15. The court also stated - incorrectly - that the question of whether EEOC can use the Teamsters pattern-or-practice framework "has not yet been decided by any circuit court[] of appeal[s]." R.723 at 12. This Court's Monarch Machine decision flatly demonstrates the district court's error, but even if Monarch Machine somehow were not binding precedent, and even if there were no other on-point appellate decisions, the absence of any appellate decisions would not support, but rather would cut against, a fee award. The Supreme Court has recognized that where the basis upon which a defendant prevailed "was an issue of first impression requiring judicial resolution," EEOC's action "in bringing the suit could not be characterized as unreasonable or meritless." Christiansburg, 434 U.S. at 423-24 (quotations omitted). This Court likewise emphasizes that a novel legal issue cuts against a fee award: "To determine whether a suit is frivolous, we consider 'whether the issue is one of first impression requiring judicial resolution....'" Garner v. Cuyahoga Cnty. Juvenile Court, 554 F.3d 624, 636 (6th Cir. 2009) (citation omitted); see also Smith v. Smythe-Cramer Co., 754 F.2d 180, 184 (6th Cir. 1985) ("prevailing defendants should not be awarded fees where the plaintiff has an arguable basis for pursuing his or her claim"). EEOC had a reasonable basis to believe it could proceed under the pattern- or-practice framework. Awarding fees because the EEOC may have been wrong was an abuse of discretion. B. Denying amendment of EEOC's complaint was an abuse of discretion and cannot support the fee award. The district court's second abuse of discretion relates to its refusal to allow amendment of EEOC's complaint. As discussed in EEOC's opening brief at 49-56 and reply brief at 14-19, EEOC should have been allowed to amend its complaint to add reference to §707. Had the district court allowed amendment, EEOC would have proceeded under the pattern-or-practice framework, thus obviating the district court's expressed concern with the administrative phase. EEOC reasonably believed that the court would allow amendment, given the Federal Rules' instruction that a court "should freely give leave [to amend complaints] when justice so requires." Fed.R.Civ.P.15(a)(2). Moreover, the facts of this Court's decision in Moore v. City of Paducah, 790 F.2d 557 (6th Cir. 1986), paralleled the facts of this case so closely that it was reasonable for EEOC to believe that the court would follow Moore and allow amendment. In Moore, this Court held the district court abused its discretion by denying amendment where the plaintiff had sought to substitute the correct statutory provision (§1983) for the incorrect one set out in the complaint (§1985), and where the §1983 claim was supported by facts set out in the original complaint. Id. at 559-62. In this case, after the district court ruled that only §707 authorizes EEOC to challenge discrimination under the Teamsters framework, EEOC sought leave to amend its complaint to refer to what the district court ruled was the correct statutory provision. As was true of the plaintiff in Moore, EEOC did not seek to change the essence of what it sought to prove: a pattern or practice of sex discrimination in violation of Title VII. It simply sought to refer to §707 in addition to §706. EEOC did not unduly delay - EEOC moved to amend only 11 days after the district court denied EEOC's request for interlocutory review. Nor was any undue prejudice evident - as late as January 2010, Cintas was continuing to acknowledge that "EEOC is proceeding on its Michigan-only pattern or practice claim," and that "Cintas will face a trial in the pattern or practice claim." R.702 at 11, 28 (Br. at 4, 17). Given this Court's precedent in Moore and the analogous facts present here, EEOC reasonably believed it could pursue its systemic discrimination claim under the Teamsters framework. Cf. Smith, 754 F.2d at 183 ("defendants should not be awarded fees where the plaintiff has an arguable basis for pursuing his or her claim"). The court's denial of leave to amend, itself an abuse of discretion, cannot serve as the predicate for fees awarded for EEOC's pursuit of a claim under the Teamsters framework. The court thus abused its discretion in awarding fees. C. The district court's mistaken view of EEOC's authority to seek relief for individual victims of discrimination cannot support the fee award. Once the district court precluded EEOC's efforts to proceed under the pattern-or-practice framework, EEOC reasonably proceeded to prove discrimination against the individual claimants. The district court subsequently ruled that EEOC had failed to investigate or conciliate on their behalf, and granted judgment in Cintas' favor. R.936. The court later relied on this ruling to award fees. According to the court, fees were "warranted" because of "EEOC's failure to engage in the required enforcement procedure mandated by Title VII." R.1079 at 6. Again relying on a decision issued by a district court in Iowa, the court took EEOC to task for failing to "investigate the specific allegations" of the 13 claimants; failing to engage in "any conciliation measures ... on behalf of the named Plaintiffs;"<10> failing to identify "any of the thirteen allegedly aggrieved persons as members of the 'class' until after the EEOC filed its initial complaint;" and failing to make "individualized reasonable cause determination[s]" as to any of the 13 "named plaintiffs [sic] in this action." R.1079 at 6-7; see also id. at 6 (emphasizing that "the Court in CRST came to a similar conclusion"). The district court was patently incorrect: EEOC did investigate, find cause, and conciliate on behalf of the 13 claimants. Once it acquired evidence that Cintas hired virtually no women as SSRs at some Michigan facilities, the EEOC investigator decided to focus the investigation on evidence that a pattern or practice of discrimination by Cintas led to widespread and significant discrimination against female applicants generally, because they were female. EEOC's investigation, determination, and conciliation encompassed all women who applied unsuccessfully for the SSR position in the State of Michigan. See, e.g., R.48-8 at 3; R.48-9 at 5-6; R.876-6; R.876-7. The 13 claimants undisputedly fall within that clearly-defined class. The district court took issue with EEOC for conducting a class-focused investigation and conciliation, rather than one focused on individuals, but this Court plainly held in a frequently-cited decision that a district court errs by dictating that an investigation or conciliation take a particular form. See EEOC v. Keco Indus., 748 F.2d 1097, 1100-02 (6th Cir. 1984). As in this case, Keco began when a woman filed an EEOC charge (in Keco, alleging pay discrimination). Id. at 1098. The EEOC investigation expanded to encompass both pay and hiring discrimination against a class of women, and EEOC found cause to believe the employer was discriminating against (unidentified) women as a class. Id. EEOC subsequently filed suit under §706 alleging discrimination against women as a class, without identifying each woman. Id. The defendant challenged EEOC's investigation, questioning whether it formed a sufficient basis for EEOC's class discrimination finding, and challenged EEOC's conciliation efforts, which only generally referred to the class discrimination aspects of the case. Id. at 1100-01. This Court rejected both challenges to EEOC's administrative activity, holding the investigation adequate and holding that EEOC's general reference to class claims during conciliation was adequate, for "the class-based claim is basically the same as [the charging party's] claim; only the number of [claimants] has changed." Id. at 1102. As discussed in EEOC's opening brief at 56-65 and its reply brief at 19-23 in Appeal No. 10-2629, numerous courts of appeals and district courts have relied on Keco and held that EEOC need not identify individuals in the class prior to filing suit under §706 as long as the outline of the class is identified. Indeed, a district court from within this Circuit very recently reaffirmed that under Keco EEOC is obliged to define the parameters of the class at the administrative stage, but need not identify the individual members of that class. See EEOC v. J.P. Morgan Bank, N.A., 2011 WL 3328737 (S.D. Ohio July 6, 2011). As here, the defendant had challenged the fact that EEOC's investigation, determination, and conciliation identified the class, but not the individuals; the J.P. Morgan court - in a decision issued after the district court's omnibus ruling in this case - rejected the defendant's arguments and held that Keco accords EEOC flexibility and discretion to conduct the administrative proceedings as it, and not the employer or the court, deems most effective. Id. Unlike J.P Morgan, the district court in this case followed CRST and not Keco when it held EEOC had to identify all individuals at the administrative stage. Even if the court were correct to follow CRST, the recent decision in J.P. Morgan relying on Keco demonstrates that EEOC's reliance on Keco was not unreasonable, frivolous, or without foundation. Cf. EEOC v. Bruno's Rest., 13 F.3d 285, 287, 289 (9th Cir. 1993) (reversing attorneys' fees awarded based on conciliation in a §706 case because "'in a class action suit, [t]he EEOC is not required to provide documentation of individual claimants to conciliate on behalf of each potential claimant'") (quoting EEOC v. Rhone-Poulenc, Inc., 876 F.2d 16, 17 (3d Cir. 1989)). In deciding to follow CRST and not Keco, the district court was incorrect not only as a matter of law, but also as a matter of Title VII policy, as explained by the Keco Court. Keco, 748 F.2d at 1100. When shown evidence that Cintas hired virtually no women for the SSR position, the EEOC investigator made a decision to focus on ascertaining whether Cintas had a widespread practice of discriminating against women. In other words, EEOC used its experience and judgment to determine how best to conduct an investigation of widespread discrimination. If an employer could force EEOC to identify every individual within the affected class at the administrative stage, even if the employer had no interest in resolving the case through conciliation, it would force EEOC to expend considerable agency resources on a fruitless endeavor, and so would endanger EEOC's ability to conduct investigations of systemic discrimination. The Keco decision is grounded in its acknowledgment that so constraining EEOC is at odds with the intent of Congress. Id. It remains somewhat unclear how the district court justified its disregard of Keco. In the omnibus ruling, the court stated that this case differed from Keco because "this case is not now, nor has it ever been, a class-based lawsuit." R.936 at 10-11. EEOC discussed in its opening brief at 60-61 and its reply brief at 20-21 that this statement is wholly inexplicable, given how clearly EEOC had expressed that it was seeking relief for "a class of women," just as it did in Keco. R.98 ¶¶8, 9, 11. The fee ruling sheds some light on the court's meaning, for in that ruling the district court repeatedly referred to the claimants as "named plaintiffs" or "individual plaintiffs," and chastised EEOC for failing to reveal the identities of "each individual who agreed to participate as a plaintiff in this action." R.1079 at 6, 7, 8, 9, 12. This is not merely a question of semantics; the court's discussion reflects its view that the real plaintiff is not EEOC, but the 13 individuals for whom EEOC seeks relief. See R.1079 at 9 (referring to fees sought "in defense of both the EEOC's and the individual Plaintiffs' claims"); id. at 11-12 (observing that court "dismissed all of the EEOC's claims against Cintas, as well as the claims brought by the individual Plaintiffs"). The district court fundamentally misunderstood the nature of an EEOC suit brought under §706. In the 1980 General Telephone decision, the Supreme Court explicitly rejected the notion that, in a §706 action, EEOC merely vindicates the rights of "the private litigant in whose place it stands." See Gen. Tel., 446 U.S. at 326 & n.8 ("the EEOC is not merely a proxy for the victims of discrimination"). The Supreme Court reaffirmed that basic principle in EEOC v. Waffle House, Inc., 534 U.S. 279, 297 (2002), holding that "EEOC does not stand in the employee's shoes." See also id. at 298 (EEOC is not "a proxy for the employee"). Central to the Waffle House decision was the question of the extent to which EEOC's interest and authority was the same as that of the non-party individual - specifically, whether EEOC was bound by an arbitration agreement signed by the individual. The Court held EEOC was not bound, for EEOC's claim is not "merely derivative." Id. at 297. When EEOC brings an enforcement action, EEOC is seeking "to vindicate a public interest, not simply provide make-whole relief for the employee." Id. at 296. EEOC does not need individuals to "agree[]" to participate, as the district court erroneously stated, nor does EEOC simply represent the individuals. See id. at 291 (EEOC does not need employee's consent). Once EEOC files suit, "the employee has no independent cause of action," id., and is not a "plaintiff" in the action, as the court mistakenly put it. Once EEOC brings suit, "EEOC is the master of its own case," with "the authority to evaluate the strength of the public interest at stake." Id. It appears that the district court's misunderstanding of the breadth of EEOC's authority when it brings suit infected both the merits and the fee rulings. In any event, even if EEOC's investigation, cause determination, and conciliation somehow fell short of what was required, EEOC acted reasonably in relying on the authority of General Telephone, Keco, and their progeny. The fee award accordingly was an abuse of discretion. D. EEOC's lack of success on some motions cannot, as a matter of law, support the fee award. The district court abused its discretion in relying on what it termed "other egregious and unreasonable conduct" related to the filing of motions. R.1079 at 7. As a matter of law, the court erred. The court identified Title VII as the source of its authority to award fees, R.1079 at 5, but under Title VII, a court's discretion to award fees against a plaintiff is constrained: a court may award fees only if the plaintiff's "claim was frivolous, unreasonable, or groundless." Christiansburg, 434 U.S. at 422 (emphasis added); see also Balmer, 423 F.3d at 616 ("Defendants may recover for frivolous claims only.") (emphasis added). EEOC's conduct during litigation, which EEOC maintains was wholly reasonable, has no bearing upon the merits of EEOC's claim. To the extent that the court based its award on the allegedly "egregious" conduct, the court erred. Cf. EEOC v. Robert L. Reeves & Assocs., 262 Fed. Appx. 42, 44-45 (9th Cir. 2007) ("although the district court's criticism of the EEOC's discovery tactics was perhaps justified, these discovery tactics do not render the EEOC's claims frivolous, unreasonable, or groundless") (emphasis added); Greenberg v. Hilton Int'l Co., 870 F.2d 926, 940 (2d Cir. 1989) ("Unlike Rule 11, which imposes sanctions for discrete filings, Section 2000e-5(k) comes into play only after the Title VII claim has been disposed of and requires the court to assess the strength or weakness of that claim viewing the case as a whole.") (emphasis added), vacated on other grounds, 875 F.2d 39 (2d Cir. 1989). Even if EEOC's conduct were somehow relevant to a Title VII fee award, EEOC's conduct was wholly reasonable. The court stated that "EEOC filed, and lost, over a dozen motions." R.1079 at 7. The court does not identify the motions but, by EEOC's count, EEOC filed 11 substantive motions in total. R.81 & 83; R.188; R.660; R.661; R.706; R.728; R.731; R.748; R.759; R.762; R.765. Of those motions, EEOC prevailed in one (the motion to intervene, R.81, R.83; R.97), and largely prevailed in another (the motion to interview decision makers outside presence of defense, R.661; R.698). EEOC filed one motion - to clarify the scheduling order to identify the issues to be tried in bifurcated proceedings (R.660) - because of the confusing nature of the court's scheduling order, which seemed to indicate the case would be tried under the pattern-or-practice framework. D-77 (entry R.646). The motion was mooted by the court's pattern-or-practice rulings. R.725. EEOC filed another motion based on its assumption, derived from the scheduling order, that the case would be bifurcated; EEOC moved to delay depositions of additional class members until the second stage of the case, when individuals' entitlement to relief would have been at issue. R.706 (relying on Teamsters, 431 U.S. at 342-43). EEOC's motion was denied as part of the court's §706 pattern-or-practice ruling. R.724. Of the seven remaining motions, EEOC filed two in direct response to the court's pattern-or-practice rulings. See R.728 (seeking interlocutory appeal); R.765 (to amend complaint). The court denied the motions but, as EEOC has argued, the court erred in those rulings. EEOC filed another motion, to extend the discovery schedule (R.731), because it believed the pattern-or-practice ruling fundamentally altered the way EEOC would have to prove its case. EEOC, in Appeal No. 10-2629, has challenged the court's denial of the motion. Opening Br. at 98-99; Reply Br. at 47-48. In Appeal No. 10-2629, EEOC also challenged the denial of its motion to compel Cintas to produce unredacted applications (R.759). Opening Br. at 95-97; Reply Br. at 45-47. EEOC filed two motions largely because of its concern that Cintas' discovery request would require the testimony of EEOC trial counsel. R.188; R.748. The court formally denied EEOC's motions, R.208, R.275, R.794, but EEOC largely received the relief it desired (ensuring no EEOC attorney would have to testify as to litigation matters) through agreement with counsel or as the result of the court's April 13, 2000, ruling. Finally, EEOC sought to bar Cintas from taking a second deposition of several class members as duplicative. R.762. The magistrate judge denied EEOC's motion, holding that a second deposition would pose "no serious prejudice" to EEOC. R.808 at 3. At no time did the magistrate judge deem this or any of EEOC's motions frivolous. The district court chastised EEOC for rebuffing several of Cintas' discovery requests. R.1079 at 7. The court stated that "after" the court ruled EEOC could not proceed under the pattern-or-practice framework, EEOC declined to provide the identities of the claimants. Id. In fact, Cintas filed its motion before the court's pattern-or-practice ruling (see R.709). Had trial been allowed to proceed in bifurcated proceedings, the identity of the individual claimants would only have been relevant if and when there was a second stage of proceedings. See Teamsters, 431 U.S. at 360 n.46 ("at the liability stage of a pattern-or-practice trial the focus often will not be on individual hiring decisions, but on a pattern of discriminatory decisionmaking"). Given the court's factual mistake about the timing of EEOC's opposition, its reliance on this ground was an abuse of discretion. The court also chastised EEOC for refusing to reveal to Cintas the women to whom it had sent questionnaires. R.1079 at 7. EEOC believed it already had answered Cintas' inquiry: EEOC has sent and/or will send a questionnaire to each woman who Cintas identifies as having applied for and being denied driver positions during the relevant time frame. Cintas knows exactly who these women are as it was Cintas who gave the EEOC the applications of those women in the first place. R.709 at 7. The magistrate judge ultimately held that because EEOC had used a winnowing process to eliminate women it determined had applied for a position other than the SSR position, Cintas was entitled to know how EEOC had narrowed the field of applicants. R.735.<11> Again, the magistrate judge did not indicate the EEOC was frivolous in its position. The district court stated that EEOC's conduct "prolong[ed]" this litigation. R.1079 at 7. It is unclear how EEOC prolonged the litigation. The court issued a scheduling order in August 2009, after it resolved issues relating to the private parties' attempt to certify a class. None of the deadlines listed in that order was extended, so the court's assertion is factually incorrect, and thus not a proper basis for a fee award. Finally, the district court seems to accord significance to the fact that some claimants initially identified by EEOC either did not believe they "had claims against Cintas" or ultimately were dropped from the list of claimants. R.1079 at 8. What the female claimants knew about Cintas' practices cannot support the fee award: the essence of EEOC's suit was that Cintas had a practice of rejecting female applicants for the SSR position. The fact that individual women may have been unaware why they were never called for an interview does not undermine the strength of the case. See Melendez-Arroyo v. Cutler-Hammer de P.R. Co., 273 F.3d 30, 33 (1st Cir. 2001) ("Quite commonly in discrimination cases - especially in hiring - the potential plaintiff knows only that he was not hired and has no specific evidence as to why this occurred."). Further, to the extent that women opted to drop out of the litigation after they learned about Cintas' probing discovery requests, their decision should not justify a fee award against EEOC. See, e.g., R.768-6 (Att. 5, Exh. B) at ¶14 (interrogatory asking alleged victim of Cintas' hiring discrimination to "identify and describe any and all medical doctors, healthcare providers, hospitals, clinics, treatment centers or other health care facilities where you have ever been treated and/or examined"). To reward a defendant for engaging in this sort of scorched- earth discovery tactic with a fee award is contrary to the concern the Supreme Court expressed "that employers might ... undertake extensive discovery into an employee's background ... to resist claims under the Act." McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 363 (1995). To the extent that EEOC omitted some claimants because of an assessment about the relative strength of the discrimination claim as to them, EEOC was acting in a manner that militates against a fee award. Cf. Christiansburg, 434 U.S. at 421-22 (prevailing defendant entitled to fees if "the plaintiff continued to litigate after it clearly became ... frivolous, unreasonable, or without foundation"). CONCLUSION EEOC urges this Court to reverse the judgment of the district court. Respectfully submitted, P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel s/ Jennifer S. Goldstein JENNIFER S. GOLDSTEIN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE Washington, DC 20507 (202) 663-4733 Jennifer.goldstein@eeoc.gov October 25, 2011 CERTIFICATE OF COMPLIANCE I hereby certify that the attached opening brief is proportionally spaced, has a typeface of 14 points, and contains 8,773 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). s/ Jennifer S. Goldstein CERTIFICATE OF SERVICE I hereby certify that on October 25, 2011, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Sixth Circuit by using the appellate CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by e-mail sent by the appellate CM/ECF system. s/ Jennifer S. Goldstein ADDENDUM Designation of Relevant District Court Documents Not Under Seal* ------+------------------------------------------------------------------------ Docket Description No. ------+------------------------------------------------------------------------ 81 Motion to Intervene by EEOC 83 Amended Motion to Intervene by EEOC 97 Order Granting Motion to Intervene [Doc. Nos. 81 & 83] 188 Motion by EEOC for Protective Order 208 Order Denying Motion for Protective Order [Doc. No. 188] 275 Order Overruling Objections to Magistrate's Orders [Doc. Nos. 193, 195, & 213] 661 Motion by EEOC to Interview Former Decision Makers Outside Presence of Defense Counsel 698 Order Granting in Part and Denying in Part Motion to Interview Former Decision Makers Outside Presence of Defense Counsel [Doc. No. 661] 702 Motion by Cintas Corporation to Compel Production 706 Motion by EEOC for Protective Order 709 Response by EEOC to Motion to Compel [Doc. No. 702] 715 Reply by Cintas Corporation to Response to Motion to Compel [Doc. No. 702] 724 Opinion & Order Denying Motion for Protective Order [Doc. No. 706] 748 Motion by EEOC for Protective Order 762 Motion by EEOC for Protective Order 768-6 Att. 5, Exh. B to Cintas Corporation's Motion to Compel, Cintas Corporation's First Set of Interrogatories to Jennifer Burgess 794 Order Denying Motion for Protective Order [Doc. No. 748] 808 Order Denying Motion for Protective Order [Doc. No. 762] 942 Bill of Costs Submitted by Cintas Corporation 1079 Opinion & Order on Costs [Doc. Nos. 960 & 961] and Granting in Part and Denying in Part Motion for Attorney Fees [Doc. No. 943] 1080 Judgment in Favor of Cintas Corporation Awarding $2,638,443.93 in Fees and Costs 1081 Notice of Appeal ------------------------------------------------------------------------------- * This Designation supplements EEOC's Designation of Relevant District Court Documents Not Under Seal from Appeal No. 10-2629 and the Supplemental Designation from Appeal No. 10-2629. ********************************************************************************** <> <1> "R.*" refers to the docket entry number in the district court docket sheet. The docket sheet is included in the Appendix in Appeal No. 10-2629 (adopted in this appeal), paginated as "D-*". "A-*" refers to the Appendix and contains sealed documents. <2> EEOC uses the word "class," not as a term of art, but rather for convenience to denote a systemic case in which EEOC seeks relief for multiple aggrieved individuals. EEOC is not required to follow the strictures of Rule 23 applied to private "class" actions. See Gen. Tel. Co. of Nw. v. EEOC, 446 U.S. 318 (1980). <3> In fact, Serrano applied at two facilities. R.48-2 at 2. <4> The district court ultimately agreed with Cintas and ordered that the private plaintiffs' case should precede EEOC's case. R.674, R.675. <5> Compare R.662 at 5-9 (Cintas motion) with CRST, 611 F.Supp.2d at 929-33. The CRST court did not actually rule on the relative meanings of §§706 and 707. The court assumed either that EEOC could pursue its claim under the pattern-or- practice framework in a §706 case or that EEOC constructively amended its complaint to add reference to §707; the court instead ruled on evidentiary grounds. 611 F.Supp.2d at 934. <6> The total fee award consists of $1,905,387.19 in attorneys' fees and $687,878.26 in expenses, plus $45,178.48 in taxed costs. <7> The costs taxed depend on Cintas' prevailing party status; if the case is remanded, Cintas would cease to be the prevailing party. <8> Balmer listed factors for a court to consider before awarding fees. See Balmer, 423 F.3d at 615-16 (courts should consider whether plaintiff established prima facie case, whether defendant offered to settle, and whether court dismissed case before trial). Those factors seem more applicable to a case where the critical question is whether facts existed that would support the substance of the discrimination claim. To the extent those factors are relevant here, however, they support the conclusion that EEOC's action was not frivolous. For example, the district court itself acknowledged that EEOC established a prima facie case, at least with respect to five individuals, see, e.g., A-883, and Cintas never made an offer to settle the case at the administrative stage or in the district court. R.876-11 at 4-5; R.943-6 ¶7. <9> Even after Cintas filed its motion, but before the district court ruled, Cintas apparently recognized the authority for EEOC to proceed under the pattern-or- practice framework, for in January 2010 Cintas stated that "EEOC is proceeding on its Michigan-only pattern or practice claim," and argued EEOC should produce certain information before "Cintas will face a trial in the pattern or practice claim." R.702 at 4, 17; see also R.715 at 1 (arguing for production of information "relevant to the pattern or practice question"). <10> As discussed infra at 30-31, the district court's repeated reference to "named Plaintiffs" or "individual Plaintiffs" in its opinion is confusing, and likely reflects the court's misunderstanding of EEOC's role when it brings suit on behalf of individuals. The only plaintiffs in this case were EEOC and three individual plaintiffs (Mirna Serrano, Stephanie McVay, and Linda Allen) who settled their claims with Cintas and voluntarily dismissed their actions. R.712, R.722, R.905. Whether EEOC conciliated on the three plaintiffs' behalf does not implicate their right to bring a civil action, see 42 U.S.C. §2000e-5(f)(1), nor does it implicate EEOC's ability to seek relief for 13 other individuals. The district court presumably is referring to the 13 claimants when it references "named Plaintiffs." <11> The court mistakenly referred to the order as docket number 583.