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 ____________________________________________ REPLY 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1. If this Court reverses the judgment of the district court and remands the case for trial, the fee judgment likewise must be reversed . . . . . . . . 3 2. The district court's §706 ruling departed from settled precedent and cannot support the fee award . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 3. The district court's mistaken view of EEOC's authority to seek relief for individual victims of discrimination cannot support the fee award . . . . . . 12 4. Balmer does not support the fee award . . . . . . . . . . . . . . . . . . . 16 5. EEOC's lack of success on some motions cannot support the fee award . . . . 19 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Certificate of Compliance Certificate of Service APPENDIX TABLE OF AUTHORITIES CASES Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565 (6th Cir. 2004) . . . . . . . . 10 Balmer v. HCA, Inc., 423 F.3d 606 (6th Cir. 2005) . . . . . . . . . . . . 16, 17 Barnes v. GenCorp Inc., 896 F.2d 1457 (6th Cir. 1990) . . . . . . . . . . . . 14 Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978) . . . . . . 4, 18, 19, 20 Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867 (1984) . . . . . . . . . 10 EEOC v. CRST Van Expedited, Inc., 611 F.Supp.2d 918 (N.D. Iowa 2009) . . . . . . 9 EEOC v. Frank's Nursery & Crafts, Inc., 177 F.3d 448 (6th Cir. 1999) . . . . . .15 EEOC v. Keco Indus., 748 F.2d 1097 (6th Cir. 1984). . . . . . . . . . . . 2, 13 EEOC v. Monarch Mach. Tool Co., 737 F.2d 1444 (6th Cir. 1980). . . . . . . . .2, 7 EEOC v. Waffle House, Inc., 534 U.S. 279 (2002). . . . . . . . . . . . . . . 15 Farrar v. Hobby, 506 U.S. 103 (1992) . . . . . . . . . . . . . . . . . . . . . 5 Gen. Tel. Co. of Nw. v. EEOC, 446 U.S. 318 (1980) . . . . . . . . . . . . 1, 15 Hensley v. Eckerhart, 461 U.S. 424 (1983) . . . . . . . . . . . . . . . . . . 5 Int'l Bhd. of Teamsters v. U.S., 431 U.S. 324 (1977). . . . . . . . . . . . 14, 18 McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352 (1995) . . . . . . . . . 18 Roane v. City of Mansfield, 2000 WL 1276745 (6th Cir. Aug. 28, 2000) . . . . . . 5 Walker v. United Parcel Serv., 240 F.3d 1268 (10th Cir. 2001). . . . . . . . . 4 W omen's Med. Prof'l Corp. v. Baird, 438 F.3d 595 (6th Cir. 2006) . . . . . . 5 STATUTES Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. 42 U.S.C. §2000e-5 (section 706) . . . . . . . . . . . . . . . . . . . . . .passim 42 U.S.C. §2000e-5(f)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 8 42 U.S.C. §2000e-5(k) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5 42 U.S.C. §2000e-6 (section 707) . . . . . . . . . . . . . . . . . . . . . .passim Introduction The critical question in this case is the breadth of EEOC's authority when it brings suit under §706(f)(1), 42 U.S.C. 2000e-5(f)(1), seeking to remedy discrimination against a class of individuals. The breadth of that §706 authority is precisely the question the Supreme Court addressed in the seminal General Telephone decision. See Gen. Tel. Co. of Nw. v. EEOC, 446 U.S. 318 (1980). EEOC highlighted General Telephone in each of the three prior briefs EEOC filed with this Court (in the merits appeal, No. 10-2629, and the fee appeal, No. 11- 2057), and discussed how the key issue in the present case parallels that in General Telephone: in General Telephone, the defendant challenged EEOC's ability to use the Teamsters bifurcated-trial method of proving its claim, arguing that EEOC lacked such ability to proceed under that framework because it had brought suit under §706, and in this case, defendant Cintas challenges EEOC's ability to use the Teamsters bifurcated-trial method of proving its claim, arguing that EEOC lacks such ability to proceed under that framework because it had brought suit under §706. Despite the parallels between this case and the Supreme Court case, Cintas makes no effort to distinguish General Telephone in its response brief to this Court. Indeed, Cintas never even mentions that critical decision anywhere in its brief. Whether Cintas is inviting this Court to ignore Supreme Court precedent or whether Cintas simply has no response to the force of General Telephone is unclear, but General Telephone cannot be so easily dismissed. The General Telephone Court held §706 provides ample authority for EEOC to proceed, which is precisely the argument EEOC has made here. EEOC argued in its previous briefs that two other decisions - both from this Court - should have guided the district court as binding Sixth Circuit precedent. EEOC explained at some length that the Monarch Machine Court, in language contained primarily within the text of the decision and unaffected by the 1991 amendments to Title VII, explicitly held that EEOC may use the Teamsters proof framework in a §706 action. EEOC v. Monarch Mach. Tool Co., 737 F.2d 1444, 1449-50, 1453 (6th Cir. 1980). Cintas' brief to this Court does not respond to EEOC's arguments, but instead dismissively (and incorrectly) refers to important language in this Court's decision as no more than dicta contained within a footnote. Def. Br. at 39. Cintas is equally unresponsive to EEOC's lengthy discussion of Keco, a §706 case where, as here, EEOC identified the outline of the class of women for whom it was seeking relief at the administrative stage and in the complaint, but not the identities of each individual woman. EEOC v. Keco Indus., 748 F.2d 1097 (6th Cir. 1984). In both of these §706 cases, EEOC referred to a "class" of women. Yet Cintas dismisses Keco as "entirely irrelevant," based on its inaccurate observation that Keco somehow featured a "'class' claim" while this case did not. Def. Br. at 33. These three cases - General Telephone, Monarch Machine, and Keco - are not simply authority EEOC finds useful in making its argument to this Court. These three cases have guided EEOC's administrative and litigation practice for the past thirty years. By virtually ignoring these three important cases, Cintas has failed to address head-on the correctness of EEOC's approach to systemic discrimination cases or, as is the relevant question in an attorneys' fees case, the reasonableness of that approach. This Court should reject Cintas' suggestion that this Court ignore controlling precedent, and should reverse the district court's fee award, because these three cases demonstrate that EEOC's approach was both correct and reasonable. Instead of responding to the argument that Supreme Court and Sixth Circuit precedent confirms EEOC's authority to obtain relief for multiple aggrieved individuals under §706, Cintas advances several arguments in support of fees, which EEOC addresses below. 1. If this Court reverses the judgment of the district court and remands the case for trial, the fee judgment likewise must be reversed. Title VII allows a court to award attorney's fees only to a "prevailing party." 42 U.S.C. § 2000e-5(k); see also Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 415-16 (1978) (noting that Title VII fee provision authorizing fees to a prevailing party is an exception to the general rule that litigants must pay their own attorney's fees). Cintas acknowledges this legal standard, Def. Br. at 27, but suggests that it nonetheless would be entitled to fees even if this Court were to reverse the §§706/707 rulings and remand the case for trial under the pattern-or- practice framework. See Def. Br. at 3 (arguing reversal of dismissal on pattern-or- practice issue does not render fee award "moot"). Cintas appears to be arguing that the district court's subsequent ruling restricting EEOC's ability to pursue relief for individuals would provide an independent basis for a fee award, even if this Court were to reverse and remand. Def. Br. at 3-4; 29-30. In effect, Cintas is arguing that even if this Court holds EEOC is entitled to prove its discrimination claim at trial - a trial at which EEOC could prevail - Cintas is still a prevailing party entitled to over two-and-a-half million dollars in fees. Cintas cites no case that supports this proposition, and EEOC is aware of none. Cf. Walker v. United Parcel Serv., 240 F.3d 1268, 1279 (10th Cir. 2001) ("Because we are reversing the district court's grant of summary judgment on Walker's other Title VII claims and remanding for further proceedings, ... UPS no longer qualifies for prevailing party status, a determination that must await further proceedings."). To the contrary, if the case is remanded and EEOC prevails on any significant issue, even if it loses on other issues, EEOC would be considered the prevailing party, not Cintas. See Farrar v. Hobby, 506 U.S. 103, 111 (1992) (civil rights plaintiff is prevailing party if he "obtain[s] at least some relief on the merits of his claim"); id. at 109 (plaintiffs considered prevailing parties "if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit") (internal quotations omitted); Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (same); cf. Women's Med. Prof'l Corp. v. Baird, 438 F.3d 595, 615 (6th Cir. 2006) ("A plaintiff does not need to prevail on all claims asserted in the complaint to be awarded attorneys' fees.").<1> The only case Cintas cites, Roane v. City of Mansfield, 2000 WL 1276745 (6th Cir. Aug. 28, 2000) (unpublished), does not support its contention that it would remain the prevailing party, even if this Court reverses the district court judgment. To the contrary, Roane held that the district court abused its discretion by awarding fees against a plaintiff who voluntarily dismissed his claim with prejudice; this Court held the dismissal did not make the defendant a "prevailing party" entitled to fees under §1988. Id. at *2. Since Roane did not hold that the defendant was a prevailing party at all, it certainly does not hold that a defendant remains a prevailing party even after a court of appeals reverses a judgment for that defendant. In its opening brief, EEOC pointed out that if this Court reverses on the basis of either the §§706/707 ruling or the complaint-amendment ruling, the case would be remanded for trial under the pattern-or-practice framework, and Cintas would necessarily cease to be the prevailing party. EEOC Br. at 16-17, 23-25. Cintas contends that EEOC's argument with respect to the complaint amendment is "convoluted." Def. Br. at 48-49. The point, however, is straightforward and unassailable: if this Court reverses and remands for trial, whether on the basis of the §§706/707 ruling or the complaint-amendment ruling (or, as discussed infra, the conditions-precedent ruling), Cintas ceases to be the prevailing party.<2> 2. The district court's §706 ruling departed from settled precedent and cannot support the fee award. EEOC argued in its opening brief that 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 Title VII, and to prove its case using whatever framework is most appropriate, including the Teamsters framework. EEOC Br. at 19-23. EEOC also argued that even if it were somehow incorrect about the scope of its authority under §706, EEOC was reasonable to rely on Supreme Court and Sixth Circuit precedent holding that EEOC may proceed under the Teamsters, bifurcated-trial approach when it brings suit under §706. EEOC Br. at 20-21 (citing General Telephone and Monarch Machine). As noted above, Cintas responds by ignoring General Telephone and dismissing Monarch Machine as an old decision containing only dicta. Def. Br. at 39. EEOC has discussed Monarch Machine, 737 F.2d 1444, at length in its three prior briefs, explaining that the critical language of this Court's opinion was in the text of its opinion, that it was essential to the Court's ruling and hence not dicta, and that the passage of time does not undermine the precedential weight of this Court's decisions. See EEOC Br. (No. 10-2629) at 40-43; EEOC Reply Br. (No. 10-2629) at 3-10; EEOC Br. (No. 11-2057) at 21-22. EEOC also explained that the 1991 Civil Rights Act did not alter §706(f) (or §707), and thus provides no support for the contention that Congress thereby intended to overrule General Telephone and Monarch Machine sub silentio. EEOC Reply Br. (No. 10-2629) at 9-11. Cintas also reiterates its argument that precedent notwithstanding, the district court was justified in awarding fees because it based its §706 ruling on the "plain language" of the statute. Def. Br. at 40. Cintas repeats a discussion of §706's language that EEOC pointed out is inaccurate. EEOC Reply Br. (No. 10- 2629) at 5-6. Cintas' brief claims that that §706 "authorizes the EEOC to bring a claim against an employer on behalf of a 'person or persons aggrieved' by the employer's unlawful conduct." Def. Br. at 30 (quoting §706(f)(1), 42 U.S.C. §2000e-5(f)(1)). Section 706(f)(1) contains no language stating that an EEOC suit is on behalf of individuals, and the provision's "person or persons aggrieved" language refers to an individual's right to intervene in an EEOC suit, suggesting that EEOC's suit is not simply on behalf of individuals. Cintas' "plain language" argument fails because it is not based upon an accurate rendition of the statute's plain language.<3> Cintas argues that it never "'acquiesced' to the EEOC's assertion of a pattern or practice claim." Def. Br. at 15; see also Def. Br. at 42 (decrying evidence of "Cintas' acquiescence'"). Cintas further argues that it was only in the summer of 2009 that "Cintas first began to realize that the EEOC intended to pursue a pattern or practice claim" using the Teamsters framework. There are several problems with Cintas' argument. First, despite the quotations Cintas' brief placed around the word "acquiesced," EEOC never used that word or any variant of it in its opening brief. Moreover, Cintas misunderstands why EEOC referred to Cintas' knowledge that EEOC intended to use the Teamsters framework. EEOC's point was a relatively minor one - namely, that prior to the district court decision in EEOC v. CRST Van Expedited, Inc., 611 F.Supp.2d 918 (N.D. Iowa 2009), it was so widely accepted that EEOC could use the Teamsters framework when it brought suit under §706 that even Cintas and the district court never questioned it. EEOC Br. at 21-22. The larger, more critical point, though, is that EEOC plainly can use the Teamsters framework when it brings suit under §706, or at least that EEOC reasonably believed so. Second, Cintas' professed ignorance that EEOC intended to challenge an alleged pattern or practice of sex discrimination strains credulity. In December 2005, EEOC filed a complaint-in-intervention alleging that Cintas "refused to recruit and hire women as [SSRs] throughout the state of Michigan ... because of their sex." R.98 at 1. The complaint further alleged that Cintas denied employment to "a class of women as alleged in [private] Plaintiffs' Second Amended Complaint by refusing to recruit and hire them as [SSRs] because of their sex." R.98 at 2-3 ¶8. The identified "Second Amended Complaint" alleged Cintas engaged in a "policy, pattern, or practice" of denying SSR positions to women. R.70 ¶1; see also R.70 ¶36 ("Plaintiffs complain of a policy, pattern, or practice that has adversely affected female applicants..."). EEOC's complaint-in- intervention sought relief that would "make whole" the "class of women" and that would "eradicate the effects of [Cintas'] unlawful practices." R.98 at 4-5 ¶G. Both the would-be class of private plaintiffs and EEOC, in its role as intervenor, intended to prove Cintas was engaged in a pattern or practice of sex discrimination, and it is hard to understand how Cintas could have been unaware of EEOC's intentions until the summer of 2009. EEOC was, after all, intervening in a putative class action lawsuit. Had the district court certified the class, that private class would have proceeded under the Teamsters framework. See, e.g., Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 876 n.9 (1984) (Teamsters applies in private class actions); Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565, 575 (6th Cir. 2004) (Teamsters "pattern-or-practice method of proof" applies to class actions). EEOC, in its complaint alleging hiring discrimination "throughout the state of Michigan," invoked the allegations of the private putative class as EEOC's own ten times in EEOC's complaint. R.98 at 2 ¶2; R.98 at 2 ¶3; R.98 at 3 ¶8; R.98 at 3 ¶9; R.98 at 3 ¶11; R.98 at 4 ¶C; R.98 at 4 ¶D; R.98 at 4 ¶E; R.98 at 4 ¶F; R.98 at 4 ¶G. This explicit linkage, in addition to the allegations of the complaint, notified Cintas that EEOC was challenging systemic discrimination. Additional evidence suggests Cintas was not unaware: for example, during the February 2009 class certification oral argument, with Cintas' attorneys present, an EEOC attorney 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). It is not entirely clear what Cintas' point is regarding its purported ignorance of EEOC's intention to use the Teamsters framework. Even if it was not until August 10, 2009, that Cintas became aware of EEOC's intention to challenge a pattern or practice of discrimination, Cintas does not explain why its belated awareness matters to analysis of the §706 issue. In August 2009, the district court set a 10-month discovery period and a motions deadline. Cintas does not argue that it was prejudiced in any way and, of course, Cintas plainly was able to challenge EEOC's ability to use the Teamsters framework, as it did so in its October 2009 motion. R.662.<4> In sum, EEOC's complaint-in-intervention did highlight that, like the private plaintiffs, it intended to prove Cintas was engaging in systemic gender discrimination by failing to hire, and in many/most cases failing even to consider hiring, female applicants for the SSR position in the State of Michigan. EEOC reasonably believed it could invoke the Teamsters framework to prove that claim. 3. The district court's mistaken view of EEOC's authority to seek relief for individual victims of discrimination cannot support the fee award. EEOC argued in its opening brief that the district court erred in stating that EEOC had not investigated, found cause, or conciliated with regard to the 13 claimants. EEOC Br. at 25-27. As detailed in the opening brief, once EEOC acquired evidence that Cintas hired virtually no women at some Michigan facilities, the investigator opted to focus the investigation on ascertaining whether Cintas was engaging in a widespread pattern or practice of discrimination against female applicants to the SSR position in Michigan.<5> EEOC's investigation, as well as the subsequent cause determination and conciliation efforts, explicitly encompassed the class of unsuccessful female SSR applicants in Michigan. EEOC argued that under this Court's ruling in Keco, 748 F.2d 1097, and under the myriad of subsequent cases relying on Keco, EEOC fulfilled its obligations at the administrative stage by outlining the class of individuals for whom it later sought relief. EEOC Br. at 27-28. Cintas' brief in response repeats its assertion that EEOC "did no investigation into the 13 individual claims that it ultimately pursued." Def. Br. at 22 (emphasis omitted); see also Def. Br. at 4, 8, 10, 19, 21, 32 (same). Cintas tries to dramatize the story of the investigation by implying that EEOC kept it a dark "secret[]" that it did not delve into the particular circumstances of each applicant during the administrative phase. See, e.g., Def. Br. at 19-21 (Cintas noticed "hints" about EEOC's investigation); id. ("Cintas' suspicions were confirmed ... the EEOC did no investigation into the claims of any individual other than Serrano."). Cintas' argument is incorrect factually and as a matter of law. As a factual matter, EEOC consistently made plain that it was focusing its investigation on the evidence of systemic discrimination against a class of female applicants, and seeking evidence about a pattern or practice of discrimination against that class. See, e.g., R.48-8 at 3; R.48-7 at 3; R.48-9 at 4. Evidence that Cintas discriminated against female applicants as a class is evidence that Cintas more likely than not discriminated against individual applicants within that class. See, e.g., Int'l Bhd. of Teamsters v. U.S., 431 U.S. 324, 359 (1977) (once a policy of employment discrimination is established, there are "reasonable grounds to infer that individual hiring decisions were made in pursuit of the discriminatory policy"); Barnes v. GenCorp Inc., 896 F.2d 1457, 1466 (6th Cir. 1990) (statistical evidence can create inference employer discriminated against individual members of same class). To say EEOC did no investigation or conciliation is flatly incorrect. As a matter of law, Cintas misunderstands the nature of an EEOC claim. EEOC did not bring "13 individual claims," as Cintas repeatedly puts it. When EEOC filed suit, it brought a single claim that Cintas engaged in sex discrimination against a class of women, and EEOC ultimately sought relief for 13 individuals. See, e.g., EEOC v. Waffle House, Inc., 534 U.S. 279, 297 (2002) (EEOC sues "to vindicate the public interest" and is not "a proxy for the employee"); Gen. Tel., 446 U.S. at 326 & n.8 (same); see also EEOC v. Frank's Nursery & Crafts, Inc., 177 F.3d 448, 463 (6th Cir. 1999) ("EEOC and [the charging party] are not in privity, and ... they do not possess identical causes of action or interests."). Because those 13 individuals fell within the parameters of the class clearly defined during the administrative phase, Keco and its progeny hold that EEOC satisfied the administrative prerequisites to suit. Cintas states that Keco and its progeny are inapplicable because they "involved the question of whether a 'class' investigation was sufficient when a 'class' claim was asserted in litigation." Def. Br. at 33. EEOC repeatedly has argued that this attempt to distinguish Keco and its progeny makes no sense, 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. Moreover, just as was true in Keco and the other cases cited in EEOC's opening merits brief at 61-63, EEOC brought its "class" claim under §706. Thus EEOC's invocation of §706 here does not negate the "class" aspect of this case. Keco accordingly is not distinguishable from this case. Cintas contends that it is permissible for a court to inquire whether an investigation occurred at all, even if it cannot question the adequacy of that investigation. Def. Br. at 45. As a general matter, Cintas' assertion is true, but that general principle does not aid Cintas, for Keco and its progeny held that a class- based investigation is an investigation. This is not a case where EEOC only investigated hiring practices in some state other than Michigan; or only investigated hiring as to some position other than the SSR position; or only investigated race discrimination. This is a case in which EEOC investigated sex discrimination against SSR applicants in Michigan, a group into which all 13 individuals plainly fall. Under Keco and its progeny, an employer cannot dictate that the EEOC investigation take a different form, that it be individual-focused rather than class-focused. The district court therefore erred in holding that EEOC failed to satisfy the conditions precedent to suit, and the court abused its discretion in awarding fees on this basis. 4. Balmer does not support the fee award. Cintas argues that this Court's decision in Balmer v. HCA, Inc., 423 F.3d 606 (6th Cir. 2005), supports the fee award. Def. Br. at 47. In Balmer, of course, this Court stressed that "[a]ttorneys' fees should be awarded only in the most egregious of circumstances." Id. at 616. EEOC questioned whether the three factors Balmer identified are the most useful in a case such as this one, which turns largely on legal issues, rather than fact-intensive ones. EEOC Br. at 19 n.8. In any event, Balmer's identified factors support the conclusion that EEOC's action is not frivolous. Balmer states that a court should consider whether the defendant offered to settle the case. 423 F.3d at 615-16. Cintas admittedly never made any offer to settle the case either at the administrative stage or in the district court. R.876-11 at 4-5; R.943-6 ¶7. Cintas argues that its refusal to make a settlement offer was justifiable, Def. Br. at 47, but Balmer asks simply whether the plaintiff pursued its case after the defendant offered to settle. 423 F.3d at 615-16. Regardless, Cintas' justification, that there was not "a shred of evidence" of discrimination, Def. Br. at 47, is hard to comprehend given the evidence that Cintas hired virtually no women for the SSR position and that even Cintas' President and CEO recognized that, among Cintas managers, there was a widespread "myth that females cannot be SSRs." A-843. Moreover, as detailed in EEOC's merits brief (No. 10-2629) at 10- 14, 20-31, there was considerably more than a "shred" of anecdotal and comparative evidence that the 13 individuals identified during litigation had been subjected to discrimination. Balmer also states that a court should consider whether the plaintiff established a prima facie case of discrimination. 423 F.3d at 615-16. Because of the district court's §§706/707 rulings, EEOC never had an opportunity to prove that "discrimination was the company's standard operating procedure [-] the regular rather than the unusual practice." Teamsters, 431 U.S. at 336. Had EEOC been allowed to proceed under Teamsters, it would have been able to make the requisite showing under Teamsters. As to the 13 individuals for whom EEOC subsequently sought relief, the district court acknowledged EEOC had established a prima facie case as to five, and only rejected EEOC's prima facie showing as to the remaining eight because it erroneously disregarded Supreme Court precedent holding that an employer's motives at the time it made the decision are what is critical to a discrimination claim, not evidence the employer acquires after it made the challenged decision. See McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 363 (1995). Finally, Cintas critiques EEOC for pursuing relief on behalf of only 13 individuals, when it sent questionnaires to 1100 individuals. Def. Br. at 48. It is hard to understand how EEOC's screening questionnaire is relevant under Balmer. EEOC pursued relief for 13 individuals, and EEOC has put forward evidence that it can make a prima facie case as to all 13. EEOC Br. (No. 10-2629) at 67-71. EEOC is unaware of any case holding that fees should be awarded because a plaintiff elected not to pursue relief for some individuals.<7> Cf. Christiansburg, 434 U.S. at 421-22 (continuing to litigate a frivolous claim might justify a fee award). 5. EEOC's lack of success on some motions cannot support the fee award. EEOC argued in its opening brief that, as a matter of law, a court may only award attorney's fees under Title VII if it finds the plaintiff's claim to be "frivolous, unreasonable, or groundless." Christiansburg, 434 U.S. at 422; EEOC Br. at 32-33. EEOC's conduct in filing or opposing motions thus is not properly a subject of a Title VII fee award. EEOC argued further that its conduct with regard to the motions it filed and opposed was wholly reasonable and so did not independently justify the fee award. EEOC Br. at 33-36. In response, Cintas seems to back away somewhat from the argument that filing and opposing motions can justify the fee award. Def. Br. at 52 ("Cintas did not argue, and the district court did not hold, that Cintas was entitled to ... fees ... because EEOC was unsuccessful on a certain number of motions.... Rather ... the underlying problem [was] that the EEOC intervened ... without having done any investigation...") (emphasis omitted). Cintas does make two arguments in response to EEOC's point that conduct in motions practice and discovery is not a proper basis for a Title VII fee award. First, Cintas argues EEOC waived any argument about the propriety of the fee award based on the motions it filed and opposed. Def. Br. at 50. Cintas is incorrect; EEOC argued to the district court exactly what it argues to this Court: that "[d]efendants may recover fees for frivolous claims only." R.964 at 8 (Mem. at 2) (internal quotations omitted); see also id. (court must find that "the plaintiff's case was frivolous or unreasonable"); R.964 at 13 (Mem. at 7) ("the ultimate inquiry is whether the plaintiff's claim was frivolous"). Second, Cintas questions the cases EEOC cited, and claims that EEOC "distorts" the meaning of those cases by adding emphasis to the word "claim" or "claims." Def. Br. at 51-52 & n.116. EEOC believes that italicizing those words in no way distorts the cases' meanings. Christiansburg held that a Title VII fee award against a plaintiff is permissible only upon a finding that the plaintiff's claim was frivolous, unreasonable, or without foundation. 434 U.S. at 422. Italicizing the word "claim" simply reinforces Christiansburg's basic point. Tellingly, Cintas cites no case holding that conduct in motions practice and discovery is a permissible basis for a Title VII fee award. 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 January 12, 2012 CERTIFICATE OF COMPLIANCE I hereby certify that the attached reply brief is proportionally spaced, has a typeface of 14 points, and contains 4,999 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 January 12, 2012, 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 APPENDIX Enforcement Provisions 42 U.S.C. Sec. 2000e-5 [Section 706] (a) The Commission is empowered, as hereinafter provided, to prevent any person from engaging in any unlawful employment practice as set forth in section 2000e-2 or 2000e-3 of this title [section 703 or 704]. ... (f)(1) If within thirty days after a charge is filed with the Commission or within thirty days after expiration of any period of reference under subsection (c) or (d), the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action against any respondent not a government, governmental agency, or political subdivision named in the charge. In the case of a respondent which is a government, governmental agency, or political subdivision, if the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission shall take no further action and shall refer the case to the Attorney General who may bring a civil action against such respondent in the appropriate United States district court. The person or persons aggrieved shall have the right to intervene in a civil action brought by the Commission or the Attorney General in a case involving a government, governmental agency, or political subdivision. If a charge filed with the Commission pursuant to subsection (b) of this section is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge or the expiration of any period of reference under subsection (c) or (d) of this section, whichever is later, the Commission has not filed a civil action under this section or the Attorney General has not filed a civil action in a case involving a government, governmental agency, or political subdivision, or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission, or the Attorney General in a case involving a government, governmental agency, or political subdivision, shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge (A) by the person claiming to be aggrieved or (B) if such charge was filed by a member of the Commission, by any person whom the charge alleges was aggrieved by the alleged unlawful employment practice. Upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the action without the payment of fees, costs, or security. Upon timely application, the court may, in its discretion, permit the Commission, or the Attorney General in a case involving a government, governmental agency, or political subdivision, to intervene in such civil action upon certification that the case is of general public importance. Upon request, the court may, in its discretion, stay further proceedings for not more than sixty days pending the termination of State or local proceedings described in subsections (c) or (d) of this section or further efforts of the Commission to obtain voluntary compliance. ********************************************************************************** <> <1> EEOC would not seek a fee award because Title VII does not authorize fee awards to the EEOC. 42 U.S.C. § 2000e-5(k). <2> Cintas also asserts EEOC's argument with respect to the complaint amendment was waived. Def. Br. at 48-49. It is true that EEOC did not argue to the district court that the fee award could not be predicated on the denial of its motion to amend. EEOC's point on appeal is something different, however. EEOC's point is that reversal of the complaint-amendment ruling on the merits would necessarily mean that Cintas no longer is the prevailing party. That argument plainly has not been waived. See, e.g., R.964 at 7 (Mem. at 1) (only a "prevailing party" is entitled to a Title VII fee award). <3> Although EEOC quoted the relevant portion of §706(f)(1) in the opening brief of the merits appeal, we now attach the entire subsection as an appendix in order to assist the Court. <4> It appears that Cintas takes great issue with EEOC's suggestion (in EEOC Br. at 21-22) that Cintas was spurred to challenge EEOC's §706 authority only after an Iowa district court issued a decision with dicta on §706. Def. Br. at 41 (castigating EEOC for its "inventive tale"). Of course, EEOC does not know what prompted Cintas to file its motion; EEOC assumed the motion was prompted by CRST only because the language of the motion tracked the language of the opinion so closely, and because the CRST opinion had issued earlier that year. Again, EEOC's point is not that Cintas acquiesced or that it only challenged the pattern-or-practice proof framework because of CRST; EEOC's point is that it was well-settled within the Sixth Circuit that EEOC could use that framework when it brought suit under §706. <5> Cintas asserts that it "cooperated fully" with EEOC's investigation. Def. Br. at 8. In fact, Cintas initially refused to supply data for more than one Michigan location, R.48-6, and only began turning over the more comprehensive data EEOC sought after EEOC issued a subpoena. R.48-7. <6> Cintas repeats an assertion first made in the merits appeal brief that "EEOC has admitted that 'it is the EEOC's obligation ... to specifically identify the people who the employer has discriminated against.'" Def. Br. at 9 (quoting R.836-5 at 56). EEOC pointed out in its merits reply brief that Cintas' assertion is misleading, EEOC Reply Br. (No. 10-2629) at 23 n.4; its repetition in this fee appeal is thus a knowing and calculated effort to distort EEOC's position. EEOC's position has never been that Title VII requires it to identify each member of a class affected by discrimination in its Determination. Cintas is quoting from the deposition of an EEOC investigator, who was attempting to explain how EEOC handles investigations that are initiated by an individual's charge, but then grow to encompass alleged class discrimination. R.836-5 at 9-12 (Dep. at 50-61). The investigator explained that EEOC's Determination would identify only the individuals named in the underlying charge, "and then we would identify other harmed parties or class members in our conciliation agreement." R.836-5 at 11 (Dep. at 57-58). When no agreement is reached, the identification of individuals does not occur. <7> Even if EEOC had proceeded under the pattern or practice framework, EEOC would not have alleged 1100 women would have been hired absent discrimination. But in order to ensure it identifies every potential victim of discrimination, EEOC as a matter of course sends screening questionnaires to a broad pool of individuals, frequently far larger than the number of individuals for whom EEOC ultimately seeks relief. The purpose of the screening questionnaire is to eliminate individuals who are not potential victims (e.g., because they did not apply to the SSR position) or who are not interested in participating in litigation.