Nos. 10-1476 & 10-1552 _________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT _________________________________________________________ U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant and Plaintiff-Appellee, v. CROMER FOOD SERVICES, INC., Defendant-Appellee and Defendant-Appellant. _________________________________________________________ On Appeal from the United States District Court for the District of South Carolina The Honorable Henry M. Herlong, Presiding _________________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION'S REPLY BRIEF AS APPELLANT AND BRIEF AS CROSS APPELLEE _________________________________________________________ P. DAVID LOPEZ General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel CORBETT L. ANDERSON Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, D.C. 20507 (202) 663-4579 (phone) (202) 663-7090 (fax) corbett.anderson@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv REPLY BRIEF AS APPELLANT (NO. 10-1476). . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. A reasonable jury could find Cromer Food liable for the sex harassment Homer Howard experienced because there is evidence Howard repeatedly complained that he was being sexually harassed and Cromer Food failed to take prompt, effective action to stop the harassment. . . . . . . . . . . . . . . . . . . . . 2 B. A reasonable jury could find that Cromer Food's response to Howard's complaints of sex harassment was ineffective because it was belated and made him worse off. . . . . . . . . . . . . . . . . . . . . 9 C. A reasonable jury could find that Cromer Food's belated response to Howard's complaints of sex harassment was retaliatory and materially adverse. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 BRIEF AS CROSS APPELLEE (NO. 10-1552). . . . . . . . . . . . . . . . . . . . . 14 STATEMENT OF THE ISSUE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 A. The district court's attorney's fees ruling should be affirmed because Cromer Food does not challenge the district court's application of the governing Christiansburg standard and there is no basis for such challenge. . . . . . . . . . . . . . . . . . . . . . . . 15 B. The district court did not abuse its discretion in holding the EEOC's case was not frivolous, unreasonable, or without foundation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 TABLE OF CONTENTS (Cont'd) CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18 REQUEST FOR ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . 19 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Cases Barber v. Kimbrell's Inc., 577 F.2d 216 (4th Cir. 1978). . . . . . . . . 15, 18 Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). . . 13 Celotex v. Catrett, 477 U.S. 317 (1986). . . . . . . . . . . . . . . . . . 13-14 Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978). . . . . . . . .14, 15, 16 Coates v. Sundor Brands, Inc., 164 F.3d 1361 (11th Cir. 1999). . . . . . . . .7, 8 Distasio v. Perkin Elmer Corp., 157 F.3d 55 (2d Cir. 1998). . . . . . . . . . . .5 EEOC v. Central Wholesalers, Inc., 573 F.3d 167 (4th Cir. 2009). . . . . . 7, 14 EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306 (4th Cir. 2008). . . . . . 4, 7, 8 Guess v. Bethlehem Steel Corp., 913 F.2d 463 (7th Cir. 1990). . . . . . . . . . .9 Howard v. Winter, 446 F.3d 559 (4th Cir. 2006). . . . . . . . . . . . . . . 4, 5 6 Isaacs v. Hill's Pet Nutrition, Inc., 485 F.3d 383 (7th Cir. 2007). . . . . . 8 Jones v. Continental Corp., 789 F.2d 1225 (6th Cir. 1986). . . . . . . . . . . .17 Madray v. Publix Supermarkets, Inc., 208 F.3d 1290 (11th Cir. 2000). . . . . 7, 8 Nurse "BE" v. Palms West Hospital Ltd. P'ship, 490 F.3d 1302 (11th Cir. 2007). . . . . . . . . . . . . . . . . . 7, 8 Ocheltree v. Scollon Prods., Inc., 335 F.3d 325 (4th Cir. 2003). . . . . . 4, 5 Rhoads v. FDIC, 257 F.3d 373 (4th Cir. 2001). . . . . . . . . . . . . . . . . . 12 Steiner v. Showboat Operating Co., 25 F.3d 1459 (9th Cir. 1994). . . . . . . . . 9 Unus v. Kane, 565 F.3d 103 (4th Cir. 2009). . . . . . . . . . . . . . . . . . . .17 Williamson v. City of Houston, 148 F.3d 462 (5th Cir. 1998). . . . . . . . . 5 Statutes 42 U.S.C. § 2000e-8(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17 REPLY BRIEF AS APPELLANT (No. 10-1476) ARGUMENT The Commission argued in its opening brief that a reasonable jury could find Cromer Food liable for sex harassment based on evidence that Homer Howard was barraged by sexual advances and vulgar sexual statements by employees of its client, Greenville Hospital; that Howard repeatedly complained for months to several managers, up to and including company president C.T. Cromer; that Cromer Food officials laughed at, ignored, and disclaimed responsibility for the sex harassment Howard complained about; and that Cromer Food's belated response - an ultimatum either to accept an undesirable transfer to the first shift or be fired - was unreasonable and ineffective because the pay and hours associated with the first shift position would have made Howard worse off. Moreover, the Commission argued that a jury could find Cromer Food's first-shift transfer was a materially adverse retaliatory action because it came soon after Howard's EEOC charge and C.T. Cromer's animus toward the charge, and the negatives that came with the transfer might well dissuade a reasonable person from filing a charge or otherwise complaining of discrimination. Cromer Food's arguments to the contrary are without merit. Summary judgment therefore should be reversed. A. A reasonable jury could find Cromer Food liable for the sex harassment Homer Howard experienced because there is evidence Howard repeatedly complained that he was being sexually harassed and Cromer Food failed to take prompt, effective action to stop the harassment. Cromer Food contends that prior to C.T. Cromer's meeting with Homer Howard to discuss his EEOC charge in March 2007, the company had no notice of the sex harassment to which Greenville Hospital employees were subjecting him because, until then, Howard's complaints were "nebulous" and were not made to the president of the company, as called for by Cromer Food's sex harassment policy. (Cromer Food Response Br. at 17-25.) However, the record shows that Howard immediately and repeatedly complained to at least five managers, including C.T. Cromer, the president of the company. Given that these Cromer Food managers responded to Howard's complaints with laughter, indifference, and a disclaimer of responsibility (EEOC Opening Br. at 3-11, 22-27), it was Cromer Food's own failure to take Howard's complaints seriously that caused it to fail to take note of the harassment. Specifically, when the sex harassment began in December 2006, Howard complained to General Manager Greg Adams, who told Howard it was "just a joke" and that he should "let it go." (JA88:19-JA89:10.) Shortly thereafter, as the harassment progressed, Howard complained to his direct supervisor, Brian Tyner, who told Howard to "quit worrying about it" because "faggots are ignorant." (JA89:16-JA90:5.) The following week, Howard complained to Gary Roper, whom Howard testified was a supervisor (though not his own), who admitted that the problem was not being handled properly but said Adams had already dealt with it and he did not want to hear more about it. (JA90:13-25.) Howard then reported the sex harassment to manager Chet Cromer, who in turn told C.T. Cromer. (JA91.) During Howard's subsequent conversation with C.T. Cromer in December 2006, C.T. Cromer lamented that Howard's complaints could "cost me everything"; Howard had trouble getting any words in. (JA92- JA93.) The next month, when Howard complained again to C.T. Cromer, and told him the sex harassment at the hospital was "getting worse," C.T. Cromer said he was not responsible for Howard's treatment by Greenville Hospital employees. (JA96:15-25.) The sex harassment Howard experienced continued unabated, and Howard testified that he "constantly" complained to Greg Adams but was laughed at and told things like "quit being a crybaby." (JA100:9-20; JA139:11-21; JA140:10-13.) Adams himself admitted in his deposition that, at least once prior to March 2007, Howard complained to him that Greenville Hospital employees were making sexual advances toward him and making vulgar, sexual statements. (JA239:5-20; JA240:13-15.) Adams admittedly told no one about the complaint(s) as he, inexplicably, did not consider what Howard complained about to be sexual harassment. (JA240:21-25.) Cromer Food acknowledges that Howard testified that he told managers he was being "sexually harassed" at the hospital (Cromer Food Response Br. at 21), yet incredibly still contends no reasonable jury could find that it knew enough prior to March 2007 to put it on notice of potential sexual harassment. But this Court repeatedly has held that an employer cannot adopt a "see no evil, hear no evil" strategy and that knowledge of harassment is imputed at the point when a reasonable person, intent on complying with Title VII, would have known about it. EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 320 (4th Cir. 2008); Howard v. Winter, 446 F.3d 559, 567 (4th Cir. 2006); Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 334 (4th Cir. 2003). A reasonable person, intent on complying with Title VII, would know that an employee is complaining of sex harassment when, as Howard testified he did in this case, the employee says he is being "sexually harassed," and that the harassers are "stalking me in certain areas of the hospital, waiting for me to get there" and "really getting vulgar, getting very obnoxious [and] always talking about sex." (JA100:9-20; JA139:11-21.) Moreover, while Cromer Food emphasizes that Howard had a duty to complain to C.T. Cromer, it sidesteps the fact that Howard testified that he did complain to C.T. Cromer twice as of January 2007 but C.T. Cromer was unreceptive to hearing any details. (JA92:6-JA94:15; JA96:15-25; JA129:21- JA130:2, JA130:13-19; JA140:8-9.) Cromer Food also sidesteps the fact that, according to company policy, all Cromer Food employees - including managers - shared the duty to report sex harassment to C.T. Cromer. (JA63 ("Any employee who becomes aware of any harassment of any employee by a non-employee should report such harassment to the president of Cromer Food Services."); JA178:3-25.) Thus, knowledge of Howard's complaints should be imputed to the company by virtue of his complaints to various managers. See Williamson v. City of Houston, 148 F.3d 462, 466 (5th Cir. 1998) (holding that notice of harassment given to official with duty to pass such information up the chain of command is imputed to the employer); Distasio v. Perkin Elmer Corp., 157 F.3d 55, 64 (2d Cir. 1998) (holding knowledge of sexual harassment imputed to employer where supervisor had duty to relay the complaints); cf. Ocheltree, 335 F.3d at 335 (holding that, when determining whether a company should be deemed to have notice of harassment, "a jury may give negative weight to the fact that employer's complaint scheme" does not require supervisors to forward unresolved complaints to higher company authorities). Cromer Food's protest that Howard's complaints were not specific enough is also unavailing. To be sure, as this Court stated in Howard v. Winter, a complaint's lack of specificity may be relevant in evaluating the reasonableness of the employer's response. Howard, 446 F.3d at 570 n.10. But an important corollary from Howard v. Winter is that an employer has to take seriously even so- called "nebulous" complaints - as Cromer Food inaccurately describes those made by Howard - and at least ask follow-up questions designed to ensure a meaningful remedial response. See Howard, 446 F.3d at 569-70 (holding that when employee contacted human resources about a coworker and said "this mother f****** put his hands on me," it was sufficient to put the employer on notice of a potentially serious workplace harassment problem, and a jury at least could conclude that it was unreasonable not to ask follow-up questions). Although Cromer Food cites Howard v. Winter for the generally applicable standards (Cromer Food Response Br. at 25), it points to nothing in that case which requires affirmance of summary judgment here or otherwise runs counter to the Commission's arguments. Tellingly, Cromer Food also does not address the EEOC's evidence that the company's managers laughed at Howard's complaints, dismissed them out of hand, or ignored them altogether. Nor does Cromer Food address the EEOC's evidence that, in January 2007, C.T. Cromer told Howard that any harassment he experienced at Greenville Hospital was Howard's problem, not C.T. Cromer's, unless it was committed by a Cromer Food employee. (JA96:19-25: JA97:14-15.) Whatever Cromer Food's reason for ignoring this evidence in its brief, the fact is that such evidence would permit a jury to find that Cromer Food was aware that Howard was being sexually harassed and of the nature of the harassment, and find that Cromer Food did not take reasonable action to stop it. Cromer Food's core legal argument is based on several Eleventh Circuit cases where that Court held the employees failed to provide sufficient notice to their employers of sex harassment. (Cromer Food Response Br. at 22-25 (citing Nurse "BE" v. Palms West Hosp. Ltd. P'ship, 490 F.3d 1302 (11th Cir. 2007); Madray v. Publix Supermkts., Inc., 208 F.3d 1290 (11th Cir. 2000); Coates v. Sundor Brands, Inc., 164 F.3d 1361 (11th Cir. 1999)).) But the viability of the Commission's harassment claim is not undercut by these cases. As an initial matter, to the extent the Eleventh Circuit can be deemed to have endorsed a "see no evil, hear no evil" approach in these cases, that view is contrary to this Court's precedent and the cases so holding are inapposite. See EEOC v. Central Wholesalers, Inc., 573 F.3d 167, 177-78 (4th Cir. 2009) (holding employer's repeated failure to respond at all to complaints of harassment was an ineffective response); Sunbelt, 521 F.3d at 320 (holding reasonable jury could find company's remedial efforts deficient where manager did not take complaints seriously enough - telling complainant simply to keep a positive attitude and to let his problems roll off his shoulders - and the harassment continued). In any event, the Eleventh Circuit cases Cromer Food relies on are factually distinguishable. In Nurse "BE," the Eleventh Circuit held that a nurse did not put her employer on notice of sexual harassment by telling her supervisor that a doctor had called her cell phone as many as five times to ask her out and that the calls were "harassing," as she did not say the calls were sexually explicit or even contained sexual innuendo. 490 F.3d at 1310. Similarly, in Coates, the Eleventh Circuit observed that the employee "never mentioned the harassment" to her direct supervisor and that, in showing an inappropriate note to the plant manager, she did not indicate the note represented a problem about which she was concerned. 164 F.3d at 1365. In Madray, the Eleventh Circuit held the plaintiffs failed to put the employer on notice of the harassment because they never informed the designated company officials - of which there were many - and their complaints to non- designated persons were not only general, but also made during informal, mostly social, situations. 208 F.3d at 1302. Here, unlike the Eleventh Circuit cases relied on by Cromer Food, Howard testified that he repeatedly complained to numerous managers that he was being "sexually harassed," and they did nothing. "Doing nothing after receiving multiple complaints about serious conditions is a straight road to liability under Title VII." Isaacs v. Hill's Pet Nutrition, Inc., 485 F.3d 383, 386 (7th Cir. 2007) (holding company liable where plaintiff complained repeatedly about how the men were treating her but "received the same response every time: one or another variation on 'grin and bear it'"); Sunbelt, 521 F.3d at 320 ("Evidence of repeated complaints to supervisors and managers creates a triable issue as to whether the employer had notice of the harassment."). A reasonable jury could find Cromer Food liable for failing to take Howard's complaints of sex harassment seriously and disclaiming responsibility for it - thus allowing it to continue. B. A reasonable jury could find that Cromer Food's response to Howard's complaints of sex harassment was ineffective because it was belated and made him worse off. Put simply, accepting the first-shift transfer offered by Cromer Food in March 2007 would have made Howard worse off because it would have required him to work more hours, at less pay per hour, on a shift that conflicted with his responsibility to care for his ill son. (EEOC Opening Br. at 27-31.) "A remedial measure that makes the victim of sexual harassment worse off is ineffective per se." Guess v. Bethlehem Steel Corp., 913 F.2d 463, 465 (7th Cir. 1990) (holding plaintiff's transfer did not make her worse off because she was merely returned to her regular job from a temporary assignment); Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994) (holding remedial action was insufficient where employer twice changed the plaintiff's shift instead of changing the harasser's shift or firing him). In its response brief, Cromer Food claims the law did not require the company to "create[] a new second-shift position" for Howard or "displace an employee" so that Howard could move into another second-shift position. (Cromer Food Response Br. at 29.) But these are "straw men," as the Commission has not argued for any such actions. Cromer Food further contends the first-shift transfer was the only action reasonably calculated to end the harassment. (Id. at 27-30.) But this is not true. Cromer Food could and should have affirmatively addressed the sex harassment Howard complained of with Greenville Hospital - early on, and as often and pointedly as necessary - to urge the hospital to take corrective measures allowing Howard to keep his second-shift job in an environment free of sex harassment. (EEOC Opening Br. at 28-31.) Yet Cromer Food failed to make any effort to correct the harassment that was occurring at Greenville Hospital. Instead, Cromer Food chose an unreasonable and ineffective remedy. Notwithstanding Cromer Food's argument that Howard would have received a pay increase, the EEOC's evidence reflects the opposite: that the first-shift transfer would have resulted in a per-hour pay decrease for Howard. Cromer Food criticizes the EEOC's description of the pay Howard received in his second-shift position, saying the EEOC has misled the Court by calling the $100 per week Howard received above base pay during his first year a "bonus." (Cromer Food Response Br. at 9, 31.) But this description comes from its own business record. (JA166 ¶ B.d. ("$100 per week bonus").) In any event, however this pay is labeled, it cannot be disputed that it was part of Howard's compensation during his first year, the end of which was still months away when he was terminated. And, importantly, there is no evidence, nor does Cromer Food assert, that Howard would have continued to receive this weekly advance bonus had he accepted the first-shift transfer. (JA143.) There simply is no reason not to consider this pay when comparing the two positions. And when it is considered, a jury could find that while Howard made $12.50 per hour in his second-shift position, he would have made only $11.36 per hour had he accepted the first-shift transfer. The fact that Howard would have earned more per week in the first-shift position due to mandatory overtime - i.e., he would have been compelled to work fifty-five hours a week (JA143) - does not alter the fact that he would have incurred a reduction in his hourly pay rate. Not only would accepting the first-shift transfer have required Howard to work more hours for less hourly pay, but the schedule associated with the first shift (4 a.m. to 3:30 p.m.) conflicted with Howard's childcare responsibilities. Cromer Food attempts to minimize this disadvantage, arguing that Howard "would have plenty of time to take his son to late afternoon doctor's appointments" after his first-shift would have ended at 3:30 p.m., and that he could have handled the first- shift transfer by making "adjustments in his personal schedule." (Cromer Food Response Br. at 32-33.) In other words, it is Cromer Food's subjective assessment, or more accurately Cromer Food's lawyer's assessment (no record evidence is cited), that the first-shift transfer was no big deal. But Howard testified unequivocally that it mattered greatly and Cromer Food knew it: "I have to make sure that I am available during the day, in case [my son] needs hospital, doctor, or some kind of medical attention. . . . I had already made it loud and clear, I can't do any other shift." (JA106:13-16; JA109:21-23 (emphasis added).) A jury would be well supported by the evidence in finding Cromer Food's belated response to Howard's complaints would have made Howard worse off, was unreasonable and ineffective, and did not comport with its statutory obligation to endeavor to eliminate the harassment without penalizing the victim. C. A reasonable jury could find that Cromer Food's belated response to Howard's complaints of sex harassment was retaliatory and materially adverse. Under applicable legal standards, a reasonable jury could conclude that Cromer Food unlawfully retaliated against Howard based on evidence that on the heels of Howard's EEOC charge, C.T. Cromer expressed animus about the charge (JA102:20-21: "I got this stupid letter from the EEOC"), and then gave Howard an ultimatum to accept a transfer that made him worse off or be terminated. See Rhoads v. FDIC, 257 F.3d 373, 393-94 (4th Cir. 2001) (holding evidence of decisionmaker's animus toward plaintiff's protected activity, plus short time period between protected activity and adverse action, was sufficient to create a genuine issue of material fact on retaliation claim). Given this, summary judgment on the Commission's retaliation claim was improper. While Cromer Food is certainly free to argue its contrary interpretation of the events to a jury - i.e., that C.T. Cromer was simply acting with "alacrity" to get Howard "out of harm's way" (Cromer Food Response Br. at 28 n.5) - that interpretation cannot provide a basis for affirming summary judgment. Cromer Food also argues that the first-shift transfer was not materially adverse to Howard under the standard the Supreme Court articulated in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). (Cromer Food Response Br. at 30-31.) Under that standard, an employer's act is a material adverse action if it might well dissuade a reasonable worker from making or supporting a charge. Burlington, 548 U.S. at 68. As explained in the EEOC's opening brief, the same evidence from which a jury could find the first-shift transfer was an unreasonable and inadequate response for purposes of the EEOC's harassment claim could also lead it to find it was materially adverse for purposes of the EEOC's retaliation claim. (EEOC Opening Br. at 33-34.) It is hardly a stretch to conclude that someone might well be dissuaded from filing or supporting an EEOC charge (or otherwise complaining) if doing so would subject him to being transferred to a job with a lower pay rate, increased hours, and which would impair his ability to care for his sick child. CONCLUSION As the moving party, Cromer Food bears the burden of showing that the law requires summary judgment based on undisputed material facts. Celotex v. Catrett, 477 U.S. 317, 325 (1986). Yet Cromer Food has done little more than selectively present facts in the light most favorable to its case - thus demonstrating, rather than obviating, the need for a jury to determine what the facts really are. The EEOC respectfully requests that summary judgment be reversed. BRIEF AS CROSS APPELLEE (NO. 10-1552) STATEMENT OF THE ISSUE Whether this Court should affirm the district court's decision denying attorney's fees because it properly applied the governing standard set out by the Supreme Court in Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978), that a prevailing Title VII defendant may be granted attorney's fees only upon a finding that the plaintiff's case was "frivolous, unreasonable, or without foundation," and Cromer Food has made no argument to the contrary. SUMMARY OF ARGUMENT Of course, should the Commission prevail on its appeal from the grant of summary judgment, Cromer Food's cross appeal on attorney's fees and costs would be moot, as Cromer Food would not be a prevailing party. E.g., Central Wholesalers, 573 F.3d at 179. If this Court reaches the district court's decision on attorney's fees (JA314-315), it should affirm for two reasons. First, Cromer Food does not even argue that the district court misapplied the standard the Supreme Court articulated in Christiansburg. Second, the district court applied the Christiansburg standard correctly. And even if this Court disagrees, the EEOC respectfully requests a remand so that, in the first instance, the district court can make findings and address the parties' competing arguments on calculating attorney's fees and allowable costs. ARGUMENT A. The district court's attorney's fees ruling should be affirmed because Cromer Food does not challenge the district court's application of the governing Christiansburg standard and there is no basis for such challenge. The Supreme Court held in Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978), that a prevailing Title VII defendant is not entitled to an award of attorney's fees unless the plaintiff's case was "frivolous, unreasonable, or without foundation." Cromer Food acknowledges that the district court based its denial of attorney's fees on Christiansburg but at no point in Cromer Food's brief does it even attempt to argue, much less demonstrate, how the district court might have erred in applying this standard. And indeed it did not. Instead, Cromer Food makes the puzzling argument that the district court should have considered "the factors the Fourth Circuit has stated that a court must follow when reviewing a motion for attorney's fees and costs. Barber v. Kimbrell's Inc., 577 F.2d 216 (4th Cir. 1978)." (Cromer Food Response Br. at 34- 35.) The Barber case, however, only addresses the factors courts should use in arriving at the amount of attorney's fees once a party's entitlement to attorney's fees has been established. It does not, and obviously cannot, supersede the Supreme Court's decision in Christiansburg on the threshold question of whether a prevailing defendant has demonstrated that it is entitled to attorney's fees in the first place. The district court did not abuse its discretion by properly focusing on the governing Christiansburg standard. B. The district court did not abuse its discretion in holding the EEOC's case was not frivolous, unreasonable, or without foundation. Cromer Food has waived any argument that the district court's application of the Christiansburg standard was an abuse of discretion. Instead, by bypassing altogether the district court's application of Christiansburg and focusing on what the proper amount of attorney's fees should be, Cromer Food in essence argues that the district court should have awarded attorney's fees simply because Cromer Food won below. But this is exactly what the Supreme Court said should not be done. Christiansburg, 434 U.S. at 421-22 (admonishing courts to resist engaging in "post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation"). Thus, even if this court ultimately agrees with the district court that the EEOC's evidence was not sufficient to avoid summary judgment, that fact alone does not establish that the EEOC's case was frivolous, unreasonable, or without foundation. This standard is extremely high, as awarding attorney's fees for a prevailing defendant is an "extreme sanction" that should be reserved for truly egregious cases of misconduct. See Unus v. Kane, 565 F.3d 103, 128 (4th Cir. 2009) (quoting Jones v. Cont'l Corp., 789 F.2d 1225, 1232 (6th Cir. 1986) ("An award of attorney's fees against a losing plaintiff in a civil rights action is an extreme sanction, and must be limited to truly egregious cases of misconduct.")). Notably, in this case the district court's summary judgment decision rejected a well-reasoned recommendation by the magistrate judge. This obviously militates against the notion that the EEOC's case was frivolous, unreasonable, or without foundation. Cromer Food points to the EEOC's issuance of a press release when litigation began, arguing the EEOC is required by "Title VII policies and procedures to keep embarrassing allegations confidential." (Cromer Food Response Br. at 38; JA348.) This is simply incorrect. The EEOC litigates in the public interest and has an obligation to do so in full public view. Title VII's confidentiality provision applies only "prior to the institution of any proceeding," i.e., prior to a lawsuit. 42 U.S.C. § 2000e-8(e). Cromer Food provides no basis sufficient to take the rare step of reversing the district court's denial of attorney's fees. In any case, the Commission disputes the amount claimed in Cromer Food's petition for fees and costs. Doc. No. 89 at 11-17 (Plaintiff EEOC's Response to Defendant's Motion for Attorney's Fees and Costs). And the district court did not rule on the proper amount of allowable costs at all. (JA314-314.) If the issue of the calculation of attorney's fees and allowable costs must be decided, a remand is appropriate so that the district court can address it in the first instance and make findings. See Barber, 577 F.3d at 226-27 (remanding case so that district court could make findings "in order to make review by us effective"). The calculation of fees and costs is not ripe for appellate review. CONCLUSION Similar to its merits argument inviting this Court to usurp the jury's role, Cromer Food argues for a usurpation of the district court's discretion in deciding fee matters. The EEOC respectfully asks the Court to affirm the ruling on attorney's fees under Christiansburg even if summary judgment is affirmed. But if the amount of attorney's fees and/or allowable costs must be decided, we respectfully request a remand for further proceedings on those issues. REQUEST FOR ORAL ARGUMENT Pursuant to Local Rule 34(a), the EEOC has already requested oral argument in its opening brief on the merits. The EEOC also respectfully requests that oral argument include the issue of fees given the importance of the proper interpretation of Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), and the government's interest in protecting the public fisc. Respectfully submitted, P. DAVID LOPEZ General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel __/s/ Corbett L. Anderson_____ CORBETT L. ANDERSON Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, D.C. 20507 (202) 663-4579 (phone) (202) 663-7090 (fax) corbett.anderson@eeoc.gov CERTIFICATE OF COMPLIANCE Pursuant to Fed. R. App. P. 28.1(e)(3), I certify that this brief complies with the type-volume limitation of Fed. R. App. P. 28.1(e)(2)(A)(i) because it contains 4,200 words. I also certify that this brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point font. _/s/ Corbett L. Anderson____ CORBETT L. ANDERSON Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, D.C. 20507 (202) 663-4579 (phone) (202) 663-7090 (fax) corbett.anderson@eeoc.gov CERTIFICATE OF SERVICE I certify that on September 15, 2010, I electronically filed and served this brief and eight paper copies were sent via UPS to the Clerk of Court. On this date a courtesy paper copy of the brief was sent via UPS to: Sarah Ganss Drawdy The Drawdy Law Firm, LLC 2315 N. Main Street, Suite 117 Anderson, South Carolina 29621 _/s/ Corbett L. Anderson______ CORBETT L. ANDERSON Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, D.C. 20507 (202) 663-4579 (phone) (202) 663-7090 (fax) corbett.anderson@eeoc.gov