Equal Employment Opportunity Commission and Cynthia Trudeau v. Communication Technical Systems 00-16111 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 00-16111 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, and CYNTHIA TRUDEAU, Intervenor, v. COMMUNICATION TECHNICAL SYSTEMS, INC. (SOUTHWEST), and COMMUNICATION TECHNICAL SYSTEMS, INC., Defendants-Appellees. On Appeal from the United States District Court for the District of Arizona REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION C. GREGORY STEWART CAREN I. FRIEDMAN General Counsel Attorney EQUAL EMPLOYMENT OPPORTUNITY PHILIP B. SKLOVER COMMISSION Associate General Counsel 1801 L Street, NW, 7th Floor Washington, D.C. 20507 LORRAINE C. DAVIS (202) 663-4720 Assistant General Counsel TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . ii ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . 2 1. Genuine issues of material fact exist as to liability . . . . . . . . . . . . . . . . 2 2. If a jury finds CTS liable, the Commission is entitled to damages . . . . . . . . . . . . 17 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . 24 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICETABLE OF AUTHORITIES FEDERAL CASES Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) . . . 16 Bates v. Pacific Maritime Ass'n, 744 F.2d 705 (9th Cir. 1984). . . . . . . . . . . . . 21 Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978) . . . . . . . . . . . . . . . . . 22 Chuang v. Univ. of Calif. Davis, 225 F.3d 1115 (9th Cir. 2000) . . . . . . . . . . . . 5 Crowe v. Wiltel Communications Sys., 103 F.3d 897 (9th Cir. 1996). . . . . . . . . . . . . 23 EEOC v. Consolidated Serv. Sys., 30 F.3d 58 (7th Cir. 1994). . . . . . . . . . . . . . 22 EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539 (9th Cir. 1987) . . . . . . . . . . . . 21 EEOC v. Kimbrough Investment Co., 703 F.2d 98 (5th Cir. 1983) . . . . . . . . . . . . . 22 EEOC v. Northwest Structural Components, Inc., 897 F. Supp. 249 (M.D.N.C. 1995). . . . . . . . . . . 22 Goodwin v. Hunt Wesson, Inc., 150 F.3d 1217 (9th Cir. 1998) . . . . . . . . . . . . 17 Huey v. Sullivan, 971 F.2d 1362 (8th Cir. 1993). . . . . . 22 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). . . 5 Reeves v. Sanderson Plumbing Prods., Inc., 120 S. Ct. 2097 (2000). . . . . . . . . . . . . . . . 6, 15-16 Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104 (9th Cir. 1991) . . . . . . . . . . . . 7 Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981) . . . . . . . . . . . . . . . . . 7, 14 Watson v. Gulf & Western Indus., 650 F.2d 990 (9th Cir. 1981). . . . . . . . . . . . . 20 Williams v. United States Gen. Servs. Admin., 905 F.2d 308 (9th Cir. 1990). . . . . . . . . . . . . 21 FEDERAL STATUTES 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . 22 Title VII of the Civil Rights Act of 1964 42 U.S.C. § 2000e-5(k). . . . . . . . . . . . . . . . 22 Civil Rights Act of 1991 42 U.S.C. § 1981a(b)(1) . . . . . . . . . . . . . . . 19 42 U.S.C. § 1981a(b)(3) . . . . . . . . . . . . . . . 18 Equal Access to Justice Act 28 U.S.C. § 2412. . . . . . . . . . . . . . . . . . . 22 FEDERAL RULES Fed. R. App. P. 38 . . . . . . . . . . . . . . . . . . . . 21-22 Fed. R. Civ. P. 60(a). . . . . . . . . . . . . . . . . . . 20 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 00-16111 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, and CYNTHIA TRUDEAU, Intervenor, v. COMMUNICATION TECHNICAL SYSTEMS, INC. (SOUTHWEST), and COMMUNICATION TECHNICAL SYSTEMS, INC., Defendants-Appellees. On Appeal from the United States District Court for the District of Arizona REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION As this employment discrimination case boils down to disputed facts, in itself an indication that the grant of summary judgment was improper, CTS argues in its response brief that the Commission has "blatantly misrepresented" the facts. (CTS Br. at 3). CTS, however, confuses "misrepresenting" facts with marshaling conflicting record evidence to demonstrate that the summary judgment should be reversed. The fact that the Commission has pointed to record evidence with which CTS is uncomfortable does not mean that the Commission has misrepresented facts. CTS also accuses the Commission of "fail[ing] to disclose to the Court the vast amount of evidence that contradicted its position." (CTS Br. at 40). The Commission is the nonmovant; therefore, its task as appellant is to point to record evidence that demonstrates why the district court's grant of summary judgment was improper. In demonstrating that there are triable issues of fact for a jury, the Commission is obliged neither to cite evidence that contradicts its position, nor to argue the defendants' case on the merits. In any event, the fact that there is contradictory evidence on material issues exposes the impropriety of granting summary judgment. CTS's response brief essentially asks the Court to weigh the evidence and draw credibility determinations. In short, CTS asks the Court to affirm summary judgment in a case riddled with disputed facts. ARGUMENT 1. Genuine issues of material fact exist as to liability. In our opening brief, we presented direct evidence of discriminatory animus, namely Mr. Abretske's testimony that CTS officers discussed Ms. Trudeau's pregnancy at the hiring meeting and were "leery of hiring [her] because of the fact that she was pregnant." See EEOC Br. at 22 (citing R.E. 43-44). CTS's response is to avoid the existence of our direct evidence by simply wishing it away. For example, CTS argues that "Abretske testified that Ms. Trudeau's pregnancy was not mentioned during the discussions he had with Keith Gordon and Michael Malone." (CTS Br. at 12); see also CTS Br. at 21 ("Abretske testified that [Ms. Trudeau's] pregnancy was not brought up during those meetings"). In support of these assertions, CTS actually cites the following portion of Mr. Abretske's deposition: Q. I think you testified earlier there was some discussion or conversation where her pregnancy was mentioned with the group of you: Mike Malone, Keith Gordon or Herb Gordon? A. Yes. See CTS Br. at 12, 21 (citing S.E.R. Vol. I, Tab F at 181). This testimony is clearly contrary to CTS's contention, since it indicates that pregnancy was discussed when the hiring decisions were made. The ensuing examination of Mr. Abretske merely demonstrates that he cannot recall the specifics of the conversation about Ms. Trudeau's pregnancy. See S.E.R. Vol. I, Tab F at 182 ("Q. You just don't recall any specifics about the conversation? A. That's correct.") Notwithstanding his inability to remember specifics, he testified unequivocally that "I do remember there was some discussion about Cindy and her pregnancy" during the meeting with Mr. Gordon and Mr. Malone. (R.E. 44). Thus, CTS's argument is directly contradicted by the testimony it cites for support. CTS next attempts to discredit the Commission's direct evidence of discrimination by misquoting the Commission's brief and mischaracterizing Mr. Abretske's testimony. According to CTS, Mr. Abretske testified that CTS officers "seemed leery of hiring Cindy." (CTS Br. at 20) (misquoting EEOC Br. at 22 (quoting R.E. 43)). Similarly, CTS misquotes the Commission's brief in an attempt to give the impression that Mr. Abretske merely "believed" that Ms. Trudeau's pregnancy was the reason she did not get a job offer. See CTS Br. at 33 ("EEOC asserts that Abretske's 'belief' that Ms. Trudeau was not hired due to her pregnancy is sufficient evidence to establish pretext") (misquoting EEOC Br. at 31). In a related argument, CTS claims that the Commission's direct evidence of discrimination amounts to "[s]peculation and self-serving guesses." (CTS Br. at 31). Mr. Abretske did not testify that he guessed that pregnancy was the reason CTS failed to hire Ms. Trudeau. Mr. Abretske's actual testimony is as follows: "I do remember there was some discussion about Cindy and her pregnancy" and "I know that they tended to be leery of hiring Cindy because of the fact that she was pregnant." (R.E. 43-44). This testimony is sufficient direct evidence to withstand summary judgment. See Chuang v. Univ. of Calif. Davis, 225 F.3d 1115, 1128 (9th Cir. 2000) (direct evidence of discrimination, even if not "substantial," is sufficient to create a triable issue with respect to the employer's actual motivation). Not only did the Commission raise a genuine issue of material fact as to CTS's intent using direct evidence, but the Commission also established a prima facie case and demonstrated pretext under the McDonnell Douglas<1> framework. On this point, CTS first argues that Ms. Trudeau is not qualified, thereby attempting to demonstrate that the Commission failed to establish a prima facie case. In fact, the gist of CTS's entire brief is that: 1) the Commission failed to establish a prima facie case because Ms. Trudeau is not qualified; 2) the company's legitimate nondiscriminatory reason for failing to hire Ms. Trudeau is that she is not qualified; and 3) the Commission cannot demonstrate pretext because Ms. Trudeau is not qualified. However, CTS's insistence that Ms. Trudeau is unqualified simply points up the fact that material facts are in dispute, thereby precluding summary judgment. More specifically, CTS's protestation that Ms. Trudeau is unqualified cannot defeat our prima facie case when there is strong evidence that the very criteria CTS allegedly used to determine qualification are themselves pretextual. Throughout this litigation, the linchpin of CTS's argument has been that Ms. Trudeau is not qualified because she lacked Unix skills. See R.50 at 8<2> (defendants' motion for summary judgment arguing that Ms. Trudeau is not qualified because she lacks Unix skills); see also R.E. 27 (Mr. Gordon's testimony that Ms. Trudeau was not extended an offer specifically because she had no Unix experience). The fact is that CTS offered jobs to various non-Unix engineers, but just not to the one who was pregnant. See, e.g., R.E. 54, 115, 117, 119; see also EEOC Br. at 28 (citing R.E. 27-28, 72) (both Mr. Gordon and Mr. Malone admitted that CTS hired several systems engineers who lacked Unix skills). Because CTS hired systems engineers without Unix skills, a jury should decide whether her lack of Unix skills is the real reason for rejecting Ms. Trudeau or whether that reason is a pretext. A reasonable jury could certainly disbelieve CTS's proffered reason and infer that the real reason was Mr. Trudeau's pregnancy. See Reeves v. Sanderson Plumbing Prods., Inc., 120 S. Ct. 2097, 2109 (2000) ("a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated"). This demonstrates why Ms. Trudeau's lack of Unix skills cannot defeat the Commission's prima facie case. When an employee's "qualification" is the crux of the matter, the analysis has moved far beyond the simple prima facie requirements and instead has spilled into steps two and three, i.e. whether the defendant's reason is legitimate and nondiscriminatory, or whether the asserted reason is really a pretext for discrimination. Strictly for purposes of establishing a prima facie case, as we argued in our opening brief, Ms. Trudeau is "qualified" because she is a systems engineer who applied for a job as a systems engineer. (EEOC Br. at 24). "The burden of establishing a prima facie case of disparate treatment is not onerous." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). As the Court has noted, "the amount [of evidence] that must be produced in order to create a prima facie case is very little." Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1111 (9th Cir. 1991) (citation omitted). Similarly flawed is CTS's next attempt to defeat the Commission's prima facie case, by asserting that Ms. Trudeau was treated as favorably as similarly-situated applicants. On this point, CTS claims that "[a]ll of the systems engineers who received offers from CTS Southwest had either UNIX or NT (Microsoft) skills." (CTS Br. at 25) (emphasis added); see also CTS Br. at 31 ("all of the systems engineers who were offered positions had either UNIX or NT (Microsoft) skill sets"). This claim is disingenuous. It is irrelevant whether some who received offers had Microsoft skills, since the reason CTS gave for not hiring Ms. Trudeau was that she lacked Unix skills. (R.E. 27). Furthermore, Ms. Trudeau is similarly situated to all of the other systems engineers, regardless of whether she possessed Unix and Microsoft skills. Indeed, all of the systems engineers were in the same pool of candidates being considered for a position with CTS. Moreover, CTS cites no record evidence to support its assertion that "all" of the systems engineers who were offered jobs had Unix or Microsoft skills. If one parses the jumble that constitutes CTS's two string citations on this point, one finds that only one page (S.E.R. Vol. I, Tab F at 164) of the approximately 28 pages of deposition transcript cited makes any reference to CTS offering jobs to anyone. See CTS Br. pp. 25, 31 (string citations). Otherwise, CTS's record citations on this point are either irrelevant or simply refer to the fact that Ms. Trudeau was not certified in Unix but instead certified in Novell. It is also rather telling that in asserting that "all" who were offered jobs had either Unix or Microsoft skills, CTS fails to identify who "all" these systems engineers are. In the face of concrete record evidence establishing that every single systems engineer from Infinisys (except the pregnant one) got a job offer, CTS continues to insist that it did not offer a position to every other systems engineer.<3> See CTS Br. at 25, 32-33. The record demonstrates otherwise. The only systems engineers at Infinisys were Ms. Trudeau, Ken Bruder, Jamie Neilon, Tom Donnelly, Dave Nansel, Francisco Brooks, Eric Borgen, Gerald Crow, and Jeff Barrett. There is record evidence that CTS offered every one of them except Ms. Trudeau a job.<4> It is curious, then, that CTS continues to insist that it did not extend these offers. At the very least, there is a jury question as to which systems engineers got offers. CTS also argues that Ms. Trudeau was not similarly situated to Mr. Bruder and Mr. Brooks because they both had either Unix or Microsoft skills. (CTS Br. at 29-30). Again, when deciding whether Ms. Trudeau was treated less favorably than similarly-situated applicants, the question is not whether others had Unix or Microsoft skills, but simply whether other (non-pregnant) systems engineers were treated more favorably than Ms. Trudeau. In any event, it is questionable on this record whether CTS actually believed that the systems engineers it hired were better qualified. For example, Mr. Abretske testified that Mr. Brooks was "somewhat incompetent as a Unix engineer" and that "he had really poor Unix skills." (R.E. 45, 57). As to Mr. Bruder, CTS argues that he was hired because of his knowledge of Microsoft systems. (CTS Br. at 29). Mr. Bruder, however, was not certified in Microsoft systems. In fact, Mr. Bruder's offer letter from CTS states that "CTS will provide you with three weeks of Microsoft training to help you in the completion of your Microsoft Certified Systems Engineer (MCSE) certification." (R.E. 33). Mr. Scarborough's testimony confirms that CTS did indeed invest "a considerable amount of money" for Mr. Bruder's Microsoft training. (S.E.R. Vol. II, Tab G at 215). When CTS made its hiring decisions, Ms. Trudeau was also working toward her Microsoft certification, yet, unlike Mr. Bruder, she was not given any opportunity to continue her training with the company. (R.E. 60). Moreover, there is evidence that CTS took over several Infinisys accounts that required Novell skills, which Ms. Trudeau possessed. See EEOC Br. at 28-29 (citing R.E. 48, 59-60). There is also evidence that Ms. Trudeau was the lead engineer on a Novell to Microsoft conversion project, which Mr. Bruder also worked on. (R.E. 89-90, 97). Furthermore, Mr. Abretske testified that Ms. Trudeau was "more advanced" and had "more talent" than Mr. Bruder. See EEOC Br. at 26 (citing R.E. 46, 47). Even if he was referring only to her Novell skills, the Commission still raised a genuine issue of material fact because there is record evidence that CTS needed to retain a Novell engineer to handle the former Infinisys accounts. (R.E. 48). In another apparent attempt to demonstrate that Ms. Trudueau was treated as favorably as similarly-situated applicants, CTS states that it "did not grant independent interviews to any individual systems engineer." (CTS Br. at 9) (emphasis in original). CTS utterly fails, however, to respond to evidence cited in the Commission's opening brief (EEOC Br. at 4-5) that reveals that CTS did, in fact, conduct interviews. For example, Mr. Gordon, president/CEO and the key player in the hiring process, himself testified as follows: Q. Were there also interviews that occurred? A. Yes. Q. Were these individual or group interviews? A. Individual. . . . . . . . Q. When you held the interviews, were they -- what were the circumstances for those interviews? A. In terms of what? Q. Were they held, you know, in a conference room with a lot of people? Were they held one-on-one in an office? What was the physical situation? A. Again, going from memory, I think it was that most of them were held in their main conference room with at least two out of the three of us. Q. Okay, but -- A. They were, you know, individual sessions. Q. So they were with one candidate at a time? A. Yes. (R.E. 24, 26). Mr. Abretske's testimony corroborates Mr. Gordon's testimony on this point. Mr. Abretske was asked, "When you said CTS began interviewing Infinisys employees, who was doing those interviews on behalf of CTS?" He responded, "Primarily, Herb Gordon's son, Keith Gordon, and a friend . . . and business partner of Keith Gordon, Mike [Malone]." (R.E. 38-39). Despite the fact that CTS conducted interviews, Ms. Trudeau, who was visibly pregnant, was not granted an interview, even though she showed up at the requisite time and place. (R.E. 98). Thus, the Commission has raised a genuine issue of material fact on the question whether Ms. Trudeau was treated less favorably than similary-situated applicants. The other reason that CTS proffered for not extending an offer to Ms. Trudeau is that she had received customer complaints. (R.E. 28). CTS states that the Commission "is inaccurate when it represents that Ms. Trudeau had only one customer complaint." (CTS Br. at 11) (citing EEOC Br. at 10). In our opening brief, we asserted that Ms. Trudeau had received "complaints" from one Infinisys customer. (EEOC Br. at 10). Indeed, Mr. Scarborough testified that he knew of only one Infinisys customer, Nova Care, that had complained about Ms. Trudeau. (S.E.R. Vol. II, Tab G at 259-60). CTS has cited no record evidence that Ms. Trudeau received any complaints other than those from Nova Care. Accordingly, CTS wrongly asserts that the Commission inaccurately represented Ms. Trudeau's customer complaints. In any event, to show that this asserted reason for not hiring Ms. Trudeau was pretextual, the Commission pointed to record evidence that it was not unusual for systems engineers to receive customer complaints, and that several of the systems engineers to whom CTS offered jobs had also received customer complaints. See EEOC Br. at 10 (citing R.E. 115-17); see also S.E.R. Vol. I, Tab F at 201 (Mr. Abretske's testimony that other systems engineers at Infinisys had received customer complaints similar to Ms. Trudeau's); S.E.R. Vol. I, Tab F at 203 (Mr. Abretske's testimony that he did not consider it significant when a customer requested a different engineer). As additional evidence that customer complaints were offered as a pretextual reason, the Commission argued that there is evidence that Mr. Gordon and Mr. Malone may not have known about Ms. Trudeau's customer complaints at the time of hiring. See EEOC Br. at 29-30. First, Mr. Abretske testified that he did not inform Mr. Gordon or Mr. Malone of Ms. Trudeau's customer complaints. (EEOC Br. at 10) (citing R.E. 55-56). Indeed, Mr. Malone testified that he was never informed of customer complaints. (S.E.R. Vol. II, Tab H at 284); see also R.E. 74 (Mr. Malone's testimony that when CTS was deciding who to hire, he had no knowledge of Ms. Trudeau's performance level). Thus, a reasonable jury could find that CTS's second proffered reason is not believable either. See Burdine, 450 U.S. at 256 (plaintiff may demonstrate pretext "by showing that the employer's proffered explanation is unworthy of credence"). CTS responds that "Scarborough testified that . . . he informed Malone and Gordon" of Ms. Trudeau's customer complaints. (CTS Br. at 32). However, Mr. Gordon specifically testified that he found out about Ms. Trudeau's customer complaints from Mr. Abretske. (R.E. 28). As stated, however, Mr. Abretske testified that he never told CTS officers about any customer complaints. (R.E. 55-56). Taking these inconsistencies into consideration, a reasonable jury could infer that the real reason for failing to offer Ms. Trudeau a job was her pregnancy, and not her customer complaints. See Reeves, 120 S. Ct. at 2109 (trier of fact may infer unlawful discrimination from a plaintiff's prima facie case combined with evidence that asserted justification is false). Finally, CTS insists that Mr. Abretske did not recommend Ms. Trudeau for a position with CTS. (CTS Br. at 10); see also CTS Br. at 28 (arguing that Mr. Abretske did not recommend Ms. Trudeau). In our opening brief, we pointed to evidence from which a reasonable jury could find that Mr. Abretske did indeed recommend Ms. Trudeau. First, the Commission's investigator made contemporaneous notes about his telephone interviews with Mr. Abretske. These notes reveal that Mr. Abretske "stated that he recommended that [CTS] hire all of the engineers that he supervised except for Francisco Brooks." (R.E. 106). Corroborating this evidence is Ms. Trudeau's deposition testimony. She testified that Mr. Abretske "said that he had recommended me."<5> (R.E. 66). As the Court is well aware, it does not have to decide whether Mr. Abretske really did recommend Ms. Trudeau. Nor does it have to decide, for example, whether Ms. Trudeau really was a better systems engineer than Mr. Bruder, whether CTS actually took over some Novell accounts from Infinisys, or even whether Ms. Trudeau is qualified for the position. The Court need only decide whether these questions are disputed and, viewing the evidence and drawing all reasonable inferences in the Commission's favor, whether a reasonable jury could find for the Commission.<6> See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (on summary judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [its] favor"); see also Goodwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1219-20 (9th Cir. 1998) (on summary judgment, Court must view evidence in light most favorable to nonmovant in deciding whether genuine issues of material fact exist). The Commission respectfully suggests that a reasonable jury could find that CTS refused to offer Ms. Trudeau a position because she was pregnant. Accordingly, the district court's grant of summary judgment was in error. 2. If a jury finds CTS liable, the Commission is entitled to damages. CTS continues to argue that the Commission is seeking compensation for Ms. Trudeau's vacation and sick time that had accrued while she was working at Infinisys. (CTS Br. at 33-34). CTS, however, ignores, and thus fails to respond to, the Commission's argument that it "is obviously not seeking reimbursement for wages . . . that Ms. Trudeau lost as a consequence of Infinisys' bankruptcy." (EEOC Br. at 33). As we argued in our opening brief, the Commission is seeking Title VII damages that flow directly from CTS's own unlawful conduct, including back pay with benefits, compensatory and punitive damages. (EEOC Br. at 33-34). CTS argues that it is "undisputed that the first 90 days of employment at CTS Southwest were considered an introductory period" during which employees were not entitled to health insurance. (CTS Br. at 35). As we pointed out in our opening brief, however, CTS's employee handbook indicates that new employees are entitled to medical insurance benefits anywhere from 30 to 60 days from the date of hire. See EEOC Br. at 35 (citing R.E. 125). CTS fails to respond to this point. CTS also claims that because Ms. Trudeau obtained insurance through her husband's employer, she did not suffer any losses. (CTS Br. at 35). The Commission, however, presented evidence that Ms. Trudeau did, in fact, incur out-of-pocket expenses to obtain insurance coverage after CTS refused to hire her. See EEOC Br. at 11 (citing R.E. 70, 100). In her affidavit, Ms. Trudeau stated, "I had to pay extra to add myself on to my husband's insurance." (R.E. 100). In addition, she testified that "we paid over $500 a month for the three months until I was covered by [my new job with] the State." (R.E. 70). Once again, CTS fails to respond. CTS next argues that "damages for [mental anguish and emotional distress] are not available under Title VII." (CTS Br. at 36). This is an incorrect statement of the law. Title VII was amended by the Civil Rights Act of 1991, which specifically allows awards of compensatory damages for "emotional pain, suffering, inconvenience, mental anguish, [and] loss of enjoyment of life." 42 U.S.C. § 1981a(b)(3). The Commission presented evidence that Ms. Trudeau did, indeed, suffer mental anguish and emotional distress as a result of CTS's unlawful discrimination. See EEOC Br. at 35-36 (citing R.E. 100). For example, in her affidavit, Ms. Trudeau stated that, when CTS refused to hire her, she was "devastated." (R.E. 100). Her statement continues: "Being six months pregnant with two babies, no income and no insurance was a paralyzing blow -- emotionally, mentally and financially." (R.E. 100). Thus, should a jury find CTS liable for unlawful employment discrimination, it may decide to compensate Ms. Trudeau for her mental anguish and emotional distress. As for an award of punitive damages, CTS states that the Commission failed to cite evidence that would support such an award. (CTS Br. at 37). Under the Civil Rights Act of 1991, if the Commission "demonstrates that [CTS] engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights" of Ms. Trudeau, then it would be entitled to an award of punitive damages. 42 U.S.C. § 1981a(b)(1). Throughout its opening brief, the Commission cited direct evidence of discriminatory intent, namely that CTS's officers discussed Ms. Trudeau's pregnancy when deciding who to hire, and they decided not to hire her because they were leery of hiring a pregnant woman. (R.E. 43-44). Thus, a jury should decide whether CTS intentionally discriminated with malice or reckless indifference. As to injunctive relief, CTS argues that such relief is not available against CTS Southwest because that entity has gone out of business. (CTS Br. at 38). The federal government, however, does not cease enforcement of federal anti-discrimination laws against a corporation simply because the corporation has gone out of business. In any event, the district court granted the Commission leave to amend its complaint to add CTS, Inc., the parent of CTS Southwest, because, as the district court observed, "the two entities share common management and ownership."<7> (R.E. 133). And even if CTS, Inc. were not a party, in special circumstances, such as where the parent "participated in or influenced the employment policies of [the subsidiary]," a parent corporation may be held liable for the Title VII violations of its wholly owned subsidiary. See Watson v. Gulf & Western Indus., 650 F.2d 990, 993 (9th Cir. 1981). Those special circumstances apply here, since the same individuals who were involved in the hiring decision at issue own and manage both corporations. Moreover, any relief obtained by the Commission may run against a successor of CTS Southwest, if there is one. Indeed, the Court has stated that "[i]n certain circumstances a new employer will be held liable for the legal obligations of its predecessor employer though explicit assumption of the obligations is absent." Bates v. Pacific Maritime Ass'n, 744 F.2d 705, 708 (9th Cir. 1984) (reaffirming that the successorship doctrine applies to Title VII obligations). Furthermore, if the Commission obtains an injunction, either CTS, Inc. or any successor to CTS Southwest would then be subject to the court's contempt power in case of future violations. See EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539, 1544 (9th Cir. 1987) (injunction instructing employer to comply with federal law renders employer subject to federal courts' contempt power). Thus, CTS's contention that injunctive relief is unavailable lacks merit. Finally, as to CTS's request for sanctions, as CTS acknowledges, Fed. R. App. P. 38 allows for an award of sanctions only in the case of a frivolous appeal. (CTS Br. at 39). "An appeal is frivolous if the result is obvious, or the arguments of error are wholly without merit." Williams v. United States Gen. Servs. Admin., 905 F.2d 308, 312 (9th Cir. 1990) (citation omitted). On appeal, as on summary judgment, the Commission has come forward with overwhelming evidence that raises genuine issues of material fact, thus demonstrating that the district court's grant of summary judgment was in error. That is precisely why CTS is not entitled to fees and costs pursuant to Rule 38. CTS's alternative request for attorney's fees under 28 U.S.C. § 2412 should also be denied. The Equal Access to Justice Act ("EAJA") [28 U.S.C. § 2412] does not apply to Title VII actions. See, e.g., EEOC v. Consolidated Serv. Sys., 30 F.3d 58, 59 (7th Cir. 1994) (EAJA not applicable to suits under Title VII); EEOC v. Kimbrough Investment Co., 703 F.2d 98, 103 (5th Cir. 1983) (same); EEOC v. Northwest Structural Components, Inc., 897 F. Supp. 249, 251 (M.D.N.C. 1995) (same); cf. Huey v. Sullivan, 971 F.2d 1362, 1366-67 (8th Cir. 1993) (refusing to award expert witness fees under EAJA, finding that it does not apply to Title VII actions). Furthermore, CTS's motion for attorney's fees is still pending in the district court; therefore, there is no final decision. Accordingly, this Court lacks jurisdiction over the issue of attorney's fees. See 28 U.S.C. § 1291. In any event, under Title VII's fee-shifting provision, 42 U.S.C. § 2000e-5(k), in order for the district court to assess fees against the government, CTS would have to establish that the Commission's lawsuit is frivolous, unreasonable, or without foundation. See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978) ("a district court may in its discretion award attorney's fees to a prevailing defendant in a Title VII case upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith"); see also Crowe v. Wiltel Communications Sys., 103 F.3d 897, 900-01 (9th Cir. 1996) (relying on Christiansburg standard to hold that district court acted well within its discretion in refusing to award fees to prevailing Title VII defendant). As the Commission's action is non-frivolous, reasonable, and supported by a solid foundation, an award of attorney's fees to CTS is wholly unwarranted. CONCLUSION For the foregoing reasons, as well as for the reasons stated in the Commission's opening brief, the Court should reverse the district court's grant of summary judgment and remand for trial. Respectfully submitted, C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel CAREN I. FRIEDMAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, NW, 7th Floor Washington, D.C. 20507 (202) 663-4720 November 20, 2000CERTIFICATE OF COMPLIANCE I certify that, pursuant to Fed. R. App. P. 32(a)(7)(C) and Ninth Circuit Rule 32-1, the attached reply brief is monospaced, has 10.5 or fewer characters per inch, and contains 5,133 words. ___________________________________ Caren I. Friedman CERTIFICATE OF SERVICE I hereby certify that on this 20th day of November 2000, the original and fifteen (15) true and correct copies of the attached brief were mailed first class postage prepaid to the Clerk of Court, and two (2) true and correct copies were mailed to counsel of record at the following address: Charles W. Herf, Esq. Mireya C. Martin, Esq. QUARLES & BRADY STREICH LANG, LLP Two North Central Avenue Phoenix, Arizona 85004-2391 ___________________________________ 1 See EEOC Br. at 20-21 (discussing the burden-shifting framework articulated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973)). 2 Record citations beginning "R." refer to the record proper. Those beginning "R.E." refer to the Commission's Excerpts of Record. Those beginning "S.E.R." refer to the defendants' Supplemental Excerpts of Record. 3 In support of this assertion, CTS cites only a "Dispute Chart" prepared by defense counsel's paralegal. See CTS Br. at 33 (top) (citing C.R. 66, Ex. A at 32, S.E.R. Vol. I, Tab C at 75). In fact, CTS cites this chart as evidentiary support throughout its brief. See, e.g., CTS Br. at 10, 11, 25, 26, 31, 33, 35. This chart does not constitute evidence. 4 See R.E. 33 (Ken Bruder); R.E. 34 (Jamie Neilon); R.E. 115 (Tom Donnelly); R.E. 119 (Dave Nansel); R.E. 80 (Francisco Brooks); R.E. 104 (Eric Borgen); R.E. 50 (Gerald Crow); R.E. 88 (Jeff Barrett). 5 In its response brief, CTS complains that the Commission "fails to inform the Court that CTS Southwest relied on both Abretske's and Scarborough's opinions." (CTS Br. at 9) (emphasis in original). The Commission did, however, point out Mr. Scarborough's role in the hiring process. See EEOC Br. at 7 n.4. In any event, CTS's complaint is ironic considering that at an earlier stage in this litigation, during its unsuccessful bid to hold Mr. Abretske (and his wife) liable for his deposition testimony, CTS stated that it "relied exclusively on the information and recommendations provided by . . . Abretske" and that "Abretske provided the only source of information regarding the systems engineers at Infinisys." See R.30 at 2, 3 (Third-Party Complaint filed by CTS against Mr. Abretske one week after he was deposed). Regardless of CTS's fluctuating position on this point, and regardless of who CTS relied on to make its hiring decisions, there are genuine issues of material fact as to whether CTS's failure to offer Ms. Trudeau a job was based on her pregnancy. 6 CTS's statement of the standard of review on summary judgment is incomplete and, therefore, incorrect. CTS states that the Court "must review the 'record taken as a whole,' giving credence to evidence that is 'uncontradicted and unimpeached.'" (CTS Br. at 18) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 120 S. Ct. 2097, 2110 (2000)). Plainly, on summary judgment, a court must give credence to more than just uncontradicted and unimpeached evidence, since a court's task on summary judgment is to ascertain whether there are triable issues of fact. What Reeves actually states is that "the court should give credence to the evidence favoring the nonmovant as well as that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses." Reeves, 120 S. Ct. at 2110 (discussing the standard under Rule 50, but analogizing to Rule 56) (citation omitted). 7 By Order of this Court, dated September 27, 2000, the instant case is currently on limited remand for the district court to decide the Commission's motion to correct a clerical error pursuant to Fed. R. Civ. P. 60(a). Until the district court rules on that motion, it is unclear whether the district court granted summary judgment in favor of both the parent and subsidiary, or only in favor of CTS Southwest, the subsidiary.