IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Case No. 03-20292 consolidated with 03-20500 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. DUNBAR DIAGNOSTIC SERVICES, INC.; VILLAGE ULTRASOUND CLINIC, INC., Defendants-Appellees. On Appeal from the United States District Court for the Southern District of Texas BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT JAMES L. LEE Deputy General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel JOHN F. SUHRE Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7040 Washington, D.C. 20507 (202) 663-4716 STATEMENT REGARDING ORAL ARGUMENT The Equal Employment Opportunity Commission respectfully requests that oral argument be granted in this case. The district court, inter alia, granted judgment as a matter of law to Dunbar Diagnostic Services, Inc. based on the court's view that the Commission's witness, Leticia Gonzalez, was not credible. However, the record contains sufficient evidence to permit a jury to find that Dunbar Diagnostic discriminated against Gonzales because she was pregnant and because she filed a charge of discrimination. Because there is a lengthy record in this case and because the Commission is asking this Court to reassign this case to a different judge on remand, the Commission requests the opportunity for oral argument. TABLE OF CONTENTS STATEMENT OF JURISDICTION .........................................................................1 STATEMENT OF THE ISSUES ..............................................................................2 STATEMENT OF THE CASE .................................................................................3 1. Nature of the Case and Course of Proceedings ...................................................3 2. Statement of the Facts ..........................................................................................4 3. Opinions below ..................................................................................................14 a. Oral opinion granting JMOL ...................................................................14 b. Oral opinion awarding attorneys' fees to DDSI ......................................17 SUMMARY OF ARGUMENT ..............................................................................19 ARGUMENT ..........................................................................................................22 I. THE DISTRICT COURT ERRED IN GRANTING JMOL TO THE DEFENDANT BECAUSE THE EVIDENCE IS SUFFICIENT TO SUPPORT A VERDICT FOR THE COMMISSION ON ITS CLAIMS OF PREGNANCY DISCRIMINATION AND RETALIATION ................22 A. There Is Sufficient Evidence to Support a Finding That DDSI Denied Health Insurance to Gonzalez Because She Was Pregnant ...............................................................................23 B. There Is Sufficient Evidence to Support a Finding That DDSI Fired Gonzalez Because She Filed a Charge of Discrimination With the EEOC ...................................................................................26 C. The District Court Erred in Awarding JMOL Based on Its View of Gonzalez's Credibility ....................................................28 TABLE OF CONTENTS – cont'd. II. THE DISTRICT COURT'S DECISION TO AWARD ATTORNEY'S FEES TO DDSI WAS AN ABUSE OF DISCRETION ..........................................................................32 III. THIS CASE SHOULD BE ASSIGNED TO A DIFFERENT JUDGE ON REMAND BECAUSE AN OBJECTIVE OBSERVER WOULD HAVE CAUSE TO QUESTION JUDGE HUGHES'S IMPARTIALITY BASED ON HIS CONDUCT AT THE TRIAL .............34 CONCLUSION .......................................................................................................40 TABLE OF AUTHORITIES Cases Page(s) Boyle v. Pool Offshore Co., 893 F.2d 713 (5th Cir 1990) . . . . . 29, 36 Brady v. Fort Bend County, 145 F.3d 691 (5th Cir. 1998) . . . . .28 Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978) . . . . .32 In Re: Daimler Chrysler Corp., 294 F.3d 697 (5th Cir. 2002) . . . . . . . . . . . . . . . . . . .35, 38 Delano-Pyle v. Victoria County, 302 F.3d 567 (5th Cir. 2002) . . . . . . . . . . . . . . . . . . .23, 28 Dotson v. Clark Equipment Co., 783 F.2d 586 (5th Cir. 1986) . . . . . 28 EEOC v. Olson's Dairy Queens, 989 F.2d 165 (5th Cir. 1993) . . . . . . 32 EEOC v. R.J. Gallagher Co., 181 F.3d 645 (5th Cir. 1999) . . . . . . . 32 Evans v. City of Houston, 246 F.3d 344 (5th Cir. 2001) . . . . . .27 Johnson v. Sawyer, 120 F.3d 1307 (5th Cir. 1997) .34, 35, 38 Little v. Southern Electric Steel Co., 595 F.2d 998 (5th Cir. 1979) . . . . . . . . . . . . . . . . . . . . .33 Medina v. Ramsey Steel Co., 238 F.3d 674 (5th Cir. 2001) . . . . . . . 33 Miss. Chemical Corp. v. Dresser-Rand Co., 287 F.3d 359 (5th Cir. 2002) . . . . . . . . . . . . . . . . . . . . .26 Mitchell v. Maynard, 80 F.3d 1433 (10th Cir. 1996) . . . . . 39 Potashnick v. Port City Const. Co., 609 F.2d 1101 (5th Cir. 1980) . . . . . . . . . . . . . . . . . . . . .34 TABLE OF AUTHORITIES – cont'd Cases Page(s) Raggs v. Mississippi Power & Light Co. 278 F.3d 463 (5th Cir. 2002) ................................................................................25 Reeves v. Sanderson Plumbing Product, Inc., 530 U.S. 133 (2000) . . . . . . . . . . . . . . . . . . .25 Rivas v. Brattesani, 94 F.3d 802 (2nd Cir. 1996) . . . . .36 Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398 (5th Cir. 1999) . . . . . . . . . . . . . . . . . . . . .27 Simon v. City of Clute, Tex., 825 F.2d 940 (5th Cir. 1987) . . . . . . 39 St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993) . . . . . .31 U.S. v. Bell, 678 F.2d 547 (5th Cir. Unit B 1982) ..........................27 U.S v. Columbia Broadcasting System, Inc., 497 F.2d 107 (5th Cir. 1974) ...............................................................................34 U.S. v. Davis, 285 F.3d 378 (5th Cir. 2002) . . . . . . .36 U.S. v. Deville, 278 F.3d 500 (5th Cir. 2002) . . . . . .28 U.S. v. Dotson, 615 F.2d 329 (5th Cir. 1980) . . . . . . .29 TABLE OF AUTHORITIES – cont'd Statutes Page(s) 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . 2 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. . . . . . . . . . . . . . . . . 1 42 U.S.C. §§ 2000e-2(a)(1) and 2000e-3(a) . . . . . . 3 42 U.S.C. §2000e-5(k) . . . . . . . . . . . . . . . . . .32 42 U.S.C. § 2003-5(f)(1) and (3) . . . . . . . . . . . . . 3 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Case No. 03-20292 consolidated with 03-20500 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. DUNBAR DIAGNOSTIC SERVICES, INC.; VILLAGE ULTRASOUND CLINIC, INC., Defendants-Appellees. On Appeal from the United States District Court for the Southern District of Texas BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT STATEMENT OF JURISDICTION These are consolidated appeals from a final judgment on the merits and an order awarding attorneys' fees entered in an action brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The district court had jurisdiction over this action under 42 U.S.C. § 2003-5(f)(1) and (3). On April 30, 2002, the district court dismissed Village Ultrasound Clinic Inc., as a defendant. RE, Tab 2. The district court granted judgment as a matter of law for Dunbar Diagnostic Services, Inc. ("DDSI") on January 10, 2003. RE, Tab 7 at 748. The Commission filed a timely notice of appeal on March 10, 2003. RE, Tab 4. The district court awarded attorneys' fees to DDSI on May 7, 2003. RE, Tab 8. The Commission filed a timely notice of appeal from that order on May 9, 2003. RE, Tab 6. This court has jurisdiction under 28 U.S.C. § 1291. STATEMENT OF THE ISSUES 1. Whether the district court erred in granting judgment as a matter of law to DDSI on the Commission's claim that DDSI denied an employee health benefits because she was pregnant. 2. Whether the district court erred in granting judgment as a matter of law to DDSI on the Commission's claim that DDSI fired an employee in retaliation for filing a charge of discrimination. 3. Whether the district court erred in awarding attorneys' fees to DDSI. 4. Whether this case should be reassigned to a different judge to ensure that the Commission receives an impartial trial on remand. 5. Whether the district court erred in dismissing Village Ultrasound Clinic, Inc., from this action. STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings. On February 13, 2002, the EEOC filed a complaint alleging that Dunbar Diagnostic Services, Inc. ("DDSI") and Village Ultrasound Clinic, Inc., violated §§ 703(a)(1) and 704(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a)(1) and 2000e-3(a). RE, Tab 9 at 1. Specifically the complaint alleges that the defendants denied Letitia Gonzalez health benefits because she was pregnant and fired her because she filed a charge with the EEOC complaining of defendants' conduct. Id. The defendants filed their answer on February 25, 2002. R 5. On April 29, 2002, the district court entered two orders, one stating, inter alia, that "[t]he parties agree that Dunbar Diagnostic Services, Inc., is an employer and meets the statutory requirements," (R 13) and the other stating "[o]n agreement of the parties, Village Ultrasound Clinic, Inc., is dismissed as a defendant." RE, Tab 2. On August 23, 2002, DDSI moved for summary judgment, (R 24) and on September 6, 2002, the EEOC moved for partial summary judgment. R 27. On October 16, 2002, the district court granted in part and denied in part DDSI's motion for summary judgment. R 35. The district court also denied in part the EEOC's motion for summary judgment. Id. A jury trial was held between January 7 and 10, 2003. At the end of the Commission's presentation of evidence, the district court granted judgment as a matter of law ("JMOL") to DDSI. RE, Tab 3 & Tab 7 at 748. On January 27, 2003, DDSI moved for attorneys' fees. R 79. On March 10, 2003, the EEOC filed a notice of appeal. RE, Tab 4. On May 7, 2003, the court awarded DDSI attorneys' fees in the amount of $114,572.50. RE, Tab 5. On May 9, 2003, the Commission filed a notice of appeal from the award of attorneys' fees. RE, Tab 6. On May 27, 2003, this Court consolidated the two appeals in this action. 2. Statement of the Facts. Leticia Gonzalez (formerly Munoz) began working as a sonographer for DDSI, on January 10, 2000. RE, Tab 14 at p. 000004. Gonzalez was hired by Linda Dunbar, the president and owner of DDSI and of Village Ultrasound Clinic, Inc. Tr., Vol. 2 at 260, 408-09. Gonzalez was pregnant when she was hired, and there was testimony that by March or April, her pregnancy was apparent. Tr., Vol. 2 at 409. Jane Gabriel, who left DDSI at the end of February, 2000, knew that Gonzalez was pregnant because she observed Gonzalez when she was in the office. Tr., Vol. 1 at 165-66. Yvonne Jumawan testified that she noticed that Gonzalez was pregnant in April, and Robert Real stated that Gonzalez was "showing" a "couple of months" after she started work in January. Tr., Vol. 1 at 179 & Vol. 2 at 395-96. Melissa Barrera, one of Gonzalez's coworkers, testified that, when she learned that Gonzalez was pregnant, she informed Dunbar. RE, Tab 13 at 689. Kim Wilson, who helped train and often supervised the sonographers, testified that, at Dunbar's request, she met with Gonzalez on April 26, 2000, to discuss her pregnancy. RE, Tab 11 at 386. Under the terms of her employment agreement, Gonzalez was eligible for medical insurance and other benefits after a 90-day probationary period, which would have ended on April 10, 2000. RE, Tab 14 at 000005 ¶ 3 ("[a]fter the initial 90 day probationary period Employee is eligible for health insurance"); RE, Tab 11 at 291-92 (agreement with insurance company required DDSI to "offer [employees] the group insurance benefits," unless they "had other options available and declined coverage"). It is undisputed that Gonzalez never obtained health insurance although she worked for DDSI for more than 90 days. Other employees routinely obtained health insurance at the end of 90 days. Arlissa Jackson, a former sonographer, stated that she was given insurance benefits three months after she started. RE, Tab 10. Dunbar acknowledged that Jumawan and Michelle Barreto got health insurance at the end of 90 days. RE, Tab 11 at 335. Dunbar testified that she did not provide health insurance to Gonzalez because "[s]he didn't ask." RE, Tab 11 at 291. However, Gonzalez testified that she asked Dunbar about medical benefits "several times," but Dunbar never offered them to her. RE, Tab 12 at 475. Wilson testified that Gonzalez told her two or three times that she wanted insurance benefits. RE, Tab 11 at 365. Furthermore, Barrera testified that it was "company policy" that employees were routinely offered benefits after 90 days, and that Dunbar offered her benefits after 90 days even though she had not asked for them. RE, Tab 13 at 688-89. Gonzalez's last day of work at DDSI was May 9, 2000. Gonzalez testified that, while she was at lunch with Jackson and Barrera, she began to have "contractions" in her abdomen, which she interpreted as symptoms of preterm labor. Tr., Vol. 2 at 417, & Vol. 3 at 546. Gonzalez returned to the office and called the office of her physician, Dr. Soto. Tr., Vol. 2 at 417. According to Gonzalez, she told Mimi Resendez, the doctor's receptionist, that she was having "contractions" and "pain." Gonzalez testified that, after putting her on hold, Resendez told Gonzalez that Dr. Soto wanted her to come to his office. Tr., Vol. 3 at 546-47. Gonzalez told Dunbar that she was having "a lot of pain," and needed to go to the doctor. Tr., Vol. 2 at 419. Dunbar told her she could not go to the doctor and ordered her to take a piece of equipment to another technician, Winnie Ogoe, at the Woodlands, a nursing home. Id.; see also Tr., Vol.2 at 283 (Dunbar acknowledges that, despite Gonzalez's complaints of pain, she ordered Gonzalez to assist Ogoe). Gonzalez testified that she again called Dr. Soto's office and that someone faxed a form from Dr. Soto's office addressed to DDSI on which was written, "Patient instructed to go to Labor & Delivery now!!" Tr., Vol. 2 at 420-21; Vol. 3 at 548-49; Plaintiff's Trial Exh. 42. Dr. Soto testified that the signature on the form is not his. Tr., Vol. 3 at 577. Gonzalez showed the fax to Dunbar, but Dunbar continued to insist that Gonzalez go to the Woodlands. Tr., Vol. 2 at 421-22; Vol. 3 at 552 & Tr., Vol. 1 at 173. Gonzalez did not go to the Woodlands; instead, her father took her to Memorial Hermann Hospital where Dr. Soto had privileges. Tr., Vol. 2 at 423, 426. After examining Gonzalez at the hospital, Dr. Soto wrote a note stating that Gonzalez was "presenting preterm labor." Plaintiff's Trial Exh. 44. Dr. Soto recommended bed rest "until further notice," and told Gonzalez to make an appointment with him for the following Monday, May 15. Plaintiff's Trial Exh. 44 & 45; Tr., Vol. 3 at 585. Dr. Soto's note was faxed to DDSI. Tr., Vol. 4 at 695. Barrera testified that she placed it under Dunbar's office door on May 9, and that she and Dunbar discussed it the next day. Id. at 695-96. After leaving the hospital on May 9, Gonzalez phoned DDSI and spoke to Barrera and Jackson. Tr., Vol. 2 at 429. She told them that Dr. Soto told her not to return to work. Id. Barrera testified that Dunbar had left her a note instructing her to suspend Gonzalez for three days and that, during this phone conversation, she told Gonzalez about the suspension. Tr., Vol. 4 at 694-95. Dunbar, however, denies that she suspended Gonzalez. Tr., Vol. at 284. On May 10, Gonzalez filed a charge with the EEOC alleging that DDSI discriminated against her based on her pregnancy by denying her health insurance even though she had completed her 90-day probationary period. RE, Tab 15. Gonzalez stated that she was prepared to return to work on Monday, May 15, after her appointment with Dr. Soto but Dr. Soto placed her on bed rest. RE, Tab 11 at 434 & Tab 12 at 588. Dunbar wrote to Gonzalez on May 15, denying her "request for medical leave" and listing several purported shortcomings in Gonzalez's performance. Defendant's Trial Exh. 33. Dunbar stated in the letter that Gonzalez had refused a position she was offered "in filing and medical records." Id. Dunbar again offered Gonzalez that job and stated that, if she accepted it, her "probationary period would be extended an additional 90 days." Id. In the letter Dunbar stated that if Gonzalez was not at work by 8:00 a.m. on May 16, 2000, "we will consider you terminated." Id. This letter was sent on May 15, by express courier. Plaintiff's Trial Exh. 55; Tr., Vol. 3 at 464-65. The courier records show, however, that the letter was not delivered until 8:56 a.m., May 16, after the deadline for Gonzalez to return had passed. Id. Gonzalez phoned Dunbar on May 16, and, according to Gonzalez, Dunbar stated that she could not talk to her "because [Gonzalez] had contacted an attorney." RE, Tab 11 at 435 The same day, Dunbar wrote two letters to Gonzalez referring to their phone conversation. RE, Tab 17 & Tab 19. In one letter, Dunbar wrote that she understood that Gonzalez is "refusing the position offered and [is] calling an attorney" and that Gonzalez's "insubordinate behavior consisting of screaming constantly and threatening a lawsuit resulted in your resignation." RE, Tab 19. In the other letter, Dunbar again mentioned that Gonzalez is calling an attorney and stated, "I must assume that you have resigned." RE, Tab 17. Also on May 16, 2000, Dunbar signed a "Mediation Election Form" which was enclosed with the notice of Gonzalez's charge sent to DDSI by the EEOC. RE, Tab 16. Although the form is dated May 16, 2000, Dunbar testified that she wrote the wrong date on the form. Tr., Vol. 2 at 307-08. On May 17, Dr. Soto's office faxed a document to Dunbar affirming the doctor's instructions that Gonzalez was to remain on bed rest and was not to work until May 23, 2000. Plaintiff's Trial Exh. 57. On May 18, Gonzalez amended her charge to include an allegation that Dunbar discharged her in retaliation for complaining about unlawful employment practices. RE, Tab 18. Gonzalez never returned to work at DDSI. Dunbar testified that she did not fire Gonzalez, but that Gonzalez "voluntarily resigned." RE, Tab 11 at 288. The Commission brought this action alleging that DDSI failed to offer Gonzalez health insurance and other employment benefits because she was pregnant and then fired Gonzalez in retaliation for filing a charge of discrimination. RE, Tab 9 at 1. The Commission also named as a defendant Village Ultrasound, Inc. Id. The Commission alleged that DDSI had the requisite number of employees to be an employer under Title VII and, alternatively, that DDSI and Village Ultrasound are an integrated enterprise so that employees of both companies should be aggregated for purposes of Title VII coverage. Id. On April 30, 2002, the district court dismissed Village Ultrasound as a defendant "on the agreement of the parties" (RE, Tab 2) and issued an order stating that the parties agree that DDSI "meets the statutory requirements" to be a Title VII employer. R 13. On October 16, 2002, the district court denied DDSI's motion for summary judgment, stating that "[t]here is a genuine issue of material fact whether Dunbar discriminated against [Gonzalez] because she was pregnant." R 35. A jury trial began on January 7, 2003. At the end of the Commission's case, the court granted JMOL for DDSI. RE, Tab 7 at 748. During the trial, Judge Hughes repeatedly expressed the view that Gonzalez was not truthful. For example, in response to a question by DDSI as to whether she was on Medicaid in 1998, Gonzalez responded that her "oldest son" was. RE, Tab 12 at 478. DDSI's counsel asked the judge's permission to impeach Gonzalez by introducing a document from her medical files showing that Gonzalez was on Medicaid in 1998. RE, Tab 12 at 505-06. The Commission's counsel stated that he had no objection to DDSI questioning Gonzalez about her Medicaid coverage. RE, Tab 12 at 567. However, Judge Hughes remarked to Commission's counsel that Gonzalez had been questioned about Medicaid and "ha[d] lied." Id. Judge Hughes then instructed the jury that, contrary to Gonzalez's testimony that, as he characterized it, "the only Medicaid coverage that she had had [sic] was because of her child or for her child in 1999," Gonzalez had routine Medicaid coverage for her "medical expenses" that had nothing "to do with any of her children." RE, Tab 12 at 675. On other occasions during the trial, Judge Hughes stated: that "all of [Gonzalez's] testimon[y]" about what she wanted, needed and did not have is "not true" (RE, Tab 12 at 567); that he had "a problem with [Gonzalez] picking and choosing answers" (RE, Tab 12 at 634); that Gonzalez was giving "different answers to different people at different times" (RE, Tab 12 at 635); that Gonzalez's statement on an employment application that she had left DDSI "to have a child," rather than because she was "fired," was "actively dishonest" (RE, Tab 12 at 643-44); and that the only evidence that Gonzalez had asked for benefits was her "bald assertion . . . which is suspect." RE, Tab 12 at 631. On several occasions, Judge Hughes expressed his view that Gonzalez was not credible in front of the jury. For example, when DDSI's counsel asked Gonzalez whether she understood that she was "expected to work 40 hours a week," she answered that she was "a salaried employee." RE, Tab 12 at 627. Counsel asked Gonzalez if she recalled her answer to that question at her deposition and she said, yes, that she "was expected to work 40 hours a week." Id. When counsel asked her if her deposition and trial testimony were different, Gonzalez said "no." Id. At that point, Judge Hughes stated in front of the jury, "Yes. They're opposite." RE, Tab 12 at 627-28. EEOC's counsel argued that Gonzalez's testimony reflected what Dunbar had told her – that she was a salaried employee and was expected to work 40 hours per week. RE, Tab 12 at 629-30. Judge Hughes stated that "it doesn't matter" what Dunbar told Gonzalez. RE, Tab 12 at 633. Rather, the judge insisted that Gonzalez could not be a salaried employee under federal wage and hour laws because she was paid "an hourly rate" and was expected to make up hours that she did not work. RE, Tab 12 at 633-35. After Gonzalez testified that she put "to have a child" on a job application as the reason for leaving DDSI because the blank on the form was too small to give the full explanation, Judge Hughes asked her in front of the jury whether the word "terminated" is longer than "to have a child." RE, Tab 12 at 469 Similarly, when Gonzalez testified that she made an "innocent mistake" in completing a post- discharge application for employment, Judge Hughes asked her in the presence of the jury whether she "often write[s] 8/99 for 1/00." RE, Tab 12 at 617. When Gonzalez stated that she was in a hurry to complete the application, the judge stated, "Excuse me. That excuses not doing it correctly?" Id. The judge, outside the presence of the jury, referred to the May 9 fax as "faked" and stated that by offering it as evidence, the Commission was "at the point of proffering what is manifestly false evidence." RE, Tab 12 at 628-29. Judge Hughes accused the Commission of taking the position that a complainant can "tell whatever story she wants" regardless of whether it is consistent with what she has alleged in her complaint. RE, Tab 12 at 644. Commission's counsel attempted to explain why the Commission did not agree that Gonzalez had reversed "numerous answers." Id. However, Judge Hughes cut off counsel, stating that he was not concerned about "views and positions and contentions and assertions." Id. Judge Hughes then put EEOC's counsel under oath and asked him whether or not it is inconsistent to say, "‘I was only on Medicaid in ‘99 because of my little boy through him,' when in fact, in the preceding five years she'd been on Medicaid routinely for herself directly." RE, Tab 12 at 644-45. The judge also asked counsel to state under oath whether "saying, ‘I was fired'" is inconsistent with "saying ‘I left to have a child,'" and whether it is "inconsistent to say, ‘I put "To have a child" in the blank because "Terminated" wouldn't fit.'" RE, Tab 12 at 645 3. Opinions below. . . . . . . . . . . . . . . . . . .a. Oral opinion granting JMOL. The district court did not issue a written opinion. The court's oral explanation for the decision to grant defendant's motion for JMOL is not entirely clear. However, it appears that the court's primary reason for granting JMOL was that it concluded that Gonzalez was untruthful. The district judge repeatedly characterized Gonzalez's testimony as unbelievable. He stated, for example, that Gonzalez has made "material representations" that are "contrary to assertions that she's made under oath" at trial and in "operating documents." RE, Tab 7 at 749-50. The court also stated that Gonzalez's testimony was inconsistent, not just on "collateral matters," but on "core operating facts," and that she had "categorically contradict[ed] herself . . . on direct facts." Id. The judge stated that Gonzalez has testified to "inconsistent behaviors" and that there was an "absence of independent evidence of many of her assertions." RE, Tab 7 at 750. The court opined that a note Gonzalez made in DDSI's computer regarding the hours she worked on March 31 could be considered either "insubordinate" or "smart aleck" by a "reasonably disinterested, fully informed person." RE, Tab 7 at 750. The court also stated that the criticisms of Gonzalez's conduct in Dunbar's letter of May 15 regarding "insubordination, time and attendance, and technical qualification, all have substantial evidence and independent corroboration." RE, Tab 7 at 751. According to the court, certain "anti-pregnancy" comments made by Dunbar "were not job-related," not made to Gonzalez, and "not current." Id. The court also stated that "there is not a shred of evidence that Diagnostic's health insurance would reasonably have been, believed to have been [sic], or have been [sic], adjusted by reason of a pregnancy in the spring of 2000." Id. The court stated that neither the insurance nor Dunbar's remarks "are connected to the pregnancy in the least." RE, Tab 7 at 754. The court stated that an employer might react with either "displeasure" or "hostility" "when somebody refuses a chore and then several hours later insists they've spontaneously got to go to the doctor." RE, Tab 7 at 753. The court stated that it was "finding" that the "adverse job action" Gonzalez suffered "is not that she was fired, but [that] she had problems at work," for which she was suspended for three days. Id. According to the court, there was an "altercation" on May 9, and Dunbar later wrote Gonzalez a letter about her behavior and "accumulated performance problems." RE, Tab 7 at 754. The court concluded, in response to the Commission's argument that there is a lack of "evaluations and write-ups," that documentation, while it may be a "good business practice," is not a "requirement of federal law." RE, Tab 7 at 755. The court stated that "the plaintiff's evidence about discipline was only that other people were disciplined more severely than [Gonzalez] was up until the end." RE, Tab 7 at 755-56. According to the court, "that's not evidence of systematic pregnancy prejudicial infliction of discipline [sic] . . . but it's idiosyncratic and worked to the plaintiff's benefit." RE, Tab 7 at 756. . . . . . . . . b. Oral opinion awarding attorneys' fees to DDSI. The district court awarded DDSI $114,572.50 in attorneys' fees. Once again the court did not issue a written decision. In its oral ruling, the court, in explaining why its denial of DDSI's motion for summary judgment was not inconsistent with its ruling that the claims in this case were frivolous, stated that the denial of the motion was not "a frivolous activity by [DDSI's] counsel, but had a joint responsibility and the EEOC's offering of known misinformation and the Court's intellectual limit." RE, Tab 8 at 19. The court stated that, while it did not know what the Commission knew or reasonably should have known when it brought this action, the "case was tried after the [Commission] knew [Gonzalez] had testified in ways that categorically contradicted the legal basis for the claim." Id. The court stated that the Commission "persisted in proffering testimony that was categorically, factually, specific in contradiction to earlier testimony and earlier documents by the complainant." Id. The court stated that the "Commission's witness said ‘A' and not ‘A' under oath, and compelling circumstances for veracity." RE, Tab 8 at 20. According to the court, the Commission persisted with this suit "after a reasonably early opportunity to discover what actually happened and to some extent the Commission's failure to collaborate [sic] the claims by the complainant, all made this case extend long beyond when it should have." Id. The court stated that the Commission could have "investigated the claim competently and [could] have discovered the contradictory documentary evidence ranging from medical records to employment applications of its principal witness," and that, in any event, even if the suit was not frivolous when initiated, "its continuation after the first 20 percent was manifestly without merit." Id. The court stated that "[t]he finding is the case should not have been brought had it been properly prepared under the obligations of the rules." Id. The court made a "contingent finding" that "80 percent of . . . the cost after the litigation was initiated was incurred in the defense of a case at which point the Commission could not reasonably have believed it had in good faith in the public interest, a case arising under the laws of the United States over which it had jurisdiction." RE, Tab 8 at 20-21. According to the court, "the Commission's prosecution of this case was wholly misguided," and "a reasonable, prudent, public entity responsible [sic] investigation would not have produced the lawsuit." RE, Tab 8 at 23. The court stated that when a "government agency . . . is gross[ly] inept, it's the functional equivalent of malice." Id. Lastly, the court stated that the Commission's continuing to litigate "after [DDSI] brought to its attention the defects it should have discovered on its own, clearly is bureaucratic thuggery." Id. SUMMARY OF ARGUMENT The district court erred in granting JMOL to DDSI because the evidence in the record was sufficient to support a finding that DDSI denied Gonzalez health insurance because she was pregnant and fired her because she filed a charge complaining about the denial of benefits. It is undisputed that, although DDSI's employees are eligible for health insurance and other benefits at the end of 90 days, DDSI never offered Gonzalez such benefits at any time despite the fact that Gonzalez worked for DDSI for more than 90 days. Moreover, there is evidence that Dunbar knew of Gonzalez's pregnancy at the time she became eligible for benefits. Dunbar's only explanation for not offering Gonzalez benefits was that she did not ask for them. A reasonable jury could find that this was not DDSI's real reason for not offering benefits to Gonzalez, first, because Gonzalez testified that she did ask for benefits at the end of 90 days and, second, because there was ample uncontradicted evidence that DDSI routinely provided benefits to employees at the end of 90 days even without a request from the employee. There is also sufficient evidence to support a finding that DDSI fired Gonzalez because she filed a charge with the EEOC. Dunbar sent a letter firing Gonzalez on the same day that she signed a form from the EEOC accompanying the notice of Gonzalez's charge of pregnancy discrimination. Moreover, Dunbar's letter alludes to the fact that Gonzalez was threatening a lawsuit in explaining why her employment at DDSI was at an end. In its oral opinion granting JMOL, the district court failed to assess the adequacy of the evidence to support the EEOC's claims. Instead, the court appeared to base its decision entirely on the court's view that Gonzalez was not believable. In so doing, the court erred because the jury has the exclusive authority to assess Gonzalez's credibility, even assuming that some of her testimony was contradictory. Moreover, Gonzalez's trial testimony was not inconsistent with her deposition testimony on any matter relevant to the claims in this case. Rather, the contradictions pointed out by the court were either not clear inconsistencies or were not relevant to the claims of discrimination. Even putting aside Gonzalez's testimony, there is sufficient evidence to support a finding for the Commission on both of the claims in this case. Accordingly, the district court should have allowed this case to go to the jury. If this Court reverses the district court's order granting JMOL, the award of attorneys' fees also must be reversed because DDSI will no longer be a prevailing party. However, even if DDSI were the prevailing party, it would not be entitled to attorneys' fees for several reasons. First, the district court's decision to deny summary judgment to DDSI on the claims in this action cannot be reconciled with a finding that the same claims were frivolous or litigated in bad faith. Insofar as the district court appears to base its fee award on its view of Gonzalez's credibility, it once again usurps the jury's authority to determine the credibility of a witness. Moreover, because the Commission's claims are supported by evidence other than Gonzalez's testimony, those claims are not frivolous, even if some of Gonzalez's statements at trial were not true. Finally, even if some of Gonzalez's statements at trial were not true, there is no evidence that the Commission knew that she would testify falsely when called as a witness. Because Judge Hughes failed to remain impartial during the trial, this Court should reassign this case to a different judge on remand. The judge became so convinced that Gonzalez was lying that he repeatedly contravened proper trial procedures, most noticeably by usurping the jury's function in deciding Gonzalez's credibility. Judge Hughes repeatedly stated that statements by Gonzalez were not true, refused to hear arguments to the contrary, and was unwilling to permit the jury to make its own decision regarding alleged inconsistencies in Gonzalez's testimony. Reassignment is appropriate because, given the strength of the judge's view that Gonzalez was lying, he cannot reasonably be expected to divest himself of that view on remand. In any event, reassignment would be appropriate because a reasonably objective observer could question whether a party could receive a fair trial on remand where the judge has stated that the party's primary witness is a liar and is closed to any argument that she is not. Moreover, Judge Hughes showed general skepticism toward the Commission's case, unreasonably criticized Commission's counsel, and, in awarding attorneys' fees, stated that the Commission's continuing with this case was "bureaucratic thuggery." It is not likely that the judge, having expressed such strong views regarding the Commission's case, will be able to ignore his prior opinions or remove any concerns that the Commission would be treated impartially on remand. ARGUMENT I. THE DISTRICT COURT ERRED IN GRANTING JMOL TO DDSI BECAUSE THE EVIDENCE IS SUFFICIENT TO SUPPORT A VERDICT FOR THE COMMISSION ON ITS CLAIMS OF PREGNANCY DISCRIMINATION AND RETALIATION. After the Commission had presented its evidence at trial, the district court entered JMOL for DDSI on both of the claims presented by the Commission. A district court should grant JMOL to a defendant only if, "view[ing] all the evidence ‘in the light and with all reasonable inferences most favorable to the party opposed to the motion,'" the evidence is insufficient to support a verdict for the plaintiff. Delano-Pyle v. Victoria County, 302 F.3d 567, 572 (5th Cir. 2002) (quoting Resolution Trust Corp. v. Cramer, 6 F.3d 1102, 1109 (5th Cir.1993)). As we demonstrate below, there is ample evidence to support a finding that DDSI denied Gonzalez health insurance because she was pregnant and then fired her in retaliation for filing a charge with the Commission. In granting JMOL, the district court failed to conduct any review of the evidence on the Commission's claims. Instead the court based its decision on its view of Gonzalez's credibility. This was wrong for two reasons: first, it is the function of the jury, not the district court, to assess the credibility of witnesses (Delano-Pyle, 302 F.3d at 572); and, second, Gonzalez's testimony is not essential to either of the Commission's claims. Accordingly, the decision to grant JMOL should be reversed. A. There Is Sufficient Evidence to Support a Finding That DDSI Denied Health Insurance to Gonzalez Because She Was Pregnant. It is undisputed that DDSI employees are eligible for health insurance and other benefits at the end of 90 days of employment. RE, Tab 14; Tab 11 at 292 & Tab 13 at 688-89 It is also undisputed that DDSI did not offer Gonzalez health insurance or other benefits at any time although she had worked for DDSI for 90 days as of April 10, 2000. RE, Tab 11 at 291. Furthermore, there is evidence that would support a finding that Dunbar knew that Gonzalez was pregnant around the time that she became eligible for benefits. As discussed supra at 4-5, there is no question that Dunbar saw Gonzalez frequently and there was testimony that by March Gonzalez's pregnancy, which was then six months along, was apparent. Furthermore, Barrera testified that she told Dunbar that Gonzalez was pregnant (RE, Tab 13 at 689), and Wilson testified that Dunbar asked her to speak with Gonzalez about her pregnancy in April. RE, Tab 11 at 386. This evidence is sufficient for a jury to find that, because Gonzalez was pregnant, Dunbar failed to offer her health benefits after Gonzalez was employed for 90 days. The only explanation DDSI offered for its failure to offer benefits to Gonzalez was Dunbar's testimony that Gonzalez did not ask for them. RE, Tab 11 at 291. However, there is ample evidence in the record that would support a finding that this explanation was not the true reason for DDSI's failure to provide insurance to Gonzalez. First, there was evidence that Gonzalez did, in fact, ask for benefits. Gonzalez testified that she asked Dunbar about getting medical benefits shortly before the end of her 90-day probation and several times thereafter. RE, Tab 12 at 475. This evidence is corroborated by Wilson's testimony that Gonzalez told her several times that she wanted benefits. RE, Tab 11 at 365. Based on this evidence, a reasonable jury could find that Dunbar's testimony that Gonzalez did not ask for benefits was false, and could infer from that that the real reason for Dunbar's failure to offer Gonzalez benefits was unlawful discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 147 (2000) (a jury may "infer the ultimate fact of discrimination from the falsity of the employer's explanation" particularly where accompanied by evidence of "mendacity"). However, even if the jury was not convinced that Gonzalez had asked for benefits, it could still find that DDSI's explanation for denying her benefits was not true, because there is substantial evidence that employees were routinely provided benefits after 90 days even if they did not request them. There was testimony from witnesses other than Gonzalez, uncontradicted by DDSI, that the company provided benefits after 90 days without a request from the employee. See supra at 5-6. A reasonable jury could infer from this evidence that DDSI's assertion that Gonzalez did not get benefits because she did not ask for them is unworthy of belief even if it is not convinced that Gonzalez asked for benefits. Raggs v. Mississippi Power & Light Co. 278 F.3d 463, 467 (5th Cir. 2002) ("A jury is free to choose among reasonable constructions of the evidence") (quoting U.S. v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (en banc)). . . . . . . . B. There Is Sufficient Evidence to Support a Finding That DDSI Fired Gonzalez Because She Filed a Charge of Discrimination With the EEOC. There is no question that, on May 10, 2000, Gonzalez filed a charge of discrimination alleging that DDSI had discriminated against her by refusing to offer her health benefits due to her pregnancy. RE, Tab 15. In her May 15 letter, Dunbar indicated that Gonzalez still had a job at DDSI "in filing and medical records." Defendant's Trial Exh. 52. On May 16, however, Dunbar sent Gonzalez two letters indicating that Gonzalez's employment at DDSI was over. In those letters, Dunbar stated that, because Gonzalez was "calling an attorney" and had "threaten[ed] a lawsuit," Dunbar was treating Gonzalez as if she had resigned. RE, Tab 17 & 19. Furthermore, there is evidence that, by May 16, Dunbar knew that Gonzalez had filed her pregnancy discrimination charge. The record contains an EEOC mediation election form signed by Dunbar and dated May 16, 2000. RE, Tab 16. A jury reasonably could find, based on the fact that Dunbar sent the letter terminating Gonzalez on the very day she received notice that Gonzalez had filed a charge, that Dunbar did so in retaliation for filing a charge of discrimination. Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398 (5th Cir. 1999) (fact issue remained as to plaintiff's Title VII retaliation claim where defendant fired plaintiff on the very day plaintiff was overheard talking to counsel for plaintiffs in class action against defendant); Evans v. City of Houston, 246 F.3d 344, 354 (5th Cir. 2001) ("Close timing between an employee's protected activity and an adverse action against [her] may provide the 'causal connection' required to make out a prima facie case of retaliation.") (emphasis omitted). Dunbar testified that she did not fire Gonzalez, but that Gonzalez "voluntarily resigned." RE, Tab 11 at 288. However, there is no evidence that Gonzalez resigned. Gonzalez testified that she was prepared to return to work on May 15, after her doctors appointment, but that she could not because Dr. Soto had placed her on bed rest. RE, Tab 11 at 434 & Tab 12 at 588. Moreover, Gonzalez had Dr. Soto's instructions placing her on bed rest faxed to DDSI on May 17. A jury could reasonably infer that Gonzalez would not have done so if she meant to resign. Based on all of the evidence, a reasonable jury could find that, upon learning that Gonzalez had filed a charge, Dunbar fired Gonzalez, but characterized the termination as a resignation. C. The District Court Erred in Awarding JMOL Based on Its View of Gonzalez's Credibility. In its oral explanation of the decision to grant JMOL to DDSI, the district court did not conduct a review of the evidence to determine whether, taken as a whole with all reasonable inferences drawn in favor of the Commission, it was sufficient to support a finding for the Commission, as it was required to do. Delano-Pyle, 302 F.3d at 572. Instead the court appeared to base its decision entirely on its opinion that Gonzalez's testimony was not credible. The court stated that the Commission could not prevail because Gonzalez gave contradictory testimony on "collateral matters" as well as "core operating facts," and "categorically contradicted herself . . . on direct facts." RE, Tab 7 at 749-50. In basing its decision on its perception that Gonzalez was untruthful, the court violated the fundamental principle that, in ruling on a motion for JMOL, a court is prohibited from "assess[ing] the credibility of witnesses." U.S. v. Deville, 278 F.3d 500, 506 (5th Cir. 2002). Whether or not a witness's testimony is truthful is "the purest of jury issues." Dotson v. Clark Equip. Co., 783 F.2d 586, 588 (5th Cir. 1986); Brady v. Fort Bend County, 145 F.3d 691, 714 (5th Cir. 1998) ("jury has exclusive authority to assess credibility of witnesses"). Even where a witness's "contradictory testimony" might "provoke judicial indignation, case law precedent and constitutional precepts forbid judicial interference with the jury's duty to resolve credibility issues." U.S. v. Dotson, 615 F.2d 329, 332 (5th Cir. 1980). Consequently, even if the court had a basis for believing that Gonzalez gave contradictory evidence on matters critical to the claims in this case, the court erred in granting JMOL on this basis. See Boyle v. Pool Offshore Co., 893 F.2d 713, 717 (5th Cir 1990) ("[c]redibility is a question for the jury," therefore a court cannot "dismiss [plaintiff's] testimony simply because it was impeached to some extent"). In any event, Gonzalez's testimony at trial did not conflict with her deposition testimony on any matter relevant to the claims in this case. The conflicts identified by the district court either were not clear contradictions or were on tangential matters that were not relevant to either of the claims before the court. For instance, the court made much of Gonzalez's response to DDSI's question whether she was on Medicaid in 1998. RE, Tab 7 at 478. The district court stated that Gonzalez "lied" when she responded that her oldest son was without affirmatively stating that she was also on Medicaid. RE, Tab 12 at 567. However, even assuming that Gonzalez's response is inaccurate, it simply is not relevant to either of the claims in this case that challenge employment decisions made in the spring of the year 2000. Similarly, the court's belief that Gonzalez was dishonest in filling out an employment application after she left DDSI has no apparent connection to the issues in this case. In fact, none of the inconsistencies alluded to by the district court undermine the evidence supporting Gonzalez's claim that DDSI discriminated against her on the basis of pregnancy and discharged her when she filed a charge of discrimination. At best, the purported inaccuracies in Gonzalez's testimony go to her general credibility. But, as discussed previously, it is for the jury, not the district court, to make credibility determinations at trial. Further, even disregarding Gonzalez's testimony altogether, there is sufficient evidence to permit a reasonable jury to find that Dunbar discriminated against Gonzalez on the basis of pregnancy and in retaliation for filing a charge. Dunbar claimed that she did not offer Gonzalez benefits because she did not ask for them. However, the evidence showed that Jackson, Jumawan and Barreto all were given health benefits at the end of 90 days. Moreover, Barrera, testified that it was "company policy" that employees were offered benefits after 90 days, and that she received benefits after 90 days without being required to ask. RE, Tab 13 at 688-89. Accordingly, without considering any of Gonzalez's testimony, a reasonable jury could find that Dunbar's explanation for not offering Gonzalez health benefits was not true. Likewise, a jury could conclude from the statements in Dunbar's letters alone that she discharged Gonzalez on May 16 after she became aware that Gonzalez had filed a charge of discrimination with the Commission. None of the other matters alluded to in the court's opinion support its decision to grant JMOL to DDSI. The court stated that an entry Gonzalez made in DDSI's computerized time and attendance program reasonably could be considered as "insubordinate" and that an employer might react with hostility when an employee "refuses a chore" and insists hours later that she has to go to the doctor. RE, Tab 7 at 750. While the court did not explain these conclusions, they suggest that the court believed that DDSI had a nondiscriminatory basis for firing Gonzalez. However, Dunbar never claimed that she fired Gonzalez because she was insubordinate or refused Dunbar's order to assist another technician. In fact, Dunbar testified that she did not fire Gonzalez at all, but that Gonzalez voluntarily resigned. RE, Tab 11 at 288. Consequently, Gonzalez's purported insubordination and refusal to perform a chore do not constitute a legitimate, nondiscriminatory reason for her discharge because they do not explain that decision. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993) (a defendant must "clearly set forth . . . reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action"). Accordingly, when the evidence is viewed under the proper standard, it is clear that the Commission's claims against DDSI should have been decided by the jury, not by the district court. II. THE DISTRICT COURT'S DECISION TO AWARD ATTORNEYS' FEES TO DDSI WAS AN ABUSE OF DISCRETION. If this Court agrees that the district court erred in granting JMOL, then the court's order awarding attorneys' fees to the defendant must be vacated because the defendant would no longer be the prevailing party. See 42 U.S.C. §2000e-5(k) (authorizing award of attorneys' fees to the "prevailing party" in a Title VII action); EEOC v. R.J. Gallagher Co., 181 F.3d 645, 657 n. 6 (5th Cir. 1999) (court "must vacate the district court's fee award" because it reversed summary judgment for defendant). Even if DDSI were the prevailing party, however, it would not be entitled to an award of attorneys' fees. A prevailing defendant in a Title VII action is entitled to attorneys' fees only where the plaintiff's complaint was "frivolous, unreasonable, or groundless, or . . . the plaintiff continued to litigate after it clearly became so." Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978). See also EEOC v. Olson's Dairy Queens, 989 F.2d 165, 169 (5th Cir. 1993). The district court abused its discretion in holding that this action met the Christiansburg standard. See Medina v. Ramsey Steel Co., 238 F.3d 674, 686 (5th Cir. 2001) (award of attorneys' fees is reviewed for abuse of discretion). The clearest indication that this action was not frivolous is the district court's decision to deny DDSI's motion for summary judgment. As this Court has recognized, "it cannot be said" that claims which survived summary judgment "were frivolous or . . . litigated in bad faith." Medina, 238 F.3d at 686. The district court, in seeking to explain how it could deem frivolous claims that it had upheld on summary judgment, stated that its earlier decision to deny summary judgment was based in part on "the EEOC's offering of known misinformation" by "persist[ing] in proffering testimony" from Gonzalez that contradicted her earlier testimony. RE, Tab 8 at 19. Insofar as this statement indicates that the court's award of fees is based on the court's view that Gonzalez's testimony was untruthful, it suffers from the same infirmities as the decision awarding JMOL. The district court was not entitled to make a finding as to credibility in this jury case, and, without a proper finding that Gonzalez's testimony was not credible, it was error for the court to make an award of attorneys' fees on that basis. Cf. Little v. Southern Elec. Steel Co. 595 F.2d 998, 1005 (5th Cir. 1979) (where district court, as fact finder, did not make an explicit finding that plaintiff's testimony was false, no award of attorneys' fees could be based on that ground). Furthermore, because the testimony cited by the district court was not necessary to the Commission's claims, even if the testimony were false, that would not support a finding that the Commission's claims were frivolous. Finally, even if some of Gonzalez's statements at trial were not true, there is absolutely no basis for the court's implication that the Commission knew that she would make false statements when it proffered her as a witness. III.THIS CASE SHOULD BE ASSIGNED TO A DIFFERENT JUDGE ON REMAND BECAUSE AN OBJECTIVE OBSERVER WOULD HAVE CAUSE TO QUESTION JUDGE HUGHES'S IMPARTIALITY BASED ON HIS CONDUCT AT THE TRIAL. A judge has an obligation to remain impartial during a trial. Potashnick v. Port City Const. Co. 609 F.2d 1101, 1111 (5th Cir. 1980) ("the protection of the integrity and dignity of the judicial process from any hint or appearance of bias is the palladium of our judicial system") quoting U.S v. Columbia Broadcasting Sys., Inc., 497 F.2d 107, 109 (5th Cir. 1974). Where a judge's impartiality is at issue, a court of appeals has the authority to reassign a case to a different judge on remand. Johnson v. Sawyer, 120 F.3d 1307, 1333 (5th Cir. 1997). This Court should exercise that authority in this case. In deciding whether to reassign a case, this Court considers: (1) whether the original judge would "reasonably be expected" upon remand to have "substantial difficulty" in putting out of his mind "previously-expressed views or findings determined to be erroneous;" (2) whether reassignment would "preserve the appearance of justice;" (3) whether "an objective observer" might have reasonable cause to "question the judge's impartiality;" and (4) whether "reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness." See In Re: Daimler Chrysler Corp., 294 F.3d 697, 700-01 (5th Cir. 2002) and Johnson, 120 F.3d at 1333. All of these factors militate in favor of reassignment in this case. It is apparent from his statements and conduct during the trial of this matter that Judge Hughes has made up his mind that Gonzalez is not a credible witness. This conviction is so strong that it led Judge Hughes to deviate from appropriate trial procedures on a number of occasions, most notably, as we have explained, by improperly usurping the jury's role in making a determination regarding Gonzalez's credibility. Judge Hughes's firm conviction that Gonzalez is untruthful manifested itself in numerous other statements and rulings during the trial. At the trial, Judge Hughes completely abandoned any pretense of impartiality on the question of Gonzalez's credibility. He repeatedly stated, both in front of the jury and outside the jury's presence, that various statements by Gonzalez were false. For example, when DDSI indicated that it wished to impeach Gonzalez's trial testimony regarding Medicaid coverage in 1998, Judge Hughes preempted the issue by stating that Gonzalez had already "lied" about the matter and then instructing the jury that her testimony was "false." RE, Tab 12 at 567, 675. The proper procedure would have been for Judge Hughes to permit DDSI to question Gonzalez about this apparent inconsistency and to give the Commission an opportunity to allow her to explain her answer on redirect. See Boyle v. Pool Offshore Co., 893 F.2d 713, 716 (5th Cir 1990) (noting that jury was "fully apprized" of apparent inconsistencies in plaintiff's witness's testimony because witness was "thoroughly questioned" by defendant's counsel and plaintiff had opportunity to "de-fuse the effect of his apparently inconsistent statements"). However, Judge Hughes was so convinced that Gonzalez was incredible that he would not allow the jury to hear her explanation. Although it is well established that "a judge should not ask questions which indicate his belief or disbelief of witnesses," U.S. v. Davis 285 F.3d 378, 382 (5th Cir. 2002), Judge Hughes, on at least two occasions questioned Gonzalez in front of the jury in a manner which clearly indicated that he did not believe her. For instance, the judge ridiculed Gonzalez when she explained that she misdated the application because she was in a hurry, stating, "Excuse me. That excuses not doing it correctly?" RE, Tab 12 at 617 When Gonzalez denied that her answer at trial regarding whether she was a salaried employee was different from her answer at her deposition, Judge Hughes stated that, in fact, her answers were "opposite." RE, Tab 12 at 627-28. Moreover on several occasions Judge Hughes indicated that his mind was so set on Gonzalez's credibility that he was not open to arguments that particular assertions by Gonzalez were not inconsistent with her previous testimony. For example, when EEOC's counsel pointed out that Gonzalez's testimony that she was a salaried employee reflected what Dunbar had told her -- that she was a salaried employee and was expected to work 40 hours per week. (RE, Tab 12 at 629-30 (see Plaintiff's Trial Exh. 35 and Tr., Vol. 2 at 266), Judge Hughes stated that "it doesn't matter" what Dunbar told Gonzalez. RE, Tab 12, at 633. On another occasion when EEOC's counsel attempted to explain why it did not agree that Gonzalez's testimony was contradictory, Judge Hughes interrupted, stating that he was not concerned about the Commission's "assertions." Rather than permit EEOC's counsel to make his arguments, Judge Hughes took the highly improper step of placing counsel under oath and requiring him to state whether or not a number of Gonzalez's answers were inconsistent. In effect, Judge Hughes improperly compelled Commission's counsel to abandon his role as advocate and to become a witness against Gonzalez. RE, Tab 12 at 644-45. Because Judge Hughes has expressed such a strong view that Gonzalez was lying, it cannot "reasonably be expected" that he will be able to divest himself of that view on remand. In re Daimler Chrysler Corp., 294 F.3d at 700-01; Johnson, 120 F.3d at 1333. In any event, reassignment would be appropriate to "preserve the appearance of justice" or because "an objective observer" could reasonably "question the judge's impartiality." Id. It would appear unlikely to an objective observer that a party would receive an impartial hearing on remand before a judge who has not only stated that the party's main witness is untruthful, but has indicated that he is closed to any argument to the contrary. Judge Hughes also expressed general skepticism about the Commission's case and was unreasonably critical of Commission's counsel. For example, the judge called the May 9 fax "faked" and accused the Commission of taking the position that a complainant can "tell whatever story she wants" regardless of whether it is consistent with what she has alleged in her complaint. Additionally, at the hearing on attorneys' fees, Judge Hughes called the Commission's pressing of this action "bureaucratic thuggery." It is unlikely that Judge Hughes, having expressed such a belief regarding the Commission's case, "will be able to ignore the opinion he previously embraced or to erase any apprehensions that the [Commission] would not be treated fairly on remand." Simon v. City of Clute, Tex. 825 F.2d 940, 944 (5th Cir. 1987) (court of appeals ordered case reassigned on remand). Because of Judge Hughes' complete failure to maintain even an appearance of impartiality, reassignment is necessary to preserve the impression of an unbiased, fair judiciary. Mitchell v. Maynard, 80 F.3d 1433, 1450 (10th Cir. 1996). Reassignment to another judge would not result in "waste and duplication" of effort "because, inasmuch as JMOL was incorrectly granted, this case must be retried in any event." Id. CONCLUSION For the foregoing reasons, the district court's order granting judgment as a matter of law, awarding attorneys' fees, and dismissing Village Ultrasound Clinic, Inc., should be reversed and this case should be reassigned to a different judge on remand. Respectfully submitted, JAMES L. LEE Deputy General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOO D Assistant General Counsel John F. Suhre Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7040 Washington, D.C. 20507 (202) 663-4716 Certificate of Compliance with Rule 32(a) 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 9203 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii) 2. 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 this brief has been prepared in a proportionally spaced typeface using Wordperfect 9 in size 14 Times New Roman. Attorney for Equal Employment Opportunity Commission, Plaintiff-Appellant Dated: CERTIFICATE OF SERVICE I hereby certify that two paper copies and one electronic copy of the foregoing brief were mailed, first class, postage prepaid, on this the 8th day of August, 2003, to the following counsel of record: Stewart Edmond Hoffer, Esq. Schmidt & Hoffer 1111 Bagby, Suite 2200 Houston, Texas 77002-2553 John F. Suhre Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7040 Washington, D.C. 20507 (202) 663-4716