No. 07-16190 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ____________________________________________ U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff/Appellee/Respondent, v. GO DADDY SOFTWARE, INC., Defendant/Appellant/Petitioner. ____________________________________________________________ On Appeal from the United States District Court for the District of Arizona, Hon. David G. Campbell ____________________________________________________________ THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION'S RESPONSE IN OPPOSITION TO THE PETITION FOR REHEARING EN BANC ____________________________________________________________ JAMES L. LEE U.S. EQUAL EMPLOYMENT Deputy General Counsel OPPORTUNITY COMMISSION Office of General Counsel VINCENT BLACKWOOD 131 M St. NE, Rm. 5NW10P Acting Associate General Counsel Washington, D.C. 20507 (202) 663-4870 LORRAINE C. DAVIS James.Tucker@EEOC.gov Assistant General Counsel JAMES M. TUCKER Attorney TABLE OF CONTENTS Table of Authorities . . . . . . . . . . . . . . . . . . . ii Introduction . . . . . . . . . . . . . . . . . . . . . . . 1 Argument . . . . . . . . . . . . . . . . . . . . . . . . . 2 I. Go Daddy's protected activity and causation arguments are subject to the plain error standard of review. . . . . . . . . . . . . . . . . . . . . 2 II. The panel's conclusion that the evidence was sufficient To support the jury's verdict on the element of protected activity is fully consistent with controlling precedent . . . . . . . . . . . . . 3 III. The panel's conclusion that the evidence was sufficient to support the jury's verdict on the element of causation is fully consistent with controlling precedent. . . . . . . . . . . . . . . .15 Conclusion . . . . . . . . . . . . . . . . . . . . . . . .20 Certificate of Compliance Certificate of Service TABLE OF AUTHORITIES Cases Page(s) Clark County Sch. Dist. v. Breeden, 532 U.S. 268 (2001). . . . . . . . . . . . . passim EEOC v. Boeing Co., 577 F.3d 1044 (9th Cir. 2009). . . . . . . . . 12 EEOC v. Crown Zellerbach Corp., 720 F.2d 1008 (9th Cir. 1983). . . . . . . . . .8 EEOC v. Go Daddy Software, Inc., 581 F.3d 951 (9th Cir. 2009) . . . . . . 3, 8, 16 Faragher v. City of Boca Raton, 524 U.S. 775 (1998). . . . . . . . . . . . . 4, 6 Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) . . . . . . . . . . . . . 4, 6 Moyo v. Gomez, 40 F.3d 982 (9th Cir. 1994). . . . . . . . . . 8 Trent v. Valley Elec. Ass'n Inc., 41 F.3d 524 (9th Cir. 1994). . . . . . . . . . .6 Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101 (9th Cir. 2001). . . . . . . . . .3 Statutes 42 U.S.C. § 2000e-2(a)(1). . . . . . . . . . . . . . . . .4 Rules Fed. R. App. P. 35(a). . . . . . . . . . . . . . . . . . .2 INTRODUCTION At the close of trial, the jury concluded that Go Daddy subjected Youssef Bouamama to unlawful retaliation in violation of Title VII of the Civil Rights Act of 1964 when it terminated Bouamama's employment. The district court concluded that the evidence was sufficient to support the jury's verdict. In ruling on Go Daddy's post-verdict Rule 50(b) motion for judgment as a matter of law, the district court found that Go Daddy's pre- verdict Rule 50(a) motion failed to challenge the sufficiency of the evidence on the elements of protected activity and causation. Accordingly, the district court concluded that these arguments had been waived for post- verdict review, and, alternatively, even if not waived they were without merit. On appeal, the panel concluded that the district court properly upheld the verdict and its disposition of Go Daddy's Rule 50(b) motion was correct. In its petition for rehearing en banc, Go Daddy again attempts to do what it tried to do on appeal—retry the case based not on examination of the evidence under the proper standard of review, but viewing the evidence in a light most favorable to itself, at times contradicting the very arguments it made at trial. Go Daddy's argument on appeal was so at odds with the evidence that Judge Fletcher commented at oral argument "[y]ou know, the district judge's view of the evidence is so different from yours . . . . Was he [in] the same courtroom with you?" Petition addendum 2, p. 11. Go Daddy's approach in its Petition is no different, and does not satisfy the very high standard for granting rehearing en banc. Rehearing en banc is an unusual and disfavored mechanism, reserved only for those rare situations where "en banc consideration is necessary to secure or maintain uniformity of the court's decisions," or if "the proceeding involves a question of exceptional importance." Fed. R. App. P. 35(a). Go Daddy's arguments to the contrary notwithstanding, the panel decision is perfectly consistent with the precedent of the Supreme Court and this Court—rendering en banc review unwarranted. ARGUMENT I. Go Daddy's protected activity and causation arguments are subject to the plain error standard of review. Go Daddy does not raise any challenge in its Petition to the plain error standard of review applied by the panel to the district court's rejection of Go Daddy's Rule 50(b) protected activity and causation arguments. The district court concluded that Go Daddy failed to argue in its pre-verdict Rule 50(a) motion for judgment as a matter of law that the evidence was insufficient to support either of these elements of the Commission's retaliation claim. Go Daddy's Excerpts of Record ("ER.") 6-7. The panel agreed, noting that under such circumstances this Court reviews the district court's ruling under "the deferential plain error standard," which permits "only extraordinarily deferential review that is limited to whether there was any evidence to support the jury's verdict." EEOC v. Go Daddy Software, Inc., 581 F.3d 951, 961-63 (9th Cir. 2009) ("Decision") (quoting Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1109 (9th Cir. 2001) (alteration in original)). Accordingly, for purposes of determining whether en banc review is warranted, this Court should consider the panel decision in light of its now uncontested application of the plain error standard of review. II. The panel's conclusion that the evidence was sufficient to support the jury's verdict on the element of protected activity is fully consistent with controlling precedent. In regard to the protected activity element of the Commission's retaliation claim, the question on appeal was whether, given the plain error standard of review, there was "any evidence" that when Bouamama complained to Go Daddy on April 7, 2003 about call center Director Franklin's elimination of Bouamama's job and questioning Bouamama about his national origin and religion, he had a reasonable belief that these acts may have constituted unlawful discrimination. The focus of Go Daddy's argument is on whether the comments themselves were sufficiently egregious to suggest a hostile work environment in violation of Title VII. Critically, Go Daddy essentially ignores that the elimination of Bouamama's job would, if done because of his national origin or religion, unquestionably violate Title VII. See 42 U.S.C. § 2000e-2(a)(1). Thus it is largely irrelevant whether the comments in and of themselves could reasonably be considered to violate Title VII. Therefore, Bouamama's complaint about both the comments and the elimination of his job was protected activity, and Go Daddy has identified no authority to the contrary. Go Daddy asserts that the panel's conclusion on this point runs afoul of the Supreme Court's decisions in Clark County School District v. Breeden, 532 U.S. 268 (2001), Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), because "three separate workplace acts" do not, independently, amount to protected activity.<1> Petition at 4-13. Go Daddy further asserts that there is "no evidence to connect the separate acts to indicate a workplace pattern." Petition at 4-5. Go Daddy's arguments are meritless. Taken together, these cases stand for the clear proposition that when assessing the reasonableness of an individual's belief that Title VII may have been violated, the jury must examine "all the circumstances" collectively, not independent of each other. The panel decision, in accordance with controlling legal principles and the applicable plain error standard of review, correctly concluded that the evidence met that standard. Comparison of the conduct at issue in Breeden with the evidence of protected activity in the instant case illustrates that the panel decision in no way oversteps controlling precedent. In Breeden the Supreme Court addressed an employee's complaints to her employer about alleged sexual harassment—and not, as here, the elimination of her position. Pursuant to her job duties, Breeden, her male supervisor, and another male employee met to discuss the psychological evaluation reports of four job applicants. Breeden, 532 U.S. at 269. One report disclosed that the applicant had commented to a coworker, "I hear making love to you is like making love to the Grand Canyon." Id. The supervisor read the comment aloud to Breeden and the other employee. Id. The supervisor then looked at Breeden and stated "I don't know what that means," and the male employee responded "well, I'll tell you later" and both men chuckled. Id. Breeden subsequently complained to her employer about this incident as harassment, and the employer allegedly retaliated against her in response. The Supreme Court noted that the Ninth Circuit applies Title VII's antiretaliation provision to extend protection for employee opposition conduct "not just to practices that are actually ‘made . . . unlawful' by Title VII, but also to practices that the employee could reasonably believe were unlawful." Id. at 270 (emphasis added) (citing in part Trent v. Valley Elec. Ass'n Inc., 41 F.3d 524, 526 (9th Cir. 1994)). Assuming the "reasonable belief" standard was appropriate, the Court determined that Breeden's complaint was not protected activity because "no one could reasonably believe" that the conduct Breeden experienced constituted sexual harassment violating Title VII. Id. After stating that "[w]orkplace conduct is not measured in isolation; instead, ‘whether an environment is sufficiently hostile or abusive must be judged by looking at "all the circumstances,'" the Court reiterated the well-established rule that "simple teasing, offhand comments, and isolated incidents (unless extremely serious)" will not rise to the level of actionable harassment. Id. at 270-71 (citing Faragher, 524 U.S. at 787-88 (quoting Harris, 510 U.S. at 23)). Examining "all the circumstances," the Court noted that "the ordinary terms and conditions" of Breeden's job required her to review this comment in the applicant's file, and Breeden "‘conceded that it did not bother or upset her' to read the statement in the file." Id. at 271. The Court concluded that "[h]er supervisor's comment, made at a meeting to review the application, that he did not know what the statement meant; her coworker's responding comment; and the chuckling of both are at worst an ‘isolated inciden[t]' that cannot remotely be considered ‘extremely serious,' as our cases require." Id. The circumstances found inadequate in Breeden stand in stark contrast to the evidence of "all the circumstances" leading up to Bouamama's complaint on April 7, 2003, about Franklin eliminating Bouamama's job and questioning Bouamama about his national origin and religion. Bouamama had a history at Go Daddy of being subjected to, or being in the presence of, inquiries and negative comments about his protected characteristics. In early 2002, a few months after starting at Go Daddy, Brett Villeneuve, the then-Operations Manager, heard Bouamama speaking French and asked Bouamama about his national origin and religion. EEOC's Supplemental Excerpts of Record ("Supp.ER.") 51-52. Several months later, Bouamama complained about Villeneuve's inquiries to Heather Slezak, Director of Personnel, who never followed up with Bouamama about his complaint. Supp.ER.78-79. At another time, Villeneuve commented to a group of employees, with Bouamama present, that "the Muslims need to die" or "the bastard Muslims need to die." Supp.ER.58. Bouamama was hurt by Villeneuve's comment. Supp.ER.59. However, Bouamama did not complain because he was trying to be compassionate toward Villeneuve in light of the September 11, 2001, attacks; he wanted to be known based on his work performance "as Youssef, not as, you know, where he's from, what religion he practice[s]"; and he did not want to be seen as a troublemaker because he had witnessed that "[t]here's a culture in Go Daddy. You complain you get fired."<2> Supp.ER.59-60. In early April 2003, Go Daddy hired Craig Franklin to take over as Director of its call center. Supp.ER.29. On April 2, Franklin met with management, including Bouamama, and announced there would be no changes at Go Daddy. Supp.ER.61. After this meeting, Bouamama—who speaks with a "very strong accent" recognized by at least one of Bouamama's coworkers as "middle eastern"—met with Franklin individually. Supp.ER.43-44, 61. Bouamama offered to help bring Franklin up to speed on the functioning of the sales department. Supp.ER.25, 61-62. Franklin initially agreed to meet with Bouamama, but then cancelled this and two other reschedulings of that meeting. Supp.ER.62. The next time Franklin spoke to Bouamama was four days later, on April 6, when Franklin, Slezak, and Villeneuve informed Bouamama that his position was being eliminated and he could apply for a newly-created Sales Supervisor position, take a demotion to a Sales Representative position, or "just walk away" from Go Daddy. Supp.ER.62-63. Franklin commented that "he didn't care about [Bouamama's] background or history with the company," and Slezak repeated the "walk away" part of the message five times, such that Bouamama understood her to be suggesting that he quit. Supp.ER.62-62.5. The next morning, Franklin visited Bouamama's cubicle. Noticing pictures of Morocco in the cubicle, Franklin asked Bouamama where the pictures were taken. Supp.ER.63. Bouamama answered Morocco, and Franklin asked if Bouamama was from Morocco and Muslim. Supp.ER.63. Bouamama answered yes to both questions. Id. Franklin responded "you know, you're lucky I like you" and walked away. Id. Bouamama then complained to Slezak about Franklin, stating: [T]his is the second time that people are concerned and taking interest about, you know, where I'm from, my religion. You know, I can understand that it was happening with [Villeneuve] but this guy here [Franklin], I don't know him and two days ago he came and telling [sic] me that he doesn't care about my history and he wanted to eliminate my position. The next day he's taking interest for [sic] who I am and where I'm from. Supp.ER.64 (emphasis added). Under these circumstances, the jury reasonably concluded that Franklin's elimination of Bouamama's position and almost immediate questioning and comment about his national origin and religion, in conjunction with the similar inquiries and extremely hostile anti-Muslim comment by Villeneuve, could give rise to a reasonable belief by Bouamama that Franklin's conduct—including the elimination of his job—might be unlawfully discriminatory. It cannot be said on this record that the jury's finding that Bouamama had a reasonable belief he was being discriminated against and that he engaged in protected activity was plain error. The panel decision was in complete accordance with controlling precedent, making en banc review unwarranted. Go Daddy asserts that the panel's recognizing the link between the conduct of Villeneuve and Franklin was "completely unjustified," Petition at 10, but the company is incorrect. Considering the evidence of Villeneuve's inquiries and comment toward Bouamama—even though that conduct may not have been independently actionable—is exactly what the "all the circumstances" rule from Breeden, Faragher, and Harris contemplates. This is especially so given the similarity between the inquiries made by Villeneuve and Franklin. Villeneuve inquired of Bouamama about his national origin and religion, and later made the patently biased, anti-Muslim comment that the "Muslims" or "bastard Muslims" "need to die." Later, Franklin also inquired of Bouamama about his national origin and religion, followed by a sarcastic negative comment suggesting that he, too, may harbor a bias against Muslims. Moreover, Franklin's comments followed right on the heels of his informing Bouamama that his position was being eliminated. Under "all the circumstances," a jury certainly could conclude it was reasonable for Bouamama to believe that Franklin, who asked the same religion and national origin questions as Villeneuve, may also harbor bias against Muslims similar to that displayed by Villeneuve with his "Muslims need to die" comment—and that such bias may have been behind Franklin's decision to eliminate Bouamama's job. At the very least, this certainly satisfies the requisite "any evidence" standard under plain error review to support the jury's verdict. In an apparent attempt to distract the Court from the fact that it was Franklin, not Villeneuve, who was the subject of Bouamama's April 7 complaint to Slezak, Go Daddy discusses at length how Villeneuve promoted Bouamama through the ranks at Go Daddy, and then argues, relying on EEOC v. Boeing Co., 577 F.3d 1044 (9th Cir. 2009), that Villeneuve's status as Bouamama's "patron and promoter" at Go Daddy "debunks any suggestion of a discriminatory animus." Petition at 6-7. However, Go Daddy fails to appreciate that just because Villeneuve promoted Bouamama does not negate the fact that he also made national origin and religion inquiries, as well as a hateful comment about persons of Bouamama's faith that openly displayed bias. In Boeing, this Court recognized that while a "‘strong inference' against bias" arises when a supervisor who hires or promotes an employee later takes an adverse employment action against him, that inference against bias can be weakened, if not outright disproved, by the circumstances of the case—circumstances this Court concluded were present in Boeing. 577 F.3d at 1052-53. In the instant case, it is hard to imagine evidence more convincingly rebutting any inference against Villeneuve's bias than his comment, made in Bouamama's presence, that the "Muslims" or "bastard Muslims" "need to die." There is simply no "inference" other than one of outright bias to be drawn from such a facially discriminatory comment. Go Daddy does not dispute that the jury heard this evidence that Villeneuve held a bias against Muslims and that he expressed this bias in the presence of Bouamama. Accordingly, this evidence of Villeneuve's conduct is part of "all the circumstances" a jury could consider in concluding that Bouamama reasonably believed that Franklin—who made the same inquiries about Bouamama's national origin and religion as Franklin—may have harbored a similar bias against Muslims as that displayed by Villeneuve. At page 12 of its Petition, Go Daddy disputes the panel's conclusion that, given the close timing between Franklin's notifying Bouamama that his job had been eliminated, and Franklin's inquiries and comment regarding Bouamama's national origin and religion, there was a "strong nexus between Franklin's comments and the terms of Bouamama's continued employment, as noted by Bouamama himself in his final report to Slezak." Decision at 964. Go Daddy's assertion is absurd on its face. First, Go Daddy ignores the evidence that Bouamama complained about Franklin's having eliminated his position just the day before. Supp.ER.64. Second, as the panel recognized and Go Daddy does not dispute, "[a]t the time of [Franklin's] comments, Bouamama['s] . . . only option to avoid demotion involved an application process to be headed by Franklin." Decision at 964. Again, Go Daddy misunderstands that the applicable standard is whether under "all the circumstances" the jury had "any evidence" from which to conclude Bouamama held a reasonable belief that Franklin had violated Title VII, not whether Franklin actually did so. There can be no question that Franklin's eliminating Bouamama's job one day, and the next morning making the negative comment "you're lucky I like you" after learning he was a Muslim from Morocco, could reasonably give Bouamama the impression that his job may have been eliminated because Franklin harbored a bias against foreign-born Muslims. This is plainly "any evidence" of a "strong nexus between Franklin's comments and the terms of Bouamama's continued employment."<3> To the extent Go Daddy suggests Franklin had no reason to suspect Bouamama's national origin or religion prior to eliminating his job, because he did not ask until after deciding to eliminate the job, the point is irrelevant. The question is what Bouamama reasonably believed, not what Franklin knew. Regardless, the evidence is to the contrary. Prior to deciding to eliminate his job, Franklin met face-to-face with Youssef Bouamama, who speaks with a "very strong accent" recognized as "middle eastern." Supp.ER.43-44, 61. From this, a jury could certainly conclude Franklin suspected Bouamama's religion and/or national origin, and later confirmed those suspicions with his inquiries. In summary, the panel's conclusion that Bouamama's April 7, 2003, complaint constituted protected activity warrants no further review because it is more than sufficiently supported by "any evidence" and comports with applicable legal standards. III. The panel's conclusion that the evidence was sufficient to support the jury's verdict on the element of causation is fully consistent with controlling precedent. Go Daddy contends that a causal connection between Bouamama's complaint and his termination is impossible because Bouamama complained to Slezak on April 7, 2003, but Franklin decided to terminate him on April 3, not April 17 as Bouamama testified. Petition at 13-14. To the contrary, however, there is strong evidence supporting the jury's conclusion that Bouamama was terminated on April 17, after his complaint. Bouamama testified that on April 6, when Franklin, Slezak, and Villeneuve informed him that his job was being eliminated, he had the options of applying for the Sales Supervisor position, demotion to Sales Representative, or leaving the company.<4> Supp.ER.62, 63; ER.117. The very next day, Franklin made inquiries of Bouamama about his national origin and religion, sarcastically commenting "you're lucky I like you." Supp.ER.63-64. On April 7, Bouamama complained to Slezak about Franklin's eliminating his position and inquiries about "who I am and where I'm from." Sup.ER.64. Then, on April 17, Slezak told Bouamama "you did not get the Sales Supervisor position and you're not going to go back to the [sales] floor," adding, along with Franklin, that "effective today immediately" he was "no longer with the company." Supp.ER.75-76. All the other unsuccessful candidates were permitted to take Sales Representative positions. Supp.ER.99. A reasonable jury could certainly conclude from this evidence that the decision not to permit Bouamama to return to the Sales Representative position and instead to terminate him was made after he complained to Slezak. As such, there is more than sufficient evidence that Bouamama's protected activity preceded his termination to satisfy the plain error standard. Some of the strongest evidence supporting the conclusion that Bouamama was terminated on April 17 comes from Go Daddy itself. Villeneuve testified that unsuccessful candidates for the Sales Supervisor position "had two options" one of which was going "back to the phones"—the Sales Representative position. Supp.ER.99. And contrary to its position on appeal, in its closing argument at trial Go Daddy argued that "[e]very person who was not selected had exactly the same choice. They could either accept a Sales Representative position or they could accept a severance agreement. Every single one of them, including Mr. Bouamama, was given exactly the same choice." Supp.ER.107-08 (emphasis added). Therefore, Go Daddy's own argument and evidence shows not only that Bouamama was entitled to the Sales Representative position, but that Go Daddy decided on April 3 that he was so entitled—at the same time that it decided to eliminate his management position. Furthermore, at trial Go Daddy "claimed that Mr. Bouamama was not terminated at all." ER.7n.1. Accordingly, Go Daddy's argument that he was actually terminated on April 3 is completely absurd and directly contrary to its own arguments and evidence at trial. Go Daddy oddly argues that because Bouamama testified he was "never" offered the option of a Sales Representative position, it was impossible for Go Daddy to have retaliated against him. Petition at 13-14. Even if true, Go Daddy misses the point. As shown above, Go Daddy's argument and evidence at trial was that employees who were not selected for the Sales Supervisor position were entitled to a Sales Representative position. It is the failure to permit Bouamama to take a Sales Representative position that was retaliatory, and any evidence that Go Daddy did not offer this position to Bouamama once he failed to secure a Sales Supervisor position lends more support to the Commission's claim. In any case, Go Daddy's assertion is belied by the testimony upon which it relies. Bouamama testified on two occasions that in the April 4 meeting he was told he could apply for the Sales Supervisor position, or he could "walk away" from the company, not that he was never informed of the Sales Representative option. See ER.105; Go Daddy's Supplemental Excerpts of Record 57-58. However, when Bouamama was specifically asked about the Sales Representative option, he replied that on April 4 he was told his options included "go[ing] back to the floor," referring to the Sales Representative position. ER.117. In the other citation Go Daddy provides, Bouamama testified that when Franklin and Slezak terminated him on April 17 they specifically told him that he was "not going back to the [sales] floor." Supp.ER.75-76. Go Daddy finally argues that because Bouamama never "notified" it that he would accept a Sales Representative position, "there is no evidence of retaliation for not receiving the position" Petition at 14-15. Go Daddy ignores Bouamama's testimony that if he had actually been offered the opportunity to stay as a Sales Representative, he would have done so, but when he was terminated he was specifically told that he was "not going back to the [sales] floor." Supp.ER.75-76. Go Daddy also ignores that there was no evidence that employees like Bouamama who were entitled to a Sales Representative position had to do anything on their part in order to become Sales Representatives. As the district court and the panel concluded, this was adequate to support the jury's verdict. CONCLUSION For the foregoing reasons, the Commission respectfully requests the Court deny the petition for rehearing en banc. Respectfully submitted, JAMES L. LEE Deputy General Counsel VINCENT BLACKWOOD Acting Associate General Counsel LORRAINE C. DAVIS Assistant General counsel s/ James M. Tucker JAMES M. TUCKER Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, Rm. 5NW10P Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov CERTIFICATE OF COMPLIANCE I hereby certify that pursuant to Circuit Rules 35-4 and 40-1, and this Court's November 12, 2009, Order, the foregoing Response to the Petition for Rehearing En Banc contains 4,200 words, from the Introduction through the Conclusion, as determined by the Microsoft Word 2003 word processing program, with 14-point proportionally spaced type for text and 14-point proportionally spaced type for footnotes. s/ James M. Tucker JAMES M. TUCKER Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, Rm. 5NW10P Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing Response to the Petition for Rehearing En Banc with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on December 2, 2009. I further certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. s/ James M. Tucker JAMES M. TUCKER Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, Rm. 5NW10P Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov *********************************************************************** <> <1> Go Daddy focuses almost exclusively on Breeden and does not argue that the panel decision is inconsistent with Harris or Faragher differently from what Go Daddy claims is the case regarding Breeden. Following suit, the Commission focuses on Breeden. <2> The panel correctly notes that Breeden does not require an individual who is subjected to a number of allegedly discriminatory incidents to complain about every such incident in order for those unreported events to be "relevant to the inquiry concerning the reasonableness of the belief that a violation has occurred." Decision at 964 (emphasis added); see also Breeden, 532 U.S. at 270-71. This makes perfect sense, as the focus of the reasonable belief inquiry is not on the complaint itself, but the reasonableness of the belief-necessarily informed by the individual's allegedly discriminatory experiences-held by the individual making the complaint that he or she may have been subjected to unlawful discrimination. See Moyo v. Gomez, 40 F.3d 982, 984 (9th Cir. 1994) ("[O]pposition clause protection will be accorded 'whenever the opposition is based on a reasonable belief that the employer has engaged in an unlawful employment practice.'") (emphasis in original) (quoting in part EEOC v. Crown Zellerbach Corp., 720 F.2d 1008, 1013 (9th Cir. 1983)). Accordingly, Go Daddy's argument that this unreported incident "provides no evidence of protected activity," Petition at 8, is unavailing. <3> Go Daddy claims, without any explanation, that two unpublished Ninth Circuit decisions show that the panel decision "directly conflicts" with how this Court applies Breeden. Petition at 12. However, neither of the cited cases is analogous to the instant matter, as each involves only a claim of harassment, not the elimination of the complaining employee's position. See id. (citing cases). <4> Go Daddy correctly noted that the Commission's brief on appeal states that on April 4, Bouamama was not informed that he could return to the Sales Representative position. Petition at 13. However, as the panel decision notes, Bouamama did so testify. Decision at 965; ER.117. This inadvertent error on the part of the undersigned in preparing our appellate brief was harmless to Go Daddy, as the omission in no way benefited the Commission's argument that before Bouamama complained, Go Daddy provided all affected management employees the option to take a Sales Representative position.