No. 10-1756 _________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT _________________________________________________________ U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff/Appellee, v. GREAT STEAKS, INC., Defendant/Appellant. _________________________________________________________ On Appeal from the United States District Court for the Middle District of North Carolina The Honorable James A. Beaty, Jr., Presiding _________________________________________________________ RESPONSE BRIEF OF THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE P. DAVID LOPEZ General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ELIZABETH E. THERAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., N.E., 5th Floor Washington, D.C. 20507-0001 (202) 663-4720 elizabeth.theran@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iii STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1. The Charge of Discrimination & the EEOC Investigation. . . . . . . . . 3 2. Pre-Trial Discovery & Litigation. . . . . . . . . . . . . . . . . . 6 3. The Defendant's Pre-Trial Disclosures & the Trial. . . . . . . . . . . 15 4. The Defendant's Motion For Attorney's Fees. . . . . . . . . . . . . . . 17 B. District Court's Decision. . . . . . . . . . . . . . . . . . . . . 18 STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 I. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR ATTORNEY'S FEES UNDER TITLE VII BECAUSE THIS LITIGATION WAS NOT FRIVOLOUS, UNREASONABLE, OR WITHOUT FOUNDATION AT ANY STAGE OF THE PROCEEDINGS. . . . . . . . . . . . . . . . . . . . . . . . 24 II. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR SANCTIONS UNDER 28 U.S.C. § 1927 BECAUSE THERE IS NO BASIS FOR ANY ARGUMENT THAT THE EEOC ACTED IN BAD FAITH OR MULTIPLIED THE PROCEEDINGS IN THIS LITIGATION UNREASONABLY OR VEXATIOUSLY. . . . . . . . . . . . . . . . . . . . . . . . . . .38 III. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR ATTORNEY'S FEES UNDER THE EAJA BECAUSE THE EAJA'S ATTORNEY FEE PROVISION DOES NOT APPLY TO TITLE VII. 42 IV. THE DEFENDANT'S ATTORNEY'S FEES ARE UNREASONABLE. . . . . . . . . . . . 50 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . 53 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . 54 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Afifi v. U.S. Dep't of the Interior, 924 F.2d 61 (4th Cir. 1991). . . . . . . .45 Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975). . . . . . . . . . . . . . . 24 Arnold v. Burger King Corp., 719 F.2d 63 (4th Cir. 1983). . . . . . 19, 22, 26 Assoc. Dry Goods Corp. v. EEOC, 720 F.2d 804 (4th Cir. 1983). . . . . . . . . 34 Barber v. Kimbrell's, Inc., 577 F.2d 216 (4th Cir.), cert. denied, 439 U.S. 934 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761 (4th Cir. 2003). . . . . . 22 Beck by Beck v. Sec'y of the Dep't of Health & Human Servs., 924 F.2d 1029 (Fed. Cir. 1991). . . . . . . . . . . . . . . . . . . . .44, 45, 46 Black Musicians of Pittsburgh v. Local 60-471, Am. Fed'n of Musicians, 442 F. Supp. 855 (W.D. Pa. 1977). . . . . . . . . . . . . . . . . . . . . . . .31 Blair v. Shenandoah Women's Ctr., Inc., 757 F.2d 1435 (4th Cir. 1985). . . . . 20 Blue v. U.S. Dep't of the Army, 914 F.2d 525 (4th Cir. 1990). . . . . . . . . 27 Brodziak v. Runyon, 145 F.3d 194 (4th Cir. 1998). . . . . . . . . . . . . . . 22 Brubaker v. City of Richmond, 943 F.2d 1363 (4th Cir. 1991). . . . . . . . 20, 38 Bryant Woods Inn, Inc. v. Howard County, Md., 124 F.3d 597 (4th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . .25 Bugg v. Int'l Union of Allied Indus. Workers of Am., Local 507, 674 F.2d 595 (7th Cir. 1982). . . . . . . . . . . . . . . . . . . . . . . . . 31 Charves v. W. Union Tel. Co., 711 F.2d 462 (1st Cir. 1983). . . . . . . . . 31 Chaudhry v. Gallerizzo, 174 F.3d 394 (4th Cir. 1999). . . . . . . . . . . . 22-23 Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978). . . . . . . . . passim Conn. Nat'l Bank v. Germain, 503 U.S. 249 (1992). . . . . . . . . . . . . . . 43 Daly v. Hill, 790 F.2d 1071 (4th Cir. 1986). . . . . . . . . . . . . . . . . . 51 Dean v. Riser, 240 F.3d 505 (5th Cir. 2001). . . . . . . . . . . . . . . . . . 52 Doe v. Chao, 435 F.3d 492 (4th Cir. 2006). . . . . . . . . . . . . . . . . . 50 Durrett v. Jenkins Brickyard, Inc., 678 F.2d 911 (11th Cir. 1982). . . . . 31-32 EEOC v. Caterpillar, Inc., 409 F.3d 831 (7th Cir. 2005). . . . . . . . . . . . 35 EEOC v. Clay Printing Co., 13 F.3d 813 (4th Cir. 1994). . . . . . . . . 23, 47-48 EEOC v. Gen. Elec. Co., 532 F.3d 359 (4th Cir. 1976). . . . . . . . . . . .34, 35 EEOC v. Keco Indus., Inc., 748 F.2d 1097 (6th Cir. 1984). . . . . . . . . 35-36 EEOC v. Kimbrough Inv. Co., 703 F.2d 98 (5th Cir. 1983). . . . . . . . . . . . 43 EEOC v. O & G Spring & Wire Forms Specialty Co., 38 F.3d 872 (7th Cir. 1994). .43 EEOC v. Radiator Specialty Co., 610 F.2d 178 (4th Cir. 1979). . . . . . . . . 37 EEOC v. Raymond Metal Prods. Co., 530 F.2d 590 (4th Cir. 1976). . . . . . . . 35 EEOC v. St. Anne's Hosp., 664 F.2d 128 (7th Cir. 1981). . . . . . . . . . . . 36 EEOC v. Serv. News Co., 898 F.2d 958 (4th Cir. 1990). . . . . . . . . . . . 50 Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994). . . . . . . . . . . . . . . . . 25 Gavette v. Office of Personnel Mgmt., 808 F.2d 1456 (Fed. Cir. 1986) . 44, 45, 46 Georator Corp. v. EEOC, 592 F.2d 765 (4th Cir. 1979). . . . . . . . . . . .34, 35 Glymph v. Spartanburg Gen. Hosp., 783 F.2d 476 (4th Cir. 1986) . . 19, 26, 28, 29 Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993). . . . . . . . . . . . . . . 11 Harris v. L & L Wings, Inc., 132 F.3d 978 (4th Cir. 1997). . . . . . . . . 22 Hensley v. Eckerhart, 461 U.S. 424 (1983). . . . . . . . . . . . . . . . . . 51 Hopkins v. MSPB, 725 F.2d 1368 (Fed. Cir. 1984). . . . . . . . . . . . . . . 45 Huey v. Sullivan, 971 F.2d 1362 (8th Cir. 1992). . . . . . . . . . . . . . 43, 46 Hutchinson v. Staton, 994 F.2d 1076 (4th Cir. 1993). . . . . . . . . . . . . . 27 Introcaso v. Cunningham, 857 F.2d 965 (4th Cir. 1988). . . . . . . . . . . .27-28 Johnson v. Hugo's Skateway, 974 F.2d 1408 (4th Cir. 1992). . . . . . . . . 22 Lowery v. Circuit City Stores, Inc., 206 F.3d 431 (4th Cir. 2000). . . . . . 50 Marquart v. Lodge 837, Int'l Ass'n of Machinists, 26 F.3d 842 (8th Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . 51-52 Meriwether v. Caraustar Packaging Co., 326 F.3d 990 (8th Cir. 2003). . . 31 Miltier v. Beorn, 896 F.2d 848 (4th Cir. 1990). . . . . . . . . . . . . . . 23 Mone v. CIR, 774 F.2d 570 (2d Cir. 1985). . . . . . . . . . . . . . . . . . 20 Monk v. Roadway Express, Inc., 599 F.2d 1378 (5th Cir. 1979). . . . . . . . . 38 Morris v. Wachovia Securities, Inc., 448 F.3d 268 (4th Cir. 2006). . . . . . 21 Nat'l Org. for Women v. Bank of Calif., 680 F.2d 1291 (9th Cir. 1982). . . . . 31 Newman v. Piggie Park Enters., Inc., 390 U.S. 400 (1968). . . . . . . . . . . 25 Newsome v. EEOC, 301 F.3d 227 (5th Cir. 2002). . . . . . . . . . . . . . . 35 Ocheltree v. Scollon Productions, Inc., 335 F.3d 325 (4th Cir. 2003). . . . . 11 People for Ethical Treatment of Animals v. Doughney, 263 F.3d 359 (4th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . .22 Pierce v. Underwood, 487 U.S. 552 (1988). . . . . . . . . . . . . . . . . 21, 48 Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980). . . . . . . . . . . . . . 38 Roanoke River Basin Ass'n v. Hudson, 991 F.2d 132 (4th Cir. 1993). . . . . .48-49 Rubin v. United States, 449 U.S. 424 (1981). . . . . . . . . . . . . . . . . . 43 Stone v. Instrumentation Lab. Co., 591 F.3d 239 (4th Cir. 2009). . . . 23, 43, 46 U.S. Dep't of Labor v. N.C. Growers Ass'n, 377 F.3d 345 (4th Cir. 2004). . . 43 United States v. Cox, 575 F.3d 352 (4th Cir. 2009). . . . . . . . . . . . . . 48 United States v. Midgette, 478 F.3d 616 (4th Cir. 2007). . . . . . . . . . . . 15 United States v. Pressley, 359 F.3d 347 (4th Cir. 2004). . . . . . . . . . . . 43 Williams v. Dep't of the Army, 715 F.2d 1485 (Fed. Cir. 1983). . . . . . 44-45 STATUTES 5 U.S.C. § 7702. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 5 U.S.C. § 7703(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . 44, 45 5 U.S.C. § 7703(b)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . 45 5 U.S.C. § 7703(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1295. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 28 U.S.C. § 1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1343. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1345. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1927. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .passim 28 U.S.C. § 2412(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 28 U.S.C. § 2412(d). . . . . . . . . . . . . . . . . . . . . . . . 21, 42, 43, 46 42 U.S.C. §§ 2000e et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 2000e-5(k). . . . . . . . . . . . . . . . . . . . . . . . . . .passim RULES Fed. R. App. P. 4(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Fed. R. App. P. 32(a)(5). . . . . . . . . . . . . . . . . . . . . . . . . . . 54 Fed. R. App. P. 32(a)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . 54 Fed. R. App. P. 32(a)(7)(B). . . . . . . . . . . . . . . . . . . . . . . . . . 54 Fed. R. Civ. P. 12(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Fed. R. Civ. P. 12(b)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Fed. R. Civ. P. 50(a). . . . . . . . . . . . . . . . . . . . . . . . . . . passim Fed. R. Civ. P. 52(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Fed. R. Civ. P. 56. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 M.D.N.C. R. 7.1(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 39 STATEMENT OF JURISDICTION This is an enforcement action brought by the Equal Employment Opportunity Commission ("EEOC" or "Commission") against Great Steaks, Inc. ("Great Steaks") pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. §§ 2000e et seq. The district court had jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1345. On October 7, 2009, the district court entered final judgment on a jury verdict against the EEOC disposing of all claims. JA-12.<1> Great Steaks filed a post-judgment motion for attorney's fees on December 7, 2009, which the EEOC opposed. JA-13. On June 2, 2010, the district court denied Great Steaks' motion for fees. JA-394. Great Steaks timely appealed on July 2, 2010. JA-13. See Fed. R. App. P. 4(a)(1)(B). This Court has jurisdiction under 28 U.S.C. § 1291. STATEMENT OF ISSUES The EEOC concurs in Great Steaks' Statement of The Issues. Opening Brief ("GS-Br.") 1-2. STATEMENT OF THE CASE This is an appeal from an order of the district court denying the defendant's motion for attorney's fees in this Title VII enforcement action. On August 26, 2005, the EEOC filed a complaint alleging that defendants Great Steaks and Clipper Seafood Restaurant, Inc., d/b/a Austin's Restaurant ("Clipper Seafood"), violated Title VII by subjecting Dorathy Carter and other similarly situated female employees to a sexually hostile work environment. JA-14. The EEOC also alleged that, as a result of the sexual harassment, the conditions of employment for some of the aggrieved individuals were made so intolerable that they were forced to resign. Id. The EEOC requested injunctive relief, back pay, compensatory and punitive damages, and costs, and also requested a jury trial. JA-17-18. On December 21, 2006, the parties stipulated to the dismissal of all claims against Clipper Seafood. JA-4, 59. On December 17, 2007, Great Steaks filed a motion for summary judgment on all remaining claims. JA-5, 101. The EEOC filed its opposition to Great Steaks' summary judgment motion on January 22, 2008. JA-6. The magistrate judge to whom the motion had been referred issued his recommended ruling denying summary judgment on April 29, 2008. JA-7, 280. Great Steaks filed its opposition to the magistrate's recommendation on May 16, 2008. JA-8. The district court entered an order denying Great Steaks' motion for summary judgment on September 8, 2008. JA-8, 298. Great Steaks then filed a motion to amend the district court's order denying its motion for summary judgment on September 22, 2008, which the district court denied on October 8, 2008. JA-8, 300. The case was tried before a jury from October 5-7, 2009. JA-11-12. During the trial, Great Steaks made two motions for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(a): one at the close of the EEOC's evidence, and a second (renewed) motion at the conclusion of all evidence. JA-12. The district court denied both motions. Id. On October 7, 2009, the jury returned with a verdict in favor of Great Steaks, finding that the EEOC had not proved by a preponderance of the evidence that the remaining claimant, Stephanie Jones, had been subjected to sexual harassment in violation of Title VII. JA-12, 387. On the same date, the EEOC moved to set aside the jury verdict, but the district court denied the EEOC's motion and entered judgment in favor of Great Steaks. JA-12, 390. On December 7, 2009, Great Steaks filed a motion for attorney's fees. JA- 13, 391. The EEOC opposed that motion on December 30, 2009. JA-13. On June 2, 2010, the district court denied Great Steaks' motion for attorney's fees. JA-13, 394. This appeal followed. STATEMENT OF FACTS A. Background 1. The Charge of Discrimination & the EEOC Investigation This matter began when Dorathy Carter, who worked as a hostess at Austin's Restaurant in Greensboro, North Carolina, filed a charge of discrimination with the EEOC on February 14, 2005, alleging that she had been sexually harassed by John Pantazis, the restaurant's co-owner. JA-38. In a position statement submitted to the EEOC on March 20, 2005, Bessie Pantazis, John Pantazis' daughter and the other co-owner of Austin's Restaurant, indicated that "the name of the restaurant is Great Steaks Inc. DBA Austin's Restaurant." JA-42. Pantazis' position statement referred to Carter's working "in our High Point, NC location until the Greensboro location opened," and stated that "[r]ight now I employee [sic] 30 employees in High Point and 45 in Greensboro." Id. According to Thomas Colclough, the Director of the EEOC's Greensboro Local Office and the primary investigator of Carter's charge, during the course of its investigation the EEOC interviewed "numerous female waitresses and hostesses who alleged that they had been subject[ed] to sexual harassment from John Pantazis." JA-35. Colclough also observed that most of the women in question had been hired directly by either John or Bessie Pantazis, and that "[m]ost of the women initially hired for the Greensboro location were sent to Austin's Restaurant High Point to train and several worked in High Point before they worked in Greensboro." Id. Colclough related, "[t]he EEOC also learned that before the Greensboro location opened, John Pantazis, along with his daughter Bessie, supervised the waitresses [at] the High Point facility and was responsible for the management and day-to-day operations at the restaurant in High Point." JA-35-36. On May 31, 2005, Colclough, on behalf of the EEOC, issued a Letter of Determination ("LOD") concluding that the evidence revealed that "[Carter] and a class of female employees were subjected to unwelcome sexual advances, sexual remarks, and touching by Respondent's male Owner. . . . In addition, it was discovered during the investigation that several female class members were forced to resign due to the ongoing sexual harassment." JA-53. The LOD concluded, "Based on this analysis, I have determined that the evidence obtained during the investigation establishes violations of [Title VII]." JA-54. The LOD then invited the parties to begin the conciliation process. Id. A conciliation conference was held in this case on June 22, 2005. JA-36. Prior to the conference, Colclough informed Great Steaks' attorney, Fred Hamlet, that the EEOC's reasonable cause finding in this case "included both Austin's Restaurant locations and that the EEOC would be conciliating Carter's charge on a class basis." Id. After the conciliation conference, at which the conciliator informed the defendants that some monetary relief would be a necessary component of any settlement in this case, Hamlet requested a week to discuss potential conciliation with his client. A week later, Hamlet notified the EEOC that the defendant declined to offer any monetary relief, and the EEOC subsequently issued a Notice of Conciliation Failure on June 29, 2005. JA-55. 2. Pre-Trial Discovery & Litigation After the conclusion of the EEOC's investigation and failure of conciliation, but prior to the filing of this suit, the EEOC learned that the Austin's Restaurant location in High Point was owned by a separate corporate entity, Clipper Seafood, Inc. ("Clipper Seafood"). Accordingly, when the EEOC filed suit in this case on August 26, 2005, it filed suit against both Great Steaks and Clipper Seafood, alleging violations of Title VII in the form of sexual harassment at both restaurant locations. JA-14-16. On December 5, 2005, the defendants filed a motion to dismiss the complaint. JA-20-21; R.5. With respect to Great Steaks, they argued that the EEOC lacked jurisdiction under Fed. R. Civ. P. 12(b)(1) because Great Steaks had not employed the statutory minimum of fifteen employees for twenty weeks at the time Carter's charge of discrimination was filed. They also argued that the EEOC failed to state a claim against Clipper Seafood under Fed. R. Civ. P. 12(b)(6) because, inter alia, Clipper Seafood had not been named in Carter's charge and the EEOC did not name any individual victims of harassment who were employed by Clipper Seafood. The EEOC opposed the defendants' motion on December 27, 2005, pointing out, inter alia, that Bessie Pantazis' own disclosures to the EEOC reflected that both Austin's Restaurant locations employed well above the statutory minimum number of employees in 2005, that Clipper Seafood had been given abundant notice of the charge and opportunity to participate in conciliation, and that, in any case, the facts available to the EEOC so far supported treating Great Steaks and Clipper Seafood as an integrated enterprise. JA-33-44, 49-51; R.8. On March 15, 2006, the magistrate judge entered an order converting the defendants' motion to dismiss into a motion for summary judgment, on the grounds that "[s]ome of the bases for the motion concerns factual matters outside of the complaint." R.18. After a motion hearing on March 23, 2006, the magistrate granted the EEOC's motion for discovery and ordered the parties to prepare a consent order providing for discovery bifurcated into two phases: the first dealing with the substantive claims and the issues raised by the defendants' motion to dismiss, and the second addressing the class allegations. JA-3. On April 14, the magistrate judge entered an order providing that "the parties be allowed discovery on all subjects relevant to this action, including but not limited to all issues presented by Defendant's Motion to Dismiss, except that the parties will not be permitted to depose the unnamed class members identified by Plaintiff in this action without leave of the Court," and set a deadline of July 31, 2006, for this initial phase of discovery. JA-56-67. The order also provided that "[a]t the close of this discovery period, Plaintiff must provide the identity of all individuals on whose behalf it is seeking relief to Defendant." JA-57. According to the consent order, briefing on the defendants' motion to dismiss would run through the end of October 2006, and any further discovery would be stayed pending the court's ruling on that motion. Id. (Pursuant to a joint motion for extension of time filed by the parties, the initial discovery deadline was subsequently extended to September 30, 2006, and the briefing deadline to December 20, 2006. JA-4.) Discovery then began, and the EEOC attempted to determine which of the defendants' current and former female employees would be participating in the lawsuit. During the summer of 2006, while discovery was ongoing, the EEOC notified the defendants that Dorathy Carter would no longer be participating in the case, as she had relocated to Detroit and had notified the Commission that she did not wish to be involved further. R.44 at 6. At the close of the initial discovery phase in September 2006, in accordance with the consent order of the district court, the EEOC notified the defendants that it was seeking relief on behalf of three claimants: Stephanie Jones, Alea Lovett, and Tricia Allen.<2> Shortly thereafter, Allen also relocated and voluntarily ceased participation in the suit, leaving Jones and Lovett as the remaining participants. In December 2006, Great Steaks conceded that it was subject to Title VII jurisdiction and withdrew its motion to dismiss. JA-61-62. On the same date, the parties filed a Joint Stipulation of Dismissal With Prejudice of all claims against Clipper Seafood, because Clipper Seafood was not a necessary party to establish Title VII jurisdiction and because no remaining claimants were employed by Clipper Seafood. JA-59-60. On May 24, 2007, the magistrate judge approved a consent order of the parties setting out the schedule for the second phase of discovery, with a deadline for the completion of all discovery by November 15, 2007. R.27, 28. On October 1, 2007, the EEOC began its latest set of attempts to schedule the deposition of John Pantazis, the defendant's co-owner and the alleged harasser in this case.<3> JA- 69-97. When Great Steaks refused either to produce Pantazis for deposition or to update the EEOC as to his status, the EEOC was forced to file a motion to compel Pantazis' deposition. JA-63-65. After the EEOC filed its motion to compel, defendant's counsel agreed to produce Pantazis for deposition and to pay the court reporter's costs for Pantazis' failure to show up for his scheduled deposition on November 14, 2007, and the EEOC accordingly withdrew its motion. JA-98-99. At the beginning of December 2007, the EEOC advised Great Steaks that Alea Lovett had voluntarily ceased participation in the suit, leaving Stephanie Jones as the sole remaining party on whose behalf the Commission was seeking relief. On December 17, 2007, Great Steaks filed a motion for summary judgment.<4> JA-101. The EEOC filed its response on January 22, 2008, and Great Steaks filed its reply on February 8, 2008. JA-6; R.44, 46. The EEOC also filed a motion to strike new evidence-in the form of a sexual harassment policy that had purportedly been used by Great Steaks during Stephanie Jones' employment-that the defendant had attached to its reply brief but had never disclosed to the EEOC during discovery. JA-6; R.47, 48. On April 29, 2008, the magistrate judge issued his recommendation that the defendant's motion for summary judgment be denied and that the EEOC's motion to strike all references to Great Steaks' "harassment policy" be granted. Viewing the facts in the record in the light most favorable to the EEOC, as required on summary judgment, the magistrate observed that the record evidence included Jones' testimony that John Pantazis told her that she "look[ed] good" at her job interview and "every day of her part-time employment at Austin's, which lasted for approximately two months." JA-281. The magistrate also took note of Jones' testimony that she had observed Pantazis touching Dorathy Carter in the small of her back "right above where the crevice between her buttocks starts" and grabbing Carter's arm and placing his own arm around Carter's shoulder. JA-281-82. The magistrate then went on to observe that Jones testified that Pantazis had touched her in various suggestive ways on three occasions, "looked down her shirt and remarked on her breasts on two or three occasions, and made several other sexually-charged comments, including explicitly asking her for sex." JA-282. The magistrate judge concluded that Jones's testimony was more than sufficient to support a reasonable jury finding of a Title VII violation based on the standard articulated by this Court in Ocheltree v. Scollon Productions, Inc., 335 F.3d 325, 331 (4th Cir. 2003), and by the Supreme Court in Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22 (1993). JA-286-87. Noting that the case law requires only that harassing conduct be sufficiently severe or pervasive-in the disjunctive rather than the conjunctive-to create a hostile work environment (JA- 289 n.5), the magistrate nonetheless observed that the record evidence in this case would have supported a reasonable jury finding both as to severity and as to pervasiveness with respect to Jones' harassment. JA-289. The magistrate observed that "[t]he element of pervasiveness arises from both the frequency of Pantazis' otherwise innocuous, but unpleasant, conduct and the specific incidents of blatant conduct occurring within a two-month period." Id. He noted, "[the] blatant incidents give added meaning to the daily comments and staring, which, in this light, could be viewed as evidence of daily harassment." Id. As to severity, the magistrate took note not only of Jones' testimony that "Pantazis expressly and implicitly solicited her for sex on three occasions," but also that "[i]n the same two to three month time frame, Jones claims that Pantazis looked down her shirt and commented on her breasts two or three times and touched her in an ambiguously sexual way on three additional occasions." JA-289- 90. The magistrate wrote: The objective evidence of the severity and pervasiveness of the alleged misconduct, and the likely lack of its being innocent by-play, in this case is heightened by the significant age and power discrepancies between Pantazis, Defendant's 65-year-old president and owner, who was also Jones' supervisor, and Jones, who was an 18-year-old hostess at the time the above-described events occurred. . . . The fact that the alleged harassment came from the older, much more powerful Pantazis . . . separates this case from those where the unpleasantries came from coworkers. Pantazis apparently even handed out employee checks at times, clearly emphasizing the power disparity between him and Jones, and the potential threat to Jones. JA-290-91. The magistrate judge did observe that "Jones' foggy memory concerning the exact dates and details of Pantazis' actions is somewhat detrimental to her forecast of evidence," and found "particularly troubling" her "failure to place these claims in context by including dates or, at times, even temporal relationships between the alleged actions." JA-292. However, he concluded: Nevertheless, the testimony cannot be said to be wholly incredible. And, it must be remembered that this was Jones' first full time job and, therefore, the surprise and shock of Pantazis' alleged conduct may well explain the vagueness of the memory. Finally, her deposition occurred over two years after the incident, and this could explain the inability to immediately supply details in the deposition. In any event, the credibility and weight of the evidence are for a jury to decide, not the Court in a motion for summary judgment. JA-292. The magistrate also rejected the defendant's argument that it was entitled to summary judgment on the Faragher/Ellerth affirmative defense, observing that "Defendant has done little to show that it has satisfied the first prong of the affirmative defense, which is that it had an adequate complaint procedure. In fact, the entire question of whether there existed a complaint procedure is in doubt." JA-294. As to the "harassment policy" proffered by Great Steaks as an attachment to its reply brief, the magistrate stated: Without permission from the Court, Defendant attempted to introduce new evidence in its reply brief by attaching to it, a "Reply Affidavit of John Pantazis." This procedure violates this Court's Local Rules, which limit reply briefs to discussion of matters newly raised in the response. (LR7.3(h).) Moreover, it appears that the document first appeared in the Reply Brief Affidavit and was not produced during discovery. No adequate explanation has been advanced for the failure to produce such an important document at an earlier time, for Defendant's own affirmative defense. Therefore, even the document's legitimacy for purposes of this action must be questioned. Defendant's attempt to blame Plaintiff for its own violation of the rules in regard to a document supporting Defendant's own affirmative defense is rejected out-of-hand. As a result, Plaintiff's motion to strike the affidavit should be granted. JA-295. The magistrate then went on to observe that, in any case, Great Steaks had failed to satisfy the second prong of the Faragher/Ellerth affirmative defense because it had not shown that Jones had unreasonably failed to avail herself of any remedial apparatus available to her, particularly given that the alleged harasser was the company's owner and her supervisor and that she denied having any knowledge of the existence of a harassment policy at all. JA-296. On May 16, 2008, Great Steaks filed its opposition to the magistrate's Recommended Ruling. JA-8. On September 8, 2008, the district court entered an order affirming and adopting the magistrate's Recommended Ruling, denying Great Steaks' motion for summary judgment, and granting the EEOC's motion to strike the Reply Affidavit of John Pantazis (for summary judgment purposes only). JA-298-99. On September 22, 2008, Great Steaks filed what it termed a "Motion to Amend" the district court's order of September 8, 2008, pursuant to Fed. R. Civ. P. 52(b). The district court denied Great Steaks' motion, explaining that its decision denying the defendant's motion for summary judgment was not an "entry of judgment" in the case and did not end the litigation, and accordingly Rule 52(b) did not apply. JA-300-01. Proceeding to treat Great Steaks' Motion to Amend as a motion for reconsideration, the court stated: [T]o the extent Defendant is attempting to request reconsideration of the Court's Order, the Court reaffirms its Order adopting the Recommendation of the Magistrate Judge. Although Defendant cites as noteworthy the length in number and pages of its objections, the Court notes that Defendant's objections were of insufficient merit to affect the Court's adoption of the substance of the Magistrate Judge's rulings. A de novo review of Defendant's objections revealed that they were conclusory, void of legal analysis or support, and in some instances included incorrect statements of law. . . . Defendant's boilerplate and conclusory objections, which are void of legal analysis, fail to comply with Rule 72 and the standard in this Circuit requiring that objections be "issued with sufficient specificity so as reasonably to alert the district court of the true ground for the objection." JA-301-02 (quoting United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007)). 3. The Defendant's Pre-Trial Disclosures & the Trial This case was scheduled for trial beginning on October 5, 2009. JA-8. Great Steaks filed its pretrial disclosures on September 4, 2009, identifying every document disclosed by any party during discovery as evidence that it either intended to use at trial or may use at trial. JA-312-22. Great Steaks also listed as a potential witness every individual who had been mentioned at any time during discovery. JA-305-12. Moreover, based on the materials and witnesses listed in its pretrial disclosures, it was apparent that Great Steaks intended to present at trial testimony and evidence relating to its challenges to the adequacy of the EEOC's investigation and conciliation of Carter's charge. E.g., JA-306 (listing EEOC investigator Colclough as witness), 318 (listing "[c]omplete EEOC investigative file forwarded to EEOC director in Charlotte for review and assignment by Tom Colclough" as document or exhibit defendant expects to offer). Because these matters pertaining to investigation and conciliation were privileged and not jury issues in any case, the EEOC was forced to file six motions in limine to exclude evidence relating solely to these issues, in addition to six other motions in limine pertaining to other evidentiary issues in the case. JA-9-10, 351- 86. Great Steaks never filed a response to any of the EEOC's motions in limine. At a motion hearing on October 5, 2009, the district court granted four of the EEOC's motions in limine, ordering that all evidence relating to the EEOC's investigation and conciliation of the case, all Colclough's testimony, and all evidence of a tape recording between Colclough and another witness, Jamie Baker, be excluded. JA-11. The court reserved ruling on the EEOC's remaining motions in limine pending trial. The case proceeded to trial on October 5, 2009. At trial, Jones testified that Pantazis' harassment of her began when she was first hired, when he looked her up and down after offering her the job and commented that she "looked good," and that he remarked that she "looked cute" or "looked good" every day she worked. Jones also testified that Pantazis propositioned her for sex at least three times: once by offering her a key to his apartment; another time by suggesting that she "go off" with him; and finally by explicitly stating "would you like to have sex?" In addition, Jones testified that Pantazis looked down her shirt and commented about her breasts on several occasions and that he touched her, placing his hand on her lower back and moving his hand down her body toward her buttocks. This testimony was consistent with Jones' deposition testimony and the evidence presented in the EEOC's response in opposition to the defendant's motion for summary judgment. At the close of the EEOC's case, on October 6, 2009, the defendant moved for a directed verdict pursuant to Rule 50. JA-12. The Court denied the defendant's motion. Id. The defendant renewed its Rule 50 motion at the close of its evidence and the Court again denied the defendant's motion. Id. On October 7, 2009, the jury returned a verdict in favor of the defendant, indicating that the EEOC had not proven by a preponderance of the evidence that Great Steaks had subjected Jones "to a sexually hostile work environment in the form of sexual harassment, in violation of Title VII," and the Court entered judgment in favor of the defendant. JA-12, 387, 390. 4. The Defendant's Motion for Attorney's Fees On December 7, 2009, Great Steaks filed its motion for an award of attorney's fees in this case. JA-391. Great Steaks argued that it was entitled to attorney's fees in this case under three different statutory provisions. First, it argued that it was entitled to fees under Title VII's attorney's fee provision, 42 U.S.C. § 2000e-5(k), and the Supreme Court's decision in Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), because this case was "frivolous, unreasonable, and without foundation from the very outset" and because, in the alternative, the EEOC continued to litigate the case even after it had become so after the conclusion of the second round of discovery. R.112 at 8, 11. Second, the defendant argued that the EEOC was liable for its attorney's fees and costs under 28 U.S.C. § 1927 because the EEOC had litigated the case in bad faith and had "vexatiously multiplied the proceedings on numerous occasions" by, inter alia, filing a motion to strike the defendant's summary judgment brief for failure to comply with the local rules and filing motions in limine before trial. R.112 at 17- 19. Finally, Great Steaks argued that it was entitled to an award of attorney's fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(b), because the EEOC's position in this case was not "substantially justified." R.112 at 19. B. District Court's Decision The district court rejected Great Steaks' arguments that it was entitled to attorneys' fees under all three statutory provisions. Beginning with Title VII, the court observed: The Supreme Court has interpreted [42 U.S.C. § 2000e-5(k)] to permit the Court to award attorney's fees to a prevailing [defendant] if the Court finds that an action was "frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." Christiansburg Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412, 421 (1978). In making these determinations, "[t]he fixing of attorney's fees is particularly within the province of the trial judge, who is on the scene and able to assess the oftentimes minute considerations which weigh in the initiation of a legal action." Arnold v. Burger King Corp., 719 F.2d 63, 65 (4th Cir. 1983). JA-394-95. The court took note of Great Steaks' arguments that the EEOC should have known that its case was "frivolous, unreasonable, or lacked foundation" "on account of various developments that took place prior to and during trial," including the dismissal of Clipper Seafood from the case, the fact that several of the original claimants withdrew from the suit, and the fact that the jury ultimately did not accept the testimony of the EEOC's witnesses at trial. JA-395. The court rejected these arguments as a basis for awarding attorney's fees, noting that "this matter survived the defendant's motions for summary judgment and judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50." Id. The court further observed: Although the jury's verdict suggests that it may not have accepted the evidence or testimony offered by Plaintiff, the Court finds nonetheless that Plaintiff's case raised justiciable issues of fact that were proper for consideration and decision by the jury. A court may not award attorney's fees to a defendant "solely because the plaintiff did not ultimately prevail on the merits of the lawsuit. Since the results of many lawsuits are not predictable, plaintiffs are not to be discouraged from bringing suit just because it is less than airtight." JA-394-95 (quoting Glymph v. Spartanburg Gen. Hosp., 783 F.2d 476, 479 (4th Cir. 1986)). Accordingly, "the Court does not find that, considering the standards laid out above, the claims asserted by Plaintiff were frivolous, unreasonable, or without foundation." JA-395. The district court then turned to Great Steaks' claim that it was entitled to attorney's fees under 28 U.S.C. § 1927, noting that the statute provides that "[a]ny attorney or other person admitted to conduct cases in any court of the United States . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct." JA-396. The court observed that this section "'imposes a continuing obligation in the conduct of litigation,' and 'requires a finding of counsel's bad faith as a precondition to the imposition of fees.'" Id. (quoting Brubaker v. City of Richmond, 943 F.2d 1363, 1382 n.25 (4th Cir. 1991) (citing Blair v. Shenandoah Women's Center, Inc., 757 F.2d 1435, 1438 (4th Cir. 1985))). The court further observed that "§ 1927 must be construed narrowly by the courts, since it is penal in nature, 'so as not to stifle the enthusiasm or chill the creativity that is the very lifeblood of the law.'" JA-396 (quoting Mone v. CIR, 774 F.2d 570, 574 (2d Cir. 1985)). The court concluded, "having presided over the proceedings throughout the course of the present action, [the court] does not find that Plaintiff's counsel has engaged in bad faith conduct or vexatiously multiplied the proceedings at any point during the litigation of this matter." JA-396-97. Finally, the district court turned to Great Steaks' argument that it was entitled to recover its attorney's fees under the EAJA, 28 U.S.C. § 2412(d)(1), which provides that "a court shall award to a prevailing party other than the United States fees and other expenses incurred by that party in any civil action . . . brought by or against the United States . . . unless the court finds that the position of the United States was substantially justified." JA-397. The court noted this Court's holding that "[a] position is 'substantially justified' if it is 'justified in substance or in the main-that is, justified to a degree that could satisfy a reasonable person.'" Id. (quoting Morris v. Wachovia Securities, Inc., 448 F.3d 268, 279 (4th Cir. 2006) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988))). Observing that Great Steaks made essentially the same arguments in support of its EAJA fee claim that it did in support of its Title VII fee claim, the district court noted: [A]lthough Plaintiff did not prevail at trial, this matter reached the jury on the issue of Defendant's Title VII liability, surviving dispositive motions at each preceding stage. The Court finds that Plaintiff's position in this case was substantially justified, in that a reasonable person would be satisfied by Plaintiff's position, namely that Defendant would have been liable for violating Title VII had the issues of fact in question been resolved in favor of Plaintiff by the jury. JA-397. Accordingly, the court found that the EEOC had a "substantial justification" for its position in this case and denied Great Steaks' motion for attorney's fees in its entirety. Id. at 397-98. STANDARD OF REVIEW The denial of a request for attorney's fees under Title VII is reviewed for abuse of discretion. See 42 U.S.C. § 2000e-5(k) (providing that a district court may "in its discretion" allow a prevailing party a reasonable attorney's fee); see also Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761, 766 (4th Cir. 2003); Harris v. L & L Wings, Inc., 132 F.3d 978, 985 (4th Cir. 1997). Applying this standard, this Court has ruled that "[t]he fixing of attorneys' fees is peculiarly within the province of the trial judge, who is on the scene and able to assess the oftentimes minute considerations which weigh in the initiation of a legal action." Arnold, 719 F.2d at 65-66. See also Brodziak v. Runyon, 145 F.3d 194, 196 (4th Cir. 1998) (observing that "reversal for abuse of discretion is reserved for those instances in which the court is 'clearly wrong,'" and that a district court's fees decision should be affirmed "'even though [this Court] might have exercised that discretion quite differently'") (quoting Johnson v. Hugo's Skateway, 974 F.2d 1408, 1418 (4th Cir. 1992) (en banc)); People for Ethical Treatment of Animals v. Doughney, 263 F.3d 359, 370 (4th Cir. 2001) ("A trial court abuses its discretion only if its conclusions are based on mistaken legal principles or clearly erroneous factual findings."). Likewise, the district court's decision to deny a request for sanctions under 28 U.S.C. § 1927 is reviewed for abuse of discretion. Chaudhry v. Gallerizzo, 174 F.3d 394, 410 (4th Cir. 1999) (citing Miltier v. Beorn, 896 F.2d 848, 855 (4th Cir. 1990)). Finally, the district court's denial of attorney's fees under the EAJA is also reviewed for abuse of discretion. See EEOC v. Clay Printing Co., 13 F.3d 813, 816 (4th Cir. 1994). However, the legal question of whether the EAJA applies to Title VII is subject to de novo review. See Stone v. Instrumentation Lab. Co., 591 F.3d 239, 242-43 (4th Cir. 2009) ("[A] question of statutory interpretation [] is a question of law that we review de novo."). SUMMARY OF ARGUMENT The district court did not abuse its discretion in denying the defendant's motion for attorney's fees. The defendant is not entitled to recover its attorney's fees under Title VII because this litigation was not frivolous, unreasonable, or without foundation within the meaning of Christiansburg Garment Co. v. EEOC at any stage in the proceedings. The EEOC adduced substantial evidence and argued valid legal theories in this case, and the fact that the jury chose to believe the defendant's version of the facts over the EEOC's does not render this case frivolous under Supreme Court or this Court's precedent. The EEOC also gave the defendants every opportunity to conciliate this case, and the defendants' refusal to make any counteroffer to the EEOC's offer may not be attributed to the EEOC. The defendant is not entitled to sanctions under 28 U.S.C. § 1927 based on its argument that the EEOC engaged in bad faith, vexatious litigation conduct. The defendant literally has no evidence of any such conduct because none occurred, and virtually all of the conduct to which it objects is reasonably responsive to Great Steaks' own actions. Finally, the defendant is not entitled to recover its attorney's fees under the EAJA because the EAJA does not apply to Title VII as a matter of law. However, even if the EAJA did apply to Title VII, the EEOC's position in this case was "substantially justified" within the meaning of the EAJA and accordingly defendant's motion for attorney's fees was properly denied. ARGUMENT I. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR ATTORNEY'S FEES UNDER TITLE VII BECAUSE THIS LITIGATION WAS NOT FRIVOLOUS, UNREASONABLE, OR WITHOUT FOUNDATION AT ANY STAGE OF THE PROCEEDINGS. As the district court correctly observed, and as this Court has recognized, the standard for awarding attorney's fees to a prevailing defendant in a Title VII case is established by 42 U.S.C. § 2000e-5(k) and by the Supreme Court's decision in Christiansburg. In Christiansburg, the Supreme Court recognized that a plaintiff who prevails in a Title VII action "ordinarily is to be awarded attorney's fees in all but special circumstances." 434 U.S. at 417 (citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 415 (1975)). The Court reasoned that there are two primary policy reasons for this rule: First, a Title VII plaintiff is "the chosen instrument of Congress to vindicate 'a policy that Congress considered to be of the highest priority.'" Id. at 418 (quoting Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402 (1968)). Second, when a district court awards counsel fees to a prevailing Title VII plaintiff, "it is awarding them against a violator of federal law." Id. By stark contrast, the Supreme Court explained, these equitable considerations are "wholly absent" in the case of a prevailing Title VII defendant. Christiansburg, 434 U.S. at 418; see also Bryant Woods Inn, Inc. v. Howard County, Md., 124 F.3d 597, 606 (4th Cir. 1997) (citing Fogerty v. Fantasy, Inc., 510 U.S. 517, 522-23 (1994)) (recognizing the policy rationale for treating plaintiffs and defendants differently with respect to the availability of attorney's fees in Title VII actions)). The Christiansburg Court concluded that Congress intended to allow defendants to recover fees only so that they would be protected "from burdensome litigation having no legal or factual basis." 434 U.S. at 420 (emphasis added). Accordingly, the Supreme Court ruled, in Title VII cases "a plaintiff should not be assessed his opponent's attorney's fees unless a court finds that [the plaintiff's] claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so." Id. at 422. This Court has explained the proper application of Christiansburg as follows: Under proper circumstances, a district court can award attorneys' fees to a prevailing defendant in Title VII actions. A district court has the discretion to award such fees only upon a finding that the plaintiff's action was "frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." [Christiansburg, 434 U.S. at 421.] Such a finding cannot result solely because the plaintiff did not ultimately prevail on the merits of the lawsuit. Since the results of many lawsuits are not predictable, plaintiffs are not to be discouraged from bringing suit just because it is less than airtight. [Id. at 422.] This court has recognized the chilling effect such awards can have on Title VII plaintiffs. [Arnold, 719 F.2d 63.] District courts should award such fees sparingly and not based upon post hoc reasoning which presumes such an award based upon the outcome of the lawsuit. [Id.] at 65. Glymph, 783 F.2d at 479. Applying these legal principles to the facts of this case, the district court certainly did not abuse its discretion in refusing to award Great Steaks its attorney's fees. First and foremost, the EEOC's evidence in this case was sufficient not only to survive the defendant's motion for summary judgment under Fed. R. Civ. P. 56 but also, tellingly, to survive both of the defendant's Rule 50 motions for directed verdict at trial, raised at the close of the EEOC's evidence and at the close of all evidence. JA-12, 298-99. What is critical here is not simply the procedural fact that Great Steaks' Rule 50 motions were both denied, but what those denials by the district court represent: based on all of the evidence presented at trial, the district court found that "a reasonable jury would [] have a legally sufficient evidentiary basis to find for" the EEOC. Fed. R. Civ. P. 50(a). This critical point distinguishes this case from every case cited by Great Steaks in support of its argument that it is entitled to recover its attorney's fees pursuant to Title VII. This Court has certainly recognized that there are cases where the plaintiff's ability to establish a prima facie case of discrimination, or to survive summary judgment, may not be a bar to a defendant's recovery of attorney's fees where later failures of proof were so gross as to demonstrate that the entire case was frivolous, unreasonable, or without foundation. See, e.g., Blue v. U.S. Dep't of the Army, 914 F.2d 525, 536-37 (4th Cir. 1990) (observing that plaintiff's ability to establish a prima facie case of discrimination "will not invariably immunize plaintiffs and their counsel from sanctions" because, inter alia, "[a] plaintiff's ability to meet this low threshold does not render sanctions inappropriate for the continued litigation of an otherwise patently frivolous case"); Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir. 1993) (rejecting "flawed" logic of plaintiffs' argument that "their claim could not have been factually frivolous, because it survived defendants' motions for dismissal and for summary judgment"; observing that "the court gave plaintiffs ample notice that they were skating on thin ice: in denying defendants' motions to dismiss, the court warned plaintiffs that their conspiracy claim had barely survived dismissal").<5> In this case, however, the district court made a specific finding at trial- twice-that the evidence in this case was sufficient to go to the jury on the question of whether Stephanie Jones was sexually harassed by John Pantazis. The circumstances of this case are thus far more similar to those of Glymph, in which this Court reversed the district court's award of attorney's fees to the defendant as an abuse of discretion. This Court observed: The district court's finding that Mrs. Glymph's claims were frivolous is undercut to some extent by that court's handling of the case itself. The hospital had moved prior to trial for summary judgment. After a recommendation from the magistrate . . . , the court denied the motion for summary judgment as to all the claims. The case then proceeded to trial. After presentation of Mrs. Glymph's evidence, the hospital moved for an involuntary dismissal of the case. The court summarily denied that motion. The hospital then presented its own evidence through its witnesses. . . . While we do not think the denial of summary judgment in favor of the hospital and the like denial of its motion to dismiss at the close of plaintiff's evidence are binding decisions that the plaintiff had made out at least a prima facie case, especially without explicit findings which are absent here, it is arguable that such is implicit in those rulings. 783 F.2d at 479-80. Moreover, as the Glymph Court went on to observe, that case, like this one, was one where the outcome came down to a core question of credibility, which made a defensive attorney's fees award particularly inappropriate: If the case had stopped [at the close of plaintiff's evidence], the district court would have been hard pressed, even if possible at all, to decide the case in favor of the hospital, and we are of opinion that the case made out by Mrs. Glymph was not frivolous. Neither was it unreasonable or without foundation. Her case depended almost wholly on her oral testimony to the effect that she was forced to resign, and while it is true that the hospital presented a strong defense that she voluntarily resigned, which was accepted by the district court, we do not think that such cases should subject unsuccessful plaintiffs to the award of attorneys' fees under Christiansburg Garment Co.. Id. at 480. The same was true here. At trial, as described above, Jones testified that Pantazis, her supervisor and the company's owner, remarked that she "looked cute" or "looked good" every day she worked; propositioned her for sex at least three times; looked down her shirt and commented about her breasts on several occasions; and touched her, placing his hand on her lower back and moving his hand down her body toward her buttocks. As in Glymph, the EEOC's case depended heavily on Jones's oral testimony, and the finder of fact's ultimate choice to credit the defendant's version of the facts in no way renders this case frivolous under Christiansburg. Great Steaks, in its brief, attempts to argue that this case was nonetheless frivolous because Jones' deposition testimony was contradictory as to whether Pantazis told her she looked "nice" or "cute," whether he touched her back or her buttocks, and because she had trouble at her deposition remembering some specifics about whether Pantazis asked her for sex. GS-Br. 24.<6> None of these alleged inconsistencies in the details of her deposition testimony, however, occurring years after the events in question, renders the EEOC's case on her behalf frivolous, unreasonable, or without foundation. Great Steaks also argues that the EEOC's case is "completely unfounded" based on the affidavit of one witness, Heather Smith. GS-Br. 24-25; JA-107-08. Smith's affidavit, however, merely contradicted Jones's testimony; she was, at most, a single adverse witness. The existence of competing or contradictory evidence simply does not "show[] the EEOC's case to be completely unfounded," as Great Steaks asserts. Indeed, Smith testified at trial that it was possible that Pantazis could have sexually harassed Jones but that Smith simply did not observe it. The other cases Great Steaks cites in its brief (GS-Br. 20) are simply irrelevant to this case. Not only are they all factually inapposite and non-binding decisions of other jurisdictions, but all of the appellate decisions except for one are examples of the court's affirmance of the district court's exercise of its discretion. See Meriwether v. Caraustar Packaging Co., 326 F.3d 990, 994 (8th Cir. 2003) (affirming district court's award of attorney's fees to defendant where plaintiff failed to establish prima facie case of discrimination and where plaintiff's "deposition testimony contradicted eight of the twenty-one paragraphs of her verified complaint"); Charves v. W. Union Tel. Co., 711 F.2d 462, 464-65 (1st Cir. 1983) (finding it "appropriate" that the trial judge who presided over a bench trial was "influenced significantly by its ever-deepening belief that the appellant was not a credible witness" in deciding to award attorney's fees to defendant); Nat'l Org. for Women v. Bank of Calif., 680 F.2d 1291, 1293 (9th Cir. 1982) (affirming district court's assessment of attorney's fees against plaintiff for filing a second motion raising "precisely the same question" as an earlier motion that had already been litigated); Bugg v. Int'l Union of Allied Indus. Workers of Am., Local 507, 674 F.2d 595, 597-99 (7th Cir. 1982) (affirming award of attorney's fees where, inter alia, plaintiff failed to establish prima facie case of discrimination and continued to prosecute time-barred claims); Black Musicians of Pittsburgh v. Local 60-471, Am. Fed'n of Musicians, 442 F. Supp. 855, 859-60 (W.D. Pa. 1977) (awarding attorney's fees to defendant based on bad-faith conduct of litigation by EEOC in continuing to litigate case after its own statistical analysis determined that proof of discrimination was lacking). The only reversal was the Eleventh Circuit's decision in Durrett v. Jenkins Brickyard, Inc., 678 F.2d 911 (11th Cir. 1982), where the court held that it was an abuse of discretion for the district court to refuse to award a prevailing defendant its attorney's fees when the district court had affirmatively found that the underlying litigation was frivolous under Christiansburg (i.e., because the plaintiff sued a company that had never employed him at any time and was informed of his error, but nonetheless continued the suit for six months). Id. at 913-14. The district court in Durrett nevertheless declined to award the defendant its fees based on the plaintiff's indigence and the court's belief that the plaintiff's lawyer, rather than the plaintiff himself, was at fault for the groundlessness of the litigation. Id. at 915-16. The Eleventh Circuit held that "in no case may the district court refuse altogether to award attorney's fees to a prevailing Title VII defendant because of the plaintiff's financial condition," reversed, and remanded for further proceedings to determine the effect of the plaintiff's financial condition on the amount of the fee award. Id. at 917.<7> Tellingly, Great Steaks offers not a single case-or any other legal support-for its specious argument that this Court should deem this case frivolous, unreasonable, or without foundation based on the fact that the number of claimants diminished from a potential maximum of eight disclosed in discovery to one by the time of trial.<8> Indeed, we are aware of no sexual harassment case where a reduction in the number of claimants constituted the basis for an award of attorney's fees in favor of a prevailing defendant. It is not unusual in litigation of this sort for potential claimants to fall out of the case as litigation progresses, and Great Steaks' contrary contention makes no sense. Moreover, as explained above, the EEOC had no control over the decisions of the individual claimants to withdraw from this lawsuit. Carter dropped out after she relocated to Detroit in the summer of 2006 and notified the EEOC that she did not wish to participate further. Allen also relocated and voluntarily ceased participation a few months later, and Lovett voluntarily withdrew in December 2007. After each withdrawal, the EEOC promptly notified the defendant. There was nothing more the EEOC could have done with respect to these claimants' decisions regarding the lawsuit, and they had nothing whatsoever to do with the merits of the EEOC's decision to initiate the case or to continue litigating it. In any case, nothing about the other claimants' eventual decisions not to participate has any bearing on whether this case is frivolous, unreasonable, or without foundation as to Jones' claim. Such a rule would make no sense. The merits of a case are assessed based on the strengths and weaknesses of each individual claim, not on whether there may or may not have been other claims against the same defendant or involving the same harasser. (This was precisely the basis for the EEOC's motion in limine seeking to exclude evidence regarding the other claimaints from being introduced at trial: it was utterly irrelevant to the merits of Jones' claim. See JA-369-71; R.92.) Great Steaks also urges this Court to award it attorney's fees based on various complaints about the EEOC's administrative processing of Carter's charge of discrimination. However, as this Court has held on multiple occasions, it would be legally inappropriate for this Court to do so. A Title VII respondent-employer is not compelled to accept the results of the EEOC's investigation, the Commission's finding of reasonable cause, or its conciliation demands. See EEOC v. Gen. Elec. Co., 532 F.2d 359, 367 n.20a, 370 (4th Cir. 1976) (explaining that the EEOC "has no adjudicatory power" and "[i]ts proceedings are not binding on the employer"); Georator Corp. v. EEOC, 592 F.2d 765, 768 (4th Cir. 1979) (same); see also Associated Dry Goods Corp. v. EEOC, 720 F.2d 804, 812 (4th Cir. 1983) (noting that "no rule or decision of the Commission . . . can affect the rights or impose any obligation on any party"). Accordingly, as this Court has explained: Title VII . . . does not provide for preliminary review of the Commission's determination of reasonable cause. Even when suit is brought later by either the EEOC or the charging party, the trial is de novo, and the court will not determine whether substantial evidence supported the Commission's preadjudication finding of reasonable cause. . . . [T]he EEOC's determination of reasonable cause . . . [s]tanding alone . . . is lifeless, and can fix no obligation nor impose any liability on the plaintiff. It is merely preparatory to further proceedings. If and when the EEOC or the charging party files suit in district court, the issue of discrimination will come to life, and the [employer accused of discrimination] will have the opportunity to refute the charges. Georator, 592 F.2d at 767, 768 (citing Gen. Elec., 532 F.2d at 370); see also EEOC v. Raymond Metal Prods. Co., 530 F.2d 590, 594 (4th Cir. 1976) (noting that "a respondent who has rejected conciliation can defend in a trial de novo a complaint that he has [violated Title VII]"). Consequently, a defendant to a Title VII suit has no occasion to challenge the adequacy of the Commission's investigation, to quarrel with its conclusions, or to otherwise seek a mini-trial relating to the Commission's administrative process. See also, e.g., EEOC v. Caterpillar, Inc., 409 F.3d 831, 832 (7th Cir. 2005) (observing that "[n]o case holds that the scope of the EEOC's investigation is a justiciable issue in a suit by the EEOC" and recognizing that this Court's ruling in Georator "holds that it is not") (emphasis in original)); Newsome v. EEOC, 301 F.3d 227, 231 (5th Cir. 2002) (citing Gen. Elec.) (recognizing that the nature and extent of an EEOC investigation into a discrimination claim is a matter within the discretion of that agency); EEOC v. Keco Indus., Inc., 748 F.2d 1097, 1100 (6th Cir. 1984) (holding that district court erred in "inquir[ing] into the sufficiency of the Commission's investigation"); EEOC v. St. Anne's Hosp., 664 F.2d 128, 131 (7th Cir. 1981) (rejecting defendant's claim that the EEOC's investigation was inadequate, and noting that "[a] reasonable cause determination is not to adjudicate a claim but to notify an employer of the Commission's findings"). Accordingly, Great Steaks' complaints about the EEOC's allegedly "hasty" investigation of Carter's charge, and various other aspects of the investigation and conciliation process, GS-Br. 22, have no bearing on the issue of whether this litigation is frivolous under Christiansburg. In denying Great Steaks' fees request, the district court rightly refused to second-guess the Commission's administrative activities by Monday-morning quarterbacking the EEOC's administrative enforcement process or miring itself in the minutiae of the Commission's handling of Carter's charge. Finally, it is unclear whether Great Steaks is continuing to argue that the conciliation in this case was somehow inadequate, or whether something about that process simply demonstrates that the litigation is frivolous.<9> GS-Br. 23 n.14. The latter point is simply devoid of merit; as already explained above, nothing about the EEOC's handling of the investigation and conciliation prior to the litigation stage of this case has any bearing on whether this litigation was frivolous, unreasonable, or without foundation. See supra at 34. As to the former argument, as this Court has observed, "the law requires [] no more than a good faith attempt at conciliation." EEOC v. Radiator Specialty Co., 610 F.2d 178, 183 (4th Cir. 1979). In Radiator Specialty, this Court found that the EEOC had fulfilled its statutory duty to make a good-faith attempt to engage in conciliation where it invited the company to conciliate, toured the company's plant and discussed the charges, the company responded three months later with a letter declining a conciliation conference, the EEOC "notified defendant that conciliation would be deemed to have failed unless RSC indicated it wished to resume conciliation within five days," and the company did not respond. Id. In this case, after the LOD was issued in May 2005, the EEOC invited the defendants to engage in conciliation, and a conciliation conference was held on June 22, 2005. The EEOC made an initial monetary demand, and the defendants requested a week to consider it. At the end of that week, the defendants made no counteroffer and specifically refused to offer any monetary relief whatsoever. The EEOC accordingly issued a Notice of Conciliation Failure on June 29, 2005. The EEOC fulfilled its obligation to make a good-faith attempt at conciliation with the defendants in this case, and, as in Radiator Specialty, their "failure or refusal to [participate] cannot be attributed to the Commission." 610 F.2d at 183. II. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR SANCTIONS UNDER 28 U.S.C. § 1927 BECAUSE THERE IS NO BASIS FOR ANY ARGUMENT THAT THE EEOC ACTED IN BAD FAITH OR MULTIPLIED THE PROCEEDINGS IN THIS LITIGATION UNREASONABLY OR VEXATIOUSLY. 28 U.S.C. § 1927 provides that any attorney "who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct." As this Court has observed, "section 1927 [] requires a finding of counsel's bad faith as a precondition to the imposition of fees." Brubaker, 943 F.2d at 1382 n.25. Moreover, as the Supreme Court has noted, section 1927 "provides only for excess costs caused by the [] attorneys' vexatious behavior and consequent multiplication of the proceedings, and not for the total costs of the litigation." Roadway Express, Inc. v. Piper, 447 U.S. 752, 756 n.3 (1980) (quoting Monk v. Roadway Express, Inc., 599 F.2d 1378, 1383 (5th Cir. 1979) (emphasis in original)). Great Steaks adduces no evidence of bad faith or vexatious conduct on the part of the EEOC in the litigation of this case, because it has none. The EEOC has litigated this case in good faith and in compliance with all federal and local rules since the outset, as the district court itself observed. JA-396-97 ("The Court, having presided over the proceedings throughout the course of the present action, does not find that Plaintiff's counsel has engaged in bad faith conduct or vexatiously multiplied the proceedings at any point during the litigation of this matter.") In fact, virtually every example of the EEOC's conduct that Great Steaks identifies as an example of ostensible "bad faith" is attributable either to a factor outside the parties' control, such as an independent decision of the district court or a claimant, or to the defendant's own conduct that required a response from the EEOC. For example, the defendant apparently finds it to be an act of bad faith on the EEOC's part to require the defendant to comply with the local rules regarding font size for briefs. GS-Br. 27. However, by violating M.D.N.C. R. 7.1(a) and using a smaller font while availing itself of the full page limit for its filing, Great Steaks effectively circumvented the court's length limit for its summary judgment brief. See R.38 at 2. The EEOC's motion to strike the defendant's noncompliant brief was filed in good faith, and the EEOC's brief in opposition to summary judgment was compliant in all respects. See R.44.<10> The defendant also apparently considers the EEOC's filing of motions in limine before trial to be in bad faith as well. GS-Br. 27-28. As the docket reflects, Great Steaks filed its pretrial disclosures on September 4, 2009. JA-9. They are eighteen pages long (excluding the certificate of service) and list every document disclosed by any party during discovery as evidence that the defendant either intended to use at trial or may use at trial, as well as every individual who had been mentioned at any time during discovery as a potential witness. JA-305-22. They also included patently irrelevant, non-jury materials pertaining to the EEOC's investigation and conciliation of Carter's charge. Exactly two weeks after the defendant's filing, on September 18, 2009, the EEOC filed its objections to the defendant's pretrial disclosures, which detailed all of the various bases for its objections. JA-324-50. Ten days later, on September 28, 2009, the EEOC filed its motions in limine pertaining to various issues raised in its objections of September 18, as described supra at 16. The defendant has no one to blame but its own counsel for the motions in limine that the EEOC filed on September 28, 2009. They were entirely responsive to the defendant's own pretrial disclosures. The EEOC had no way of knowing whether the defendant in fact planned to call all, some, or none of the individuals the defendant had disclosed in that document; to the extent their testimony was irrelevant or pertained to issues that were not jury issues, the EEOC had a perfectly legitimate legal basis for its motions. Every one of the EEOC's motions in limine had a valid factual and legal basis, and none of them was filed to multiply the proceedings in this case or to harass the defendant. The EEOC has dealt with the defendant and conducted itself before the district court, and this Court, in good faith in all respects since this case began. All scheduling issues in this case pertaining to the bifurcated discovery were pursuant to the district court's order of April 13, 2006 (JA-56-57) and not as a result of any actions taken or sought by the EEOC. The EEOC notified the defendant promptly when it added Clipper Seafood to the case and why, and when claimants dropped out, and promptly dropped Clipper Seafood from the case when the claimants who had been employed there ceased participating in the lawsuit. Indeed, if anything, it was the defendant who repeatedly failed to make John Pantazis, the alleged harasser and co-owner of the businesses in this case, available for deposition, which ultimately forced the EEOC to file a motion to compel his testimony. See supra at 9. In short, Great Steaks cannot point to a single instance of bad faith on the part of the EEOC in the conduct of this case, win or lose. III. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR ATTORNEY'S FEES UNDER THE EAJA BECAUSE THE EAJA'S ATTORNEY FEE PROVISION DOES NOT APPLY TO TITLE VII. In relevant part, the Equal Access to Justice Act provides as follows: Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, . . . incurred by that party in any civil action . . . brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A) (emphasis added). As the plain text of the statute indicates, the fee award provision of the EAJA only becomes operative in the absence of any other statutory authority specifically providing otherwise. Title VII has just such a specific fee-shifting provision in the statute. 42 U.S.C. § 2000e- 5(k) provides that "[i]n any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee (including expert fees) as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person." Thus, as the plain text of both the EAJA and Title VII makes clear, the fee award provision of the EAJA does not apply to Title VII because Title VII has its own fee-shifting provision. As this Court has explained, interpreting its own and Supreme Court precedent: "When interpreting statutes we start with the plain language." U.S. Dep't of Labor v. N.C. Growers Ass'n, 377 F.3d 345, 350 (4th Cir. 2004). Under the first and "cardinal canon" of statutory construction, "courts must presume that a legislature says in a statute what it means and means in a statute what it says." Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992). Accordingly, when a statute is unambiguous, "this first canon is also the last: 'judicial inquiry is complete.'" Id. at 254 (quoting Rubin v. United States, 449 U.S. 424, 430 (1981)); United States v. Pressley, 359 F.3d 347, 349 (4th Cir. 2004). Stone, 591 F.3d at 243. Indeed, every federal court of appeals with subject-matter jurisdiction over Title VII has reached the same conclusion: the EAJA does not apply to Title VII. See, e.g., EEOC v. O & G Spring & Wire Forms Specialty Co., 38 F.3d 872, 881 (7th Cir. 1994) ("As the text makes clear, the EAJA is a default provision, and does not apply if another statute specifically provides for fees in the same situation as described in § 2412(d). For example, the EAJA does not apply to suits under Title VII."); Huey v. Sullivan, 971 F.2d 1362, 1366-67 (8th Cir. 1992) (holding that "§ 2412(d) does not apply to Title VII actions," and noting further support in legislative history of EAJA stating that "this section is not intended to replace or supersede any existing fee-shifting statutes such as . . . the Civil Rights Acts . . . or to alter the standards or the case law governing those Acts"); EEOC v. Kimbrough Inv. Co., 703 F.2d 98, 103 (5th Cir. 1983) (holding that, "[s]ince Title VII has an explicit attorneys' fees provision in section 706(k), which was applied in this case . . . , the district court was correct in finding that the attorneys' fees provisions of the Equal Access to Justice Act are not applicable in this case"). Great Steaks nonetheless attempts to convince this Court that it should be the first and only court of appeals in this country ever to apply the EAJA's attorney fee provision to a Title VII case based on a purported difference of opinion between the courts of appeals listed above and two decisions of the Federal Circuit: Gavette v. Office of Personnel Management, 808 F.2d 1456 (Fed. Cir. 1986), and Beck by Beck v. Secretary of the Department of Health & Human Services, 924 F.2d 1029 (Fed. Cir. 1991). See GS-Br. 16. As a preliminary matter, we note that it is highly doubtful whether the Federal Circuit even has the jurisdictional authority to create a circuit split on this issue as to Title VII. The Federal Circuit's subject-matter jurisdiction is established by statute, 28 U.S.C. § 1295, and it does not encompass the merits of Title VII suits or the awards of attorneys' fees thereunder.<11> In fact, as both the Federal Circuit and this Court have observed, the Federal Circuit cannot even consider appeals from cases that have Title VII or other discrimination claims "mixed" in with non-discrimination claims, much less "pure" Title VII cases; any appeal that contains a discrimination component must be heard in the regional courts of appeals and not the Federal Circuit. See Williams v. Dep't of the Army, 715 F.2d 1485, 1491 (Fed. Cir. 1983) (en banc) ("We hold that where jurisdiction lies in the district court under 5 U.S.C. § 7703(b)(2), the entire action falls within the jurisdiction of that court and this court has no jurisdiction, under 5 U.S.C. § 7703(b)(1), over such cases."); Afifi v. U.S. Dep't of the Interior, 924 F.2d 61, 62 (4th Cir. 1991) ("Title 5 U.S.C. § 7703(b)(2) requires that all claims of discrimination under the Civil Rights Acts, Age Discrimination in Employment Act, or Fair Labor Standards Act be filed in the appropriate district court. . . . [W]here the employee alleged both discrimination and nondiscrimination claims[, . . .] the entire action must be brought in district court, and bifurcated proceedings are prohibited."). As this Court explained in Afifi, the Federal Circuit has jurisdiction only over extremely limited procedural or threshold matters in appeals involving Title VII claims, none of which involve the merits of those claims or of requests for attorney's fees.<12> Accordingly, even if the Federal Circuit had purported in either of the decisions cited by Great Steaks to apply the EAJA to Title VII, as a court with no jurisdiction over the merits of Title VII claims it would have lacked authority to do so. In any case, neither Gavette nor Beck held expressly that the EAJA applies to Title VII-nor, for that matter, has any other appellate court in the country. What the Federal Circuit did say in Beck was this: "Gavette . . . stands only for the limited proposition that the EAJA may be used to supplement another statute's attorney fee provision where the other statute has a more difficult or narrow standard for awarding fees." 924 F.2d at 1038. However, this interpretation of the EAJA flatly contravenes the plain language of the statute as well as this Court's teachings in Stone. The Beck court's reading of the EAJA would presume that Congress did not mean what it said in enacting the part of 28 U.S.C. § 2412(d)(1)(A) that refers to "[e]xcept as otherwise specifically provided by statute," and would substitute the judgment of the judicial branch for that of Congress in determining which attorneys' fee provisions should apply when Congress had specifically determined otherwise. As applied to Title VII, it would also contravene Congress's specific intent to preserve the existing fee-shifting provisions and case law governing the Civil Rights Acts, as the Eighth Circuit pointed out in Huey, supra at 43, 971 F.2d at 1366-67. In short, there is no circuit split on the issue of whether the EAJA applies to Title VII. Every circuit to have considered the issue has held that it does not; no circuit in this country has held that it does; and if this Court were to take Great Steaks up on its invitation to do so it would create a circuit split by becoming the first. The Federal Circuit's reasoning behind its line of cases holding that the EAJA may be used to "supplement" the existing fee-shifting provisions of other statutes conflicts with the plain language of the EAJA and should not be followed. In any case, it does not create a circuit split as to Title VII. Great Steaks also attempts to rely on this Court's decision in EEOC v. Clay Printing Co., 13 F.3d 813 (4th Cir. 1994), to support its argument that it is entitled to attorney's fees under the EAJA in this case. GS-Br. 16-17. Great Steaks' argument on this point is highly misleading for one critical reason: Clay Printing is not a Title VII case, but an ADEA case. In Clay Printing, this Court held that the EAJA applies to motions for attorney's fees brought in ADEA suits precisely because the "ADEA has no express provision for the award of attorney's fees." 13 F.3d at 816. Accordingly, this Court reasoned, "[u]ntil another statute 'specifically provide[s]' that ADEA defendants cannot get such fees from the United States, the plain language of EAJA will continue to control." Id. at 818 (alteration in original). In fact, this Court expressly recognized in Clay Printing that Title VII involved an entirely different fee-shifting scheme than the one at issue in that case: The agency's argument seems to be that the vacuum created by the absence of any provision for fee awards to prevailing defendants in the FLSA/ADEA fee-shifting statute should be filled not by EAJA but, rather, by the sort of fee-shifting provisions used in other civil rights statutory schemes, such as Title VII. In Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), the Supreme Court established different standards for awarding fees to prevailing plaintiffs and defendants under 42 U.S.C. § 2000e-5(k). While a plaintiff only has to "prevail" to get fees, prevailing defendants get fees only if the action against them is shown to have been "frivolous, unreasonable, or groundless." Id. at 422. The court based this dual standard on "equitable considerations" - an individual Title VII plaintiff is the "chosen instrument of Congress" to vindicate important public policies, and fee awards to such plaintiffs are awarded against violators of the law expressing such policies. Id. at 418. Id. at 817. Finally, we note that, even if the EAJA's attorney fee provision applied to this case, an award of attorney's fees to Great Steaks would still be inappropriate because the district court did not abuse its discretion in holding that the EEOC's position in this case was "substantially justified" within the meaning of the EAJA. As this Court has observed, the Supreme Court has held that "[t]he government's position is substantially justified if it is '"justified in substance or in the main"- that is, justified to a degree that could satisfy a reasonable person.' . . . The government's position must be 'more than merely undeserving of sanctions for frivolousness,' . . . and must instead have a '"reasonable basis both in law and fact."' United States v. Cox, 575 F.3d 352, 354 (4th Cir. 2009) (quoting Pierce, 487 U.S. 552) (internal citations omitted). See also Roanoke River Basin Ass'n v. Hudson, 991 F.2d 132, 139 (4th Cir. 1993) ("Whether the government's 'position in the litigation' is substantially justified . . . focuses, not on the government's success or failure, but on the reasonableness of its position in bringing about or continuing the litigation. While the EAJA redresses governmental abuse, it was never intended to chill the government's right to litigate or to subject the public fisc to added risk of loss when the government chooses to litigate reasonably substantiated positions, whether or not the position later turns out to be wrong."). In this case, as the district court observed in its ruling denying the defendant's motion for attorney's fees, the EEOC's position was substantially justified within the meaning of the EAJA because "a reasonable person would be satisfied by Plaintiff's position, namely that the defendant would have been liable for violating Title VII had the issues of fact in question been resolved in favor of Plaintiff by the jury." JA-397. In other words, the outcome of this litigation came down to quintessential questions of fact that had to be resolved by the jury as the finder of fact, and the jury simply believed the defendant's witnesses over the EEOC's. This conclusion is bolstered by the fact that the EEOC's evidence in this case was sufficient not only to survive the defendant's motion for summary judgment, but to survive both Rule 50 motions the defendant made at trial. As this Court reasoned in Roanoke, supra, nothing about this outcome, adverse to the EEOC though it was, renders the EEOC's position in this litigation unjustified. IV. THE DEFENDANT'S ATTORNEY'S FEES ARE UNREASONABLE. Even if this Court should find that the defendant is entitled to recover some amount of attorney's fees, the amount of fees it seeks to recover in this case- $148,959.00-is unreasonable.<13> This Court has held that the factors a district court must "consider and discuss" in evaluating a motion for attorney's fees include: (1) the time and labor expended; (2) the novelty and difficulty of the questions raised; (3) the skill required to properly perform the legal services rendered; (4) the attorney's opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6) the attorney's expectations at the outset of the litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in controversy and the results obtained; (9) the experience, reputation and ability of the attorney; (10) the undesirability of the case within the legal community in which the suit arose; (11) the nature and length of the professional relationship between attorney and client; and (12) attorney's fees awards in similar cases. EEOC v. Serv. News Co., 898 F.2d 958, 965 (4th Cir. 1990) (citing Barber v. Kimbrell's, Inc., 577 F.2d 216, 226 n.28 (4th Cir.), cert. denied, 439 U.S. 934 (1978)). An analysis of these factors does not support an award of the fees sought by the defendant in this case. For example, the legal issues involved in this case were neither novel nor difficult, involving settled areas of Title VII law in this Circuit, and many of the hours included in defense counsel's time records appear to be redundant and not reasonably expended. See Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) (excluding hours that were not reasonably expended). Also, there is no evidence regarding defense counsel's lost opportunity costs in defending the case, and the time limitations in this case were not unusual for attorneys who customarily practice in the area. Finally, there is no basis for an enhancement of any fee award in this case. See Daly v. Hill, 790 F.2d 1071, 1078 (4th Cir. 1986) (noting that the "presumptively fair lodestar figure" may be adjusted only in "exceptional circumstances"). We also note that the defendant is not entitled to recover attorney's fees for any work done on behalf of Clipper Seafood because Title VII only allows for an award of fees to a "prevailing party." 42 U.S.C. § 2000e-5(k). Although the Fourth Circuit has not had occasion to address this specific issue in this context, several courts have held that, in order to establish its status as a prevailing party, a defendant must either be able to point to a judicial declaration to its benefit or, at a minimum, show that the plaintiff only dismissed its complaint to avoid an adverse judgment against it. See, e.g., Marquart v. Lodge 837, Int'l Ass'n of Machinists, 26 F.3d 842, 852 (8th Cir. 1994) ("[T]o obtain prevailing party status, a defendant must be able to point to a judicial declaration to its benefit."); Dean v. Riser, 240 F.3d 505, 511 (5th Cir. 2001) ("[W]e hold that a defendant is not a prevailing party within the meaning of § 1988 when a civil rights plaintiff voluntarily dismisses his claim, unless the defendant can demonstrate that the plaintiff withdrew to avoid a disfavorable judgment on the merits."). Here, Great Steaks voluntarily withdrew its motion to dismiss and the EEOC voluntarily dismissed Clipper Seafood from the lawsuit. Because Clipper Seafood never obtained "a judicial declaration to its benefit" and cannot show that the complaint against it was withdrawn only to avoid an adverse judgment, it cannot be considered a prevailing party for purposes of Title VII.<14> CONCLUSION For the foregoing reasons, the order of the district court denying the defendant's motion for attorney's fees should be affirmed. STATEMENT REGARDING ORAL ARGUMENT The EEOC believes oral argument to be unnecessary in this case. The defendant has raised no nonfrivolous argument that the district court abused its discretion in denying its motion for attorney's fees. Respectfully submitted, P. DAVID LOPEZ General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel s/Elizabeth E. Theran Elizabeth E. Theran Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., N.E., 5th Floor Washington, D.C. 20507-0001 (202) 663-4720 elizabeth.theran@eeoc.gov CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 13,792 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. s/Elizabeth E. Theran Elizabeth E. Theran Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., N.E., 5th Floor Washington, D.C. 20507-0001 (202) 663-4720 elizabeth.theran@eeoc.gov Dated: October 26, 2010 CERTIFICATE OF SERVICE I, Elizabeth E. Theran, hereby certify that I electronically filed the foregoing brief via the CM/ECF System and filed eight hard copies of the foregoing brief with this Court this 26th day of October, 2010, by next-business-day delivery, postage pre-paid. I also certify that the CM/ECF System will send notice of such filing to the following registered CM/ECF users: Counsel for Defendant/Appellant: Fred T. Hamlet, Esq. 300 North Greene St., Ste. 2175 Greensboro, NC 27401 (336) 378-9751 hamletatty@earthlink.net s/Elizabeth E. Theran Elizabeth E. Theran Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., N.E., 5th Floor Washington, D.C. 20507-0001 (202) 663-4720 elizabeth.theran@eeoc.gov *********************************************************************** <> <1> "JA-[#]" refers to material in the Joint Appendix, cited by page number. "R.[#]" refers to the district court docket entry. <2> Great Steaks has persistently alleged in its briefs to the district court, and now to this Court, that the EEOC "refused to provide the final number of class members until after the end of discovery." GS-Br. 4 n.1. This accusation is both puzzling and highly misleading, given that the EEOC provided this information to the defendants exactly in accordance with the consent order entered by the district court. JA-57. <3> This was not the first time the EEOC had attempted to schedule Mr. Pantazis' deposition. Other attempts had been made in the summer of 2006 and earlier in 2007, but were unsuccessful due to, inter alia, Pantazis' absence from the country and the defendant's counsel's unresponsiveness to the EEOC's requests. <4> Great Steaks filed its Motion for Summary Judgment and accompanying memorandum of law in twelve-point font, in violation of M.D.N.C. R. 7.1(a), which requires a minimum font size of thirteen points for proportionally spaced fonts. The EEOC filed a Motion to Strike Great Steaks' motion and memorandum, pointing out that because Great Steaks had used the entire allotted page length and the smaller font size, it had effectively circumvented the court's length limit for briefs. See R.38 at 2. <5> In Introcaso v. Cunningham, a case not cited by the defendant, this Court found that the district court did not abuse its discretion in awarding attorney's fees to the defendant where the plaintiff had established a prima facie case of discrimination that survived a motion to dismiss and a motion for directed verdict at the close of plaintiff's evidence only. 857 F.2d 965, 967-68 (4th Cir. 1988). In that case, the Court observed, "it is possible for a plaintiff to establish a prima facie case which is weak but which is sufficient to survive a directed verdict, but which is nonetheless groundless in light of a defense readily apparent to the plaintiff from the outset of the litigation." Id. No such circumstance exists here. <6> In its brief, Great Steaks states that Jones "changed her testimony" about whether Pantazis asked her for sex. GS-Br. 24. In so stating, Great Steaks misrepresents the record to this Court. Jones testified consistently at her deposition that Pantazis had propositioned her for sex, and she never testified otherwise. JA-451-57. Jones did testify at first that she could not recall certain details about Pantazis' proposition, but after defense counsel showed her a document that refreshed her recollection she testified that she recalled walking into Pantazis' office to get her paycheck and he propositioned her at that time. JA-456. The defendant can point to no place in the record where Jones testified that Pantazis did not proposition her for sex, because no such evidence exists. <7> Great Steaks cites this case apparently in reference to its argument that the EEOC had no reasonable basis for suing Clipper Seafood. However, as already explained supra at 4, Clipper Seafood was initially joined in this suit because several of the class members had worked at the High Point Austin's location owned by Clipper Seafood and because the EEOC took the position that Great Steaks and Clipper Seafood were an integrated enterprise. Once Great Steaks conceded that it was subject to Title VII jurisdiction and the remaining class members who had worked at the High Point location dropped out of the lawsuit, the EEOC promptly dismissed Clipper Seafood from this suit. JA-59-60. <8> At no time in this litigation did the EEOC ever state to Great Steaks that there would be as many as eleven class members. In one discovery response, the EEOC told Great Steaks that there were eleven individuals with relevant knowledge of the case, but the maximum number of class members ever disclosed was eight. <9> Great Steaks also argues, again without any support, that the fact that charging party Dorathy Carter did not show up in person for the conciliation conference in June 2006 somehow demonstrates that this entire case was frivolous, unreasonable, or without foundation. GS-Br. 5, 21. There is, of course, no requirement that charging parties attend conciliation conferences in person, and her nonattendance at that conference has no bearing whatsoever on the merits of this case. <10> Great Steaks' representation to this Court that the EEOC "responded to the summary judgment motion in the very same font size to which the Plaintiff had objected" (GS-Br. 8 n.8, 27) is simply false. One need only compare the defendant's summary judgment motion (JA-101-03) and memorandum (R.35) with the EEOC's memorandum in opposition (R.44) to see that the EEOC's filing is in a larger (and compliant) font size. As best we can tell, the defendant appears to be relying on (or attempting to induce this Court to rely on) a statement in the magistrate judge's subsequent order to the effect that "[t]he Court sees, however, that Plaintiff has already responded to Defendant's motion for summary judgment in the 12-point font." JA-278-79. What the magistrate meant, however, was that the EEOC had already responded to Great Steaks' noncompliant filing-not that the EEOC's filing was itself in twelve-point font. <11> See 28 U.S.C. § 1295(a)(9) (providing that the Federal Circuit has jurisdiction over appeals from final orders of the MSPB pursuant to 5 U.S.C. §§ 7703(b)(1) and 7703(d)); 5 U.S.C. §§ 7703(b)(1), 7702 (excluding discrimination cases from Federal Circuit appellate jurisdiction). <12> At most, the Federal Circuit has considered whether a federal employee's petition for attorney's fees was improperly dismissed by the MSPB as untimely, in a case where all discrimination claims had been abandoned, and concluded that it did have jurisdiction in that case because it was no longer "mixed." See Hopkins v. MSPB, 725 F.2d 1368, 1370 (Fed. Cir. 1984) (cited in Afifi). <13> If this Court should find that Great Steaks is entitled to recover some amount of its attorney's fees, this case should be remanded to the district court for determination in the first instance of what that amount should be. See, e.g., Doe v. Chao, 435 F.3d 492, 496 (4th Cir. 2006) (where district court's initial fee award was vacated as abuse of discretion, remanding case to district court for recalculation of fees "because the district court is in the best position to determine what is a 'reasonable' attorney fee award"); Lowery v. Circuit City Stores, Inc., 206 F.3d 431, 448 (4th Cir. 2000) (vacating district court's general award of attorneys' fees and costs and remanding the case to district court for redetermination of amount of award). <14> We also note that Clipper Seafood, as a separate defendant in this lawsuit, did not file a notice of appeal from the district court's order denying the defendant's motion for attorney's fees. See JA-13, 399. Accordingly, even if it were a prevailing party below, which it is not, it is not a party to this appeal.