______________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _____________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant/Cross-Appellee, v. J.B. HUNT TRANSPORT, INC., Defendant-Appellee/Cross-Appellant. _________________________________________________________ On Appeal from the United States District Court for the Northern District of New York _________________________________________________________ REPLY AND CROSS-APPELLEE BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION __________________________________________________________ NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel JULIE L. GANTZ Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4718 TABLE OF CONTENTS TABLE OF AUTHORITIES ii INTRODUCTION 1 ARGUMENT Reply Brief I. THE DISTRICT COURT ABUSED ITS DISCRETION BY AWARDING ATTORNEY’S FEES TO THE DEFENDANT IN THIS ADA ENFORCEMENT ACTION BECAUSE THE EEOC’S ALLEGATION OF DISCRIMINATION WAS NOT UNREASONABLE, FRIVOLOUS, OR WITHOUT FOUNDATION. 2 Cross-Appellee Brief II. THE DISTRICT COURT ACTED WITHIN ITS BROAD DISCRETION IN DENYING PORTIONS OF HUNT’S ATTORNEY’S FEES REQUEST THAT WERE NOT ADEQUATELY DOCUMENTED. 8 CONCLUSION 12 CERTIFICATE OF SERVICE IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ____________________________ Nos. L01-6253, XAP 02-6021 ____________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant/Cross-Appellee, v. J.B. HUNT TRANSPORT, INC., Defendant-Appellee/Cross-Appellant. _______________________________________________________ On Appeal from the United States District Court for the Northern District of New York ______________________________________________________ REPLY AND CROSS-APPELLEE BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ______________________________________________________ INTRODUCTION These are appeals from the district court’s award of attorney’s fees in this ADA enforcement action. In our opening brief, we argued that the district court’s award of fees to J.B. Hunt constituted an abuse of discretion because the case does not meet the “frivolous, unreasonable, or groundless” standard set forth in Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978), for awarding attorney’s fees to a prevailing defendant in an employment discrimination action. In its cross-appeal, Hunt challenges the district court’s decision to deny specific items in Hunt’s fee petition because they were insufficiently documented. In this brief we reply to Hunt’s arguments in support of the award of fees and we argue, as cross-appellee, that the district court’s decision to deny certain items requested by Hunt was well within the court’s broad discretion to determine the amount of an award of attorney’s fees.ARGUMENT Reply Brief I. THE DISTRICT COURT ABUSED ITS DISCRETION BY AWARDING ATTORNEY’S FEES TO THE DEFENDANT IN THIS ADA ENFORCEMENT ACTION BECAUSE THE EEOC’S ALLEGATION OF DISCRIMINATION WAS NOT UNREASONABLE, FRIVOLOUS, OR WITHOUT FOUNDATION. As we pointed out in our opening brief, fees are rarely awarded to prevailing defendants in civil rights cases. Courts have awarded fees where a plaintiff had already litigated the issue unsuccessfully in state court, see Gerena-Valentin v. Koch, 739 F.2d 755, 761-62 (2d Cir. 1984); where the plaintiff produced no evidence of discrimination, see Faraci v. Hickey-Freeman Co., Inc., 607 F.2d 1025, 1027 (2d Cir. 1979); or where the plaintiff’s evidence was patently untruthful, see Carrion v. Yeshiva Univ., 397 F. Supp. 852, 852-53 (S.D.N.Y. 1975). Hunt does not argue, nor could it, that this case is comparable. We argued in our opening brief that the district court’s determination that Hunt was entitled to attorney’s fees was based on a misunderstanding of the evidence required to reach a jury in a “regarded as” ADA case.1 We pointed out that, although the Commission did not allege that any of the rejected applicants actually suffered from an impairment that substantially limited a major life activity, the district court found the case groundless because the EEOC failed to provide evidence that the rejected applicants actually suffered from side effects from their medications. We also argued that this Court’s affirmance of the judgment on the merits does not support the district court’s award of attorney’s fees primarily because this Court did not endorse the district court’s mistaken view that the EEOC was required to produce evidence that the rejected applicants were actually substantially limited either by an impairment or by the medications they were taking. Instead, the panel majority, without disagreeing with the basic premise of EEOC’s case, held only that the evidence was not sufficient to support a finding that Hunt perceived the rejected applicants as precluded from truck driver positions other than the jobs at Hunt, which it viewed as unique. On that point we noted that Judge Sotomayor disagreed with the majority and believed that the case should go to trial, demonstrating that reasonable minds can disagree about the proper resolution of this case. Consequently, we argued, even if the EEOC’s position was not correct, it was not unreasonable, frivolous, or without foundation. In its appellee brief Hunt offers no response to our argument that the district court’s award of fees was based on a misunderstanding of the “regarded as” theory of coverage and that this Court affirmed the judgment on a narrower factual basis without embracing the district court’s reasoning. Nor does Hunt have any answer to our argument that Judge Sotomayor’s dissent all but precludes an award of fees. Instead, Hunt simply reiterates all of the arguments that it has made during the course of the litigation, including arguments that were not endorsed by this Court and even one argument that was rejected by the district court. We briefly reply to Hunt’s principal arguments below. 1. Hunt first argues that this action was frivolous because the EEOC failed to establish that the rejected applicants had physical or mental impairments. See Def. Br. at 26. We argued in our opening brief, as we have argued repeatedly in this case, that the nature of the Drug Review List itself is sufficient to support an inference that Hunt believed the persons disqualified by the policy had physiological or psychological disorders or conditions.2 Furthermore, contrary to Hunt’s repeated assertions, there was evidence in the record demonstrating that Hunt was aware of the impairments of at least some of the rejected applicants. See, e.g., IIIJA738, IIIJA742-43 (statement by Hunt employee that John Carnevale was rejected for a driving position based on advice from company’s medical consultant that an individual with Crohn’s Disease would not do well in the “lifestyle of a trucker”). In any event this purported deficiency in the Commission’s case could not explain the district court’s decision to award attorney’s fees because, notwithstanding Hunt’s argument to the contrary, the district court recognized that the evidence indicates that the rejected applicants had impairments. The court stated, “To be sure, each of the present claimants is affected, perhaps even limited, in a physical or psychological manner by a medical condition for which he or she takes medication.” IVJA854 (2/8/01 Order at 16). Furthermore, even if the rejected applicants did not have actual impairments, they could still be covered by the ADA’s “regarded as” prong. As we explained in our opening brief, the key inquiry in a “regarded as” case is how the person was perceived by the employer, not his or her actual medical condition or symptoms. A person is covered by the “regarded as” provision even if he or she has no impairment at all if the employer views him as having an impairment that substantially limits a major life activity. See Sutton v. United Airlines, 527 U.S. 471, 488 (1999) (individuals may be covered by virtue of the “regarded as” prong of the ADA where “a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities”). Accordingly, it was not unreasonable for the EEOC to argue that the rejected applicants were covered by the ADA even without evidence that each rejected applicant had an impairment. 2. We argued in our opening brief that it was reasonable for the EEOC to argue that Hunt regarded the rejected applicants as substantially limited in working because, as perceived by Hunt, they would be unable to perform safely the entire class of truck driving jobs. In its decision on the merits of this case, this Court did not hold that a fact finder may never infer that an employer regarded a group of rejected applicants as substantially limited in working based on the employer’s rejection of them for a particular position. Instead the panel majority held that such an argument failed in this case because Hunt’s jobs are sufficiently dissimilar from other truck driving jobs that no inference may be drawn from Hunt’s act of rejecting applicants regarding the company’s perception of their general ability to hold a truck driving job. We argued in our opening brief that, although the district court and the panel majority disagreed with the Commission’s argument on this point, there is no basis for concluding that it was frivolous. On the contrary, we noted, Judge Sotomayor’s dissenting opinion establishes that reasonable minds can disagree on this point, thus precluding an award of fees under Christiansburg. Hunt offers no response to this argument. Instead, the company attempts to create the impression that the evidence of the uniqueness of Hunt’s driving jobs is overwhelming and one-sided by providing a page-long litany of supposedly unique aspects of those jobs. See Def. Br. at 7-8. However, the record citations Hunt gives for its list do not support the company’s assertions. Hunt gives the same two general citations for every statement in its list: an attachment to the deposition of James Scapellato and the affidavit of David Whiteside. The attachment to Scapellato’s deposition, however, describes attributes of truck driving jobs in general, not just Hunt’s jobs. Whiteside’s affidavit, while it is describing Hunt’s jobs, makes no assertion that the requirements set out are unique to Hunt’s jobs, or even that they are unusual. On May 20, 2003, after our opening brief was filed in this appeal, this Court denied Hunt’s motion seeking attorney’s fees on appeal. Hunt argued in that motion, as it argues in this appeal, that it was unreasonable for the Commission to argue that the evidence would support a finding that Hunt regarded rejected applicants as substantially limited in working. Because reasonable minds could differ on this point, this Court should once again reject Hunt’s argument that an award of attorney’s fees was justified. Cross-Appellee Brief II. THE DISTRICT COURT ACTED WITHIN ITS BROAD DISCRETION IN DENYING PORTIONS OF HUNT’S ATTORNEY’S FEES REQUEST THAT WERE NOT ADEQUATELY DOCUMENTED. The district court awarded defendant $175,157.65 in fees and expenses but denied two particular items for which Hunt requested reimbursement “based on vague or insufficient documentation.” SPA29 (12/13/01 Order at 2). Specifically, the court denied Hunt’s request for: (1) compensation for work performed by attorneys David Milne and Carla Stagnolia because Hunt failed to provide their levels of experience in the affidavit attached to the fee request; and (2) compensation for work performed in December 1999 because the fee request did not clearly explain the basis for the amount requested. SPA23-24 (9/27/01 Order at 12-13). The court subsequently denied Hunt’s motion to alter or amend judgment, holding that the motion did not “clear up the confusion” and “a rule 59(e) motion is not a means to ‘beef up’ a poorly supported claim with new factual averments.” SPA31. The court declined to follow Hunt’s suggestion that it award fees at the minimum rate of $100 for new attorneys for work done by Milne and Stagnolia, stating that defense counsel had never provided the dates on which they were admitted to the practice of law. SPA30. In its brief as cross-appellant, Hunt argues that the district court abused its discretion by refusing to amend its decision striking the two categories of fees. Hunt asserts that it “was entitled to be compensated for all of its reasonable attorney fees that were properly supported and presented to the District Court.” Def. Br. at 42-43. Hunt’s argument should be rejected. The district court was within its discretion in disallowing fees where it found justification lacking. “The district court is given broad discretion in granting a fee award and assessing a reasonable fee under the circumstances of the case.” Luciano v. Olsten Corp., 109 F.3d 111, 115 (2d Cir. 1997); see also Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)(“We reemphasize that the district court has discretion in determining the amount of a fee award. This is appropriate in view of the district court’s superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters.”). Hunt had “the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.” Hensley, 461 U.S. at 437. James Hanson’s affidavit attached to Hunt’s fee request describes the Hunt attorneys’ backgrounds but does not provide the dates when Milne and Stagnolia were admitted to the bar. IVJA775 (Hanson Aff. ¶¶8&10). It was appropriate for the court to require Hunt to specify the experience level of the attorneys since that is directly relevant to their effective billing rates. When defendant failed to offer that information, it was within the court’s discretion to deny fees outright for both attorneys. See Saulpaugh v. Monroe Comty. Hosp., 4 F.3d 134, 146 (2d Cir. 1993) (affirming district court’s reduction of some hours claimed by plaintiff because time entries were inadequate); cf. Fair Housing Council of Greater Washington v. Landow, 999 F.2d 92, 98 (4th Cir. 1993) (where fee application fails to assist district court in determining reasonableness, district court is within its discretion to deny fee request). It was also entirely appropriate for the court to strike the request for fees for December 1999 based on the confused nature of Hunt’s billing records for that month. Hunt’s billing records for December 1999 describe a “credit” of $7,943 for “all fees 12/1/98-12/21/99 in excess of $5,000 flat fee for initial ‘second opinion.’” IVJA782 (Billing Records at 4). Exhibit 2 attached to the billing records contains a footnote stating: “Services performed 12/1/99 through 12/21/99 were rendered under the initial review of the case, which was subject to a $5,000 flat-fee rate. Actual fee totals excited the customary rate totals by $7,943, which was written off.” IVJA829. The district court did not abuse its discretion when it concluded that it was unclear from the record whether the firm had billed Hunt at a flat fee of $5,000 or an “adjusted: flat-fee rate” of $9,675.93. SPA24 (9/27/01 Order at 13). Hunt admitted in its motion for reconsideration that the December 1999 billing records were “inartfully explained,” R. 83 (Motion to Alter or Amend at 4), and it is understandable why the district court had trouble figuring out if the fees requested for December were reasonable. The court was not required to go to heroic lengths to decipher what should have been made clear from the outset. In its brief on appeal, Hunt does not attempt to defend its initial fee request. Instead, Hunt argues that the court was required to modify its order because the company’s Rule 59 motion provided the information and explanation that was missing in its original motion. However, the district court correctly observed that “a Rule 59(e) motion is not a means to ‘beef up’ a poorly supported claim with new factual averments.” SPA 31. See Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998) (“Rule 59 is not a vehicle for relitigating old issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a ‘second bite at the apple.’”). CONCLUSION For the foregoing reasons, the district court’s award of attorney’s fees should be reversed. Respectfully submitted, NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ___________________________________ JULIE L. GANTZ Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4718 June 9, 2003 CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief have been overnight mailed, via Federal Express, to: James H. Hanson SCOPELITIS, GARVIN, LIGHT & HANSON 10 West Market Street, Suite 1500 Indianapolis, IN 46204-2968 ____________________________ Julie L. Gantz, Esq. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of the General Counsel 1801 L Street, N.W., 7th Floor Washington, D.C. 20507 June 9, 2003 1 Contrary to Hunt’s contention (Def. Br. at 35), the EEOC did argue in the district court that the evidence would support a finding that the rejected applicants were regarded as disabled by Hunt, and the district court understood this to be our position. See IVJA863 (2/8/01 Order at 25) (“EEOC avers that Hunt regarded all applicants taking drugs on the DRL as substantially limited in their ability to work as truck drivers because the side effects of their medications precluded them from safely operating a commercial vehicle”). 2 Contrary to the assertion in Hunt’s brief (Def. Br. 34), the EEOC did not rely on Sutton v. United Airlines, 527 U.S. 471 (1999), in arguing that the existence of an impairment could be inferred from the applicants’ use of prescription medications. Sutton says nothing one way or the other on this point because it was undisputed in that case that the plaintiffs had a physical impairment. We relied on Sutton for the proposition that once an impairment is established, any adverse effects of medication used to treat the impairment must be considered in determining whether an individual is substantially limited in a major life activity. Hunt gives no reason why this holding in Sutton should not apply to this case simply because the EEOC did not identify the particular impairments for which the medications were prescribed.