Nos. 04-15156 & 04-15333 ________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT __________________________________________ FRED KNOX, Plaintiff-Appellant, v. JOHN POTTER, United States Postmaster General; RICH LENA; GUY ONO; VIRGINIA LABSON; CHARLIE WAMBEKE, of San Mateo Support Services Union; JEANNE M.L. PLAYER, Administrative Judge; CELE GUITERREZ, and FRED ALAVARA, Defendants-Appellees. _______________________________________________________ On Appeal from the United States District Court for the Northern District of California No. 3:03-CV-00229 _______________________________________________________ BRIEF OF DEFENDANT-APPELLEE JEANNE M.L. PLAYER OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION _______________________________________________________ ERIC S. DREIBAND EQUAL EMPLOYMENT OPPORTUNITY General Counsel COMMISSION Office of General Counsel VINCENT J. BLACKWOOD 1801 L Street, N.W., Room 7030 Acting Associate General Counsel Washington, D.C. 20507 (202) 663-4724 CAROLYN L. WHEELER Assistant General Counsel ANNE NOEL OCCHIALINO Attorney TABLE OF CONTENTS PAGE TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . i TABLE OF AUTHORITIES . .. . . . . . . . . . . . . . . . iv STATEMENT OF JURISDICTION . . . . . . . . . . . . .. . 1 STATEMENT OF ORAL ARGUMENT . . . . . . . . . . . . . . . 2 STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . 3 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . 3 1. Nature of the Case and Course of Proceedings . 3 2. Statement of Facts . . . . .. . . . . . . . . . 3 A. Factual Allegations . . . . . . . . . . 4 B. Procedural Background . . . . . . . . 4 i. Knox's first three lawsuits . . . . 5 ii. Knox's current lawsuit Knox IV . . 8 iii. Knox's subsequent lawsuit Knox V . 11 3. District Court Decision . . . . . . . . . .. 11 4. Standard of Review . . . . . . . . . . . . . 13 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . 14 ARGUMENT . . . . . . . . . . . . . . . . . . . . .. . . . 15 THE DISTRICT COURT PROPERLY FOUND THAT KNOX IS A VEXATIOUS LITIGATOR WHO SHOULD BE SUBJECTED TO PRE-FILING RESTRICTIONS. . . . . 15 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . 17 STATEMENT OF RELATED CASES . . . . . . . . . . . . . . 19 CERTIFICATES OF COMPLIANCE AND SERVICE TABLE OF AUTHORITIES FEDERAL CASES DeLong v. Hennessey, 912 F.2d 1144 (9th Cir. 1990) . 13, 17 DeNardo v. Murphy, 781 F.2d 1345 (9th Cir. 1986) . 15 Johns v. Town of Los Gatos, 834 F. Supp. 1230 (N.D. Cal. 1993). . . . . . . . . 16, 17 O'Loughlin v. Doe, 920 F.2d 614 (9th Cir. 1990) .. 15 FEDERAL STATUTES 28 U.S.C. 185 . . . . . . . . . . . . . . . . . . 1 28 U.S.C. 1291 . . . . . . . . . . . . . . . . . . 1 28 U.S.C. 1343 . . . . . . . . . . . . . . . . . . 1 29 U.S.C. 158 . . . . . . . . . . . . . . . . . . 5,6,9 42 U.S.C. 1985(b) . . . . . . . . . . . . . . . . 5,6,9 42 U.S.C. 1981 . . . . . . . . . . . . . . .. . . .5,6,9 42 U.S.C. 1986 . . . . . . . . . . . . . . . . .5,6,9 42 U.S.C. 2000e, et seq., . . . . . . . . . . . . 5 RULES Fed. R. App. P. 4(a)(1)(B) . . . . . . . . . .. . . 2 STATEMENT OF JURISDICTION a. Plaintiff-Appellant Fred Knox ("Knox") asserts that the district court had jurisdiction based on 28 U.S.C. 1343 and 28 U.S.C. 185. See Op. Br. at 1. Defendant-Appellee Administrative Judge Jeanne M.L. Player of the Equal Employment Opportunity Commission ("EEOC" or "Commission") contends, however, that the district court lacked subject matter jurisdiction over Knox's claims against her. No federal statute grants jurisdiction to the district courts to hear claims of individuals employed by third parties who are dissatisfied with the EEOC's administrative process. See EEOC Br. in 04-15333 at pp. 21-23 (arguing that district court lacked subject matter jurisdiction over Knox's claims against Judge Player). b. This Court has jurisdiction over this appeal from the district court's final order and judgment dismissing this action with prejudice pursuant to 28 U.S.C. 1291. c. On December 22, 2003, the district court entered an order declaring Knox to be a vexatious litigant and imposing pre-filing restrictions. (Knox RE Ex. H (order)) On January 9, 2004, the district court entered final judgment dismissing Knox's claims against all parties. (Knox RE(04-15333) Ex. V (judgment)) On January 20, 2004, Knox filed a timely notice of appeal from the district court's December 22, 2003 vexatious-litigant order, which was assigned Case No. 04-15156. See Fed. R. App. P. 4(a)(1)(B); (EEOC RE 8 (notice of appeal)). On February 6, 2004, Knox filed a second notice of appeal from the judgment, which was assigned Case No. 04-15333. (EEOC RE 9 (notice of appeal)) On July 12, 2004, this Court consolidated the two appeals. STATEMENT REGARDING ORAL ARGUMENT The Commission believes oral argument would not significantly aid the decisional process in this case because the issues are not complex and are adequately presented in the briefs. STATEMENT OF THE ISSUES Whether the district court properly concluded that Knox is a vexatious litigator because he filed four meritless lawsuits relating to his employment at the Postal Service, two of which named an EEOC administrative judge as a defendant, and because he filed his fourth lawsuit after this Court affirmed the dismissal of his first three lawsuits. STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings This is the fourth pro se lawsuit Knox has filed against his employer, Defendant-Appellee United States Postal Service ("Postal Service"), and related defendants. Like the three lawsuits that have preceded it and a fifth lawsuit that has followed it this lawsuit involves allegations that the Postal Service and other defendants subjected Knox to discrimination and retaliation. This is the second lawsuit in which Knox has sued Judge Player because he was unhappy with how she conducted the EEOC administrative hearing on his claims against the Postal Service. Knox does not allege that he was ever employed by the EEOC. 2. Statement of Facts As in all of Knox's lawsuits, this one arises from his employment at the Postal Service as a Data Control Technician. Both the factual allegations and the convoluted procedural history involved in this action are discussed below. A. Factual Allegations Knox claims that he was injured in May of 1995 as the result of a Halon explosion at the San Mateo Information Center. (Knox RE Ex. G at 3 (compl)) He alleges that a number of his supervisors should have known that the Halon machines were leaking irritating odors and failed to correct the leaks. (Id.) Knox also claims that three co-worker deaths (from a heart attack, suicide, and hepatitis) may be attributable to the Halon explosion and that the explosion caused physical injuries for which he has had to seek medical treatment since May of 1995. (Id. at 3-4) According to Knox, the Postmaster and his other supervisors acceded to Knox's request for a medical examination and "caused the plaintiff to be subjected to examination of his penis and genital area" for no reason. (Id. at 4) Knox also alleges he was denied promotions and training opportunities and that he was harassed after he complained about his treatment. (Id. at 6-7) Knox alleges that Judge Player conducted an administrative hearing concerning Knox's discrimination complaint. (Id. at 8) According to Knox, Judge Player failed to adequately investigate his claims of discrimination and refused "to allow the plaintiff witnesses and witness testimony." (Id.) Knox also alleges that Judge Player refused to hold a hearing on his claim that Cele Gutierrez sexually harassed him by ordering medical examinations of his genitals. (Id. at 12) B. Procedural Background i. Knox's first three lawsuits Before filing this lawsuit, Knox filed three other actions. This Court affirmed their dismissal on December 27, 2001. (EEOC RE at 4 (Memo.)) Knox I Knox filed his first action, Case No. 98-796 JL ("Knox I"), on March 2, 1998. (RE Ex. A (compl.)) Judge Player was one of the defendants. (Id.) The other defendants included the United States Postal Service, Postmaster General William J. Henderson, Manager Rich Lena, Supervisor Bob Long, Personnel Assistant Susy Nakai, Supervisor Tom Nesbitt, Computer Systems Administrator Dennis Williams, Manager Cele Gutierrez, Supervisor Roger Hisle, Charlie Wambeke (the former President of the San Mateo Area Local, American-Postal Workers Union, AFL-CIO Local 6669), and the San Mateo Information Service Center of the United States Postal Service ("San Mateo Center"). (Id.) Knox I alleged claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq., 42 U.S.C. 1981, 42 U.S.C. 1985(2), 42 U.S.C. 1986, and 29 U.S.C. 158(b) for racial discrimination, retaliation, unfair labor practices, breach of contract, intentional infliction of emotional distress, negligent infliction of emotional distress, and violations of the Veterans Preference Act. (Id.) As to Judge Player, Knox alleged that she was biased, denied relevant subpoena records requests, split the case into two separate cases, denied Knox the opportunity to present witnesses, and allowed the defendants to enter all evidence, records, and witnesses in their favor. (Id. at 14) Knox also alleged that the EEOC hearing and investigation were corrupt and that his appeals from the hearing were not timely decided. (Id.) In a July 8, 1998, order, the district court dismissed with prejudice Knox's claims against the EEOC and Judge Player. (EEOC RE at 1-3 (7/8/98 order)) The court found that Congress had not created an express or implied cause of action against the EEOC by employees of third parties. (Id.) The court also found that Knox failed to allege specific facts to support his claims under 42 U.S.C. 1981, 1985(b), and 1986 and that these charges were not properly brought. (Id.) Finally, the court ruled that Knox had failed to allege any facts to support his claim under 29 U.S.C. 158(b). (Id.) As discussed below, the district court later consolidated Knox I, II, and III, and this Court affirmed the district court's dismissal of Knox's claims against the EEOC and Judge Player. Knox II One year after filing Knox I, Knox filed his second lawsuit, Case No. 99- 1527 JL ("Knox II"). (Knox RE(04-15333) Ex. B (compl.)) Neither Judge Player nor the EEOC was a defendant. The defendants in Knox II were otherwise the same as in Knox I, except that Knox added his co-worker, Fred Alvara. (Id.; Knox RE at Ex. H at 5 (order)); Knox II alleged many of the same causes of action as Knox I and added a few new ones. Knox's claims included racial discrimination, retaliation, unfair labor practices, assault, battery, interference with contract, intentional infliction of emotional distress, and hiring co-workers to harass, retaliate, and stalk Knox. (Id.) The factual allegations of Knox I and Knox II were largely identical. (Id. at 5-6) Knox III Seven months after Knox filed Knox II, he filed his third lawsuit, Case No. 99-4675 JL ("Knox III"). (Knox RE Ex. H at 7(order); Knox RE Ex. C (compl.)) Again, neither Judge Player nor the EEOC was named as a defendant. (Knox RE Ex. C (compl.)) Knox III alleged claims against Postmaster General William J. Henderson, the San Mateo Center, and co-worker Vic Caparros. Similar to Knox I and Knox II, the causes of action in Knox III include racial discrimination and retaliation, intentional infliction of emotional distress, and negligent infliction of emotional distress arising from Knox's employment at the Postal Service. (Knox RE Ex. H at 7-8 (order); Knox RE Ex. C (compl.)) Eventually, the district court ordered that Knox I, Knox II, and Knox III were related. (Knox RE Ex. H at 9 (order)) On October 6, 2000, the district court entered an order disposing of all remaining claims against all remaining defendants in all three cases. (Id. at 9-10) Knox appealed. After ordering that all three cases be consolidated, this Court affirmed the dismissal of Knox's claims, including the dismissal of his claims against Judge Player for failure to state a claim for which relief could be granted. (Id. at 10-11; EEOC RE at 4 (order)) This Court later denied Knox's petition for rehearing, and the Supreme Court denied Knox's petition for certiorari. (Knox RE Ex. H at 11(order)) ii. Knox's current lawsuit Knox IV On January 16, 2003, Knox filed this lawsuit ("Knox IV"). (Knox RE Ex. G) The defendants have all been named at least once in Knox's previous three lawsuits. Besides Judge Player, the Defendants include Postmaster John Potter, Rich Lena, Guy Ono, Virginia Labson, Charles Wambeke, Cele Gutierrez, and Fred Alarva. (Id. at 1) The factual allegations are nearly identical to those in Knox's previous three lawsuits. (Id. at 1-16; Knox RE Ex. H at 8-9 (order)) As in Knox I, Knox II, and Knox III, Knox alleges violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq., the Veterans Preference Act, Pub. L. 103-353, 42 U.S.C. 1981, 42 U.S.C. 1985(2), 42 U.S.C. 1986, and 29 U.S.C. 158(b). (RE Ex. G at 2 (compl.)) Knox's claims are for racial and sexual discrimination arising from the Halon gas explosion and subsequent medical exam, racial discrimination arising from a failure to train and promote him, retaliation, unfair labor practices, breach of contract, violation of the Veterans Preference Act, intentional infliction of emotional distress, negligent infliction of emotional distress, and sexual harassment. (Knox RE Ex. G (compl.)) Specific to Judge Player, Knox alleges in Count I ("Racial and Sexual Discrimination, Halon Explosion Injuries and Subsequent Examination") that she was an administrative judge acting in the course and scope of her employment. (Id. at 3) In Count III ("Retaliation"), Knox alleges that Judge Player failed to adequately investigate his complaints by "failing and refusing to allow the plaintiff witnesses and witness testimony." (Id. at 7-8) In Count IV ("Unfair Labor Practices"), Knox alleges that each defendant failed to act in accordance with the National Labor Relations Act, 29 U.S.C. 157. (Id. at 8-9) In Counts V ("Breach of Contract") and VI ("Violation of Veterans Preference Act"), Knox alleges that the defendants conspired to breach all covenants of good faith and fair dealing. (Id. at 9-11) In Counts VII and VIII, Knox alleges that the defendants are liable for negligent and intentional infliction of emotional distress. (Id. at 11-13) Knox also alleges that Judge Player refused to hold a hearing on his claims of sexual harassment. (Id. at 12) On April 29, 2003, the magistrate judge issued a related case order finding that Knox IV was related to Knox I (which was related to Knox II and Knox III). (EEOC RE at 13 (docket entry # 18)) On August 22, 2003, the magistrate issued an order recommending dismissal of Knox's claims with prejudice on the grounds of res judicata, denial of Knox's motion to disqualify the magistrate, and denial of Knox's motion for reconsideration of the related case order. (Knox RE Ex. H at 13 (order)) Knox failed to file any objections to the magistrate's recommendation. (Knox RE(04-15333) Ex. U at 1(10/21/03 order); EEOC RE at 14-15 (docket)) In an October 21, 2003 order, the district court adopted the magistrate's recommendation. (Knox RE(04-15333) Ex. U (10/21/03 order)) The court also ordered Knox to show cause in writing why he should not be deemed a vexatious litigant. (Id.) After reviewing Knox's response, the court found in a December 22, 2003, order that Knox was a vexatious litigant. (Knox RE Ex. H) On January 9, 2004, the district court entered judgment against Knox and dismissed his claims with prejudice. (Knox RE(04-15333) Ex. V (judgment)) The court also denied Knox's motions to disqualify the magistrate judge and to reconsider the magistrate's related case order. (Id.) On January 20, 2004, Knox filed a notice of appeal of the district court's December 22, 2003, vexatious-litigant order, which was assigned Case No. 04-15156. (EEOC RE at 8 (1/20/04 notice)) On February 6, 2004, Knox filed a notice of appeal of the district court's January 9, 2004, judgment. (EEOC RE at 9 (2/6/04 notice)) On July 12, 2004, this Court consolidated Knox's two appeals. iii. Knox's subsequent lawsuit Knox V After filing his first four lawsuits, Knox filed a fifth one, Case No. 03-3638 JL ("Knox V"). (Knox RE Ex. H at 13 (order)) Judge Player is not a defendant in Knox V, although it involves many of the same parties and allegations contained in Knox's earlier suits. On February 9, 2004, the district court entered an order finding Knox V related to Knox IV. (EEOC RE at 17 (docket entry # 56)) Knox filed an appeal of Knox V, which is Case No. 04-16200. C. District Court Decision In a twenty-page opinion, the district court found Knox to be a vexatious litigator. (Knox RE Ex. H) In reaching its decision, the court applied this Court's four guidelines for imposing pre-filing restrictions. (Id. at 14) (citing O'Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990)) First, the court determined that Knox had received notice that the court might curtail his ability to file more lawsuits. (Id.) In reaching this conclusion, the court noted that it had ordered Knox to show cause why pre-filing restrictions should not be imposed and that Knox had responded. Second, the court created a record for review by describing Knox's case filings that supported the court's order, which included Knox I through Knox IV (the court did not rely Knox V). (Id. at 1-14) Third, the court found Knox's filings to be frivolous and harassing. (Id. at 15-18) In reaching this conclusion, the court noted that Knox had filed four nearly identical complaints against "virtually the same defendants" and involving "the same factual allegations." (Id. at 16) As the court noted, this Court affirmed the dismissal of Knox I, II and III on both procedural grounds and on the merits. (Id.) The court also observed that Knox filed Knox II and Knox III while his earlier suits were still pending. (Id. at 17) The court found that Knox had filed "four lengthy, convoluted, and fact-laden complaints that have required the expenditure of considerable resources by both the litigants and the district court." Id. The court specifically noted that "Knox has twice named an Administrative Law Judge as a defendant, on one occasion after he had already been warned that he could not state a claim for relief against that individual." (Id.) Fourth, the court issued a remedy for the conduct it had found to be vexatious. (Id. at 18) The court noted that it had proposed in its October 21, 2003, order that Knox be precluded from filing without prior permission any claims arising from his Postal Service employment from May 14, 1994, though January 16, 2003. (Id.) The court also observed that Knox had responded by arguing that any pre-filing restrictions, if ordered, should not curtail his ability to file claims arising from the May 1995 Halon gas explosion, any retaliation claims, or any claims arising from the union's refusal to pursue his grievances. (Id.) The court rejected Knox's arguments and prohibited Knox from filing, without prior court permission, any complaints regarding his Postal Service employment from May 1994 to January 16, 2003, including claims that concerned: 1) the May 1995 Halon gas explosion; 2) the medical examinations conducted in connection with the explosion; 3) Judge Player's alleged failure to investigate Knox's claims; 4) denied promotions; 5) retaliation; or 6) the union's alleged failure to pursue Knox's grievances. (Id. at 19-20) 5. Standard of Review This Court reviews a district court's vexatious-litigant order for abuse of discretion. See DeLong v. Hennessey, 912 F.2d 1144, 1146 (9th Cir. 1990). SUMMARY OF ARGUMENT This Court should affirm the district court's finding that Knox is a vexatious litigator whose future filings concerning his Postal Service employment should be subjected to pre-filing review. In its thorough opinion, the district court properly applied this Court's four-pronged guideline for imposing pre-filing restrictions. First, the court gave Knox adequate notice of the restrictions by issuing an order to show cause why he should not be deemed a vexatious litigant, and Knox filed a written response to the order. Second, the district court provided an adequate record for review by detailing Knox's four lawsuits, including this one. Third, the court properly found that Knox's filings were frivolous and harassing because they involved many of the same defendants, claims, and facts, and because Knox filed his fourth lawsuit after this Court affirmed the dismissal of his first three lawsuits. Fourth, the district court narrowly tailored its pre-filing order to require only that Knox's future filings concerning his employment at the Postal Service from May 14, 1994, through January 16, 2003, be subject to pre-filing review. ARGUMENT THE DISTRICT COURT PROPERLY FOUND THAT KNOX IS A VEXATIOUS LITIGATOR WHO SHOULD BE SUBJECTED TO PRE- FILING RESTRICTIONS. This Court has recognized that "frivolous claims by a litigious plaintiff may be extremely costly to defendants and can waste valuable court time." DeNardo v. Murphy, 781 F.2d 1345, 1348 (9th Cir. 1986). Consequently, district courts "bear an affirmative obligation to ensure that judicial resources are not needlessly squandered on repeated attempts by litigants to misuse the courts." O'Loughlin v. Doe, 920 F.2d 614, 618 (9th Cir. 1990). To meet this obligation, district courts have the inherent authority to order a litigant to seek permission from the court prior to filing future lawsuits. See DeLong, 912 F.2d at 1147. Before ordering pre-filing restrictions, a court must ensure that four conditions are met: 1) the plaintiff is given adequate notice to oppose the pre-filing order; 2) the court provides an adequate record for review, including a listing of all the cases and motions that led the court to conclude that a vexatious-litigant order was needed; 3) the court makes substantive findings as to the frivolous or harassing nature of the litigant's actions; and (4) the court's order is narrowly tailored. See O'Loughlin, 920 F.2d at 617. Here, the district court properly satisfied all four conditions. First, the district court correctly found that Knox had notice and an opportunity to oppose the pre-filing restrictions. (Knox RE Ex. H at 14 (order)) On October 21, 2003, the court issued an order to show cause why Knox should not be deemed a vexatious litigant; Knox filed a written response on November 12, 2003. (Id.) Thus, the first condition was met. Second, the court provided an adequate record for review. The district court's thorough order devotes more than twelve pages to setting forth Knox's litigious history. (Id. at 1-13) Therefore, the second condition was met. Third, the court properly found that Knox's filings were frivolous and harassing. (Id. at 15-18) As the court noted, Knox has filed four meritless lawsuits. (Id.) The lawsuits involve many of the same defendants and legal claims and arise from the same set of facts. (Id.) Specifically as to Judge Player, Knox has twice filed meritless suits against her even though this Court affirmed the dismissal of his first lawsuit against her. (Id. at 17) Therefore, the district court properly found that Knox's filings are frivolous and harassing. See Johns v. Town of Los Gatos, 834 F. Supp. 1230, 1232 (N.D. Cal. 1993) (finding that the plaintiff had shown "a history of frivolous and harassing litigation and a propensity to continue such behavior" where he had "filed numerous suits and appeals against the same defendants, based on the same" facts and claims). Fourth, the district court narrowly tailored its pre-filing review order to address Knox's specific abuses. (Knox RE Ex. H at 18-19 (order)) The order is limited to claims arising from Knox's employment at the Postal Service from May 14, 1994, to January 16, 2003, which is the day Knox filed Knox IV. (Id. at 18) The order therefore is limited appropriately both temporally and by subject matter. Cf. DeLong, 912 F.2d at 1148 (finding that order prohibiting plaintiff from "filing any further action or papers in this court" without prior permission was not narrowly tailored). Consequently, the pre-filing review order "will relieve the Respondents from the burden of defending themselves against claims they have litigated over and over again since" 1998 while "preserv[ing] [Knox]'s right of access to the Court should he bring forth a nonfrivolous claim in the future." Los Gatos, 834 F. Supp. at 1232 (ordering pre-filing review of future complaints pertaining to or citing the Respondents). CONCLUSION Knox's frivolous filings have caused the defendants and the courts to waste resources responding to them. This Court should therefore affirm the district court's finding that Knox is a vexatious litigator and that any future filings pertaining to his Postal Service employment from May 14, 1994, to January 16, 2003, should be subjected to pre-filing review. Respectfully submitted, ERIC S. DREIBAND General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ___________________________ ANNE NOEL OCCHIALINO Attorney U.S. EQUAL EMPLOYMENT COMMISSION Office of General Counsel 1801 L Street, N.W., Rm. 7030 Washington, D.C. 20507 (202) 663-4724 July ___, 2004 STATEMENT OF RELATED CASES The Commission believes that this case is also related to Case No. 04-16200 (the Commission is not a defendant in that case). CERTIFICATE OF SERVICE I, Anne Noel Occhialino, hereby certify that I served two copies of the foregoing brief this ____ day of July, 2004 by first-class mail, postage pre-paid, to the following: Pro Se Plaintiff Fred Knox 27713 Melbourne Ave. Hayward, CA 95454 Counsel for Postal-Defendants Abraham Simmons Assistant United States Attorney 450 Golden Gate Ave. San Francisco, CA 94102 Counsel for Defendant Charles Wambeke Peter J. Leff O'Donnell, Schwartz, & Anderson, Ste. 1200 1300 L St., NW Washington D.C. 20005 _____________________ Anne Noel Occhialino Attorney U.S. EQUAL EMPLOYMENT COMMISSION, Office of General Counsel 1801 L Street, N.W., Room 7030 Washington, D.C. 20507 (P)(202) 663-4724 (F)(202) 663-7090 ____________________________________________________________ 1. “Op. Br.” refers to Knox’s opening brief in Case No. 04-15156. On July 12, 2004, the Commission filed a response to Knox’s opening brief in Case No. 04-15333. That same day, this Court granted the Commission’s motion to consolidate these two appeals. Because the Commission has already responded to the issues raised in Knox’s opening brief in Case No. 04-15333, this brief responds only to those issues raised in Knox’s opening brief in Case No. 04-15156. 2. “EEOC Br. in 04-15333” refers to the Commission’s July 12, 2004, response brief. 3. “Knox RE” refers to Knox’s excerpts of record filed in Case No. 04-15156. 4. “Knox RE(04-15333)” refers to Knox’s excerpts of record filed in Case No. 04-15333. 5. “EEOC RE” refers to the Commission’s supplemental record excerpts filed July 12, 2004, in Case No. 04-15156.