_______________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT _______________________________________________________ No. 08-15403 _______________________________________________________ U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant v. MARICOPA COUNTY, Defendant-Appellee. _______________________________________________________ On Appeal from the United States District Court for the District of Arizona (2:02-cv-01874-PGR) The Honorable Paul G. Rosenblatt, Presiding _______________________________________________________ REPLY BRIEF OF THE PLAINTIFF-APPELLANT U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION _______________________________________________________ RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate General Counsel DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7018 Washington, D.C. 20507 (202) 663-4571 (phone) (202) 663-7090 (fax) daniel.vail@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . iii ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 The District Court Abused Its Discretion In Awarding Attorney's Fees and Non-Taxable Expenses to Maricopa.. . . . . . . . . . . . . . . . . . . . . 1 A. The Supreme Court and This Court Have Strongly Suggested That a Prevailing ADEA Defendant Simply Cannot Recover Attorney's Fees - Even As a Sanction for Bad faith. . . . . . . . . . . . . . . . . . 2 B. Section 1927 Does Not Permit the District Court to Impose Sanctions on the EEOC As a Party to This Litigation. . . . . . . . . . . . . . . . . 5 C. The District Court Clearly Erred in Finding That the EEOC Acted in Bad Faith. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . 30 CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . .31 TABLE OF AUTHORITIES Cases Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975). . . . . . . . . . . . . . . . . . . . . . . . 26-27 Bouman v. Block, 940 F.2d 1211 (9th Cir. 1991). . . . . . . . . . . . . . . . . . . . . 23 Burrell v. Star Nursery, Inc., 170 F.3d 951 (9th Cir. 1999). . . . . . . . . . . . . . . . . . . . . 27 Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978). . . . . . . . . . . . . . . . . . . . . 1, 3, 4, 5, 8 EEOC v. Clay Printing Co., 13 F.3d 813 (4th Cir. 1994). . . . . . . . . . . . . . . . . . . . . 12-13 EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539 (9th Cir. 1987). . . . . . . . . . . . . . . . . . 27, 28-29 EEOC v. Hacienda Hotel, 881 F.2d 1504 (9th Cir. 1989). . . . . . . . . . . . . . . . . . . . . . 27 EEOC v. O&G Spring & Wire Forms Specialty Co., 38 F.3d 872 (7th Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . 5 EEOC v. Waffle House, Inc., 534 U.S. 279 (2002). . . . . . . . . . . . . . . . . . . . . . . . 11, 27 Friends of Boundary Waters Wilderness v. Thomas, 53 F.3d 881 (8th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . .12 Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . 20 General Tel. Co. of N.W. v. EEOC, 446 U.S. 318 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . 28 TABLE OF AUTHORITIES Cases Lyons v. England, 307 F.3d 1092 (9th Cir. 2002). . . . . . . . . . . . . . . . . . . . . 24 New York Gaslight Club, Inc. v. Carey, 447 U.S. 54 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8 Occidental Life Ins. Co. v. EEOC, 432 U.S. 355 (1977). . . . . . . . . . . . . . . . . . . . . . . . 11, 27-28 Oregon Natural Res. Council v. Madigan, 980 F.2d 1330 (9th Cir. 1992). . . . . . . . . . . . . . . . . . . . . 12 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Richardson v. Alaska Airlines, Inc., 750 F.2d 763 (9th Cir. 1984). . . . . . . . . . . . . . . 1-2, 3, 4, 5, 8 Smallwood v. Nat'l Can Co., 583 F.2d 419 (9th Cir. 1978). . . . . . . . . . . . . . . . . . . . . . . 27 Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Thomas v. Peterson, 841 F.2d 332 (9th Cir. 1988). . . . . . . . . . . . . . . . . . . . . . . 12 Wileman v. Frank, 979 F.2d 30 (4th Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . 22 TABLE OF AUTHORITIES Statutes 28 U.S.C. § 1927. . . . . . . . . 1, 2, 4, 5, 6 28 U.S.C. § 2412(b). . . . . . . . . . . . 2, 3 29 U.S.C. § 626(a). . . . . . . . . . . . 8 29 U.S.C. § 626(b). . . . . . . . . . . . . 25 29 U.S.C. § 626(d). . . . . . . . . . . . 9 42 U.S.C. § 2000e-4. . . . . . . . . . . . 5 42 U.S.C. § 2000e-8(e). . . . . . . . . . . . 6 Rules Fed. R. App. P. 32(a)(5). . . . . . . . . . .30 Fed. R. App. P. 32(a)(6). . . . . . . . . 30 Fed. R. App. P. 32(a)(7)(B). . . . . . . . . 30 Fed. R. App. P. 32(a)(7)(B)(iii). . . . . . 30 ARGUMENT The District Court Abused Its Discretion In Awarding Attorney's Fees and Non-Taxable Expenses to Maricopa. The EEOC argued in its opening brief that the district court committed reversible error in ruling that it could compel the Commission to pay Maricopa's attorney's fees and non-taxable expenses under 28 U.S.C. § 1927 (Section 1927) or by resort to its inherent powers. If this Court were to affirm the district court's ruling it would be the very first time this Court has compelled an ADEA plaintiff to pay a defendant's attorney's fees. Nothing in the law or this record justifies the imposition of such an unprecedented sanction. The Commission pointed out that Section 1927 allows a court to sanction a particular attorney, but not a party such as the EEOC. Accordingly, the district court's award of fees under Section 1927 is ultra vires. The EEOC also contended that the district court committed clear error in concluding that the EEOC acted in subjective bad faith (a prerequisite to the imposition of sanctions under either Section 1927 or the court's inherent powers). The Commission argued that, at the least, the district court abused its discretion in requiring the Commission to pay any fees or costs Maricopa incurred during the pre-litigation phase of this case. Finally, the Commission urged this Court to consider whether, under the Supreme Court's decision in Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), and this Court's ruling in Richardson v. Alaska Airlines, Inc., 750 F.2d 763 (9th Cir. 1984), it is ever appropriate to award attorney's fees to a prevailing defendant in an ADEA action - even as a sanction for bad faith. Maricopa does not convincingly rebut any of these arguments the Commission made in its opening brief. Maricopa does not give any persuasive reason for affirming the district court's fees ruling either. A. The Supreme Court and This Court Have Strongly Suggested That a Prevailing ADEA Defendant Simply Cannot Recover Attorney's Fees - Even As a Sanction for Bad faith. Maricopa clouds the legal questions in this appeal by claiming that the district court awarded fees under the Equal Access to Justice Act (EAJA). MaricopaBr.4. However, the district court did not purport to award fees under the EAJA. It only ordered the Commission to pay fees pursuant to its inherent power to sanction a party for bad faith and Section 1927. (E.R.3,6) Nonetheless, Maricopa cites Section 2412(b) of the EAJA which provides, in pertinent part, that the "United States shall be liable for [attorney's] fees and expenses to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award." 28 U.S.C. § 2412(b). According to Maricopa, "[t]here is no reason for a federal governmental agency like the EEOC to be immunized from the sanctions which would be imposed upon any other litigant." MaricopaBr.26. We need not disagree. The EEOC has never claimed "sovereign immunity" from an award of attorney's fees in this case. If in this Circuit private ADEA plaintiffs could be required to pay prevailing defendants' attorney's fees, then the EEOC obviously could be, too. But the Commission's point is that, under the plain language of the ADEA, the Supreme Court's Christiansburg decision, and this Court's ruling in Richardson, no plaintiff - public or private - can be compelled to reimburse an employer for attorney's fees and expenses incurred in successfully defending against an ADEA cause of action. In emphasizing (to no effect) that the EAJA waives the government's sovereign immunity from attorney's fees generally, Maricopa skips right over the EAJA's most crucial caveat: That the government can be liable for attorney's fees only "to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award." 28 U.S.C. § 2412(b). The statute at issue here, the ADEA, does not "provide for such an award." As this Court recognized in Richardson (and as the EEOC explained in its opening brief, EEOCBr.44-45), Congress has chosen to forbid courts from awarding fees to prevailing ADEA defendants. This Court stated unequivocally that "a prevailing employer may not recover attorney's fees in an action under the [Fair Labor Standards Act] or the ADEA." Richardson, 750 F.2d at 767. It cannot get much clearer than that. Undeterred, Maricopa counters that "[f]ees were not sought under the ADEA" in this case. MaricopaBr.27. Apparently Maricopa is of the view that because the district court purported to award fees under Section 1927 and its inherent powers, this Court's ruling in Richardson and the plain language of the ADEA are irrelevant. Not so. The district court here awarded fees in part under the "bad faith" exception to the American Rule. (E.R.3) However, as the EEOC explained in its opening brief, EEOCBr.42-44, Congress has statutorily abrogated any and all exceptions to the American Rule - including the "bad faith" exception - in the context of the ADEA. This Court in Richardson noted that "Congress chose its words carefully to foreclose the possibility of the recovery of attorney's fees by an employer who has successfully defended himself against an accusation of age discrimination." Richardson, 750 F.2d at 767. Accordingly, Congress has foreclosed the possibility that courts can circumvent this statutory result by imposing fees by resort to their inherent powers. The Supreme Court explicitly anticipated this, explaining in Christiansburg that if Congress has acted to pre- empt common-law fee-shifting rules (precisely as it did in the ADEA), it would seem that "a successful defendant could not recover attorney's fees even against a plaintiff who had proceeded in bad faith." Christiansburg, 434 U.S. at 419 n.13 (emphasis added). That is this case. Maricopa does not even cite Christiansburg in its brief, much less account for what the Supreme Court said there, which is fatal to its fees petition.<1> B. Section 1927 Does Not Permit the District Court to Impose Sanctions on the EEOC As a Party to This Litigation. As the EEOC argued in its opening brief, EEOCBr.37-38, Section 1927 does not authorize the district court to order a party (such as the EEOC) to pay fees. Notably, Maricopa concedes this point. MaricopaBr.22,45. However, Maricopa then claims that "the EEOC and its staff counsel are one and the same." MaricopaBr.22,46-47. Maricopa cites no authority for this bizarre proposition, except for one case from the District Court for the Virgin Islands dealing with attorneys of a private law firm. MaricopaBr.47. The EEOC is not a private law firm, but an independent federal agency. 42 U.S.C. § 2000e-4. Just because a lawyer works for the Commission does not mean he or she is synonymous with the Commission itself. Indeed, EEOC employees may be sanctioned individually for personal wrongdoing, even where the Commission as an entity could not be. See, e.g., 42 U.S.C. § 2000e-8(e) (criminalizing the pre-litigation public disclosure of charge information by "any officer or employee of the Commission"). Maricopa's attempt to conflate the Commission with its employees thus is puzzling and unavailing. In any event, there is a critical distinction between sanctioning a law firm which represents a party and sanctioning the party itself. In this case, the Commission is the party. As even Maricopa acknowledges, Section 1927 simply does not permit a court to punish a party. C. The District Court Clearly Erred in Finding That the EEOC Acted in Bad Faith. Even if the district court did have authority to sanction the Commission as a party for bad faith, the district court abused its discretion in doing so here. Maricopa exerts much of its efforts in its brief re-litigating the merits of this case. Of course, the mere fact that the EEOC lost this case is not grounds for concluding that it litigated it in bad faith. Further, even if a case is found to be frivolous (which the EEOC's case was not), that alone would be insufficient to justify a finding of bad faith. As the district court and Maricopa rightly recognize, bad faith is only evident where a party knowingly or recklessly litigated a frivolous case, or litigated a non-frivolous case for a nefarious purposes. (E.R.3,6); MaricopaBr.25-26. Here, there is nothing in the record to suggest that the EEOC knew its case was frivolous or recklessly ignored warnings signs that it was, much less that the Commission had ulterior motives for prosecuting this ADEA enforcement action. Maricopa spends a significant amount of time attacking the EEOC's alleged "sham" investigation of Teresa Toth's charge, arguing that the Commission "acted in bad faith to manipulate its investigation to reach a pre-determined conclusion." MaricopaBr.18; id. at 22,33,42-44. However, the district court did not find, and there are no grounds for finding, that the Commission's investigation or conciliation in this case was carried out in bad faith. As the EEOC noted in its opening brief, it would not be appropriate to sanction the EEOC with attorney's fees for carrying out a statutorily-mandated investigation and/or for attempting to conciliate a resolution to a charge of discrimination. EEOCBr.38-41. Maricopa disagrees, arguing that a court "has authority to include prelitigation fees incurred in pursuing a civil rights claim under statutes such as Title VII or the ADEA." MaricopaBr.48. Maricopa cites New York Gaslight Club, Inc. v. Carey, 447 U.S. 54 (1980), for support. However, New York Gaslight Club held that a prevailing plaintiff could recover fees under Title VII for efforts the plaintiff's attorney expended during the administrative processing of the plaintiff's charge. Id. at 60, 71. The fact that the Supreme Court would approve an award of fees incurred during the administrative phase of a case to a prevailing plaintiff who is without question statutorily authorized to obtain fees is neither remarkable nor relevant to the question before this Court. New York Gaslight Club says nothing about the ability to sanction a government agency like the EEOC with fees for carrying out its statutory obligation to process a charge of discrimination. To the contrary, that decision emphasized the importance of administrative proceedings to Title VII's enforcement scheme - considerations that counsel against sanctioning the Commission for its administrative enforcement efforts. Cf. id. at 63. Moreover, it bears repeating that this is not a Title VII case, but an ADEA case. The Supreme Court in Christiansburg strongly suggested, and this Court in Richardson ruled, that prevailing ADEA defendants should not be entitled to fees at all. In any case, Maricopa's criticism of the Commission's pre-litigation activities is completely unfounded. For example, Maricopa alleges, with no support whatsoever, that the Commission "targeted MCAO and or County Attorney Rick Romley, with whom it had another pending matter." MaricopaBr.21. Maricopa has failed to point to a single fact to support the absurd notion that the Commission intentionally set out to "target" it or Mr. Romley. In pressing its conspiracy theory, Maricopa ignores that the EEOC did not choose on its own to investigate MCAO, which by statute the Commission could have done (without a charge). See 29 U.S.C. § 626(a). Here, the EEOC merely carried out the ADEA's command requiring it to process the charge of discrimination Toth filed. See 29 U.S.C. § 626(d). Maricopa also repeatedly accuses the EEOC of purposely ignoring Sally Anderson's comments about Toth's negative attitude and her opinion that this case was baseless. MaricopaBr.10,18-19,33,42. Of course, it should go without saying that simply because Anderson thought that "Toth was not the victim of age discrimination" and that this case was a "dog" (facts Maricopa repeatedly stresses, Maricopa Br.33,42) does not mean the EEOC's case was frivolous or that the Commission should have taken Anderson at her word and promptly ended its investigation on her say-so.<2> Further, contrary to Maricopa's accusation, MaricopaBr.18-19, the EEOC's investigator did take helpful contemporaneous notes of the telephone conversation the investigator had with Anderson on October 4, 2001. (E.R.206A) The fact that Anderson and Maricopa disagree with the investigator's written summary of this conversation does not mean the investigator inaccurately memorialized the conversation - much less that the investigator "manipulated" the file to omit exculpatory evidence. Maricopa also faults the EEOC for failing initially to interview Jan Jennings, and then for later interviewing her only in an alleged "telephonic and cursory" fashion. MaricopaBr.19. But the EEOC did interview Jennings and, contrary to Maricopa's assertions, MaricopaBr.29, was never "forced" to do so. Further, a review of the transcript of this interview reveals that it hardly was cursory. (S.E.R.158-192) This thirty-four page transcript reveals that the EEOC's investigator asked numerous, open-ended, and probing questions of Jennings, all designed with only one goal in mind: To give Jennings a chance to provide any and all relevant information she possessed and to ascertain Jamie Mabery's motive for deciding not to rehire Toth. In any case, how the Commission chooses to conduct its administrative investigation is within its (not Maricopa's) discretion. And logic would dictate that if it had been true, as Maricopa alleges, that the EEOC knew Jennings had information that would undermine the EEOC's cause finding - and if the Commission was biased and bound-and-determined to find cause at all costs - it would simply have chosen not to interview Jennings at all. In short, the Commission dutifully and diligently investigated Toth's charge, objectively and impartially evaluated the evidence it obtained during its statutorily- mandated administrative proceedings, and in good faith found reasonable cause to believe that MCAO had refused to rehire Toth because of her age. Maricopa's contrived attack on the Commission's investigation and cause-finding is unfounded, unfair, and ultimately unpersuasive. To the extent the district court's ruling might be read as sanctioning the EEOC for its actions in investigating and conciliating this case, that ruling must be reversed. Cf. EEOC v. Waffle House, Inc., 534 U.S. 279, 296 n.11 (2002) ("We have generally been reluctant to approve rules that may jeopardize the EEOC's ability to investigate and select cases from a broad sample of claims."); cf. Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 368 (1977) (emphasizing the "federal policy requiring employment discrimination claims to be investigated by the EEOC and, whenever possible, administratively resolved before suit is brought in a federal court"). Maricopa fares no better with its assault on the EEOC's motives for litigating this case. The district court ruled that "the EEOC had no evidence of discrimination when it filed the case" against Maricopa. (E.R.4) Maricopa agrees, suggesting that the EEOC's claim was so patently frivolous that no reasonable litigant would have pursued it. However, as Judge Reinhardt's dissent illustrates, the EEOC had ample evidence to believe that its case actually was meritorious (not frivolous), and that it was therefore completely justified in litigating it. Maricopa apparently believes that Judge Reinhardt's dissent carries little or no weight whatever in this appeal. It would have this Court ignore it, as the district court did. Maricopa claims that "[t]he focus is on the proper legal analysis and the reasonableness of the positions taken, not whether two different judges or courts evaluated the evidence differently." MaricopaBr.45. We strongly disagree. When, as in this case, a district court judge finds that a plaintiff litigated in "bad faith" based largely on the alleged glaring frivolousness of the case, it should matter a great deal that an appellate judge of this Court concluded that the case actually was meritorious enough to survive summary judgment. Maricopa cites no authority holding otherwise. The cases Maricopa does cite, MaricopaBr.45, are not to the contrary. For example, Oregon Natural Resources Council v. Madigan, 980 F.2d 1330 (9th Cir. 1992), and Thomas v. Peterson, 841 F.2d 332 (9th Cir. 1988) dealt with an altogether different scenario, i.e., whether a district court's finding that the government's position had been substantially justified precluded this Court from later concluding that it had not. Further, Friends of Boundary Waters Wilderness v. Thomas, 53 F.3d 881 (8th Cir. 1995), acknowledged that while views of dissenting judges are not dispositive on the question of whether the government's position was "substantially justified" under the EAJA, they "are properly considered when conducting this inquiry." See id. at 885; cf. EEOC v. Clay Printing Co., 13 F.3d 813, 816 (4th Cir. 1994) (acknowledging the "possible incongruity" in finding no "substantial justification" for EAJA purposes where "one or more presumably reasonable Article III judges have found merit in the government's position at some stage in the litigation" and finding that a circuit court judge's dissent, while not dispositive, "should be considered" (internal quotation marks and citations omitted)). Much of the controversy in this case has been (and continues to be) over whether the EEOC had sufficient grounds to argue that it had "direct evidence" of age discrimination. Judge Reinhardt concluded that the EEOC did. (E.R.14) Nevertheless, in assessing fees against the Commission, the district court found that "[p]erhaps the most glaring example of bad faith in this case is the EEOC's continued persistence that there is direct evidence of age discrimination." (E.R.6) Maricopa argues similarly. MaricopaBr.10,29. The district court and Maricopa are wrong on a crucial premise: The Commission is not still arguing on the merits that it actually did have direct evidence. This Court's panel majority decision clearly held otherwise and the Commission obviously accepts and is bound by this holding. At this point, though, the issue is not whether the EEOC actually had direct evidence, but whether it should have been so patently obvious to the Commission that it did not have direct evidence that the EEOC litigated in bad faith by claiming it did. Our view is that given the record, this Court's precedent, and Judge Reinhardt's dissent, it was an abuse of discretion for the district court to conclude that the EEOC acted in bad faith by having argued throughout this litigation that it had direct evidence. According to Maricopa, "[h]ad the EEOC reasonably evaluated Ninth Circuit case law on this issue, as was its duty, it could not have rationally concluded there was any evidence of alleged age discrimination." MaricopaBr.31. However, a review of our briefs in the merits appeal (E.R.115-23,171-72,177-83) reveals the EEOC took great pains to account for this Court's binding precedent on this direct evidence issue and carefully analyzed the cases for and against our position. To be sure, the EEOC ultimately did not prevail on the merits of this position. But the thorough and thoughtful arguments made in support of it, coupled with Judge Reinhardt's belief that the position had sufficient merit to enable the Commission to survive summary judgment, should at least be enough to convince this Court that the Commission's argument was not patently frivolous, and that the EEOC thus was not acting in bad faith by advancing it. As for the actual ostensible "direct evidence" in controversy in this case, the district court ruled that "no one ever acknowledged hearing any alleged age-related comments." (E.R.4) Maricopa similarly argues that "Anderson made it clear that she never claimed Mabery used the word 'old.'" MaricopaBr.11n.7 (emphasis added); id. at 9. Accordingly, Maricopa asserts, the "EEOC's persistence with such a frivolous argument supports a reasonable conclusion the argument was made 'for an ulterior purpose.'" MaricopaBr.32. If the record were as Maricopa makes it out to be, there might be some basis for the district court's determination. But Maricopa is actually misleading this Court (as it has all along) about the actual evidence in this case. There is nothing "supposed" or "unknown" as Maricopa claims, MaricopaBr.9, about what Anderson said to the EEOC's investigator on this point. The contemporaneous notes the EEOC's investigator took of her telephone conversation with Anderson on October 4, 2001, state that Anderson unambiguously told the EEOC's investigator that "Jamie [Mabery] did make the comment that Teri [Toth] 'looks like an old tired government employee.'" (E.R.206A (emphasis added)) These investigator notes thus unequivocally refute Maricopa's misleading mantra that "Anderson was never able, at any time to say the word 'old' had been used to describe Toth." MaricopaBr.11 (emphases added). She certainly did. The district court clearly erred in concluding otherwise. (E.R.4) Indeed, when Anderson testified about this topic in her deposition, she confirmed that that is what she told the EEOC's investigator. Anderson's deposition reveals that during the EEOC's administrative investigation, the EEOC's investigator asked Anderson if Mabery had called Toth an "old, tired government employee" after interviewing her. (E.R.311) Anderson told the EEOC's investigator she "would have to think about this." (E.R.311) Anderson called the EEOC's investigator back on October 4, 2001, and told the investigator that Toth did in fact make that exact statement. Anderson told the investigator "She said it." (E.R.311) On March 5, 2003 - roughly a year and a half later - Maricopa's investigator asked Anderson to sign an affidavit indicating that Mabery said "tired, burned-out government employee" instead of "old, tired government employee." (E.R.308,311) By that time, Anderson could no longer be certain that Mabery had used the word "old" in describing Toth. (E.R.311,312,313) According to Anderson: When I spoke to [the EEOC's investigator], she said to me, "Was this statement made?" . . . She cited a statement to me that I said - that I told her I had to think about it. I phoned her the next day and reported that, in fact, the statement she had read to me was accurate, and I truly believe that. However, when [Maricopa's investigator] came to my home, whenever that was, and presented another statement that was slightly different from the statement that [the EEOC's investigator] had read to me over the phone, I could no longer be certain that the old element was present. And I would like to add that had I been given both statements at the same time, I would be telling you I don't know which statement Jamie Mabery made. Okay? (E.R.307 (emphasis added)) Anderson continued: [Maricopa's investigator] educated me that the whole issue with EEOC was the fact that "old" was in there, the statement "old" versus - anyway, that was the issue, "old." And so in talking with him, I said, "Joe, I cannot say for sure at this moment that 'old' is in there." When I was presented with the other statement from [the EEOC's investigator] over the phone, I said, "Yes." But if you notice, they're both very similar. And that's why I say - and I am infuriated because you guys are taking my valuable time over two very insignificant people - had you given me both statements, we would - I would be telling you the same thing I'm telling you today. (E.R.307-08) As the EEOC explained in its opening brief, EEOCBr.10, this testimony shows that Anderson never recanted her earlier statement to the EEOC investigator. She has not denied that she initially told the EEOC's investigator that Mabery called Toth "old." She has never said that she was wrong initially to remember that Mabery called Toth "old." She has never said she is now certain that Mabery never called Toth "old." To the contrary, Anderson has testified that when she first told the EEOC's investigator that Mabery referred to Toth as an "old" employee, Anderson "truly believe[d]" that is what Mabery said. In sanctioning the Commission, the district court was troubled that "the EEOC could not prove that Mabery made any statement containing the word 'old.'" (E.R.4) But to avoid a finding of bad faith, the Commission should not have had to prove that Mabery called Toth "old," especially since this case was terminated at the summary judgment stage. Surely, on this record, given the EEOC's investigator notes and Anderson's own testimony, it was not reckless for the EEOC to have argued that a fact finder could believe that Mabery did call Toth "old." It was not bad faith for the EEOC to argue that a reasonable jury could conclude that Anderson's initial recollection and first statement to the EEOC's investigator - which Anderson made after deliberately taking extra time to think about what Mabery had said - had been accurate. Given the record, it was not indicative of bad faith for the Commission to contend that a jury could find that the description Anderson provided to the EEOC's investigator in October 2001 about Mabery's post-interview remark was more reliable than the version Anderson gave to Maricopa's investigator in March 2003 - seventeen months later. It was not reckless for the Commission to contend that even though Anderson now could not be sure that Mabery used the word "old," Anderson had been sure of it - "truly believe[d] it" - at one point (and much closer in time to the actual event). This is particularly true given that Anderson herself has never disavowed her earlier recollection.<3> Maricopa also argues that the EEOC litigated in bad faith because it failed to accept the "obvious legitimate, non-discriminatory reasons which supported the County's decision not to re-hire Toth." MaricopaBr.13. Needless to say, the Commission should not have to accept Maricopa's explanations of its actions at face value to avoid a finding that it litigated in bad faith. The district court criticized the EEOC for ignoring some of the purported justifications Maricopa gave for Mabery's actions. For example, the district court found that the Commission "did not attempt to counter" the evidence that Toth's prior dissatisfaction with pay and benefits at MCAO "made it likely that she would be unhappy" if she returned. (E.R.4) However, the Commission did refute the principal reasons Maricopa offered to explain Mabery's actions. As we explained in our opening brief, EEOCBr.14-16, the Commission attempted to rebut Maricopa's various and shifting explanations for refusing to rehire Toth, including her "negative" attitude, her "horrible" interview performance, and her lack of bilingual skills. (E.R.136-139,193-202) It was inappropriate for the district court to require more of the Commission than that to avoid a finding of bad faith. Notably, many of the explanations Maricopa advanced (e.g., that Toth might have been unhappy if she had to take a pay cut to come back to MCAO as a VWA I) were not the reasons Mabery herself gave for her decision.<4> Rather, these additional factors were merely theoretical policy justifications that might have motivated an employer not to want to hire an employee like Toth back. (E.R.137-39). Surely it could not be bad faith for the Commission to decline to refute alleged non-discriminatory rationales that the decision maker herself never claimed to have considered. Further, a plaintiff is not required to cast doubt on any and all justifications a defendant throws against the proverbial wall in the hopes that one or more will stick - even to avoid summary judgment. (E.R.201-02 (citing Fuentes v. Perskie, 32 F.3d 759, 764 n.7 (3d Cir. 1994) (explaining that if "the defendant proffers a bagful of legitimate reasons, and the plaintiff manages to cast substantial doubt on a fair number of them, the plaintiff may not need to discredit the remainder"))). If the plaintiff's failure to convince a fact finder that each and every proffered reason is pretextual is not necessarily fatal to the merits of a discrimination case, it certainly should not compel a finding that the plaintiff litigated the case in bad faith. The district court also faulted the EEOC for seeming to "ignore, or disregard, the standard governing pretext analysis" by, for example, pointing to "the fact that non-decision makers had different perceptions of Toth's interview performance than Mabery." (E.R.4) Maricopa similarly now chastises the EEOC because the Commission "attempted to argue Mabery made the wrong decision in not re-hiring Toth, because other interviewers allegedly felt Toth performed well in her interview." MaricopaBr.15,34. But the district court and Maricopa misapprehend the point of the EEOC's evidence on pretext. The EEOC was not arguing that Mabery exercised bad business judgment. (E.R.135-36) Rather, the EEOC contended that a reasonable jury could find that Mabery's alleged disappointment with Toth's interview performance was simply not believable. The Commission claimed that a fact finder could conclude that Mabery was being dishonest about her perceptions of Toth's interview performance in an attempt to cover up her age-based decision not to rehire Toth. That is the very definition of "pretext." See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (a plaintiff proves pretext "'by showing that the employer's proffered explanation is unworthy of credence'" (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)). As Judge Reinhardt explained, the Commission "offered evidence that, unlike Mabery, all three Bureau heads who attended her interview perceived the interview positively" and while "Mabery is entitled to her subjective perception of the interview, the evidence [the EEOC] produced raises an issue as to the sincerity and credibility of Mabery's assertion that she believed Toth's interview performance to be 'real poor' and 'unprofessional.'" (E.R.13 (emphasis added)) Likewise, the district court and Maricopa err in concluding that the EEOC acted in bad faith by emphasizing Toth's positive performance evaluations to refute the suggestion that Toth had a bad attitude when she previously worked at MCAO. The district court said that performance evaluations are "not proof of pretext unless they leave absolutely no room for disagreement." (E.R.5) In support of this proposition, the district court cited Wileman v. Frank, 979 F.2d 30, 35 (4th Cir. 1992) - a case that obviously does not bind this Court and one it has never (even once) cited or applied. Further, Wileman simply does not say what the district court and Maricopa, Maricopa Br.25, say it does. The Fourth Circuit in Wileman held instead that the reliance on a single performance rating of "Very Good" is not proof of pretext where it reflects "the need for improvement and that there are shortcomings in the employee's performance." Wileman, 979 F.2d at 35. Here, by contrast, all of Toth's performance evaluations were superlative. None mentioned Toth's "poor attitude" (allegedly a widely-known and chronic problem with Toth's performance). (E.R.156-57,195-198); EEOCBr.4-5. As Judge Reinhardt noted, the EEOC proffered evidence "of the consistently high performance reviews [Toth] received during her tenure as a VWA, which complimented her, among other things, on her 'professional image.'" (E.R.13) Thus, Judge Reinhardt reasoned, "[e]ven if Mabery did not review Toth's performance evaluations, the evaluations raise a genuine issue of fact as to the credibility of the assertions, none of which was contemporaneously documented, that Toth had previously exhibited a negative attitude."<5> (E.R.13) While the panel majority of this Court held otherwise, Judge Reinhardt's conclusions demonstrate that the EEOC was not reckless in suggesting that a reasonable jury could find the evaluations probative on the question of pretext. The district court clearly erred and thus abused its discretion in ruling that the EEOC "should have been aware that the performance evaluations are proof of nothing" (E.R.5), and that the EEOC acted in bad faith in proffering them as evidence of pretext. Cf. Bouman v. Block, 940 F.2d 1211, 1229 (9th Cir. 1991) (plaintiff's "excellent performance evaluations" were evidence that decision maker's assertion that the plaintiff was not transferred because of her "attitude" was a pretext for a discriminatory motive). The district court also found that the EEOC "recklessly advanced" the view that Toth was more qualified than those Mabery chose for the VWA positions in question. (E.R. 5) The district court opined that the EEOC "completely failed to rebut evidence that Toth was less qualified tha[n] the Spanish speakers who also had degrees in the relevant field." (E.R. 5) But the EEOC did do so. As we noted in our opening brief, EEOCBr.34-35, the EEOC argued that a reasonable jury could conclude that Toth's six years of experience doing the exact job at issue rendered her more qualified than all other selectees, none of whom had done the job or worked for Maricopa County in any capacity before. (E.R.124-125,201) This proposition is simply common sense.<6> It was at least far from bad faith for the EEOC to make this argument. Cf. Lyons v. England, 307 F.3d 1092, 1117 (9th Cir. 2002) (holding "whether appellants were as qualified as any of [the selectees] is a factually intensive question best resolved by the jury"). Finally, the district court found bad faith because "the EEOC had no basis upon which to obtain any remedy as the EEOC knew that there were no compensable damages." (E.R. 5) Maricopa echoes this argument in its brief, claiming that its refusal to rehire Toth "clearly caused no monetary loss." MaricopaBr.6; id. at 4,7-8,40-41. However, this was not, as Maricopa would have this Court believe, MaricopaBr.5, a "glaring defect" in the EEOC's case in any way. Even assuming that Toth would not have been entitled to back pay as a remedy for age discrimination (an issue never adjudicated on the merits), that is completely irrelevant to whether the EEOC litigated this case in bad faith. In emphasizing this back pay issue, the district court and Maricopa completely ignore the text of the ADEA itself, which clearly provides that rightful placement of a victim into the particular position the victim sought is an appropriate and routine remedy to rectify age discrimination in cases like this one. See 29 U.S.C. § 626(b) (empowering courts in these case to issue "judgments compelling employment [or] reinstatement." (emphasis added)). Inexplicably, Maricopa adamantly asserts that the EEOC "failed to seek reinstatement for Toth." MaricopaBr.41. That is just incorrect. In its prayer for relief, the EEOC explicitly requested that the district court order "rightful-place hiring of Ms. Toth or front pay." (E.R. 449 (emphasis added)) Thus, Maricopa's representations to this Court are plainly contradicted by the record. And Maricopa certainly should have known better; the EEOC's opening brief in this appeal explicitly made this point. EEOCBr.35.<7> Further, under the ADEA, injunctive relief also is an available remedy. See 29 U.S.C. § 626(b) (providing that the court may "grant such legal or equitable relief as may be appropriate to effectuate the purposes of [the ADEA]"). The Commission sought such injunctive relief in its complaint. (E.R. 448-49) Nevertheless, the district court concluded the Commission's pursuit of injunctive relief was frivolous because the EEOC "could not make a showing that a danger of recurrent violations existed." (E.R. 6) Maricopa now likewise asserts that the EEOC "never even attempted to prove" the "possibility of recurrent violations." MaricopaBr.41. But the district court dismissed this case at summary judgment. The district court did not rely on the EEOC's alleged failure to prove its entitlement to injunctive relief as grounds for granting Maricopa's motion for summary judgment. (E.R.16-23) Nor could it have. The EEOC was not required to present any and all evidence on appropriate damages at that stage of the proceedings. The determination of appropriate equitable relief in a discrimination case typically is made after the fact finder concludes that a violation has occurred. Accordingly, the district court clearly erred and abused its discretion in finding that the EEOC acted in bad faith because it had not yet definitively established its entitlement to injunctive relief. The district court also clearly erred in ruling that the party seeking injunctive relief needs to establish "some cognizable danger of recurrent violations." (E.R. 6) To the contrary, the Supreme Court has declared that once a violation of an anti- discrimination statute is established, courts "have not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future." Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975) (internal quotation marks omitted) (emphases added). This Court has similarly said that "a person subjected to employment discrimination is entitled to an injunction against future discrimination . . . unless the employer proves it is unlikely to repeat the practice." EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539, 1544 (9th Cir. 1987) (emphasis added); see also EEOC v. Hacienda Hotel, 881 F.2d 1504, 1519 (9th Cir. 1989), abrogated on other grounds, Burrell v. Star Nursery, Inc., 170 F.3d 951, 955 (9th Cir. 1999) (same). Therefore, had the Commission prevailed on the merits and proven that MCAO committed age discrimination, the presumption would have been that the Commission was entitled to an injunction prohibiting Mabery (and anyone else at MCAO) from violating the ADEA in the future. Cf. Smallwood v. Nat'l Can Co., 583 F.2d 419, 420 (9th Cir. 1978) (explaining "this is an injunction issued in response to a statutory provision [Title VII], and irreparable harm is presumed from the fact of the violation of the Act."). It bears remembering that the EEOC - not Toth - brought this case. The Commission's goals and prerogatives in filing an enforcement action such as this one are not the same as those of a private litigant. See Waffle House, 534 U.S. at 287, 297 (there is a "difference between the EEOC's enforcement role and an individual employee's private cause of action" and the Commission "does not stand in the employee's shoes"); Occidental Life Ins. Co., 432 U.S. at 368 ("EEOC does not function simply as a vehicle for conducting litigation on behalf of private parties."). The EEOC filed this case in the public interest, both to secure appropriate "make whole" relief for Toth and to obtain injunctive relief to prevent Maricopa from committing similar acts of discrimination in the future. (E.R. 448- 49) Thus, even if back pay and/or reinstatement of Toth were not suitable remedies, the Commission still had a vested enforcement interest in pursuing this case, i.e., to ensure Maricopa did not commit age discrimination again. See, e.g., General Tel. Co. of N.W. v. EEOC, 446 U.S. 318, 326 (1980) ("When the EEOC acts, albeit at the behest of and for the benefit of specific individuals, it acts also to vindicate the public interest in preventing employment discrimination." (emphasis added)) Accordingly, Maricopa misses the mark in emphasizing that "[t]here was no remedy available for Toth's claims." MaricopaBr.41 (emphasis added).<8> As this Court has observed, "[t]he EEOC's right of action is independent of the employee's private action rights" and the Commission's "interests in determining the legality of specific conduct and in deterring future violations are distinct from the employee's interest in a personal remedy." Goodyear Aerospace Corp., 813 F.2d at 1542. The district court clearly erred in adopting Maricopa's argument on this point. (E.R. 5) CONCLUSION For the foregoing reasons, the EEOC respectfully requests that this Court reverse the district court's order granting Maricopa's motion for attorney's fees and non-taxable expenses. Respectfully submitted, RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate General Counsel ______________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7018 Washington, D.C. 20507 (202) 663-4571 (phone) (202) 663-7090 (fax) daniel.vail@eeoc.gov CERTIFICATE OF COMPLIANCE I certify that this reply brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 6933 words excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). I certify that this reply 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. ______________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7018 Washington, D.C. 20507 (202) 663-4571 (phone) (202) 663-7090 (fax) daniel.vail@eeoc.gov CERTIFICATE OF SERVICE I certify that on October 17, 2008, I served the requisite number of copies of this reply brief by mailing them first-class, postage prepaid, to the following: Molly Dwyer Clerk of Court United States Court of Appeals for the Ninth Circuit P.O. Box 193939 San Francisco, CA 94119-3939 Katherine Elizabeth Baker Green & Baker, Ltd. Suite B-200 7373 North Scottsdale Road Scottsdale, AZ 85253-5501 ______________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7018 Washington, D.C. 20507 (202) 663-4571 (phone) (202) 663-7090 (fax) daniel.vail@eeoc.gov *********************************************************************** <> <1> The out-of-circuit cases Maricopa does cite on this issue, MaricopaBr.27-28, either do not address or do not convincingly account for the Supreme Court's recognition in Christiansburg that a one-way fee-shifting statute legislatively precludes the award of attorney's fees by resort to a court's inherent powers (even for bad faith). Maricopa also alleges that the EEOC has "misstate[d]" the holding of EEOC v. O&G Spring & Wire Forms Specialty Co., 38 F.3d 872 (7th Cir. 1994). Not at all. The EEOC cited this Seventh Circuit case not because the EEOC agrees with its holding (which is of course not binding on this Court), but because it reinforces the EEOC's reading of this Court's ruling in Richardson (which is binding precedent). See EEOCBr.46n.9. <2> To our knowledge, Anderson is not an expert in employment discrimination law or well-versed in the evidence necessary to prove a case of intentional age discrimination. She certainly was not privy to all the relevant facts that comprised the Commission's case. <3> Maricopa repeatedly emphasizes that Anderson "rejected the EEOC's efforts to have her swear that such a statement was made." MaricopaBr.8-9; id. at 10,29,32- 33. But Anderson did not refuse to sign an affidavit because she never said (or believed) that Mabery called Toth "old." Rather, Anderson testified she did not want to sign the EEOC's affidavit because she did not want to get involved further in the case. She told the EEOC "obviously you've got somebody else that's saying this. Bother them. Leave me alone." (E.R.313) Maricopa also alleges that the EEOC's evidence on this point was inadmissible hearsay. As we argued at length in the merits appeal, this contention, too, is erroneous. (E.R.120-123) <4> Maricopa's counsel asked Mabery in her deposition whether there was "any other reason" - besides "your opinion that [Toth] was unprofessional, her appearance, and her attitude" - explaining why "you didn't choose her for a [VWA I] position?" Mabery answered "No." (E.R.138) <5> Indeed, the district court itself at the summary judgment hearing in this case even found this issue of Toth's attitude "might be determined in favor of the plaintiff." (E.R.198). <6> Maricopa also asserts that the EEOC "never attempted to show that any non- bilingual applicants were similarly situated to Toth." MaricopaBr.35-36. The Commission did not have to do so. (E.R.125-31) Further, the Commission did emphasize that only six of the thirteen selectees were bilingual, and a jury could find that Toth was more qualified than the seven other selectees who did not speak Spanish and did not have the experience Toth had working as a VWA. (E.R.124- 25,201); EEOCBr.34-35. This was hardly a frivolous argument or a position recklessly advanced. <7> Maricopa's only explanation for its material misrepresentation is a footnote stating that "Toth was not employed by MCAO at the time of the alleged injury, so this remedy was not applicable." MaricopaBr.41n.15. We have no idea what this perplexing proposition means. Of course Toth was not working at MCAO at the time she applied to return to MCAO as a VWA I. Whatever significance that fact may have, it certainly would not preclude her instatement in the VWA I position she sought. <8> Maricopa likewise errs in suggesting that an injunction is only an appropriate remedy where there is a proven "pattern" of discrimination against numerous employees. MaricopaBr.41n.15. This position is patently wrong. Cf. Goodyear Aerospace Corp., 813 F.2d at 1543 (Title VII authorizes the EEOC to seek injunctive relief on behalf of a class of employees "even when it only alleges individual acts of discrimination" (emphasis added)).