Equal Employment Opportunity Commission v. Mega Contractors, Inc. 00-2058 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT _________________________ No. 00-2058 _________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. MEGA CONTRACTORS, INC., Defendant-Appellant. ______________________________________________________ On Appeal from the United States District Court for the Eastern District of Virginia ______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE ______________________________________________________ C. GREGORY STEWART 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 STATEMENT OF JURISDICTION 1 ISSUE PRESENTED 1 STATEMENT OF THE CASE A. Course of Proceedings 2 B. Statement of Facts 3 C. Decisions Below 11 STATEMENT OF STANDARD OF REVIEW 12 SUMMARY OF ARGUMENT 13 ARGUMENT THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DENYING DEFENDANT'S REQUEST FOR ATTORNEY'S FEES. 14 CONCLUSION 25 STATEMENT REGARDING ORAL ARGUMENT 25 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT _________________________ No. 00-2058 _________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. MEGA CONTRACTORS, INC. Defendant-Appellant. ________________________________________________ On Appeal from the United States District Court for the Eastern District of Virginia _______________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE ______________________________________________ STATEMENT OF JURISDICTION The district court had jurisdiction under 28 U.S.C. §§ 451, 1331, 1337, 1343, and 1345. Final judgment was entered on July 25, 2000. Joint Appendix ("JA") 307. Defendant filed a timely notice of appeal on August 10, 2000. JA 308-09. This Court has jurisdiction under 28 U.S.C. § 1291. ISSUE PRESENTED 1. Whether the district court abused its discretion by denying defendant's motion for attorney's fees in this Title VII action. STATEMENT OF THE CASE 1. Course of Proceedings This is an appeal from a final judgment of the United States District Court for the Eastern District of Virginia denying defendant's motion for attorney's fees following a jury verdict in defendant's favor in this action to enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The Commission initiated this lawsuit on September 14, 1999, by filing a complaint alleging that defendant violated Title VII by terminating and failing to rehire Al L. Tucker because of his race. JA 9-12 (Complaint). Defendant filed a motion for summary judgment on May 5, 2000, R. 12 & 13,<1> which the court denied on May 23, 2000. R. 18. The case was tried June 5-6, 2000. At the close of the Commission's case, the court denied defendant's motion for judgment as a matter of law. JA 167. At the close of its case, defendant renewed its motion for judgment as a matter of law and argued, in the alternative, that there was insufficient evidence to support the Commission's request for punitive damages. JA 226. The court once again denied the motion. JA 227. A verdict in favor of defendant was entered on June 6, 2000. JA 291. Defendant filed a motion for attorney's fees on June 20, 2000, R. 44 & 45, which the court denied from the bench on July 25, 2000. JA 306-07. 2. Statement of Facts Mega Contractors manufactures asphalt at several plants, primarily for the Virginia Department of Transportation for highway reconstruction work. JA 183 (Owen Lanier Test. at 171). Mega hired Al Tucker as a plant operator to oversee maintenance of its Skippers, Virginia, asphalt plant in August 1996. JA 56 (Tucker Test. at 44). Tucker was supervised by Paul Lanier, Mega's CEO, and Robert Smith, a plant supervisor at Skippers who trained Tucker to run the facility. JA 59-60 (Tucker Test. at 47-48); JA 154 (Smith Test. at 142). Tucker supervised hourly employees known as "yard men" and "loaders." JA 59 (Tucker Test. at 47). Tucker was designated a salaried employee, and was assured that such employees were not laid off during the winter slow season. JA 59-61 (Tucker Test. at 47-49); R. 15 (Smith Dep. at 43, Exh. 4 to EEOC's Opposition to Summary Judgment) ("[P]lant operators just didn't get laid off, because they're a pretty important part."). Tucker was the first African American plant operator hired by defendant. JA 62 (Tucker Test. at 50). Tucker testified at his deposition that to keep his job, he felt he had to do more than a white plant operator. R. 13 (Tucker Dep. at 112, Exh. 2 to Mega's Motion for Summary Judgment). At trial, Tucker testified that he was the only salaried employee required to punch a time clock. JA 62. Tucker related two instances where he heard racially derogatory comments at the Skippers plant. First, Mega Superintendent Linwood Harlow referred to Tucker as Louis Farrakhan. JA 63 (Tucker Test. at 51); JA 128-29 (Larry Persons Test. at 116-17). Second, Harlow repeatedly referred to an African American yard man, Larry Persons, as "Spider Monkey." JA 63 (Tucker Test. at 51); JA 127-29 (Persons Test. at 115-17). According to Persons, Paul Lanier also referred to him as "Spider Monkey." JA 127. Persons testified that he found the nickname "Spider Monkey" racially insulting. JA 130. Tucker performed his job competently. JA 154 (Robert Smith Test. at 142); R. 15 (Smith Dep. at 36-37, 63, Exh. 4 to EEOC's Opposition to Summary Judgment) ("I think Al done a fine job."). Smith testified that Tucker was not corrected more than other employees. JA 154. Tucker testified that he was late to work approximately five times during the fourteen months he worked for defendant but was never reprimanded for tardiness. JA 65; see also JA 158 (Smith Test. at 146); JA 174 (Harlow Test. at 162). Maintenance problems at a plant such as the Skippers facility were not uncommon. JA 146 (Keller Test. at 134-35); JA 154-55 (Smith Test. at 142-43). Tucker described three maintenance problems that he was required to address during his employment at the Skippers facility. In 1996, early in his tenure as plant manager, a piece of equipment that stores waste from the asphalt-making process -- the "bag house" -- became clogged with material. JA 66. Tucker testified that Smith took responsibility for the problem because Tucker had just started learning to run the plant. Id. During the second spring season Tucker worked, in 1997, the bag house again became clogged. JA 66-67. Tucker testified that he reported the problem immediately to Smith, who consulted Paul Lanier. JA 67. According to Tucker, Paul Lanier and Smith decided to keep the plant running, and the problem was fixed the next day. Id. Smith indicated that the bag house overfilling is not an occasion where the plant operator is at fault. See R. 15 (Smith Dep. at 82, Exh. 4 to EEOC's Opposition to Summary Judgment) ("[T]here's no way for [the plant operator] knowing whether that baghouse is full of material or not when he's running the plant all day long . . ."); see also R. 15 (East Dep. at 30-31, Exh. 8 to EEOC's Opposition to Summary Judgment) ("[N]obody ever said anything to him [Tucker] about it [stopping up the bag house]. I mean, that's an honest mistake, really . . . . [I]t's just something that does happen from time to time."). In October 1997, a piece of equipment connecting the plant's two silos known as the "traverse" overfilled with asphalt. JA 67 (Tucker Test. at 55). Tucker testified that he sent a yard man to try to dig out the asphalt while he conferred with Paul Lanier, who instructed him to keep the plant running and use the other silo. JA 67-68. Tucker and a mechanic attempted to fix the traverse until 11 p.m. or midnight, at which point Paul Lanier gave Tucker permission to leave and resume work on the traverse the following day. JA 69. The next morning, Tucker tried without success to re-start the traverse and loosen the asphalt that had hardened inside it. JA 69-70. While the traverse was broken, one of the two silos could still be operated so the plant did not have to be shut down. JA 71. Tucker testified that Paul Lanier did not reprimand him or accuse him of mishandling the traverse problem at the time of the incident, JA 71-72, nor was he formally disciplined verbally or in writing during his employment with defendant. JA 77, 83. However, Owen Lanier, Mega's president and Paul Lanier's son, testified that he blamed Tucker for the traverse incident. JA 199. A broken traverse that becomes clogged with hardened asphalt material is not an unusual occurrence. Smith testified: "[T]hat's happened at all the plants that's got traverses . . . that's something that could happen at any time. . . . I've had material left in the traverse there for two or three days." R. 15 (Smith Dep. at 111, Exh. 4 to EEOC's Opposition to Summary Judgment). Tucker was laid off on October 27, 1997. JA 72-73. Tucker testified that Paul Lanier told him he was being let go due to lack of work and instructed him to file for unemployment benefits and come back in April to reclaim his job. JA 73-74. The Virginia Employment Commission Employer's Report of Separation and Wage Information dated November 14, 1997, confirms that "lack of work" was defendant's reason for Tucker's termination. JA 281. Lanier did not mention any performance problems to Tucker, and Tucker was given a $600 bonus. JA 74 (Tucker Test. at 62); JA 99-100 (Raymond Test. at 87-88); JA 281 (Virginia Employment Commission Report of Separation). He also received $600 in severance pay. JA 281. Tucker then took a job with Rose Brothers Paving. JA 74. When Tucker returned in April 1998 to be rehired, Paul Lanier told him he was not needed, and did not specify a reason. JA 74. Tucker was replaced by a white plant operator, Alan Haddaway. JA 76 (Tucker Test. at 64); JA 109-10 (Raymond Test. at 97-98); see also JA 273 (August 18, 1998 letter to EEOC). Tucker testified during his deposition that he would have been valuable to Mega during another winter season because welding needed to be done, and he was the only certified welder at Mega. R. 15 (Tucker Dep. at 161, Exh. 6 to EEOC's Opposition to Summary Judgment). There is evidence that white plant operators were treated more favorably than Tucker. William Keller, a white plant operator, was laid off and rehired at the company's Rockville plant shortly before Mega hired Tucker. R. 15 (Keller Dep. at 18, 21, Exh. 3 to EEOC's Opposition to Summary Judgment). Keller was reprimanded but not discharged when a drag chain, a piece of equipment that carries asphalt to a silo, broke at his facility. The plant was shut down for more than a day, and the paving crew was on the road without an adequate supply of asphalt. Id. at 34-35. In addition, Alan Haddaway, the white plant operator hired at Skippers instead of Tucker, was hired as a plant operator at Mega despite having "left an asphalt plant in South Hill completely loaded with stone and asphalt" which "pretty well totaled" the plant. R. 15 (Dewey East Dep. at 19, Exh. 8 to EEOC's Opposition to Summary Judgment). Haddaway was not eligible for rehire at the company where this occurred. Id. Haddaway testified that five plant break-downs per year was typical for an asphalt plant because "[w]e run the plant pretty hard." R. 15 (Haddaway Dep. at 11, 29, Exh. 9 to EEOC's Opposition to Summary Judgment). For example, on one occasion the plant was inoperable because of a bearing failure. Id. at 28. Haddaway was still employed by Mega at the time of trial. JA 159 (Haddaway Test. at 147). Tucker filed a charge of discrimination with the Commission on July 15, 1998, R. 15 (Exh. 6 to EEOC's Opposition to Summary Judgment). C.J. Randolph, defendant's general manager and safety director, responded to the Commission's request for information under Owen Lanier's supervision and with the assistance of Mega's counsel. JA 96-97 (Raymond Test. at 84-85). Defendant requested an extension of time to give the Commission a "full, complete, and accurate" statement of the circumstances surrounding Tucker's separation from Mega. JA 106 (Randolph Test. at 94). Randolph, Owen Lanier, and Mega's counsel prepared a series of letters during the Commission's investigation setting forth the company's position based upon their own knowledge of Tucker's discharge and company records. JA 100-01 (Raymond Test. at 88-89). Paul Lanier was not contacted for information surrounding the circumstances of Tucker's discharge. JA 107 (Raymond Test. at 95). Randolph testified that he did not contact Paul Lanier in part because Paul and Owen Lanier were in "constant contact." R. 15 (Randolph Dep. at 24-25, Exh. 2 to EEOC's Opposition to Summary Judgment); see also JA 109 (Randolph Test. at 97). In a letter dated August 18, 1998, Mega states that Tucker was terminated "because the Skipper's [sic] Asphalt Plant had completed work for the season and was shut down for the winter." JA 272. Mega asserted that Tucker was not rehired in the spring because he was employed by Rose Brothers Paving, a competitor of Mega's.<2> JA 273. Mega's position statements dated October 14, 1998, and December 21, 1998 restate these reasons. JA 276-77; JA 278-79. In April 2000, nineteen months after their first position statement and two months before trial, Mega asserted for the first time that Tucker was laid off and not rehired due to unsatisfactory job performance. JA 285-86 (Defendant's Supplemental Responses to Plaintiff's First Set of Interrogatories at 4-5). Mega stated that it had not learned of the performance reason until Paul Lanier was deposed on March 23, 2000. Id. at 5. However, Paul Lanier is listed as having supplied answers for the Commission's interrogatories submitted two months earlier in January 2000. R. 15 (Exh. 11 to EEOC's Opposition to Summary Judgment) at 2. Mega officials gave conflicting testimony on when they learned that performance was the reason for Tucker's termination. Owen Lanier testified that, notwithstanding the company's contention that Paul Lanier made the decision to discharge Tucker, he did not contact Paul Lanier to discuss Tucker's discharge during the Commission's investigation in 1998, JA 197, and that in general he did not discuss personnel matters with his father. JA 193. However, Owen Lanier testified that Paul Lanier told him that Tucker had taken a job with Rose Brothers. JA 196. Paul Lanier disagreed with his son; he testified that he discussed Tucker's performance problems with Owen Lanier and told him he was going to terminate Tucker because of them. JA 206-07. 3. Decisions Below a. The district court made three oral rulings before the jury verdict rejecting Mega's arguments that there was insufficient evidence to support the Commission's claim of discrimination. No transcript of the first ruling, denying Mega's motion for summary judgment on May 23, 2000, appears in the record. The record does, however, contain the court's oral rulings denying Mega's motions for judgment as a matter of law during the trial. In denying defendant's motion for judgment as a matter of law at the close of the Commission's evidence, the court stated to defendant's counsel: "These cases are fact specific, and particularly for over a period of a year while your colleague, Mr. Tower, was writing letters and all hearts were pure, you never even mentioned bad performance. It wasn't until as an afterthought you came up with bad performance. So this is a classical pretextual case if I ever heard one." JA 167. In denying defendant's renewed motion for judgment as a matter of law at the close of all the evidence as well as defendant's request in the alternative to omit a punitive damages instruction, the court stated that "there is sufficient evidence, if accepted by the jury, to consider each of those issues [liability and punitive damages]." JA 227. b. On July 25, 2000, following oral argument, the district court denied defendant's motion for attorney's fees from the bench. JA 304-05. The court found that Mega did not meet the standard of Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), for an award of fees to a prevailing Title VII defendant because the Commission's action was not "frivolous, unreasonable, or without foundation." JA 303. The court stated that "even though the jury ultimately found in favor of the defendant, as the Court recalls the evidence there was sufficient evidence for a reasonable fact finder to have rejected the defendant's nondiscriminatory explanation for its decisions with regard to Mr. Tucker, and for the jury to have found in favor of the plaintiff. . . . Evidence of disparate treatment was presented to the jury along with the numerous shifting reasons for the defendant's actions with regard to Mr. Tucker." JA 303-04. The court stated that although defendant was the prevailing party, it had not "bridged the gap that you have to to have entitlement to attorney's fees." JA 304. STATEMENT OF STANDARD OF REVIEW The decision whether to award attorney's fees is reviewed for abuse of discretion. See, e.g., Hitachi Credit Am. Corp. v. Signet Bank, 166 F.3d 614, 631 (4th Cir. 1999). See also Arnold v. Burger King Corp., 719 F.2d 63, 66 (4th Cir. 1983), cert. denied, 469 U.S. 826 (1984) (An "assessment of frivolousness and attorneys' fees are best left to the sound discretion of the trial court after a thorough evaluation of the record and appropriate factfinding."). A district court's decision on whether to award attorney's fees to a prevailing defendant is given substantial deference because "[a] district court 'is in the best position to review the factual circumstances and render an informed judgment as [it] is intimately involved with the case, the litigants, and the attorneys on a daily basis.'" Blue v. U.S. Dep't of the Army, 914 F.2d 525, 538 (4th Cir. 1990) (quoting Thomas v. Capital Sec. Servs., Inc., 836 F.2d 866, 873 (5th Cir. 1988)(en banc)). SUMMARY OF ARGUMENT The district court correctly concluded that attorney's fees under § 706(k) should not be awarded to defendant. Under Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978), attorney's fees may be awarded to a Title VII defendant only if the plaintiff's case was frivolous, unreasonable, or without foundation. As the district court recognized, although the Commission did not prevail on the merits, it presented a credible case of discrimination that would have supported a verdict in its favor. Under these circumstances, Mega clearly was not entitled to an award of attorney's fees. Mega's primary argument on appeal is that, once the company finally asserted that Tucker was fired for poor performance, the Commission should have accepted this explanation notwithstanding the fact that the company had repeatedly asserted a different explanation in the two and a half years since Tucker's discharge. As the district court recognized, however, neither the Commission nor the jury was required to accept Mega's new explanation as true. In light of the company's inconsistent explanations and the other evidence supporting the Commission's claims, a jury could have found that Mega's explanation was merely a pretext for race discrimination. Although the jury did not reach that conclusion, the Commission's case was not "frivolous, unreasonable, or without foundation." ARGUMENT THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DENYING DEFENDANT'S REQUEST FOR ATTORNEY'S FEES. A defendant who prevails in a Title VII action is entitled to attorney's fees only if the underlying action was "frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978). The district court properly denied Mega's request for attorney's fees in this case because, although the Commission did not prevail in front of the jury, this action was well founded in the law and the facts. Defendant's insistence that it is entitled to attorney's fees ignores the evidence in the record, the district court's findings, and the well-established standards set forth by the Supreme Court and the Fourth Circuit for awarding fees to prevailing defendants in Title VII actions. Mega argues, pointing to selected pieces of evidence in the record, that it should have been apparent to the Commission that it would not prevail before the jury. However, in making this argument Mega engages in the kind of post hoc reasoning the Supreme Court cautioned against in Christiansburg. As the Court noted, such "hindsight logic" might "discourage all but the most airtight claims, for seldom can a prospective plaintiff be sure of ultimate success." Id. at 422. Because of the chilling effect of such fee awards on civil rights plaintiffs, district courts should award such fees "sparingly." See Glymph v. Spartanburg Gen. Hosp., 783 F.2d 476, 479 (4th Cir. 1986); Arnold, 719 F.2d at 65. Here, the district court, which was thoroughly familiar with the facts and law involved in the case, having considered and denied three separate motions by the defendant for judgment as a matter of law, correctly found that the Commission's case was not frivolous and consequently did not meet the Christiansburg standard. The very fact that the Commission survived three motions on the merits all but forecloses a finding that the case was groundless or frivolous. See, e.g., Glymph, 783 F.2d at 479 (in reversing district court's award of fees to prevailing defendant in Title VII action, Court stated that district court's finding that case was frivolous was undercut by the court's denial of summary judgment and denial of defendant's motion for involuntary dismissal after plaintiff's evidence); EEOC v. Northwest Structural Components, Inc., 897 F. Supp. 249, 252 (M.D.N.C. 1995) (only in rare circumstance is a case which survives a motion for a directed verdict found to be frivolous). That the Commission did not ultimately convince the jury that race was the reason for Tucker's discharge does not trigger an award of attorney's fees for defendant. On the contrary, this is just the type of 20-20 hindsight the Supreme Court cautioned against in Christiansburg, 434 U.S. at 422. The district court, intimately familiar with the case, repeatedly stated that he believed the case could have gone either way. Not only did the district court decline to find that the case was frivolous; on the contrary, the court stated on two occasions that the case could have been decided in the Commission's favor. See JA 301 ("I don't hesitate to state right now that had the jury returned a verdict for the EEOC, I would have entered judgment on that verdict and would have given the victim equitable relief on top of it."); JA 303 (". . . there was sufficient evidence . . . for the jury to have found in favor of the plaintiff").<3> The district court's view of the evidence is entitled to great deference. In fact, we are aware of no case where an appellate court reversed a district court's decision not to award fees to a defendant on the basis that the case was not frivolous. See Arnold, 719 F.2d at 65 ("The fixing of attorneys' fees is peculiarly within the province of the trial judge, who is on the scene and able to assess the oftentimes minute considerations which weigh in the initiation of a legal action."). In this case, the record supports the district court's view that the Commission presented evidence that could have supported a finding of discrimination. The Commission produced evidence of a prima facie case of race discrimination plus evidence that defendant's shifting reasons for terminating Tucker were a pretext for discrimination. As the district court pointed out, the Commission proffered evidence of disparate treatment "along with the numerous shifting reasons for the defendant's actions with regard to Mr. Tucker." JA 304. In addition, the Commission had evidence that Tucker was the first and only African American plant operator at Mega, that white plant operators were treated more favorably than Tucker, and that Tucker was replaced with a white plant operator. The Commission offered testimony that Tucker performed his job competently, had not been disciplined for poor performance, and had received a bonus and severance pay after being laid off. Witnesses also testified that racist remarks were tolerated at the Skippers plant, including nicknaming an African American employee a monkey. In the face of this evidence, Mega insists that the Commission should be sanctioned because, in continuing to litigate this case after Mega finally asserted that Tucker was fired for poor performance, the Commission "willfully ignored exonerating evidence." See Def. Br. at 13. However, Mega overlooks the fact that neither the Commission nor the jury was required to accept Mega's belated explanation as true. The very fact that this explanation was first offered nearly three years after Tucker was fired, and after Mega had repeatedly offered a different explanation for Tucker's discharge, could support a finding that it was pretextual. See EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir. 1994) (discrepancies in justifications for termination allowed jury to infer explanations were pretextual and developed over time to counter evidence suggesting discrimination). See also Jordan v. Shaw Indus., Inc., 1996 WL 1061687, *11 (M.D.N.C.), aff'd 131 F.3d 134 (4th Cir. 1997) (citing Ethan Allen for same principle). Mega acknowledges that "changing explanations can be evidence of pretextual reasons for an employer's actions," but insists that they were not in this case because "the uncontroverted facts" provide an innocent explanation for Mega's vacillation. Def. Br. at 24 n. 12. Mega's explanation was so implausible on its face that the jury could have discredited it without contrary evidence. Mega says that no one at Mega thought to ask Paul Lanier why he fired Tucker notwithstanding the fact that his son, Owen Lanier, and other Mega officials were purporting to provide the EEOC with a "full, complete, and accurate" statement of the circumstances surrounding Tucker's discharge. If Paul Lanier was the decisionmaker, as Mega asserts, it is incredible on its face that Owen Lanier and other company officials would have provided written statements to the EEOC asserting the reasons for his discharge without asking Paul Lanier. In any event, there was evidence contradicting Mega's explanation for its failure to assert poor performance as an explanation for Tucker's discharge before the eve of trial. Paul Lanier and Owen Lanier were in constant contact with each other. JA 109 (Raymond Test. at 97). Yet Owen Lanier testified that he did not talk to Paul Lanier about Tucker's performance and that they did not routinely discuss personnel matters. JA 193. Owen Lanier was certainly aware of the traverse maintenance problem in October 1997, JA 199, which was allegedly the "decisive" problem with Tucker. Owen Lanier also testified that his father told him that Tucker had taken a job with Rose Brothers Paving. JA 196. It defies logic that Tucker was laid off for performance problems, and the two spoke constantly and discussed Tucker's job at Rose Brothers Paving, but not his performance problems at Mega. Most significantly, however, Paul Lanier himself testified, in direct contradiction to Owen Lanier, that he told Owen Lanier that he was firing Tucker for performance problems. JA 206-07. All of these inconsistencies undermine defendant's assertion that performance was the true reason Tucker was fired. When coupled with the Commission's prima facie case of race discrimination and other evidence of disparate treatment, a jury could believe that this reason was offered at the last minute and masked race as the true reason for Tucker's discharge and non-rehire. See Reeves v. Sanderson Plumbing Prod., Inc., 120 S. Ct. 2097, 2108 (2000) ("Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive."); Blue, 914 F.2d at 544, quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981) ("Title VII plaintiffs must often prove their cases by circumstantial evidence, or 'indirectly by showing that the employer's proffered explanation is unworthy of credence.'"). Defendant also contends that because Tucker did not deny fault for the traverse incident during his deposition, the Commission should have realized its case was groundless and withdrawn. Def. Br. at 17-19. On the contrary, the mere fact that Tucker was at fault for the traverse incident does not compel the conclusion that this was the reason for his discharge. There is evidence in the record that could support a contrary finding. First, there is evidence that maintenance problems of the type Tucker contended with were not uncommon and were tolerated, rather than punished with a discharge. See R. 15 (Exh. 4, Smith Dep. at 111). Second, white plant operators who experienced similar maintenance problems suffered no adverse employment actions. For example, William Keller testified that he was merely reprimanded for a maintenance problem that caused the plant to be closed more than a day. R. 15 (Exh. 3, Keller Dep. at 35). Defendant calls the broken traverse incident during Tucker's tenure the "decisive" performance problem that led to his lay off. Def. Br. at 7, 19. However, Alan Haddaway was hired at Mega despite having "left an asphalt plant in South Hill completely loaded with stone and asphalt" which "pretty well totaled" the plant. R. 15 (Exh. 8, East Dep. at 19). Haddaway was not eligible for rehire at the company where this occurred. Id. Mega characterizes Tucker's testimony that he "figured" that Paul Lanier laid him off as a reprimand for the traverse incident as a "stunning admission," which would "conclusively establish Mega's defense." Def. Br. at 23. On the contrary, this statement is fully consistent with a finding of discrimination. When asked if Lanier had reprimanded him for the traverse incident, Tucker said: "Well, not right away. But I figured he did later on, and laid me off." JA 72. Even if this statement reflects a belief on Tucker's part that the traverse incident precipitated his discharge, this does not mean Tucker believed his race played no part in the decision. Because there is evidence in the record that Tucker generally performed his duties competently, and that similar mistakes by white plant operators were left unpunished, this testimony is fully consistent with a finding of discrimination and certainly does not "conclusively establish Mega's defense," as the company argues. Similarly, Mega argues that the Commission should have known this case was meritless because Tucker stated at trial that he had no evidence that race was the true reason Mega decided not rehire him. Def. Br. at 19-21. Mega takes this statement out of context and ignores the fact that Tucker filed a charge with the Commission asserting his belief that he was terminated because of his race. In context, Tucker's statements reflect at most a reluctance to believe that anyone would make an employment decision based on race, not a conviction that his claim has no merit. At trial, Tucker pointed to the fact that Mega hired a white plant operator instead of re-hiring him. JA 76. When asked at his deposition whether the fact that Paul Lanier thought he had performance problems and Tucker held another job were legitimate non-race-based reasons for his discharge and non-rehire, Tucker replied, "I don't think so," and pointed out that he was the only certified welder at Mega, that welding had to be done during the winter season, and "I was more important in the wintertime." R. 15 (Exh. 6, Tucker Dep. at 61). Tucker also testified that he felt like he had to do more than a white plant operator to keep his job. R. 13 (Exh. 2, Tucker Dep. at 112). For example, he testified that he was the only salaried employee required to punch a time clock. JA 62. When asked if he thought he was fired due to his race, Tucker testified: "I try not to think that way because that would be thinking in a prejudice way, and I try not to be a prejudice person." R. 13 (Exh. 2, Tucker Dep. at 112-13). While the latter testimony may establish Tucker's reluctance to believe he was a victim of discrimination, his statements together in no way constitute an admission that race was not the reason for his discharge. Finally, defendant argues that, because Paul Lanier made the decision to hire and fire Tucker, defendant is entitled to the "same actor inference" that discrimination did not occur. See Def. Br. at 22. First, the record is inconclusive regarding who made the decision to lay off and not to rehire Tucker. Although Paul Lanier told Tucker he was laid off, JA 73, the jury could have concluded that the decisions to lay him off and not rehire him were made by Raymond and Owen Lanier in Mega's home office based on the fact that they assert that they gave the Commission the company's explanation for the decisions without consulting Paul Lanier. In any event, even if Paul Lanier made the decision both to hire and fire Tucker, the same actor presumption is not so strong that it could serve as a basis for awarding attorney's fees in the face of the other evidence supporting the Commission's discrimination claim. The district court, which was intimately familiar with the factual and legal basis for this action, correctly decided that the Commission's claim was not "frivolous, unreasonable, or without foundation."<4> Mega has provided no reason for this Court to second-guess the district court. CONCLUSION For the foregoing reasons, the judgment of the district court should be affirmed. STATEMENT REGARDING ORAL ARGUMENT Because this case involves the application of well-settled legal principles, the Commission submits that oral argument is unnecessary and would not be of assistance to the Court. Respectfully submitted, C. GREGORY STEWART 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 December 4, 2000CERTIFICATE OF COMPLIANCE Pursuant to FRAP 32(a)(7)(C), I certify that this brief has been prepared in monospaced (nonproportionally spaced) typeface using Corel Word Perfect 8, Courier New 12-point font, and the textual portion contains 5615 words. I understand that a material misrepresentation in completing this certificate can result in the Court's striking the brief and imposing sanctions. If the Court so directs, I will provide an electronic version of the brief and/or a copy of the word or line print-out. _________________________ Julie L. GantzCERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief have been mailed first class, postage prepaid, to: Steven D. Brown King F. Tower Aaron S. Walters WILLIAMS, MULLEN, CLARK & DOBBINS, P.C. 2 James Center 1021 East Cary Street P.O. Box 1320 Richmond, VA 23218 ____________________________ Julie L. Gantz, Esq. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 December 4, 2000 1 Citations to the record proper are abbreviated "R." and refer to the district court docket sheet number. 2 Mega maintains that it has a practice of not hiring away workers employed by competitors. JA 194 (Owen Lanier Test. at 182); JA 277 (Oct. 14, 1998 letter to EEOC). 3 In addition, after the jury had been deliberating several hours, the court urged the parties to settle because "[i]t has been my experience in almost 50 years of being a judge and lawyer that where a jury has deliberated roughly two and a half hours and hasn't reached a verdict, that both sides are in trouble and the best thing to solve that is to get together and settle it during the course of the evening where you haven't been smart enough to do it up until now." JA 265. 4 Contrary to defendant's assertion, this case is nothing like Blue, 914 F.2d at 535, where this Court reviewed a district court's award of sanctions based on a finding that plaintiffs brought the action in bad faith, that there was no evidence of racial discrimination, and that no reasonable attorney could have hoped to prevail in the case. Id. at 537, 539-40. Nor is EEOC v. E.J. Sacco, Inc., 102 F. Supp.2d 413 (E.D. Mich. 2000), at all relevant. Those decisions are based on their unique facts and say nothing about this case.