Nos. 11-6426 & 11-6427 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ____________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant/Cross-Appellee, v. MEMPHIS HEALTH CENTER, INC., Defendant-Appellee/Cross-Appellant. ____________________________________________ On Appeal From the United States District Court for the Western District of Tennessee, Case No. 08-2642 ____________________________________________ OPENING BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS PLAINTIFF-APPELLANT/CROSS-APPELLEE ____________________________________________ P. DAVID LOPEZ EQUAL EMPLOYMENT General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 131 M St. NE, 5th Fl. Acting Associate General Counsel Washington, D.C. 20507 (202) 663-4724 LORRAINE C. DAVIS Annenoel.Occhialino@EEOC.gov Assistant General Counsel ANNE NOEL OCCHIALINO Attorney TABLE OF CONTENTS Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii Statement in Support of Oral Argument. . . . . . . . . . . . . . . . . . . . . . 1 Jurisdictional Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Statement of the Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Statement of the Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 Summary of Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 The district court erred in holding that the EAJA's "substantially justified" standard applies to the ADEA and in awarding MHC 50% of its attorney's fees for the Commission's retaliation claim. . . . . . . . . . . . . . . 20 A. EAJA's "substantially justified" standard of subsection (d) does not apply to the ADEA. . . . . . . . . . . . . . . . . . . . . . . . . . . 21 1. The ADEA specifically restricts attorney's fees awards to prevailing plaintiffs. . . . . . . . . . . . . . . . . . . . . . . . . 22 2. By its own terms, subsection (d) of the EAJA does not apply to the ADEA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 3. The EAJA's legislative history confirms that Congress intended to except civil rights statutes with their own fee-shifting schemes from subsection (d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 4. Applying the EAJA's "substantially justified" standard to ADEA enforcement actions would lead to anomalous results. . . . . . . . . . .31 5. The circuit court decisions applying the EAJA's "substantially justified" standard to the ADEA were wrongly reasoned and decided. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34 B. The Commission's position was "substantially justified.". . . . . . . . 37 1. The district court erred by conducting a claim-by-claim analysis instead of evaluating the EEOC's "position" as a whole. . . . . . . . . 38 2. The retaliation claim was substantially justified. . . . . . . . . . . 43 C. The court abused its discretion in awarding MHC 50% of its fees. . . . .51 Certificate of Compliance Certificate of Services Designation of Relevant District Court Documents TABLE OF AUTHORITIES FEDERAL CASES Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240 (1975). . . . 22, 27 Black v. Lojac Enter., Inc., No. 96-5654, 1997 WL 377051(6th Cir. July 2, 1997). . . . . . . . . . . . . . . . 53, 54 Blanchard v. Bergeron, 489 U.S. 87 (1989). . . . . . . . . . . . . . . . . . 30 Bryant v. Comm'r of Soc. Sec., 578 F.3d 443 (6th Cir. 2009). . . . . . . . . . 20 Cicero v. Borg-Warner Auto., Inc., 280 F.3d 579 (6th Cir. 2002). . . . . . 12, 13 Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978). . . . . . . . 23, 32, 33 DeBoer v. Musashi Auto Parts, Inc., 124 Fed. Appx. 387 (6th Cir. 2005). . . . 50 Delta Eng'g v. United States, 41 F.3d 259 (6th Cir. 1994). . . . . . . . . . 37 EEOC v. Clay Printing Co., 13 F.3d 813 (4th Cir. 1994). . . . . . . . 14, 34, 35 EEOC v. Consol. Serv. Sys., 30 F.3d 58 (7th Cir. 1994). . . . . . . . . . . . 33 EEOC v. Kimbrough Inv. Co., 703 F.2d 98 (5th Cir. 1983). . . . . . . . . . . . 31 EEOC v. Hendrix College, 53 F.3d 209 (8th Cir. 1995). . . . . . . . . . . . . . 26 EEOC v. O & G Spring & Wire Forms Specialty Co., 38 F.3d 872 (7th Cir. 1994). . . . . . . . . . . . . . . . . . . . passim Fox v. Vice, 131 S. Ct. 2205 (2011). . . . . . . . . . . . 19, 51, 52, 53, 54, 55 Grosjean v. First Energy Corp., 349 F.3d 332 (6th Cir. 2003). . . . . . . . 12, 13 Hagelthorn v. Kennecott Corp., 710 F.2d 76 (2d Cir. 1983). . . . . . . . . . . .22 Hensley v. Eckerhart, 461 U.S. 424 (1983). . . . . . . . . . . . . . . . . . . .52 Howard v. Barnhart, 376 F.3d 551 (6th Cir. 2004). . . . . . . . . . . . . . 38 Hovanas v. Am. Eagle Airlines, Inc., No. 09-209, 2010 WL 1993726 (N.D. Tex. May 18, 2010). . . . . . . . . . . . . . 45, 46 INS v. Jean, 496 U.S. 154 (1990). . . . . . . . . . . . . . . . . . . . . . 39, 40 Lorillard v. Pons, 434 U.S. 575 (1978). . . . . . . . . . . . . . . . . . 22, 23 Garner v. Cuyahota Cnty. Juvenile Court, 554 F.3d 624 (6th Cir. 2009). . . . . .47 Manzer v. Diamond Shamrock Chemicals, 29 F.3d 1078 (6th Cir. 1994). . . . . . 49 Mickey v. Zeidler Tool & Die Co., 516 F.3d 516 (6th Cir. 2008). . . . . . . . 48 McKennon v. Nashville Banner Publ'g, 513 U.S. 352 (1995). . . . . . . . 31, 33, 34 MacDonald v. UPS, 430 Fed. Appx. 453 (6th Cir. 2011). . . . . . . . . . . . . . 46 Morgan v. Union Metal Mfg., 757 F.2d 792 (6th Cir. 1985). . . . . . . . . . 24, 26 Pierce v. Underwood, 487 U.S. 552 (1988). . . . . . . . . . . . . . . . . . 20, 37 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000). . . . . . . . 44 Richardson v. Alaska Airlines, Inc., 750 F.2d 763 (9th Cir. 1984). . . . . . . .24 Roanoke River Basin Ass'n, 991 F.3d 132 (4th Cir. 1993). . . . . . . . . . . . 46 Scarborough v. Principi, 541 U.S. 401 (2004). . . . . . . . . . . . . . 24, 37, 38 United States v. Heavrin, 330 F.3d 723 (6th Cir. 2003). . . . . . . 26, 39, 40, 41 United States v. $515,060.42 in U.S. Currency, 152 F.3d 491 (6th Cir. 1998). . 38 TABLE OF AUTHORITIES (con't) FEDERAL STATUTES 28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. § 1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1343. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1335. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 29 U.S.C. § 201. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 29 U.S.C. § 216(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 29 U.S.C. § 621. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 22 42 U.S.C. § 1988. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 42 U.S.C. § 2000e-5(k). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 42 U.S.C. § 2412(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 42 U.S.C. § 2412(d)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . .passim 42 U.S.C. § 2412(d)(2)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . .26 FEDERAL RULES Fed. R. App. P. 29. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 LEGISLATIVE SOURCES Award of Attorneys' Fees Against the Federal Government: Hearings Before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the House Committee on the Judiciary, 96th Cong. 24 (1980) (statement of Senator DeConcini). . . . . . . . . . . . . . . . . . . . . . . . 29 125 Cong. Rec. 21435 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . 28 TABLE OF AUTHORITIES (con't) 125 Cong. Rec. 21445 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . 29 H.R. Rep. No. 96-1005, 96th Cong., 2d Sess. 18 (1980). . . . . . . . . . . .30, 38 H.R. Rep. No. 96-1418, 96th Cong., 2d Sess. 18 (1980), reprinted in 1980 U.S.C.A.A.N. 4984. . . . . . . . . . . . . . . . . . . . . . . . . . . . .30 S.R. Rep. No. 96-253, 96th Cong., 1st Sess. 20 (1979). . . . . . . . . . . . . .30 MISCELLANEOUS 2B N. Singer, Sutherland's Statutory Construction (7th ed. 2008). . . . . . . . 28 Statement in Support of Oral Argument The EEOC requests oral argument in this case because it raises a question of first impression in this Circuit: whether the "substantially justified" standard of the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), applies to the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 626(b), thereby allowing prevailing defendants to obtain attorney's fees awards against the EEOC. Only two other circuits have addressed this issue. The EEOC also requests oral argument because, depending upon this Court's ruling on the applicability of the EAJA to the ADEA, this case may raise questions about the proper interpretation and application of the Supreme Court's opinion in Fox v. Vice, 131 S. Ct. 2205 (2011), which held that where a plaintiff brings both frivolous and non-frivolous claims, 42 U.S.C. § 1988 permits a court to award attorney's fees to a prevailing defendant for only those fees that the defendant would not have incurred "but for" the frivolous claims. Jurisdictional Statement The EEOC brought this enforcement action under 29 U.S.C. §§ 621, et seq. The district court had jurisdiction pursuant to 28 U.S.C. §§1331, 1343, and 1335. On September 23, 2011, the court issued its final order adopting the magistrate's report and recommendation, which awarded attorney's fees against the EEOC. R.104.<1> EEOC filed a timely notice of appeal on November 17, 2011, and MHC timely filed a cross-appeal on November 21, 2011. R.105, R.106; see Fed. R. App. P. 4(a)(1)(B). This Court has jurisdiction pursuant to 28 U.S.C. §1291. Statement of the Issues 1. Did the court err in holding that subsection (d) of the EAJA-which makes an attorney's fee award mandatory when the government's position lacks substantial justification, "except as otherwise specifically provided by statute"- applies to the ADEA, which states that fees may be awarded to prevailing plaintiffs? 2. If the EAJA's "substantially justified" standard does apply to the ADEA, did the court err by conducting a claim-by-claim analysis and by concluding that the EEOC's retaliation claim lacked substantial justification? 3. Assuming that the EAJA's "substantially justified" standard applies, the EAJA allows for a claim-by-claim analysis, and the retaliation claim lacked substantial justification, did the court abuse its discretion by arbitrarily awarding the defendant 50% of its attorney's fees, even though the defendant failed to establish that 50% of its fees would not have been incurred "but for" the retaliation claim? Statement of the Case The EEOC filed this enforcement action alleging that Memphis Health Center, Inc. (MHC) discriminated against charging party Rita Smith based on her age and retaliated against her for complaining about age discrimination when it failed to select her for a dental assistant position. R.1 (complaint). MHC moved for summary judgment, which the district court granted. R.37 (motion); R.76 (opinion). The EEOC did not appeal that ruling. MHC then moved for attorney's fees under the EAJA, arguing that it was entitled to its fees because the EEOC's position was not "substantially justified." The magistrate judge issued a report recommending a finding that the EEOC's discrimination claim was substantially justified but that the retaliation claim was not, and the magistrate recommended awarding MHC 50% of its attorney's fees because MHC's billing records failed to distinguish between the two claims. R.94 (report). The EEOC timely filed objections to the report. R.95 (objections). MHC did not file any objections. On September 23, 2011, the district court issued a one-sentence order adopting the magistrate's report and recommendation. R.104 (order). The EEOC timely appealed, and MHC cross-appealed. R.105 (notice), R.106 (notice). Statement of Facts MHC is a nonprofit community health center providing medical services to low-income and uninsured patients at several facilities in and around Memphis, Tennessee. R.76 (opinion, p.2). MHC's main facility is in downtown Memphis ("Main Site"); another facility is in Rossville, TN ("Rossville Site"). Id. Rita Smith, who was born in January 1952, began working for MHC as a dental assistant in July 1982. R.39-1 (Smith Depo. 9, 214). At the time, she already had ten years of experience as a dental assistant. R.37-5 (8/15/07 grievance, p.III). In 2007, she was working primarily at the Rossville Site, although she spent some time every week at the Main Site. Her supervisor, Dental Director Dr. Branch, gave Smith "good evaluations." R.39-2 (Branch Depo. 45). Specifically, in both 2006 and 2007, Smith earned "4/Excellent Performance" on nine categories with "5/Outstanding Performance" for the tenth category ("tasks & responsibilities"). R.39-3, 39-4 (evaluations). Dr. Branch also recognized that Smith "gets along well with others," was "very dependable," "very competent," a "team player" and "takes initiative." Id. Smith's layoff and complaints Sometime during the summer of 2007, MHC asked Smith to train an employee named Tara Waller, who was thirty-two or thirty-three years old, as a dental assistant. R.39-1 (Waller Depo. 219, 222). Meanwhile, due to insufficient utilization of dental services, MHC decided it no longer needed a full-time dentist at the Rossville Site and that a dentist from the Main Site could visit Rossville as needed. R.37-4 (Jackson Depo. 64-65). On August 15, 2007, MHC informed Smith it was also eliminating her position and laying her off. R.37-4, Ex.1 (letter). Smith was the only employee laid off in the downsizing. R.39-6 (Waller Depo. 43). Another dental assistant who had been recently hired, Opal Woodfork (age 59), was assigned to go to the Rossville Site from the Main Site on the two days a week that a dentist went to Rossville. R.37-5 (8/15/07 grievance, p.V); R.37-9 (Porter Aff. ¶ 5). On August 15, 2007, Smith filed an internal grievance challenging her termination. R.37-5 (grievance). She stated that she had been fired "after 25 years of competent service" and that some consideration should have been given to her even though "now seniority [is] not suppose[d] to matter." Id. at p.I. She asked to retain her position or be reassigned, as other longtime employees had been when their jobs were eliminated. Id. Smith further asserted that Dr. Branch had engaged in "favoritism" towards Woodfork, who was 59 years old. Id. at p.IV. The grievance was denied, and on September 14, 2007, Smith appealed to MHC's Board of Governors expressing her "concern" that she was "let go after 25 years of service" while dental assistants with "substantially less time than myself (5 mo. to 1 1/2 years)" were retained. R.37-5 (9/4/07 grievance p.2). She also noted that Dr. Branch had given her a good evaluation and had even requested a salary increase for Smith because MHC had hired several dental assistants and given them "salaries equivalent to [hers]" even though they had "much less experience." Id. Towards the end of her six-page grievance, Smith stated, "I'm convinced my position was eliminated because I filed [a] worker's comp claim." Id. at 5. Smith also repeated that it was a "sad commentary" that after a "quarter . . . century," MHC "would replace me with individuals with 1 1/2 yr to 5 mo employment." Id. Smith concluded her grievance by stating, "at my age not only is this a hardship on me, I have injuries that I will always have." Id. at 6. When asked if this sentence constituted a claim of age discrimination, Smith answered "at my age, yes . . . . I feel that's what they done to me, because I was old." R.39-1 (Depo. 101). A few weeks after being laid off, Smith accepted a lower-paying position at MHC as a call center operator.<2> R.39-8 (Jackson Depo. 106). She reported to MHC's Business Office Director, William McInnis, who called her a "very versatile and good" employee. R.39-9 (Aff. ¶ 6). Smith applies for a dental assistant position In January 2008, a dental assistant vacancy arose at the Main Site. Id. ¶ 7. According to McInnis, MHC's policy was to first post open positions for internal applicants only. Id. ¶ 3. An interested employee would then fill out a form called "Application for Promotion or Transfer." Id. If a qualified internal applicant applied, that applicant was awarded the position without it ever being advertised to outside candidates; internal applicants are "usually reassigned into open positions without having to go through the interview process." Id. MHC's CEO, William Jackson, also testified that MHC's policy was to consider internal applicants before posting a job externally, although he stated that internal applicants still had to interview for positions. R.39-8 (Jackson Depo. 102). Five other employees also testified that they understood MHC's policy to be that positions were posted externally only if no qualified internal applicant applied.<3> McInnis encouraged Smith to apply, and she did. Id. Smith was the only internal applicant. R.39-9 (Aff. ¶ 7). Given her thirty-five years as a dental assistant, including twenty-five years at MHC, she was obviously qualified. See id. Although the position was not posted externally, MHC received two external applications. Debra Toliver ("Toliver"), who was 49 years old, applied for the job after an MHC employee told her about the opening. R.37-6 (Tolliver Depo. 7, 14). A second external applicant also applied; that applicant's age is not in the record, and it is unclear how she learned of the job. R.37-9 (Porter Aff. ¶ 6). McInnis told Jackson that, in accordance with MHC's policy, Smith should get the position. R.39-9 (Aff. ¶ 7); see also R.39-12 (King Depo. 39) ("if you fit the qualifications [for an open position], they will hire in-house"). Jackson responded, "she can apply for the position like anybody else." R.39-9 (Aff. ¶ 7). According to McInnis, however, Jackson had on five occasions reassigned younger employees (ranging in age from early 20s up to 40) to open positions without requiring them to even go through an interview process. Id. ¶ 8. Jackson even reassigned employee Sandra King to a position reporting to McInnis without allowing him to post the position or interview anyone. Id. Jackson also failed to give McInnis any reason for allowing outside applicants to be considered when MHC already had a qualified internal applicant and a policy of hiring internally before considering outside applicants. Id. at ¶ 7. Twice during the week of February 4, 2008, the HR Director, Renee Williams, told Smith she would be interviewed that day but then called back to cancel. R.39-1 (Smith Depo. 228). On Friday, Williams again called Smith and told her she would be interviewed that day. Id. Because it was "dress down" day, and because Smith did not have any prior notice of the interview, she was wearing jeans, sneakers, and an MHC T-shirt. Id. at 229. Had she been informed of the interview, she would have "dresse[ed] up" and "look[ed] [her] best." Id. at 230. Smith was interviewed by Dr. Oscar Webb, Dr. Sharikia Harris (who had worked with Smith at the Rossville and Main Sites for a few weeks), and Williams. Id. at 229. None of Smith's interviewers were provided with a copy of her personnel file, which contained her very positive evaluations from her last two years as a dental assistant. R.39-10 (Webb Depo. 37, 59, 61); R.39-16 (Harris Depo. 22, 52). Dr. Harris completed interview evaluations for each candidate. She rated Smith "outstanding" in one category ("experience"); "good" in four categories (including "overall impression"); and "improvement needed" in two categories. R.39-19. Dr. Harris put "N/A" for three categories. Id. She listed Smith as a "possible candidate." Id. Dr. Harris also listed Toliver as a "possible candidate," although she ranked Toliver slightly higher by giving her "good" in eight categories and "very good" for "experience." R.39-20. Although Dr. Webb later testified that at the time of the interview Dr. Harris "did not have many good things to say" about her experience working with Smith, R.39-10 (Webb Depo. 76), Dr. Harris testified that Smith was knowledgeable, competent, and an okay worker. R.39-16 (Harris Depo. 22). Dr. Webb, who knew about Smith's grievances concerning her lay-off, testified that Smith did poorly in the interview. R.39-10 (Webb Depo. 46). In Dr. Webb's view, "Smith did not take th[e] interview seriously and didn't present herself in a professional manner with supporting documents and attire." Id. at 69; R.39-14 (Ex. 4 to Webb Depo.) (application). He explained his comment that Smith had not taken the interview seriously by recounting that when he asked Smith why she had not pursued dental assistant positions elsewhere, Smith responded that God had told her to stay at MHC; Dr. Webb found this answer unsatisfactory. R.39-10 (Webb Depo. 69-70). At some point, Dr. Webb also spoke with Dr. Simpson, a doctor at the Rossville Site, about hiring Smith. R.37-7 (Webb Depo. 72). According to Dr. Webb, Dr. Simpson did not recommend Smith and even said that she suspected Smith of vandalism. Id. at 72-73. According to Dr. Webb, he "made some effort to reach Dr. Branch" but "was not successful." Id. at 76. Although Dr. Harris and Williams provided input, Dr. Webb was the ultimate decisionmaker. R.39-10 (Webb Depo. 81). Dr. Webb believed Smith was in her 50s, R.37-7 (Webb Depo. 37), and that Toliver was in her 40's or "late 40's." R.39-10 (Webb Depo. 80). Dr. Webb chose Toliver. R.39-10 (Webb Depo. 81). Dr. Webb testified that he chose Toliver because she had adequate experience, was prepared for the interview, had a professional appearance and attire, responded to questions appropriately, and seemed to be a "good fit" with the department. Id. at 77. Smith files a charge On February 20, 2008, Smith filed a charge alleging age discrimination. R.39-18. In the narrative section of the charge, Smith wrote that despite her twenty-five years of experience, she was laid off as a dental assistant while two assistants with less experience and time at MHC were retained. Id. She also alleged that she was not selected for the open dental assistant position that later arose and that the position was filled with "a younger less qualified individual." Id. After MHC received the charge, Jackson called Smith into his office. R.39- 1 (Smith Depo. 232). He told her he could "beat the EEOC" and would put her back at the Rossville Site as a dental assistant if she would sign papers withdrawing her EEOC charge. Id. at 234. Jackson told her to "think about it" and then sent Williams to Smith's desk with the papers for her to sign. Id. at 233-34. Smith refused. Id. at 234. EEOC's lawsuit The EEOC filed a complaint under the ADEA alleging that MHC discriminated against Smith based on her age and in retaliation for having complained of discrimination when it hired a younger, less-experienced candidate for the dental assistant position. R.1 (complaint). MHC filed a motion for summary judgment. R.37. The EEOC responded, arguing that both claims should go to the jury. R.39. MHC filed a reply brief. R.40. In responding to the EEOC's argument that MHC's failure to follow its own internal hiring policies provided evidence of pretext, MHC conceded that its actions "do appear, on the surface, to be a bit sloppy and confused" but asserted that neither this nor any other evidence raised a factual question as to pretext. R.40, p.8. As to the retaliation claim, MHC contended that the EEOC failed to establish a prima facie case because Smith's internal grievances did not allege age discrimination and that it was therefore "not necessary to explore [MHC]'s decision-making process for hiring Ms. Toliver over Mrs. Smith with any greater depth than has already been discussed, infra" as to the age claim. R.40, p.16. Summary Judgment Ruling The district court granted MHC's motion for summary judgment. R.76. As to the age claim, the court concluded that the EEOC had failed to establish the fourth prong of the prima facie case, i.e., replacement by a "substantially younger" individual. Id. at 8-10. The district court stated that the seven-year age gap between Smith and Toliver fell between the six-year age gap this Court held in Grosjean v. First Energy Corp., 349 F.3d 332, 340 (6th Cir. 2003), was not substantial and the eight-year age gap this Court held in Cicero v. Borg-Warner Auto., Inc., 280 F.3d 579, 588 (6th Cir. 2002), was substantial enough to go to a jury. Id. at 9.<4> In the court's view, Grosjean "suggests that a seven-and-half or eight-year gap should represent the smallest age span that will be sufficient for a 'substantial' difference in ages, absent exceptional circumstances." Id. Accordingly, the court concluded, the seven year age gap here was not sufficiently substantial to establish a prima facie case. Id. at 10. The court also concluded that, in any event, the EEOC's evidence failed to establish a jury question as to whether MHC's proffered non-discriminatory reasons for its decision were a pretext for age discrimination. Id. at 10-13. As to the retaliation claim, the court concluded that Smith's internal grievances did not constitute protected activity because they did not complain of age discrimination. Id. at 14-15. "To the contrary," the court said, Smith alleged the decision was the result of favoritism towards another employee and, later, the filing of her worker's compensation claim. Id. at 14. The EEOC did not appeal. Motion for Attorney's Fees and District Court Decision MHC filed a motion for attorney's fees and costs under the EAJA, arguing that the EEOC's action lacked substantial justification. R.80. In support of its motion, MHC filed an affidavit with attached billing statements listing the total billable hours of each attorney and paralegal assigned to the case. R.80-2. The EEOC responded, arguing that the EAJA's "substantially justified" standard does not apply under the ADEA, and, in any event, that the EEOC's position was substantially justified. R.86. MHC also filed a bill of costs, R.78, and the EEOC responded by disputing many of the costs. R.82. The district court referred MHC's motion for attorney's fees to the magistrate judge, who issued a report and recommendation. R.94. Relying on decisions from the Fourth and Seventh Circuits, the magistrate concluded that the EAJA's "substantially justified" standard applies under the ADEA. Id. at 9-11 (citing EEOC v. O & G Spring & Wire Forms Specialty Co., 38 F.3d 872 (7th Cir. 1994); EEOC v. Clay Printing Co., 13 F.3d 813 (4th Cir. 1994)). The magistrate also stated that courts are split as to whether the substantially justified determination should be made based on the party's position as a whole or on a claim-by-claim basis but concluded that in this case a claim-by-claim analysis was appropriate. Id. at 13-14. The magistrate then found that the age discrimination claim was substantially justified. Pointing to this Court's decision in Grosjean, the seven year age gap between Toliver and Smith, and Dr. Webb's belief that Toliver was in her 40s and Smith in her 50s, the magistrate concluded that the EEOC had a reasonable basis in law and fact for arguing that Toliver was substantially younger than Smith. Id. at 16-17. The magistrate also concluded that the EEOC "had a reasonable basis in fact and law to support its position that MHC's proffered reasons for its employment decision were merely a pretext for discrimination." Id. at 17. As support for its conclusion, the magistrate cited the following evidence: (1) Smith's twenty-five years of work as an MHC dental assistant; (2) Smith's good evaluations; (3) Dr. Branch's rating of Smith's performance in 2006 and 2007 as "Excellent"; (4) Smith's experience as the only dental assistant at MHC in 2005, working at both the Main and Rossville Sites; (5) Smith's age (56) at the time she applied for the dental assistant position; (6) Smith's abrupt notice of her interview on casual Friday; (7) Smith's testimony that with proper notice she would have looked "her best"; (8) Dr.Webb's testimony that he based his decision in part on Smith's attire and her failure to take the interview seriously; (9) the failure of the interviewers to have Smith's personnel file; (10) Dr. Webb's failure to ask Dr. Branch about Smith's performance; and (11) Dr. Webb's knowledge that Toliver had five years of experience while Smith had more than twenty years of experience with MHC. Id. at 17-18. Additionally, the magistrate said, the EEOC offered evidence suggesting MHC had violated its own internal hiring policy and had cited case law holding that such evidence can be probative of pretext. Id. at 19-20. As to the retaliation claim, however, the magistrate concluded that the EEOC's claim was not substantially justified. According to the magistrate, "even under the most generous reading," Smith's internal complaints did not mention age discrimination; rather, she claimed favoritism and discrimination because of her worker's compensation claim. Id. at 21-22. Finally, the magistrate considered what the fee award should be. The magistrate stated that the "discrimination and retaliation claims overlap somewhat in both the law and facts" and that it was impossible to determine from MHC's billing records the fees spent on each claim. Id. at 25. The magistrate therefore recommended simply cutting the attorney's fees and costs in half. Id. Accordingly, the court recommended awarding $25,552.26 in fees and $3,362.54 in costs. Id. The EEOC timely objected, arguing that: (1) EAJA's substantially justified standard does not apply to the ADEA; (2) even if it does, the discrimination and retaliation claim are so intertwined they should be viewed as a whole; (3) the magistrate erred in arbitrarily splitting the fee award by 50% because the record does not show that 50% of MHC's time and effort were spent on the retaliation claim; and (4) even if costs are appropriate, the magistrate erred in failing to consider the EEOC's objections to MHC's bill of costs. R.95. MHC responded and contended, inter alia, that "the only basis for the Government to find an ADEA violation was a hearsay statement by Edmund Sims, the EEOC investigator, to the effect that MHC's CEO, William Jackson, said that Ms. Smith complained of age discrimination." R.100, p.4. To support that statement, MHC attached Sims' May 15, 2008, notes of his interview with Jackson, which state that Jackson said that after Smith's layoff, Smith "filed a grievance and complained to me about why she was [not] retained over the other dental assistants. Some of her reasons were her age, and previous filing of a workers compensation claim, as well as seniority." R.100-2 (5/15/08 notes, p.2) (emphasis added). MHC also attached Jackson's deposition testimony stating he did not recall making that statement to Sims. R.100-2 (Depo. 97). The same day that MHC filed its reply, the district court entered a one- sentence order affirming the magistrate's report and recommendation.<5> R.104. The EEOC timely appealed. R.105. Summary of Argument The district court erred in concluding that the EAJA's "substantially justified" standard applies to the ADEA. This conclusion cannot be reconciled with the plain meaning of the statute. Subsection (d) states that attorney's fees are mandatory whenever the government's position lacks substantial justification "except as otherwise specifically provided by statute." The ADEA specifically provides otherwise, as it provides that prevailing plaintiffs may recover attorney's fees. The legislative history of the EAJA also makes clear that when Congress enacted the EAJA it intended that subsection (d) would not disturb the fee-shifting schemes of civil rights statutes, like the ADEA, that already contained their own fee-shifting provisions. The district court's conclusion that subsection (d) applies to the ADEA also cannot be reconciled with the courts' uniform view that subsection (d) does not apply to Title VII, even though Title VII actually allows for awards of attorney's fees to prevailing defendants. Applying subsection (d) to the ADEA also undermines the Commission's vigorous enforcement of the statute, which Congress could not have intended. Even if, however, this Court finds that subsection (d) applies to the ADEA, the district court's award of attorney's fees should be reversed because the EEOC's position was substantially justified. Supreme Court and Sixth Circuit precedent dictate that courts must look at "the position" of the government as a whole under the EAJA. Here, however, the district court engaged in a claim-by-claim analysis and found the retaliation claim lacking substantial justification. Given the court's finding-which was eminently correct-that the EEOC's discrimination claim was substantially justified, and because this was the predominant claim and arose from the same set of facts as the retaliation claim, the court should have concluded that the EEOC's position in this litigation was substantially justified, even if the retaliation claim lacked a reasonable basis in fact and law. In any event, the court should have found the EEOC's retaliation claim substantially justified because it did have a reasonable basis in both law and fact. Finally, even if this Court were to affirm the district court's findings that the EAJA's subsection (d) applies, the EAJA allows for a claim-by-claim analysis, and the retaliation claim lacked substantial justification, this Court should reverse the district court award of 50% of MHC's attorney fees. The Supreme Court recently clarified in Fox v. Vice, 131 S. Ct. 2205 (2011), that a prevailing defendant is entitled under 42 U.S.C. § 1988 to only those fees he would not have incurred "but for" the frivolous claim of a civil rights plaintiff. Consequently, MHC was entitled to only those fees it would not have incurred "but for" the retaliation claim. But MHC's affidavit supporting its motion for attorney's fees fails to distinguish between the fees incurred for the discrimination and retaliation claims. The attached billing statements also fail (except for a few entries) to distinguish between the two claims. Because the two claims arose out of the same adverse action-Smith's non-selection for the dental assistant position-their investigation and defense involved essentially the same inquiry: whether the proffered reasons for Smith's non-selection were a pretext for discrimination and/or retaliation. Accordingly, even using "rough justice" as a yardstick, the 50% award of attorney's fees to MHC constituted an impermissible windfall, as it reimbursed MHC for fees it would have incurred anyway for defending against the substantially justified discrimination claim. Standard of Review Whether attorney's fees are available under the EAJA and the ADEA, and whether the EAJA allows for a claim-by-claim analysis or requires evaluation of the government's position as a whole, are issues of statutory interpretation subject to de novo review. See Bryant v. Comm'r of Soc. Sec., 578 F.3d 443, 445 (6th Cir. 2009) (in EAJA case, stating that "issue[s] of statutory interpretation" are reviewed de novo). The questions of whether the district court erred in finding that the EEOC's retaliation claim was not substantially justified and/or in assessing the amount of the fee award is reviewed for abuse of discretion. See Pierce v. Underwood, 487 U.S. 552, 560, 571 (1988) (abuse of discretion standard applies to substantially justified determination as well as to determination of fee amount). Argument The district court erred in holding that the EAJA's "substantially justified" standard applies to the ADEA and in awarding MHC 50% of its attorney's fees for the Commission's retaliation claim. The district court made three reversible errors in concluding that MHC was entitled to its attorney's fees for the Commission's retaliation claim. First, the court erred in finding that subsection (d) of the EAJA, which imposes the "substantially justified" standard, applies to the ADEA. Second, even if subsection (d) does apply, the court erred in conducting a claim-by-claim analysis and by concluding that the retaliation claim lacked substantial justification. Third, even if a claim-by-claim analysis was appropriate and the retaliation claim lacked substantial justification, the court abused its discretion in awarding MHC 50% of its fees because MHC failed to meet its burden of showing that half of its attorney's fees would not have been incurred "but for" the retaliation claim. A. EAJA's "substantially justified" standard of subsection (d) does not apply to the ADEA. The threshold question presented in this case is whether subsection (d) of the EAJA applies to ADEA actions brought by the EEOC, which is a matter of first impression in this Court. Contrary to the court's conclusion below, the plain terms of the EAJA and the ADEA, the EAJA's legislative history, and public policy all compel the conclusion that subsection (d)'s "substantially justified" standard does not apply to the ADEA. Rather, fees are available under the EAJA under only subsection (b) for bad faith, which has never been alleged in this litigation. 1. The ADEA specifically restricts attorney's fees awards to prevailing plaintiffs. Congress enacted the ADEA in 1967 to combat discrimination against older workers.<6> 29 U.S.C. §§ 621, et seq. The statute "is something of a hybrid," with some provisions drawn from Title VII and others from the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et seq. Lorillard v. Pons, 434 U.S. 575, 578 (1978). Section 626(b) of the ADEA provides that the ADEA should be "enforced in accordance with the powers, remedies, and procedures" of the FLSA, including 29 U.S.C. § 216(b). That provision, in turn, provides that "[t]he court . . . shall, in addition to any judgment awarded to the plaintiff . . . , allow a reasonable attorney's fee to be paid by the defendant, and costs of the action." 29 U.S.C. § 216(b). Thus, the ADEA makes an award of attorney's fees and costs mandatory whenever a plaintiff prevails. See, e.g., Hagelthorn v. Kennecott Corp., 710 F.2d 76, 86 (2d Cir. 1983). Congress's decision to allow ADEA plaintiffs to recover their attorney's fees created an exception to the "American Rule" on fee shifting, which provides that "the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys' fee from the loser." Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247 (1975). Significantly, when Congress enacted the ADEA and opted to make an exception to the American Rule on fees, Congress chose to extend this exception to only prevailing plaintiffs, not prevailing defendants. This decision was clearly an intentional one, as three years earlier when Congress enacted Title VII of the Civil Rights Act of 1964, Congress chose to allow courts to award attorney's fees to any "prevailing party," i.e., a plaintiff or a defendant. 42 U.S.C. § 2000e-5(k); see also Lorillard, 434 U.S. at 578 (noting that in enacting the ADEA, Congress considered, but ultimately rejected, a proposal to adopt the statutory pattern of Title VII). Because Section 706(k), as enacted, also states that the "Commission . . . shall be liable for costs the same as a private person," Title VII also renders the Commission liable for attorney's fees, just the same as any other non-prevailing plaintiff. See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 n.20 & 421 (1978) (noting that 706(k) renders the EEOC liable for attorney's fees; also holding that a prevailing defendant is entitled to fees only where a plaintiff's action was "frivolous, unreasonable, or without foundation"). Thus, Title VII and the ADEA maintain critical distinctions when it comes to attorney's fees: Title VII allows both plaintiffs and defendants to recover attorney's fees and explicitly authorizes awards against the Commission, while the ADEA allows only prevailing plaintiffs to recover attorney's fees and makes no explicit statement about the government's liability for attorney's fees. Although the ADEA contains a one-way fee-shifting provision-allowing only plaintiffs to recover-this Court has held that prevailing defendants are nevertheless entitled to attorney's fees under the "bad faith" exception to the American Rule on fees, which provides that attorney's fees are available when a party litigates in bad faith. See Morgan v. Union Metal Mfg., 757 F.2d 792, 796 (6th Cir. 1985) (affirming defendant's fee award under the ADEA for plaintiff's bad faith litigation). But because neither the ADEA nor any other statute waived the government's common law immunity from suit, the EEOC was not-at least at the outset of the ADEA's enactment-liable for attorney's fees under even this "bad faith" exception. See O & G Spring, 38 F.3d at 883 (stating that prior to 1980, "private employers could recover attorneys' fees under the FLSA if the plaintiff's allegations were frivolous or in bad faith, but the EEOC was immune"). 2. By its own terms, subsection (d) of the EAJA does not apply to the ADEA. In 1980, Congress amended the Equal Access to Justice Act, 42 U.S.C. § 2412, to broadly waive the government's sovereign immunity with respect to awards of attorney's fees. See id. The purpose of the amendment was "'to eliminate the barriers that prohibit small businesses and individuals from securing vindication of their rights in civil actions and administrative proceedings brought by or against the Federal Government.'" Scarborough v. Principi, 541 U.S. 401, 406 (2004) (quoting H.R. Rep. No. 96-1105, p.9). The EAJA contains two relevant provisions. Subsection (b) states that "[u]nless expressly prohibited by statute," the United States is liable for attorney's fees "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). In other words, subsection (b) waives the government's sovereign immunity as to fees where the common law or an existing statute already provide for fees; subsection (b) does not create any new substantive right to fees. Subsection (d), in contrast, states that "[e]xcept as otherwise specifically provided by statute, a court shall award to a prevailing party . . . fees and other expenses . . . unless the court finds that the position of the United States was substantially justified . . . ." 28 U.S.C. § 2412(d)(1)(A) (emphasis added).<8> In other words, subsection (d) created a new substantive right to fees by making such an award mandatory whenever the government's position lacks substantial justification, except where a statute specifically provides otherwise.<9> Here, the district court concluded that subsection (d) applies to the ADEA, which is a matter of first impression in this circuit. When "presented with a previously unexplored question of statutory interpretation" this Court "first look[s] to the plain meaning of the statutory language." United States v. Heavrin, 330 F.3d 723, 728 (6th Cir. 2003). Contrary to the district court's conclusion, the plain meaning of the statutory language compels the conclusion that EAJA's substantially justified standard does not apply to the ADEA. By its own terms, only subsection (b) applies to ADEA enforcement actions brought by the EEOC. Subsection (b) makes the EEOC liable for attorney's fees the same as any other party. Because plaintiffs are liable for attorney's fees in ADEA actions under the bad faith exception to the American Rule on fees, Morgan, 757 F.2d at 796, subsection (b) renders the EEOC liable for fees when it litigates in bad faith. See also EEOC v. Hendrix College, 53 F.3d 209, 211 (8th Cir. 1995) (applying bad faith standard to Commission's ADEA action). But in this case, there has never been any allegation that the EEOC acted in bad faith by bringing this lawsuit or by litigating it through the grant of summary judgment. Therefore, fees are not available to MHC under subsection (b). Nor are they available under subsection (d). By its own terms, subsection (d) does not apply to the ADEA. This provision states that a fee award is mandatory when the government's position is not substantially justified, "[e]xcept as otherwise specifically provided by statute." Here, the ADEA does "specifically provide[]" otherwise, as the statute contains its own carefully crafted fee-shifting mechanism, which does not allow prevailing defendants to recover fees. Although the district court did not explore the meaning of "specifically provide[]" otherwise, the court evidently agreed with the Fourth and Seventh Circuits that the ADEA does not "specifically provide" a different standard because it does not expressly provide a standard for awarding fees to a prevailing defendant. But that logic ignores the fact that Congress deliberately chose the ADEA's fee-shifting scheme, which simply does not allow defendants to recover attorney's fees (except under the bad faith exception). See, e.g, Alyeska, 421 U.S. at 264 (stating that "Congress in its specific statutory authorizations of fee shifting has in some instances provided that either party could be given such an award," such as Title VII, "while in others it has specified that only one of the litigants can be awarded fees," such as the "Fair Labor Standards Act, 29 U.S.C. § 216(b)"). Well-established canons of statutory construction also dictate that the general standard of subsection (d) does not trump the specific fee-shifting provisions of other federal statutes. "Where one statute deals with a subject in general terms, and another deals with a part of the same subject in a more [specific] way, the two should be harmonized if possible." 2B N. Singer, Sutherland's Statutory Construction § 51.5 at 283 (7th ed. 2008). Where there is a conflict, the more specific statute will prevail, "regardless of whether it was passed prior to the general statute, unless it appears that the legislature intended to make the general act controlling." Id. at 287, 296-98. Because the EAJA is a general fee-shifting statute, it must give way to specific fee-shifting statutes pre-dating its enactment unless it appears that Congress "intended to make the [EAJA] controlling" vis-à-vis those statutes. Id. at 297-98. No such intent is apparent on the face of the EAJA. To the contrary, the EAJA makes manifestly clear that more specific fee-shifting statutes are not to be affected by the EAJA's "substantially justified" standard, as does the EAJA's legislative history. 3. The EAJA's legislative history confirms that Congress intended to except civil rights statutes with their own fee- shifting schemes from subsection (d). The EAJA's legislative history-which the district court failed to consider- confirms what is evident from the plain terms of subsection (d): that Congress intended to except civil rights statutes, such as the ADEA, from the reach of the EAJA's "substantially justified" standard. Congress enacted the EAJA following several years of legislative debate on its proper reach and its relationship to other fee-shifting statutes. See, e.g, 125 Cong. Rec. 21435 (statement of Senator DeConcini). From the earliest stages of the legislative process, concerns were expressed that the EAJA might have the effect of deterring the vigorous enforcement of civil rights statutes. The EAJA's sponsors, however, assured objectors that the "substantially justified" standard would not supersede the well- established fee-shifting rules for civil rights cases. Senator DeConcini, the EAJA's chief sponsor, stated in testimony before a House committee that the bill would apply "to most civil actions" but "there are exceptions." Specifically, he said, "the bill will not replace or supersede any existing fee-shifting statute such as the Freedom of Information Act, the Civil Rights Act, and the Voting Rights Act, or alter the case law governing those Acts." Award of Attorneys' Fees Against the Federal Government: Hearings on S.265 Before the Subcomm. on Courts, Civil Liberties, and the Admin. of Justice of the H. Comm. on the Judiciary, 96th Cong. 24 (1980) (statement of Senator DeConcini) (emphasis added). Similarly, Senator Kennedy stated that "[i]n general, statutes, such as the Freedom of Information Act and civil rights laws, which contain specific fee-shifting provisions[,] remain unaffected by this measure, even if the standard for awarding fees under the statute has evolved through case law and is not set out in the statute itself." 125 Cong. Rec. 21445 (1979). The bill reports from both the House and the Senate confirm Senator Kennedy's understanding that the EAJA does not apply to civil rights statutes that already contain their own fee-shifting provisions. Specifically, the House Committee Report states that subsection (d) does not apply to civil actions "already covered by existing fee-shifting statutes." H.R. Rep. No. 96-1418, 96th Cong., 2d Sess. 18 (1980), reprinted in 1980 U.S.C.C.A.N. 4984, 4997 (emphasis added). In a critical passage, the Report also states that subsection (d) "is not intended to replace or supersede any existing fee-shifting statutes such as the Freedom of Information Act, the Civil Rights Acts, and the Voting Rights Act in which Congress has indicated a specific intent to encourage vigorous enforcement, or to alter the standards or the case law governing those Acts." Id. (emphasis added). The Senate Committee Report contains identical language. See S. Rep. No. 96-253, 96th Cong., 1st Sess. 20 (1979); see also H.R. Rep. No. 96-1005, 96th Cong., 2d Sess. 18 (1980) (noting that subsection (d) "applies to all civil actions except tort actions and those already covered by existing fee-shifting statutes"). Thus, although Congress did not specifically refer to the ADEA when discussing the 1980 EAJA amendments, the legislative history establishes that Congress understood that the specific fee-shifting provisions contained in the civil rights statutes-which would include the ADEA, as it had been enacted three years earlier-would not be disturbed. It is a truism that Congress passes statutes, not legislative histories. See, e.g., Blanchard v. Bergeron, 489 U.S. 87, 97-100 (1989) (Scalia, J., concurring). But in this case the statements in the legislative record bear directly on the meaning of the exception in subsection (d), thus elucidating, rather than trumping, the text. It could not be more clear that Congress intended to place civil rights statutes such as the ADEA, with their own fee-shifting provisions intentionally designed to promote vigorous enforcement, outside the reach of the EAJA's substantially justified standard. 4. Applying the EAJA's "substantially justified" standard to ADEA enforcement actions would lead to anomalous results. The district court's view that EAJA's "substantially justified" standard applies to ADEA actions does not make any sense in light of the uniformly held view that the "substantially justified" standard does not apply to Title VII actions. See, e.g., O & G Spring, 38 F.3d at 881 (stating that "EAJA does not apply to suits under Title VII" because it has its own fee-shifting provision); EEOC v. Kimbrough Inv. Co., 703 F.2d 98, 103 (5th Cir. 1983) (stating that the EAJA "applies only to claims for attorneys' fees when no other specific statute deals with an award of attorneys' fees" and concluding that the EAJA therefore does not apply to Title VII). As the Supreme Court has recognized, "[t]he ADEA and Title VII share common substantive features and also a common purpose: 'the elimination of discrimination in the workplace.'" McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 358 (1995) (citation omitted). The EEOC enforces both statutes. The same principles that guide the EEOC's determination as to whether to litigate a Title VII claim are those that guide the EEOC's determination as to whether to litigate an ADEA action. Yet, the district court's interpretation of the EAJA would result in the inexplicable situation in which the Commission is held to two vastly different standards for attorney's fees awards under Title VII and the ADEA: under Title VII-which, on its face, allows fees to be awarded to defendants-the EEOC would be liable only if its action were "frivolous, unreasonable, or without foundation," while under the ADEA-which does not even allow on its face for defendants to recover fees-the EEOC would be liable for actions that merely lack "substantial justification." It strains reason to believe that Congress intended such an anomalous result when it enacted the EAJA. Congress also could not have intended to apply the "substantially justified" standard to the ADEA because doing so undermines the Commission's vigorous enforcement of the ADEA. The Supreme Court's Christiansburg opinion recognized as much. In that case, the Court considered the standard for allowing prevailing defendants to obtain attorney's fees under Title VII. The Court held that while prevailing plaintiffs are presumptively entitled to such awards, prevailing defendants may obtain them only if the plaintiff's action was "frivolous, unreasonable, or without foundation." 434 U.S. at 416, 421. The Court explained that it adopted these dual standards out of concern that awarding fees to defendants under a "prevailing party" standard "would substantially add to the risks inherent in most litigation and would undercut the efforts of Congress to promote the vigorous enforcement of the provisions of Title VII." 434 U.S. at 422. The district court's application of the EAJA's subsection (d) to the ADEA cannot be reconciled with Christiansburg. Just as Title VII was enacted to protect workers' rights, the "ADEA [was] enacted . . . as part of an ongoing congressional effort to eradicate discrimination in the workplace [and] reflects a societal condemnation of invidious bias in employment decisions." McKennon, 513 U.S. at 357. Applying the "substantially justified" standard to the Commission's ADEA actions, however, undercuts Congress' intent in enacting the ADEA by displacing the statute's stringent "bad faith" standard for defendants' fee awards with subsection (d)'s far more lenient "substantially justified" standard. Given that the Supreme Court felt compelled in Christiansburg to adopt a "frivolous, unreasonable or without foundation" standard for defendant fee awards in order to avoid undercutting Title VII's vigorous enforcement, the application of the EAJA's "substantially justified" standard-which is more lenient to defendants than the Christiansburg standard-necessarily threatens the Commission's vigorous enforcement of the ADEA. See EEOC v. Consol. Serv. Sys., 30 F.3d 58, 59 (7th Cir. 1994) (substantial justification standard is more lenient than Christiansburg standard). Because the "ADEA and Title VII share common substantive features and [the] common purpose" of eradicating workplace discrimination, McKennon, 513 U.S. at 357, this Court should interpret the EAJA in a way that preserves and harmonizes the pro-enforcement objectives of both Title VII's and the ADEA's fee-shifting provisions. 5. The circuit court decisions applying the EAJA's "substantially justified" standard to the ADEA were wrongly reasoned and decided. Despite the above arguments, and without providing any substantive reasoning for its decision, the district court opted to follow the Fourth and Seventh Circuits in holding that the EAJA's "substantially justified" standard applies to the Commission's ADEA actions. R.94, pp.8-11 (citing Clay Printing Co., 13 F.3d 813; O & G Spring, 38 F.3d 872). These decisions, however, are not well reasoned and should not be followed by this Court. Neither decision offers a coherent interpretation of the phrase "[e]xcept as otherwise specifically provided by statute" as used in subsection (d), and neither offers a cogent rationale for permitting the "substantially justified" standard to override the ADEA's specific fee-shifting provision. Significantly, neither decision addresses the EAJA's legislative history which, as discussed supra, confirms that the plain language of subsection (d) makes it inapplicable to the ADEA. In Clay Printing, the court accused the Commission of making "too much" of the ADEA's silence as to the availability of attorney's fees to prevailing defendants. 13 F.3d at 817. According to the court, the ADEA's silence on this point creates a vacuum that subsection (d) of EAJA rushes in to fill. See id. at 817- 18. This reasoning would be correct if the ADEA were silent altogether about the availability of attorney's fees. But it is not. Rather, as discussed above, when enacting the ADEA, Congress deliberately chose to make fees available only to prevailing plaintiffs (except via the bad faith exception to the American Rule on fees), even though three years earlier it opted to make fees available under Title VII to both prevailing plaintiffs and defendants. Thus, respectfully, it was not the Commission that made too much of the ADEA's silence as to the availability of fees for prevailing defendants but the Clay Printing court that made too little of it. In O & G Spring, the court stressed that the Commission had conceded (as it does here) that "EAJA sec. 2412(b) (the bad faith standard) applies to the ADEA," while maintaining that "the ADEA preempts application of sec. 2412(d) (the substantial justification standard)." 38 F.3d at 883. The court summarily concluded that this distinction is "untenable" because "[t]he ADEA either preempts application of EAJA sec. 2412 or it does not." Id. But the court's analysis creates a false dichotomy, as the distinction drawn by the EEOC is dictated by the plain terms of the statute. As discussed, subsections (b) and (d) are distinct provisions that operate in very different ways. Subsection (b)-which merely makes the government liable for attorney's fees to the same extent as any other party would be under the common law or a statute-applies "[u]nless expressly prohibited by statute," i.e., unless another federal statute expressly prohibits an award of fees against the United States. Accordingly, subsection (b) can stand alongside another fee-shifting statute, as subsection (b) merely allows fees to be assessed against the government where a statute or the common law provides for fees against a private party. Subsection (d), in contrast, applies "[e]xcept as otherwise specifically provided by statute," i.e., it does not apply to statutes that already contain their own, specific fee-shifting standard. In other words, subsection (d) can not stand alongside another fee-shifting statute; otherwise, it would displace the fee-shifting scheme Congress specifically included in the underlying statute. For this reason, when the underlying statute (like the ADEA) contains its own fee-shifting provision, subsection (b) of the EAJA applies but subsection (d) does not. The O & G Spring court's view that subsection (d) applies to even those statutes, like the ADEA, that allow only one party to obtain attorney's fees is not only contrary to the plain terms of the statute but is also contrary to common sense. In the court's view, if Congress had intended to exempt such statutes from the reach of subsection (d), then Congress should have combed through the entire United States Code to identify and then amend each of those statutes to state explicitly that they were exempt from subsection (d). It strains reason to have expected Congress to engage in such an undertaking. Rather, the most sensible explanation of what Congress intended when it enacted subsection (d) is, as discussed above in Section I.A.3, that Congress understood that subsection (d) would not supersede those statutes, such as the civil rights statutes, that already contained their own fee-shifting provisions. Therefore, this Court should decline to follow O & G Spring, as well as Clay Printing. B. The Commission's position was "substantially justified." For the foregoing reasons, the court erred in applying subsection (d) to the Commission's ADEA action. But even assuming, arguendo, that the EAJA's "substantially justified" standard does apply to the ADEA, the district court's award of fees should still be reversed because the Commission satisfied its burden of establishing that its position was substantially justified. See Scarborough, 541 U.S. at 414 (government bears the burden). Under the EAJA, "[t]he government's 'position' comprehends both the United States' underlying action and its litigation position." Delta Eng'g v. United States, 41 F.3d 259, 261 (6th Cir. 1994) (citing 24 U.S.C. § 2412(d)(1)(A), (d)(2)(D)). "Substantially justified" does not mean "'justified to a high degree,' but rather 'justified in substance or in the main'-that is, justified to a degree that could satisfy a reasonable person." Pierce, 487 U.S. at 565. In short, a position is justified "if it has a reasonable basis in law and fact." Id. at 566 n.2. Significantly, a "position can be justified even though it is not correct . . . ." Id. at 566, n.2; see also Howard v. Barnhart, 376 F.3d 551, 554 (6th Cir. 2004) (government's position can be substantially justified even if it was not supported by substantial evidence); United States v. $515,060.42 in U.S. Currency, 152 F.3d 491, 507 (6th Cir. 1998) ("While the Government was ultimately incorrect and did not prevail, such an outcome does not necessarily lead to an award of attorney's fees under the EAJA."). To hold otherwise would render the substantially justified standard superfluous by making it merely a "prevailing party" standard, which Congress did not intend. See Scarborough, 542 U.S. at 415 ("Congress did not . . . want the 'substantially justified' standard to 'be read to raise a presumption that the Government's position was not substantially justified simply because it lost the case . . . .'") (quoting H.R. Rep. No. 96-1005, at 10). Here, the district court made two reversible errors in holding that the Commission's retaliation claim lacked substantial justification. 1. The district court erred by conducting a claim-by-claim analysis instead of evaluating the EEOC's "position" as a whole. The district court first erred by analyzing the discrimination and retaliation claims separately rather than looking at the EEOC's position as a whole. While the district court stated that the courts are divided as to whether a claim-by-claim analysis is appropriate, R.94, pp.13-14, the court's analysis is at odds with Supreme Court precedent and is directly contrary to this Court's precedent. While the Supreme Court has not specifically addressed whether the EAJA allows for a claim-by-claim analysis, its decision in INS v. Jean, 496 U.S. 154 (1990), compels the conclusion that it does not. In Jean, the Supreme Court held that when a district court determines that the government's litigation position lacked substantial justification, the court does not have to make a second "substantially justified" determination as to the government's fee litigation position. Emphasizing that the EAJA refers to "the position" of the United States in the singular, the Court stated that the "substantially justified" determination is a "single finding," i.e., "only one threshold determination for the entire civil action is to be made." Id. at 159-60. In other words, "the EAJA-like other fee-shifting statutes-favors treating a case as an inclusive whole, rather than as atomized line- items." 496 U.S. at 161-62. Even if there were any doubt whether Jean forecloses a claim-by-claim analysis, this Court put that doubt to rest in United States v. Heavrin, 330 F.3d 723 (6th Cir. 2003). In Heavrin, this Court relied on Jean to hold that the Hyde Amendment-which makes fees available when the government's position is vexatious, frivolous, or in bad faith-requires courts to assess the case as an inclusive whole rather than by making a count-by-count assessment of the government's case. 330 F.3d at 730. While Heavrin concerned the Hyde Amendment, this Court stated explicitly that "[b]ecause the Hyde Amendment is subject to the procedures and limitations of the EAJA, the term 'position' should be accorded the same meaning under the Hyde Amendment as it is in the EAJA." Id. This Court further explained that "evaluating a case as an inclusive whole is not susceptible to a precise litmus test." Id. Just as a determination that "part of the government's case has merit" does not foreclose an award of fees, "a determination that part of the government's case is frivolous does not automatically entitle the movant" to fees, so long as the government's "'position' as a whole was not vexatious, frivolous, or in bad faith." Id. "[I]n other words," this Court instructed, the district court "must not fail to see the forest for the trees." Id. Here, the district court failed to see the forest for the trees. The EEOC met its burden of showing that its position, viewed as an inclusive whole, was substantially justified. The EEOC's predominant claim in this litigation was that MHC discriminated against Smith based on her age when it failed to select her for the Main Site dental assistant position, despite MHC's practice of filling spots with qualified internal applicants, and despite Smith's twenty-five years of experience working as a dental assistant for MHC. As the magistrate recognized, this claim had a reasonable basis in fact and law. R.94, pp.15-20. As the court noted, it is undisputed that the EEOC established three of the four prongs of its prima facie case. As to the fourth prong-whether Smith's replacement was "substantially younger"-the magistrate concluded that the EEOC "had a reasonable basis in law and fact to take the position that Tol[]iver was substantially younger" because the seven year age gap fell between those addressed by this Court in Cicero and Grosjean. Id. at 16. The magistrate additionally found that "the EEOC had a reasonable basis in fact and law to support its position that MHC's proffered reasons for its employment decision were merely [a] pretext for discrimination." Id. at 17. MHC did not file any objections to the magistrate's report and recommendation, which the district court adopted. The court's determination that the discrimination claim was substantially justified compels the conclusion that the EEOC's position as a whole was substantially justified, even if-as the district court concluded-the EEOC's retaliation claim lacked a reasonable basis in law and fact. While it is true that a court's finding that one claim was substantially justified does not necessarily compel a finding that the government's position as a whole was substantially justified, Heavrin, 330 F.3d at 730, the district court's unchallenged finding that the discrimination claim was substantially justified compels this conclusion here because the discrimination claim was the predominant claim and because the two claims stem from the same factual core. MHC's own pleadings underscore these points. MHC's motion for summary judgment devotes four-and-half pages to a discussion of the discrimination claim and just two pages to the retaliation claim. R.37-1. While MHC's reply brief more fully addressed the retaliation claim, MHC asserted in the retaliation section that because the EEOC had failed to establish a prima facie case, "it is not necessary to explore [MHC]'s decision-making process for hiring" Toliver in "any greater depth than has already been discussed" in the discrimination section. R.40, p.16. Thus, MHC's own pleadings make clear that the two claims factually overlap and that the discrimination claim was the predominant one. The court's opinion further demonstrates the factual overlap between the discrimination and retaliation claims. At pages 17-20 of the opinion, the court sets out the evidence it relied upon to conclude that the discrimination claim was substantially justified. That evidence included MHC's failure to follow its own policy of filling openings with internal qualified candidates, MHC's decision to select an outside candidate with five years of experience as opposed to an internal candidate with thirty-five years of experience, and other irregularities in MHC's selection process. R.94, pp.17-20. Significantly, this is the same evidence the EEOC relied upon to argue that it showed a factual question of pretext as to the retaliation claim. See R.38-1, pp.15-19. Thus, even if the retaliation claim, standing alone, was not substantially justified, the EEOC's position viewed as an inclusive whole was substantially justified, requiring reversal of the court's fee award. 2. The retaliation claim was substantially justified. Even if the EAJA allows for fees and permits a claim-by-claim analysis, the fee award must be reversed because the district court abused its discretion in concluding that the retaliation claim lacked substantial justification. The district court reached its conclusion by focusing exclusively on a single prong of the prima facie case-whether Smith engaged in protected activity-and by concluding that the agency lacked a reasonable basis for believing that she did. The court's analysis was erroneous for two reasons. First, the EEOC had a reasonable basis in fact and law for asserting that Smith engaged in protected activity. At the outset, it cannot reasonably be disputed that the EEOC was substantially justified in including the retaliation claim in its complaint. That is because the EEOC's investigation revealed that Smith had complained to MHC that her layoff had been due to "her age." Specifically, the May 15, 2008, notes that the EEOC's investigator took when he interviewed MHC's CEO, William Jackson-which MHC submitted along with its response to the EEOC's objections to the magistrate report-reflect that Jackson said that Smith "filed a grievance and complained to me [Jackson] about why she was" laid off "over the other dental assistants. Some of her reasons were her age," as well as her seniority and her worker's compensation claim. R.100-2, p.2 (notes). Thus, Jackson's statement reveals that he either understood Smith's internal grievances to complain of age discrimination and/or that she had additionally complained to him that her layoff was due to "her age." Smith's complaint to Jackson that she was targeted for layoff because of "her age" clearly constitutes protected activity, as terminating an individual due to age would be a violation of the ADEA. See, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000). The agency therefore had a reasonable basis in fact and law for alleging that MHC retaliated against Smith for having complained of discrimination. The EEOC also had a reasonable basis in fact and law for litigating the retaliation claim through the grant of summary judgment. To be sure, during discovery Jackson was deposed and denied that he told the investigator Smith had complained of age discrimination. R.100-2 (Jackson Depo. 97). But the EEOC was substantially justified in arguing that summary judgment was inappropriate as to the retaliation claim because the EEOC could have called the investigator at trial to show that Smith had, indeed, complained of age discrimination to Jackson. Even aside from the investigator's notes, however, the EEOC had a reasonable basis in fact and law for arguing that Smith engaged in protected activity when she filed internal grievances about her layoff. While neither grievance explicitly mentions the ADEA or "age discrimination," the EEOC reasonably argued that they imply age discrimination. Both grievances complain of Smith's layoff and explicitly reference her long years of service. In her September 15, 2007, grievance, Smith additionally complained that after "a quarter of [a] century" she was replaced with individuals who had only "1 1/2 years to 5 months employment," which imposed a hardship "at [her] age." It is true, as the court noted, that Smith also complained in her grievances that her layoff was due to favoritism and the filing of her worker's compensation claim. But those allegations do not negate her specific complaint that her layoff imposed a hardship "at [her] age" and that it was unfair for MHC to fire her while keeping on workers with far less seniority. Thus, the EEOC had some factual basis for contending that Smith's grievances implied age discrimination; it is not as if the EEOC made up the claim out of thin air. The EEOC also had a reasonable, if not ultimately successful, basis in law for arguing that Smith engaged in protected activity when she complained that her termination was a hardship "at [her] age" and was unfair in light of her seniority. In Hovanas v. Am. Eagle Airlines, Inc., No. 09-209, 2010 WL 1993726, at *8 (N.D. Tex. May 18, 2010)-which the EEOC cited below-the district court considered whether the plaintiffs' internal grievances about their omission from a seniority list that governed the prioritization of leave requests and bids for new positions constituted protected activity. The court held that it did, stating, "while Plaintiff's grievance did not explicitly include the term age discrimination, one could reasonably infer that, by opposing the Seniority List, Plaintiffs were opposing a practice they believed discriminated based on age." Id. (emphasis added). Similarly, this Court held in MacDonald v. UPS, 430 Fed. Appx. 453, 464 (6th Cir. 2011) (unpublished) that the plaintiff had engaged in protected activity for purposes of his state law retaliation claim when he complained internally that UPS "continues to discriminate . . . with no consideration of my age" and harassed him without "giv[ing] due consideration to [his] age." Thus, the EEOC had a reasonable legal basis for arguing that Smith's grievances constituted protected activity, even though they did not explicitly allege "age discrimination." The second error the court made in concluding that the retaliation claim lacked substantial justification was in focusing solely on the protected activity prong of the prima facie case instead of looking at the retaliation claim as a whole. See, e.g., Roanoke River Basin Ass'n, 991 F.3d 132 (4th Cir. 1993) (substantially justified determination must be based on the "totality of the circumstances"); O & G Spring, 38 F.3d at 884 (emphasizing that "the evidence must be evaluated as a whole" and affirming finding that age claim was substantially justified). While the district court focused exclusively on whether the EEOC established the first prong of the prima facie case, it ignored the remaining three prongs and did not address whether the EEOC had a reasonable basis in law and fact for arguing that a jury could find MHC's legitimate, non-discriminatory reasons for failing to select Smith were a pretext for retaliation. Consideration of these additional aspects of the EEOC's claim confirms that the retaliation claim was substantially justified. To state a prima facie case of retaliation a plaintiff must establish that (1) she engaged in protected activity; (2) the exercise of protected rights was known to the defendant; (3) the defendant took an adverse action; and (4) a causal connection existed between the protected activity and the adverse action. Garner v. Cuyahoga Cnty. Juvenile Court, 554 F.3d 624, 639 (6th Cir. 2009). The court's exclusive focus on the first prong overlooked that it is undisputed that the EEOC established the second and third prongs of the prima facie case, as it undisputed that both Dr. Webb and Jackson were aware of Smith's complaints, and it is undisputed that MHC did not select Smith for the dental assistant position. The EEOC also had a reasonable basis in law and fact for arguing that there was a causal nexus between Smith's complaints of discrimination and her non- selection. First, there was temporal proximity between Smith's complaints and her non-selection. Smith's most recent complaint was September 14, 2007, and Jackson refused to move Smith into the position when it was posted in January 2008 (it is unclear exactly which day in January the position was posted).<10> See R. 39-9 (Aff. 7) (position became available in "January, 2008"); R.39-14 (undated application). Thus, the adverse action occurred as soon as three-and-half months after Smith's complaints. Even using February 8, 2008 as the date of the adverse action, the temporal lag was just four months and twenty-five days. While this time lag may not, by itself, suffice to establish the fourth prong, a jury could find that this temporal proximity along with other evidence of MHC's retaliatory conduct established causality. See, e.g., Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008) (where "some time elapses between when the employer learns of a protected activity and the subsequent adverse employment action, the employee must couple temporal proximity with other evidence of retaliatory conduct to establish causality"). The other evidence of retaliatory conduct includes evidence that MHC departed from its internal hiring practice, as Jackson refused to transfer Smith into the dental assistant position in January 2008, even though McInnis testified that this was MHC's standard practice. Additionally, Dr. Webb did not even bother to talk with Dr. Branch (Smith's supervisor when she was a dental assistant) or, evidently, to McInnis (Smith's current supervisor) about Smith's abilities or work performance. Although Smith's charge came after her non-selection for the dental assistant position, a jury could also find that Jackson's response to the filing of the charge-pressuring Smith into "withdrawing" it in exchange for being put back in her dental assistant position- suggests he might have retaliated against Smith when she complained internally that her layoff was discriminatory. The EEOC also had a reasonable basis in fact and law for arguing that a jury could find that MHC's stated reasons for Smith's non-selection were unworthy of belief and, along with evidence establishing the prima facie case, could infer that MHC's proffered reasons were merely a pretext for retaliation. See, e.g., Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1084 (6th Cir. 1994) (pretext can be shown with evidence that proffered reasons had no factual basis, they did not actually motivate the adverse action, or they were insufficient to motivate the adverse action). The district court's own opinion establishes this, as all of the evidence the court cited to support its conclusion that the discrimination claim was substantially justified is the same evidence the EEOC relied upon to argue pretext as to the retaliation claim. Compare R.94, pp.17-19, with R.38-1, pp. 15-19. Thus, the EEOC was substantially justified in taking the position that a jury could find- based on Smith's internal complaints followed months later by her non-selection for a position she had held for twenty-five years at MHC-that the real reason MHC failed to select her was retaliation. Specifically, a jury could have found MHC's proffered reasons for not choosing Smith not credible based on the chasm that existed between Smith's and Toliver's years of experience, including Smith's twenty-five years of experience as an MHC dental assistant. And although Dr. Webb said he chose Toliver in part because she would be a "good fit" in the department, implying that Smith would not, a jury could find that assessment lacking any credibility in light of Dr. Branch's assessment of Smith in her 2006 and 2007 evaluations as an excellent worker who was a "team player." Additionally, while Dr. Webb testified that Dr. Harris gave a negative assessment of Smith at the time, a jury could reject Dr. Webb's testimony as inconsistent with Dr. Harris's testimony that Smith was a competent and knowledgeable worker. A jury also could have concluded-based on the testimony from McInnis, Jackson, and other employees-that MHC had a policy or practice of filling openings with internal qualified candidates, often without even interviewing them, and that the failure to follow this policy vis-à-vis Smith suggested retaliation. See DeBoer v. Musashi Auto Parts, Inc., 124 Fed. Appx. 387, 394 (6th Cir. 2005) (unpublished) (stating that "an employer's failure to follow a policy that is related to termination or demotion can constitute relevant evidence of pretext" and holding that the employer's failure to counsel the plaintiff prior to her demotion, as the company handbook called for, is "appropriately considered as additional evidence of pretext"). Thus, the district court abused its discretion in concluding that the retaliation claim lacked a reasonable basis in fact and law. C. The court abused its discretion in awarding MHC 50% of its attorney's fees. For the foregoing reasons, the district court erred in determining that any fees should have been awarded against the Commission. But assuming, arguendo, that "the position" of the government can be analyzed on a claim-by-claim basis and that fees were appropriate as to the retaliation claim, the court's award to MHC of 50% of its attorney's fees still must be reversed because MHC failed to show that half of its fees were incurred "because of, but only because of" the retaliation claim, as required by the Supreme Court's recent opinion in Fox v. Vice, 131 S. Ct. 2205, 2215 (2011) (emphasis added). In Fox, the Supreme Court considered whether 42 U.S.C. § 1988 allows a court to grant attorney's fees to a prevailing defendant for work that went toward both a plaintiff's frivolous and non-frivolous claims. See 131 S. Ct. at 2214 ("The question in dispute concerns work that helps defend against non-frivolous and frivolous claims alike-for example, a deposition eliciting facts relevant to both allegations."). The Court concluded that it did not. Rather, the Court said, "a defendant [may] recover reasonable attorney's fees incurred because of but only because of, a frivolous claim." Id. at 2215; see also id. at 2211 (fees may be granted "only for costs that the defendant would not have incurred but for the frivolous claims") (emphasis added). Thus, "for example, [if] a defendant's attorney conducts a deposition on matters relevant to both a frivolous and a non- frivolous claim-and . . . the lawyer would have taken and committed the same time to this deposition even if the case had involved only the non-frivolous allegation," then the defendant cannot recover his attorney's fees for the deposition. Id. at 2215. The Court also emphasized that "the fee applicant . . . must, of course, submit appropriate documentation to meet 'the burden of establishing entitlement to an award.'" Id. at 2216 (quoting Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). While the Court acknowledged that the "essential goal in shifting fees . . . is to do rough justice, not to achieve auditing perfection" and allowed that courts "may use estimates in calculating and allocating attorney's time," the Court said that "the trial court must apply the correct standard, and the appeals court must make sure that has occurred." Id. Because the district court awarded the defendant all of its fees, despite the court's finding that the frivolous and non-frivolous claims "were 'interrelated,'" the "charges 'arose out of the same transaction,'" "and their 'defense entailed proof or denial of essentially the same facts," the Supreme Court remanded the case for a determination under the proper standard. See id. at 2217-18. Assuming that the EAJA allows for a claim-by-claim analysis, Fox compels reversal of the court's fee award because MHC fell far short of meeting its burden of showing that 50% of its fees would not have been incurred "but for" the retaliation claim. 131 S. Ct. at 2211; see also Black v. Lojac Enter., Inc., No. 96- 5654, 1997 WL 377051, at *3 (6th Cir. July 2, 1997) (in ADEA case, stating that fee applicant "bore the burden of supplying the district court with adequate documentation"). Under Fox, MHC was entitled to only those fees it would not have incurred "but for" the retaliation claim; MHC was not entitled to fees for work that had to be performed anyway to defend against the discrimination claim. But, as the court noted, R.94, p.25, MHC's affidavit fails altogether to distinguish between the work done on the discrimination and retaliation claims, and almost none of the attached billing statements do so either. R.80-2 (affidavit and exhibits). While MHC asserted in its response to the EEOC's objections to the magistrate's report that "the retaliation claim required additional investigation and the deposing of at least two or possibly three additional witnesses," R.100, p.5, MHC failed to identify what additional investigation it was required to undertake, or which additional witnesses it was required to depose in order to defend the retaliation claim. MHC's woefully inadequate documentation of the fees incurred for the retaliation claim should preclude an award altogether. See Black, 1997 WL 377051, at *3 (where many of plaintiff's billing record entries failed to distinguish between work done for his age claim (where plaintiff prevailed) as opposed to his ERISA claim (where he did not), holding that "such entries . . . do not merit an award"). To be sure, Fox states that the goal in fee shifting is "rough justice" and allows that courts "may use estimates" in making fee determinations. 131 S. Ct. at 2216. But here, the court's award to MHC of 50% of its fees was not "rough justice." Instead, it provided an impermissible "windfall[]" to MHC. Id. at 2215. The district court's own opinion proves this point, as the court stated that "the discrimination and retaliation claims overlap somewhat in both law and facts." R.94, p.25. But even this is an understatement because, as discussed, not only did the discrimination and retaliation claims arise from the same set of facts-the failure to select Smith for the dental assistant position-but all of the evidence of pretext as to each claim was nearly identical. This case therefore cannot be meaningfully distinguished from Fox, where the Supreme Court held that the district court had erred in awarding the defendant all of its fees although the frivolous and non-frivolous claims were "'interrelated'" and the "charges 'arose out of the same transaction.'" Id. at 2217. The only difference between Fox and this case is that in Fox the district court had awarded the defendant 100% of its fees. But even the 50% of fees awarded by the district court in this case was too much, given that MHC's defense of the retaliation claim "entailed proof or denial of essentially the same facts" as the discrimination claim. Id. (citation omitted). Therefore, this Court should either vacate the district court's award altogether due to MHC's inadequate documentation or, at a minimum, should remand the case to the district court for a determination under the correct standard as to what fees MHC would not have incurred "but for" the retaliation claim. Conclusion For the foregoing reasons, the district court's award of attorney's fees should be reversed. Respectfully submitted, P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ________________________ s/ ANNE NOEL OCCHIALINO Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, 5th Fl. Washington, D.C. 20507 (202) 663-4724 Annenoel.Occhialino@EEOC.gov CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the type-volume requirements set forth in Fed. R. App. P. 32(a)(7)(B). This brief contains 13,086 words, from the Statement in Support of Oral Argument through the Conclusion, as determined by the Microsoft Word 2003 word processing program, with 14-point proportionally spaced type for text and 14-point proportionally spaced type for footnotes. ________________________ s/ ANNE NOEL OCCHIALINO Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, 5th Fl. Washington, D.C. 20507 (202) 663-4724 Annenoel.Occhialino@EEOC.gov January 17, 2012 CERTIFICATE OF SERVICE I hereby certify that on January 17, 2012, I electronically filed the foregoing with the Clerk of Court using CM/ECF, which will provide notice to counsel and parties listed below, who are registered CM/ECF users: Defendant-Appellee/Cross-Appellant Robin Rasmussen Dinkelspiel Rasmussent & Mink 1669 Kirby Parkway, Ste. 106 Memphis, TN 38119 (901) 754-7770 _________________________ s/ANNE NOEL OCCHIALINO Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, 5th Fl. Washington, D.C. 20507 (202) 663-4724 Annenoel.Occhialino@EEOC.gov ADDENDUM Designation of Relevant District Court Documents Docket No. | Description -----------+---------------------------------------------------------- 1 Complaint 37 MHC's Motion for Summary Judgment 37-1 Memorandum in Support of MHC's Motion for Summary Judgment 37-3 Appendix 1 -- Harris Deposition Excerpts 37-4 Appendix 2 -- Jackson Deposition Excerpts 37-4 Appendix 2--8/15/07 layoff letter (Ex. 1 to Jackson Deposition) 37-5 Appendix 3 - Smith Deposition Excerpts 37-5 Appendix 3 - 8/15/07 Grievance (Ex. 5 to Smith Depo.) 37-5 Appendix 3 - 9/14/07 Grievance (Ex. 6 to Smith Depo.) 37-6 Appendix 4 - Toliver Deposition Excerpts 37-7 Appendix 5 - Webb Deposition Excerpts 37-8 Appendix 6 - Williams Deposition Excerpts 37-9 Appendix 7 - Porter Affidavit 38 EEOC's Response to Motion for Summary Judgment 39 EEOC's Response to Defendant's Statement of Undisputed Material Facts 39-1 Ex. 1 - Smith Deposition Excerpts 39-2 Ex. 2 - Branch Deposition Excerpts 39-3 Ex. 3 - Smith's 2006 evaluation 39-4 Ex. 4 - Smith's 2007 Evaluation 39-5 Ex. 5 - 8/15/07 Grievance 39-6 Ex. 6 - Waller Deposition Excerpts 39-7 Ex. 7 - 9/14/07 Grievance 39-8 Ex. 8 - Jackson Deposition Excerpts 39-9 Ex. 9 - McInnis Aff. 39-10 Ex. 10 - Webb Deposition Excerpts 39-11 Ex. 11 - Johnson Deposition Excerpts 39-12 Ex. 12 - King Deposition Excerpts 39-13 Ex. 13 - Nevilles Deposition Excerpts 39-14 Ex. 14 - Application for Promotion or Transfer 39-15 Ex. 15 - Toliver Depo. 39-16 Ex. 16 - Harris Deposition Excerpts 39-17 Ex. 17 - Williams Deposition Excerpts 39-18 Ex. 18 - Charge 39-19 Ex. 19 -Smith Interview Evaluation 39-20 Ex. 20 - Toliver Evaluation 40 MHC's Reply 76 Summary Judgment Opinion 78 Bill of Costs 80-1 MHC's Memorandum in Support of Motion for Attorney's Fees and Costs 80-2 Affidavit in Support of MHC's Motion for Attorney's Fees and Costs 80-2 Ex. A to Affidavit - Billing Statements 82 EEOC's Objections to Bill of Costs 94 Magistrate Report and Recommendation on fees 95 EEOC's Objections to Magistrate Report and Recommendation 100 MHC's Reply to Objections 100-2 Ex. 2 - Jackson Deposition Excerpts 100-2 Ex. 2 - 5/15/08 Interview Questions: William Jackson 104 District Court Order 105 EEOC's Notice of Appeal 106 MHC's Notice of Appeal ********************************************************************************** <> <1> "R.*" refers to the docket entry number in the district court docket sheet. <2> Her pay went from $33,767 to $24,360. R.39-8 (Jackson Depo. 108). <3> See R.39-6 (Waller Depo. 36) (MHC gave its current employees "the choice first, meaning it is supposed to be posted in-house first and then go outside"); R.39-10 (Webb Depo. 49) (he "believe[d]" jobs were first made available to qualified internal candidates before being offered to external candidates, although internal applicants still had to interview); R.39-12 (King Depo. 18, 39) (MHC posted internally and only sought external applicants if no qualified internal applicant applied; also testifying that she never knew of a time when internal and external candidates were considered at the same time); R.39-13 (Nevilles Depo. 16) (testifying that "normally" positions are filled by internal candidates, she never knew of a time when an external candidate was chosen over an internal candidate, and that she knew of one employee who did not even have to interview when moving from operator to medical secretary). <4> As the district court noted, Grosjean characterized the age gap that existed in Cicero as "eight" years but it was actually seven-and-a-half. R.76, p.9; see Cicero, 280 F.3d at 588 ("A question of fact remains for a fact finder to resolve whether, under the circumstances of the present case, the seven and one-half year age difference satisfies the fourth prong of Cicero's prima facie case."). <5> Because the district court adopted the magistrate's report and recommendation in full, and for the sake of simplicity, this brief uses "the district court" or "the district court's order" when referring to the magistrate's report. <6> Although the Secretary of Labor originally enforced the ADEA, that authority was later transferred to the EEOC. <7> The EAJA originally contained a sunset provision, and the Act expired on October 1, 1984. In 1985, Congress passed new legislation reinstating the EAJA retroactive to October 1, 1984, and that bill was signed into law. See, e.g., Scarborough v. Principi, 541 U.S. 401, 406 (2004). <8> Subsection (d)(1)(a) also states that fees are not available when "special circumstances make an award unjust." That provision is not at issue here. <9> Subsection (d) applies only to small litigants. See 42 U.S.C. § 2412(d)(2)(B) (defining "party" as an individual with net worth below $2,000,000 or a corporation, etc., with a net worth below $7,000,000 and fewer than 500 employees). The Commission does not dispute that MHC is a "party" under this definition. <10> The record suggests that positions were posted internally for at least a week or two. Smith also testified that her interview was scheduled and cancelled twice during the week of February 4, 2008, before finally being held on February 8, 2008. Given these facts, the record suggests that the position was probably posted no later than mid January 2008.