EEOC v. Mortgage Information Servs. Brief as appellee Oct. 12, 2003 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ Nos. 04-11460-HH, 04-13314-HH ________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. MORTGAGE INFORMATION SERVICES, Inc., Defendant-Appellant. ___________________________________________________________ On Appeal from the United States District Court for the Southern District of Florida Civil No. 01-07543-CV-PAS ___________________________________________________________ APPELLEE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION'S ANSWER BRIEF ___________________________________________________________ ERIC S. DREIBAND General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel SUSAN R. OXFORD Attorney EQUAL EMPLOYMENT OPP. COMM. 1801 L Street, N.W. Washington, D.C. 20507 Tel (202) 663-4791 Fax (202) 663-7090 EEOC v. Mortgage Information Services, Inc. C-1 of 2 Nos. 04-11460-HH, 04-13314-HH CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT Appellee EEOC submits this list, pursuant to 11th Cir.R. 26.1, of trial judges, attorneys, and other persons and corporations known to have an interest in the outcome of this appeal: Hon. Ted Eugene Bandstra, U.S. Magistrate Vincent J. Blackwood, Acting Associate General Counsel, EEOC Cheryl A. Cooper, Trial Attorney, EEOC Barton J. Craig, Senior V.P. and General Counsel, MIS Lorraine C. Davis, Assistant General Counsel, EEOC Eric S. Dreiband, General Counsel, EEOC Equal Employment Opportunity Commission, Appellee Michael J. Farrell, Supervisory Trial Attorney, EEOC Delner Franklin-Thomas, Regional Attorney, EEOC Hon. Jose A. Gonzalez, Jr., Sr. U.S. District Judge Stanley Kiszkiel, Esq., co-counsel for MIS, Inc. James L. Lee, Deputy General Counsel, EEOC Mortgage Information Services, Inc., Appellant Ogletree, Deakins, Nash, Smoak & Stewart, P.C., co-counsel for MIS Susan R. Oxford, Appellate Attorney, EEOC EEOC v. Mortgage Information Services, Inc. C-2 of 2 Nos. 04-11460-HH, 04-13314-HH Gwendolyn Young Reams, Associate General Counsel, EEOC Hon. Patricia A. Seitz, U.S. District Judge Carolyn L. Wheeler, Assistant General Counsel Michael G. Whelan, Esq., co-counsel for MIS, Inc. Susan R. Oxford STATEMENT REGARDING ORAL ARGUMENT The Appellee Equal Employment Opportunity Commission respectfully submits that oral argument is not needed in this appeal. With respect to Appellant's first issue, the standard under Title VII for an award of attorney's fees to a prevailing defendant is clear, and the district court correctly applied this settled standard in declining to award fees. This Court defers to the district court's exercise of discretion in applying this standard, and the issues raised by Appellant in challenging the district court's decision can be adequately evaluated based on the parties' respective briefs. With respect to Appellant's second issue, EEOC does not dispute Appellant's entitlement to statutory costs for witnesses and reimbursement for the time its expert spent preparing for deposition. As neither of these issues is complex or novel, oral argument is not needed in this case. TABLE OF CONTENTS page CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-1 STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 1. Nature of the Case and Course of Proceedings . . . . . . . . . .2 2. Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 3. Decisions Below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 4. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 I. THE DISTRICT COURT PROPERLY DENIED MIS ATTORNEY'S FEES, AS EEOC'S SEXUAL HARASSMENT CLAIM WAS NOT FRIVOLOUS, UNREASONABLE OR WITHOUT FOUNDATION. . . . . . . . . . . . . . . . . . . . . . . . . . 17 A. The District Court Properly Denied Fees Here Because EEOC's Sex Harassment Claim Against MIS Stated Only a Single Claim, Albeit With Multiple Aggrieved Individuals. 18 B. The District Court did not Abuse its Discretion in Denying MIS's Fee Request Based on the Four Potential Claimants that EEOC Voluntarily Dropped. . . . . . . . . . . . . . . . . 27 C. The District Court did not Abuse its Discretion in Denying MIS's Request for Fees Based on EEOC's Pre-Suit Conciliation Efforts. . . . . . . . . . . . . . . . . . . . . . . . . . . 32 D. Remand for Further Findings is Unnecessary Here. . .36 II. EEOC DOES NOT CONTEST MIS'S ENTITLEMENT TO WITNESS FEES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . 42 APPENDIX A. EEOC v. Int'l Ass'n of Fire Fighters, Local 109, 88 Fair Empl. Prac. Cas. (BNA) 917 (S.D. Ohio 2001) B. EEOC v. Rymer Foods, Inc., 50 Fair Empl. Prac. Cas. (BNA) 787 (N.D. Ill. 1980) C. Statement of Professional Services Rendered by Oren Wunderman, Ph.D., dated August 10, 2003 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES FEDERAL CASES page Arcadian Fertilizer, L.P. v. MPS Indus. Servs., Inc., 249 F.3d 1293 (11th Cir. 2001) . . . . . . 15 Averbach v. Rival Mfg. Co., 879 F.2d 1196 (3d Cir. 1989) . . . .31 Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc) 14 Bonner v. Mobile Energy Servs. Co., 246 F.3d 1303 (11th Cir. 2001) (per curiam) . . . . . . . . . . 19, 26 Breda v. Wolf Camera, Inc., 148 F. Supp. 2d 1371 (S.D. Ga. 2001) 22, 24 Bruce v. City of Gainesville, 177 F.3d 949 (11th Cir. 1999) . . . . 26 Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257 (1998) . . . . . . . . . . . . . . . . 10 * Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S. Ct. 694 (1978) . . . . . . . . . . . . . . . . . . 2, 12, 17, passim Cronin v. Washington Nat'l Ins. Co., 980 F.2d 663 (11th Cir. 1993) 40 Dollar v. Long Mfg., 561 F.2d 613 (5th Cir. 1977) . . . . . . . . . . . 31 EEOC v. Bruno's Restaurant, 13 F.3d 285 (9th Cir. 1993) . . . . . 36 EEOC v. Chicago Miniature Lamp Works, 640 F. Supp. 1291 (N.D. Ill. 1986) . . . . . . . . . . . . . . . . . . 28 EEOC v. Dial Corp., 156 F. Supp. 2d 926 (N.D. Ill. 2001) . . . . . 28 EEOC v. First Alabama Bank of Montgomery, 595 F.2d 1050 (5th Cir. 1979) . . . . . . . . . . . . . . . . . . . . . . 14, 19 EEOC v. Int'l Ass'n of Fire Fighters, Local 109, 88 Fair Empl. Prac. Cas. (BNA) 917 (S.D. Ohio 2001) . . . 21 EEOC v. Kenneth Balk & Assoc., 813 F.2d 197 (8th Cir. 1987) . . . . 19 EEOC v. Mitsubishi Motors, 990 F. Supp. 1059 (C.D. Ill. 1998) . . . 28 EEOC v. Reichhold Chem., Inc., 988 F.2d 1564 (11th Cir. 1993) . . . 14, 19 EEOC v. Rymer Foods, Inc., 50 Fair Empl. Prac. Cas. (BNA) 787 (N.D. Ill. 1980) . . . . . . . 28 EEOC v. Tarrant Distrib., Inc., 750 F.2d 1249 (5th Cir. 1984) . . . . 14 EEOC v. W&O, Inc., 213 F.3d 600 (11th Cir. 2000) . . . . . . . . . . . . . 15, 39 * EEOC v. Waffle House, Inc., 534 U.S. 279, 122 S. Ct. 754 (2002) . . 35, 36 Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275 (1998) 10 Gupta v. Florida Bd. of Regents, 212 F.3d 571 (11th Cir. 2000) . . . . 22 * Harris v. Forklift Sys., Inc., 510 U.S. 17, 114 S. Ct. 367 (1993) . . . 22, 23, 24 Head v. Medford, 62 F.3d 351 (11th Cir. 1995) . . . . . . . . . . . . . . . . . 37 Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385 (1947) . . . . . . . . . . . 31 Hobbs v. Blue Cross/Blue Shield of Ala., 276 F.3d 1236 (11th Cir. 2001) 37 Hughes v. Rowe, 449 U.S. 5, 101 S. Ct. 173 (1980) . . . . . . . . . . . . . . 21 Jones v. Texas Tech Univ., 656 F.2d 1137 (5th Cir. Unit A Sept. 1981) 18 Karam v. City of Burbank, 352 F.3d 1188 (9th Cir. 2003) . . . . . . . . . 20 Mendoza v. Borden, 195 F.3d 1238 (11th Cir. 1999) (en banc) . . . . . . 22, 23 Nat'l RR Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061 (2002) . . . . . . . . . . . . . . . . . . . . 29 Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355, 97 S. Ct. 2447 (1977) . . . . . . . . . . . . . . . . . . . . . 36 Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 118 S. Ct. 998 (1998) . . . . . . . . . . . . . . . . . . . . . . 22 Riddle v. Egensperger, 266 F.3d 542 (6th Cir. 2001) . . . . . . . . . . . . 25 Sayers v. Stewart Sleep Ctr., Inc., 140 F.3d 1351 (11th Cir. 1998) . . 20 Shields v. Fort James Corp., 305 F.3d 1280 (11th Cir. 2002) . . . . . . 30 * Sullivan v. Sch. Bd. of Pinellas County, 773 F.2d 1182 (11th Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . 13, 18, 19, passim United States v. Crosby, 59 F.3d 1133 (11th Cir. 1995) . . . . . . . . . . . 14 Walker v. NationsBank of Florida, 53 F.3d 1548 (11th Cir. 1995) . . . 18, 20 FEDERAL STATUTES 28 U.S.C. 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. 1821 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 17, 40, 41 28 U.S.C. 1927 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 42 U.S.C. 1981 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 42 U.S.C. 1981a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. 1988 . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 25 42 U.S.C. 2000e-5(b) . . . . . . . . . . . . . . . . . . . . . . 33, 34 42 U.S.C. 2000e-5(f)(1) & (3) . . . . . . . . . . . . . . . . 1, 33 42 U.S.C. 2000e-5(k) . . . . . . . . . . . . . . . . . . . . . 1, 2, 12, passim COURT RULES Fed. R. Civ. P. 26(b) . . . . . . . . . . . . . . . . . . . . . . . . 17, 40,41 STATEMENT OF JURISDICTION The district court had jurisdiction over this matter pursuant to 28 U.S.C. 1331 and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. 2000e-5(f)(1) & (3) , as amended by Section 102 of the Civil Rights Act of 1991, 42 U.S.C.  1981a. The district court entered an order denying attorney's fees to Appellant Mortgage Information Services, Inc., ("MIS") on February 24, 2004. R.185. MIS appealed that decision on March 22, 2004. R.188. The district court entered an order awarding MIS costs in the amount of $20,037.62 on June 2, 2004. R.195. MIS appealed that decision on June 28, 2004. R.196. This Court has jurisdiction over final judgments of the district court under 28 U.S.C. 1291. STATEMENT OF THE ISSUES 1. Whether the district court properly exercised its discretion in denying MIS's application for attorney's fees under 42 U.S.C. 2000e-5(k). 2. Whether the district court's award of costs in the amount of $20,037.62 is proper. STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings Mortgage Information Services, Inc., challenges two decisions of the district court in these consolidated appeals. First, MIS appeals the district court's discretionary decision, under 42 U.S.C. 2000e-5(k) and Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S. Ct. 694 (1978), to deny MIS's application for attorney's fees, appealing this decision only with respect to the fees MIS allegedly expended opposing EEOC's efforts to obtain relief for individuals other than Plaintiff-Intervenor Maritza Osorio. Second, MIS appeals the district court's award of $20,037.62 in costs rather than the $23,479.61 MIS sought in its revised cost accounting. On July 28, 2004, this Court consolidated the two appeals. This Answer Brief addresses both appeals. The Equal Employment Opportunity Commission ("EEOC" or "Commission") filed suit against MIS on September 28, 2001, claiming that Osorio (who filed the original charge of discrimination and later intervened in EEOC's lawsuit) and other similarly-situated women were sexually harassed by MIS managers and that Osorio was subjected to retaliation when she complained. R.1. Following discovery, EEOC identified six women, in addition to Osorio, for whom it was seeking relief. MIS moved for summary judgment. RR.72-75. At various times before the motion was filed or while it was pending, EEOC notified MIS and the court that the Commission was no longer pursuing relief on behalf of four of the women, leaving only Osorio and two other women as claimants in EEOC's lawsuit. R.111. The district court thereafter denied summary judgment with respect to Osorio and granted MIS partial summary judgment with respect to the two other women. R.118. Following trial in September 2003, a jury concluded that Osorio had not been harassed or subjected to retaliation in violation of Title VII. R.157. MIS moved for attorney's fees and costs against EEOC and Osorio. RR.162, 163. MIS separately moved for sanctions against EEOC's lead attorney and Osorio's attorney under 28 U.S.C. 1927. RR.161, 173, 174. On February 24, 2004, the district court denied MIS's motions for fees and sanctions. R.185. MIS filed an appeal on March 22, 2004, appealing only the denial of fees related to the six additional women R.188. The district court's decision denying MIS attorney's fees and sanctions was silent concerning costs. MIS filed an unopposed motion for reconsideration on costs, R.186, which the district court granted. R.189. On April 12, 2004, MIS submitted a detailed accounting of its costs as directed by the district court. R.191. After EEOC opposed almost half the more than $40,000 in costs MIS sought, R.192, MIS reduced its request to $23,479.61. R.193. On June 2, 2004, the court awarded MIS $20,037.62 in costs. R.195. On June 28, 2004, MIS appealed this decision. R.196. 2. Statement of Facts MIS provides title insurance, title searches, and real estate appraisals to customers in South Florida. R.118 (Order Granting in Part and Denying in Part Motion for Summary Judgment), at 2. In response to MIS's motion for summary judgment, EEOC presented the following record facts. Plaintiff-Intervenor Maritza Osorio was hired to work in MIS's Miramar office in January 1999 as an appraisal coordinator in MIS's appraisal department. Id. at 2. In April 1999, chief appraiser John Robinson became Osorio's immediate supervisor. Id. Osorio states that Robinson subjected her to pervasive sexual harassment. He constantly made offensive sexual jokes and comments (often in front of the entire Appraisal Department) and engaged in frequent, unwelcome physical touching of Osorio in a sexually-suggestive manner. Id. at 2-3. Osorio saw Robinson engage in similar behavior toward other MIS female employees, id. at 3, and a number of these employees attested to Robinson's unwelcomed actions. For instance, Trisha Shirley reported observing Robinson touching female employees "constantly," rubbing the middle of their back and running his fingers through their hair. She stated that during Robinson's first week at MIS, she and Robinson were discussing the training of another employee when he suddenly pulled his chair between her legs and started rubbing her thighs. Shirley immediately reported this to Gilson and Nowicki, who "basically ignored [her]." When she tried to report the incident to the corporate office, no one returned her phone calls. She then reported the incident to the police. She later left the company "[b]ecause of the hostile work environment and the sexual harassment." R.171 (EEOC Fee Opposition), Ex.F (Statement of T. Shirley). Other female employees reported sexual comments and similar unwelcomed touching by Robinson, and some of them left the company as a result. See R.171 at 5. Osorio complained directly to Robinson and asked him to stop. When he ignored her complaints, she complained several times to Robinson's supervisor, MIS Vice President Frank Nowicki, without results. In August 2000, MIS discharged Osorio after the company found her speaking on the telephone with her attorney. R.118 at 3. Nowicki's supervisor, MIS President and co-founder Joseph Gilson, was responsible for supervising MIS's Miramar office. Id. at 2. Osorio did not complain to Gilson about Robinson's harassment and Nowicki's lack of response because she had heard that Gilson was sexually harassing female employees who worked in customer service and data entry. R.123 (Joint Summary of In Limine Motion). Two women who complained of Gilson's harassing behavior are Paula Chin and Christine Gordon. R.118 at 2-4. Paula Chin was nineteen years old when she began working at MIS in the customer service and data entry department in March of 1998. A few months later she was assigned to be Gilson's administrative assistant. Chin explained that Gilson's daily comments and stares during the three or four months she held this position made her feel extremely uncomfortable and intimidated. In the first leering incident, Gilson stared at Chin's body for approximately three to four minutes and then exclaimed "Wow" as he looked down at her crotch. Gilson stared at her body on a daily basis, especially at her buttocks and crotch. Chin explained that the looks Gilson gave her and some of the other female employees whenever they walked into his office, "like he was undressing you with his eyes," made these women feel intensely uncomfortable. R.96 (EEOC's Summary Judgment Opposition), at 5-6 & n.11; Chin Deposition ("Dep.") at 94-95, 119-21. Gilson also made Chin extremely uncomfortable with his repeated phone calls. Gilson called Chin four or five times a day while she was his assistant, and only one or two of those calls were about work. He often called Chin to tell her to look in her desk drawer for cookies he had brought her. In many of these phone calls, Gilson blew kisses over the phone (i.e., made a smacking sound). He also left notes for her in her desk drawer, and on some of the notes he drew little hearts. Once he called and asked Chin to come in on a Saturday to see him, saying he would be the only one there. Chin stated that there was no work-related reason for her to go to the office on that occasion. Another time, when Chin asked another employee to deliver a report to Gilson's office so Chin could avoid his leering stares, Gilson called Chin to say he was returning the report because he wanted her to bring it to him herself so he could see her. Chin said that at one point, soon after she started, Gilson called and asked if he made her feel uncomfortable. She told him yes, but he continued this conduct anyway. R.96 at 6 & nn.12-13. These unwelcomed actions continued even after Chin ceased to be Gilson's administrative assistant. Chin Dep. at 114. Once Gilson called Chin, whispered he loved her, and then hung up without discussing any business. Id. at 92-93. Another time, Gilson called Chin while he was on vacation, asked "Don't you miss me," gave her his cell phone number and said to call him any time. Chin stated there was no work-related reason why she might need to call Gilson during his vacation. Id. at 113; R.96 at 6. Finally, Gilson once reached out to hug Chin as he passed her on the staircase. She turned to walk away from him, at which point he stuck his hand out and touched her thigh. Chin dep. at 104-07. Overall, these experiences with the MIS president left Chin feeling embarrassed and humiliated. Id. at 137-38. Chin left MIS in August 2001, shortly after speaking to an EEOC investigator about these incidents. R.118 at 4. Christine Gordon was twenty-one years old when she began working at MIS in customer service and data entry in March of 2000. She reported similar feelings of humiliation caused by Gilson's comments and his constant staring at her body and, in particular, her chest. Gordon reported that for a period of several months, each time she went into Gilson's office he would give her uncomfortable "sexual" looks or say things like "nice blouse" or "you look nice today." She explained that it wasn't what Gilson said, but how he said it, and how he looked at her as he said it, that made her uncomfortable. His stares made Gordon and some of the other female employees so uncomfortable they tried to avoid going into his office by asking other employees to take things to Gilson for them. Gilson's stares continued until Chin and Gordon gave statements to EEOC in June or July of 2001, during the Commission's investigation, after which Gilson's staring and comments ceased. R.96 at 5; Gordon dep. at 42-43, 46-49, 54, 59, 62. Following an investigation and unsuccessful conciliation, EEOC filed suit on September 28, 2001, seeking relief for Osorio and "other similarly situated females." R.1 (Complaint). During discovery, EEOC requested contact information for persons who worked at MIS's Miramar office during the relevant period of time, which MIS supplied in July 2002. In September 2002, EEOC identified for MIS six women, in addition to Osorio, who described circumstances suggesting they were also harassed by MIS managers: Paula Chin, Christine Gordon, Trisha Shirley, Carly Gilles, Kristina Brown, and Tamberly Juda. In January 2003, EEOC advised MIS that it no longer sought relief for one of these six, Trisha Shirley, because she declined to cooperate with EEOC. R.165, Ex.11. By letter dated March 31 2003, MIS asked EEOC to "dismiss its claims for [Carly] Gilles and [Kristina] Brown" because both individuals had ended their employment with MIS more than 300 days before Osorio filed her charge of discrimination with the Commission. MIS further indicated that if EEOC "refuse[d] to dismiss these claims, . . . [MIS would] seek appropriate sanctions from the court." Within a week, EEOC agreed not to seek relief for Brown or Gilles. On April 9, 2003, MIS moved for summary judgment and asserted, for the first time, that any claim for relief on behalf of Tamberly Juda was also untimely. R.72 (Summary Judgment Motion) at 1; R.73 (Summary Judgment Brf.) at 12-14. MIS further asserted, among other things, that the conduct underlying EEOC's claim for relief for Chin and Gordon was not "sexual harassment" and EEOC could not establish entitlement to backpay for them. R.72 at 1-2; R.73 at 15-16, 19. After considering these arguments, EEOC informed the district court and MIS that it no longer sought relief for Juda and would not seek backpay for Gordon or Chin. See R.118 at 2 n.1; R. 171 (EEOC Opp. to Attorney's Fees) at 12-13. On July 28, 2003, the district court granted in part and denied in part MIS's motion for summary judgment. R.118. The district court denied summary judgment with respect to EEOC's claim that Osorio had been subjected to sexual harassment, concluding there were disputed issues of fact concerning whether Osorio's alleged harassment was both subjectively unwelcome and objectively severe and pervasive. R.118 at 6. The district court also found that EEOC had established disputed issues of fact concerning whether MIS was entitled to assert an affirmative defense under Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257 (1998), R.118 at 6 n.3, and whether MIS terminated Osorio in retaliation for objecting to Robinson's actions. Id. at 8-9. The district court granted MIS summary judgment on the portion of EEOC's sexual harassment claim involving Chin and Gordon . The court agreed that Chin and Gordon subjectively perceived Gilson's behavior to be harassing, but concluded that although Gilson's attentions "may have been flirtatious, boorish, and extremely annoying," his actions were not objectively "sufficiently severe or pervasive to create a question of fact for the jury." Id. at 7-8. On August 7, 2003, the parties filed their joint pre-trial stipulation, including the parties' respective lists of trial witnesses. R.121. EEOC's list included Osorio, Chin, Gordon, and the four other previously-identified women who had witnessed and experienced harassing conditions at MIS. Id. At the same time, MIS filed a motion in limine to bar EEOC from presenting at trial the evidence of MIS President Gilson's conduct toward Chin and Gordon. R.123 (Joint Summary of In Limine Motion). EEOC opposed the motion on the ground that the evidence supported EEOC's claim that MIS was liable for Robinson's harassment of Osorio in part because MIS permitted an atmosphere of sexually demeaning behavior to permeate the company at the highest levels which, in turn, discouraged employee complaints as being futile. Id. On August 20, 2003, Hon. Patricia A. Seitz denied MIS's motion. R.124. Judge Seitz held that MIS "failed to establish that the evidence sought to be excluded is irrelevant . . . ." The court continued: In fact, Ms. Osorio's perception that complaints of sexual harassment made to Mr. Gilson would be futile, in light of his own alleged improper conduct, is directly relevant to the determination of whether Ms. Osorio unreasonably failed to take advantage of any preventive or corrective opportunities at MIS. Id. A jury trial was thereafter set to begin on September 8, 2003, before Judge Seitz. R.130. On September 9, 2003, the case was transferred to Hon. Jose A. Gonzalez, Jr., and the trial re-set for September 15, 2003. R.147. MIS renewed its motion in limine before Judge Gonzalez, and this time it was granted. During the six days of trial that followed, RR.149-54, EEOC was not permitted to present any evidence of the harassing actions of Gilson, although the Commission presented evidence from three of the four female witnesses who, in addition to Osorio, had observed or experienced harassing behavior by Robinson. After close to six hours of deliberation, the jury ruled in MIS's favor, finding no actionable harassment under federal law. RR.155-57. 3. Decisions Below After trial, MIS moved for attorney's fees under Title VII. MIS sought fees both for the claims involving Osorio that went to trial and for "having to defend allegations brought by the EEOC on behalf of six other individuals," R.162, although MIS did not separately identify or estimate the two categories of fees. The district court denied MIS's motion. R.185. The court noted that a prevailing defendant in a Title VII action is entitled to its attorney's fees under 42 U.S.C. 2000e-5(k) only if the plaintiff's claims were "frivolous, unreasonable, or without foundation," Christiansburg Garment Co. v. EEOC, 434 U.S. at 421, 98 S. Ct. at 700, and concluded that this standard was not met in this case. Discussing, in particular, the facts surrounding Osorio, the district court observed that Plaintiffs established a prima facie case and the Court conducted a full blown trial on the merits. After several days of testimony, the jury grappled with the evidence for close to six hours. R.185 at 2-3 (citing Sullivan v. Sch. Bd. of Pinellas County, 773 F.2d 1182, 1188-90 (11th Cir. 1985)). Because the district court's decision was silent concerning costs, MIS moved for reconsideration solely on that issue, without opposition from EEOC. R.186. The district court granted reconsideration and directed MIS to submit an itemized bill of costs. R.189. Although MIS's initial itemized accounting included costs of more than $40,000, MIS reduced its requested costs to $23,479.61 in response to EEOC's objections. RR. 191-93. The district court awarded MIS $20,037.62 in costs, amounting to all of the costs MIS sought in its amended request except $3,441.99 in witness fees. R.195. Among other things, the district court stated it was adopting EEOC's position that witness fees, both expert and non-expert, are capped by the statutory maximum in 28 U.S.C. 1821 of $40.00 per person per day of attendance. Instead, however, of awarding MIS the $1,281.99 in witness fees EEOC calculated MIS was entitled to under 28 U.S.C. 1821, the district court awarded MIS $0.00 for witness fees. MIS then filed these consolidated appeals, challenging two rulings: (1) the district court's failure to assess attorney's fees against EEOC for the portion of MIS's defense associated with EEOC's efforts to obtain relief for the six individuals other than Osorio; and (2) the district court's failure to award approximately $3,441.99 in witness fees as part of MIS's litigation costs. 4. Standard of Review The fee-shifting provision of Title VII, 42 U.S.C. 2000e-5(k), "vests the decision as to attorney's fees in the sound discretion of the trial court." EEOC v. Tarrant Distrib., Inc., 750 F.2d 1249, 1250-51 (5th Cir. 1984). This Court reviews the district court's decision to deny attorney's fees for abuse of discretion, United States v. Crosby, 59 F.3d 1133, 1137 (11th Cir. 1995); EEOC v. Reichhold Chem., Inc., 988 F.2d 1564, 1569 (11th Cir. 1993), and will not "disturb the district court's decision on fees absent a clear finding of abuse of discretion." Tarrant Distrib., 750 F.2d at 1251 (citing EEOC v. First Alabama Bank of Montgomery, 595 F.2d 1050 (5th Cir. 1979)). The award of costs is likewise vested in the district court's sound discretion, and this Court will not disturb a district court's costs award "in the absence of a clear abuse of discretion." EEOC v. W&O, Inc., 213 F.3d 600, 619 (11th Cir. 2000) (citation omitted). To the extent a cost award is premised, in part, on any conclusions of law, this Court reviews such conclusions of law de novo. Arcadian Fertilizer, L.P. v. MPS Indus. Servs., Inc. 249 F.3d 1293, 1295 (11th Cir. 2001). SUMMARY OF ARGUMENT The district court properly exercised its discretion when it denied MIS attorney's fees in this case. EEOC's claim that MIS was liable under Title VII for sexual harassment endured by Maritza Osorio and other MIS employees was not frivolous or unfounded, the standard for an award of attorney's fees to a prevailing defendant under Title VII. Indeed, EEOC's claim on behalf of Osorio survived summary judgment, and a jury listened to six days of testimony and deliberated for approximately six hours before finding that Osorio had not been subjected to actionable workplace harassment. MIS recognized that this is not the mark of a frivolous case, as the company has not challenged the district court's denial of fees for that portion of EEOC's case. Instead, MIS challenges the district court's failure to award unspecified fees that MIS claims it incurred as a result of EEOC's efforts to obtain relief for additional MIS employees. In so doing, MIS misapprehends both what constitutes a "frivolous" or "groundless" claim as well as the nature of EEOC's judicial enforcement authority. In any event, EEOC's identification of additional persons during discovery was not "frivolous" or "unfounded," because EEOC had a reasonable basis for considering these six individuals as potential claimants. EEOC ultimately determined not to seek relief for four of the six after one indicated she would not cooperate with the Commission and MIS objected to three others based on timeliness concerns. EEOC's identification of these additional individuals during discovery did not, however, add additional "claims" to EEOC's lawsuit against MIS. EEOC's lawsuit alleged only two claims of discrimination under Title VII: (1) workplace sexual harassment of Osorio and similarly situated women, and (2) retaliatory termination of Osorio's employment after she complained. EEOC's exercise of prosecutorial discretion to discontinue seeking relief for some of these individuals does not indicate these claims were frivolous, nor does the district court's summary judgment dismissal of two other individuals as claimants in the case. As there was nothing frivolous or unreasonable about EEOC's harassment claim against MIS and EEOC's manner of litigating it here, the district court properly denied MIS attorney's fees, and this Court should affirm. MIS also challenges the district court's failure to award costs for witnesses. The Commission did not object below, and does not object on appeal, to an award of costs for witnesses at the statutory rate of $40.00 per day per person, as provided in 28 U.S.C. 1821. EEOC also does not object to payment of MIS's expert's fee under Federal Rule of Civil Procedure (Fed. R. Civ. P.) 26(b) for time MIS's expert spent preparing for the deposition EEOC conducted during pretrial discovery. This cost is proper under the federal rules, and EEOC did not pay it previously only because MIS failed to bill the Commission for that expense. ARGUMENT I. THE DISTRICT COURT PROPERLY DENIED MIS ATTORNEY'S FEES, AS EEOC'S SEXUAL HARASSMENT CLAIM WAS NOT FRIVOLOUS, UNREASONABLE OR WITHOUT FOUNDATION MIS sought attorney's fees under section 706(k) of Title VII, 42 U.S.C. 2000e- 5(k), which authorizes an award of attorney's fees to a prevailing party in a Title VII lawsuit. This section provides, in pertinent part: "In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee . . . ." 42 U.S.C. 2000e-5(k). Although a prevailing Title VII plaintiff is ordinarily awarded fees as a matter of course, Christiansburg Garment Co.v. EEOC, 434 U.S. at 416-17, 98 S. Ct. at 698, a prevailing defendant is entitled to attorney's fees only where "a court finds that [the plaintiff's] claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so." Id. at 422, 98 S. Ct. at 701 (emphasis added). The Court cautioned district courts to resist "the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation." Id. at 421-22, 98 S. Ct. at 700; accord Walker v. NationsBank of Florida, 53 F.3d 1548, 1558 (11th Cir. 1995). "Even when the law or the facts appear questionable or unfavorable at the outset, a [plaintiff] may have an entirely reasonable ground for bringing suit." Christiansburg, 434 U.S. at 422, 98 S. Ct. at 701. A. The District Court Properly Denied Fees Here Because EEOC's Sex Harassment Claim Against MIS Stated Only a Single Claim, Albeit With Multiple Aggrieved Individuals. The district court here properly applied Christiansburg when it denied MIS's fee application because EEOC's single sex harassment claim against MIS was not "frivolous, unreasonable, or without foundation," R.185 at 2-3, and EEOC did not continue to litigate any portion of this case after it became apparent it might be lacking in foundation. This Court has said that "[i]n determining whether a suit is frivolous, 'a district court must focus on the question [of] whether the case is so lacking in arguable merit as to be groundless or without foundation rather than whether the claim was ultimately successful.'" Sullivan v. Sch. Bd. of Pinellas County, 773 F.2d at 1189 (quoting Jones v. Texas Tech Univ., 656 F.2d 1137, 1145 (5th Cir. Unit A Sept. 1981)); see also Walker v. NationsBank, 53 F.3d at 1558 ("district court must focus on the question of whether the case is seriously lacking in arguable merit"). This standard typically is met only where the plaintiffs have not introduced any evidence to support their claims. Sullivan, 773 F.2d at 1189; see, e.g., EEOC v. First Alabama Bank of Montgomery, 595 F.2d at 1056 (fees awarded by district court because there was "no evidence" to sustain EEOC's claims). In contrast, where the plaintiff presented some evidence supporting his or her claim, courts do not award fees to defendants. See, e.g., Bonner v. Mobile Energy Servs. Co., 246 F.3d 1303, 1305 (11th Cir. 2001) (per curiam) (reversing fee award to Title VII defendant following summary judgment in the defendant's favor because plaintiffs had presented evidence, albeit weak, to support their claim of gender discrimination); EEOC v. Reichhold Chem., 988 F.2d at 1570-71 (reversing fee award to Title VII defendant because EEOC presented some evidence to support its equal pay and retaliation claims); EEOC v. Kenneth Balk & Assoc., 813 F.2d 197, 198 (8th Cir. 1987) (reversing fee award to prevailing Title VII defendant because EEOC had "some basis" for its contention that defendant discriminated). In this case, EEOC presented substantial evidence, in opposition to summary judgment, to demonstrate that Osorio was subjected to workplace sexual harassment and retaliation by Robinson and that Chin and Gordon were subjected to workplace sexual harassment by MIS President Gilson. The district court denied summary judgment with respect to Osorio's allegations. R.118. Later, in denying MIS's application for attorney's fees, the district court expressly relied on the fact that Plaintiffs' claims were tried before a jury, which heard several days of testimony and deliberated for almost six hours before ruling in MIS's favor. R.185. Since MIS has appealed only the district court's denial of its unspecified fees associated with the six potential claimants other than Osorio, MIS has conceded that the portion of EEOC's case that went to trial is non-frivolous. See, e.g., Sayers v. Stewart Sleep Ctr., Inc., 140 F.3d 1351, 1353-54 (11th Cir. 1998) (reversing fee award to Title VII defendant where case culminated in seven-day trial); Walker v. NationsBank, 53 F.3d at 1558-59 (reversing fee award to Title VII defendant after summary judgment denied and case tried). That the district court was not similarly persuaded by the Commission's evidence concerning Chin and Gordon does not establish a basis for awarding MIS fees. See Karam v. City of Burbank, 352 F.3d 1188, 1196 (9th Cir. 2003) (inability to defeat summary judgment does not mean claims were groundless at outset). The allegations concerning Chin and Gordon were not separate "claims" in EEOC's lawsuit, but were part and parcel of EEOC's single sexual harassment claim against MIS. In a case involving multiple victims of discrimination, the failure to establish liability or damages as to some of the victims does not render the overall claim frivolous. Put another way, if there is a factual basis for EEOC's "claim" with respect to at least one of the harassment victims, the harassment claim itself, of which the individual claims for relief are but a subset, cannot be frivolous. Therefore, the fact that the district court expressly found EEOC's sexual harassment claim against MIS was non-frivolous based on Osorio's allegations means that fees were also properly denied with respect to any additional, unspecified expense MIS may have incurred in addressing EEOC's contention that Chin and Gordon were also entitled to relief. Even if the Commission's contentions concerning Chin and Gordon were thought of as separate claims, the district court's determination that the allegations regarding Chin and Gordon were "legally insufficient to state a claim or to require a trial is not, in itself, sufficient to render [EEOC's] case 'groundless' or 'without foundation.'" EEOC v. Int'l Ass'n of Fire Fighters, Local 109, 88 Fair Empl. Prac. Cas. (BNA) 917 (S.D. Ohio 2001) (quoting Hughes v. Rowe, 449 U.S. 5, 15-16, 101 S. Ct. 173, 179 (1980)) (Attachment A). EEOC had a reasonable basis for asserting that the company president's repeated sexual attentions toward two young female clerical workers constituted actionable sex harassment under Title VII. That the court ultimately disagreed does not make EEOC's view of the facts unreasonable. Unlike a company's decision to discharge an employee or to refuse to hire an individual, it is often difficult to ascertain, in advance, what amount and type of proof will satisfy the objective component of an actionable harassment claim. Indeed, courts have reached widely varying determinations on comparable facts. Breda v. Wolf Camera, 148 F. Supp. 2d 1371, 1377-78 (S.D. Ga. 2001) (summarizing variation among circuits on this issue). When determining whether challenged conduct amounts to a hostile work environment, a court is required to examine and consider all of the relevant behavior and conduct from the perspective of a reasonable person in the plaintiff's position, and to consider this evidence "collectively" and "in context," to determine under the "all the circumstances" whether the harassing conduct is objectively "sufficiently severe or pervasive." Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S. Ct. 367, 371 (1993); Gupta v. Florida Bd. of Regents, 212 F.3d 571, 586 (11th Cir. 2000); Mendoza v. Borden, 195 F.3d 1238, 1246 (11th Cir. 1999) (en banc). Factors to be considered include the frequency of the harassing conduct, its severity, whether it is physically threatening or humiliating or merely an offensive utterance, and whether it unreasonably interferes with an employee's work performance. Id. (citing Harris, 510 U.S. at 23, 114 S. Ct. at 371). The "social context in which particular behavior occurs and is experienced by its target" is also highly significant. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81-82, 118 S. Ct. 998, 1003 (1998). Some behavior between co-workers that might not be considered "harassment" under Title VII might be actionable when undertaken by the company president toward substantially younger workers such as Chin and Gordon because of the disparity in their status within the company and the absence of any higher authority to whom they could complain. Application of the multiple factors identified by the Supreme Court and this Court will, necessarily, result in a range of opinions concerning whether a particular set of facts constitutes actionable harassment under Title VII. In Mendoza v. Borden, for instance, this Court ruled en banc that a manager's attentions to a female subordinate were insufficient, as a matter of law, to satisfy the objective component of a hostile environment claim under Title VII. 195 F.3d at 1247. Four dissenting judges, however, concluded that Mendoza's claims presented a question for the jury. Id. at 1257-69 (Tjoflat, J., dissenting). Indeed, the en banc panel of eleven judges generated five separate opinions either concurring or dissenting, in whole or in part, with the majority's ruling. Cf. Harris, 510 U.S. at 22-23, 114 S. Ct. at 371 (determining whether a workplace is "hostile" or "abusive" "is not, and by its nature cannot be, a mathematically precise test"). As the district court later observed in Breda v. Wolf Camera, "determining the intensity/quantity of sexual gesturing, touching, bantering and innuendo that it takes to render a work environment sexually hostile" is like "trying to nail a jellyfish to the wall." 148 F. Supp. 2d at 1377 (citation omitted); see also id. at 1381 (observing that facts in Breda might "make the grade in some jurisdictions"). Thus, judicial guidance concerning what constitutes actionable harassment is anything but clear-cut. In this instance, evidence of MIS President Gilson's constant leering at Chin and Gordon and his staring, in particular, at their breasts and vaginas, his frequent comments about their appearance (spoken in a manner that conveyed sexual overtones), his "love" notes and personal telephone calls to them, frequently punctuated by "kissing" sounds, and his other unwelcomed attentions, viewed collectively, provided a basis for EEOC's assertion that Chin and Gordon were entitled to relief. Gilson's actions, which the district court described as "flirtatious, boorish, and extremely annoying," R.118 at 8, were not only frequent and offensive, but also deeply humiliating. See Harris, 510 U.S. at 23, 114 S. Ct. at 371. These actions continued for many months, and stopped only after EEOC began its investigation. R.96 at 5. During this time, Gilson's position as company president left Chin and Gordon vulnerable and without any real recourse. Moreover, Gilson's actions interfered with Chin and Gordon's performance of their jobs because they found it necessary to enlist other employees to perform some of their job duties to avoid coming into contact with him. Id. EEOC proffered evidence that Gilson's actions affected not just Chin and Gordon, but other women working under his supervision, as well, causing them also to avoid contact with Gilson whenever possible to guard against his pointed staring at their bodies and his inappropriate personal comments. All of these factors, taken together, provided a reasonable basis for the Commission to seek relief for Chin and Gordon in EEOC's sexual harassment claim against MIS. The fact that EEOC's claims on behalf of Chin and Gordon were intertwined with EEOC's claims on behalf of Osorio, which the district court found to be viable when it denied summary judgment, further demonstrates that EEOC had a reasonable ground for including Chin and Gordon in this lawsuit. As the Sixth Circuit noted recently in reversing a district court's award of attorney's fees under an analogous statute, 42 U.S.C. 1988, see n.5 supra, a district court's grant of summary judgment on a portion of plaintiff's claims "does not necessarily support the conclusion that the plaintiffs' claims were frivolous, unreasonable or groundless, especially if there are viable claims intertwined with the meritless claims." Riddle v. Egensperger, 266 F.3d 542, 551 (6th Cir. 2001) (emphasis added). MIS's reliance on Sullivan v. Sch. Bd. of Pinellas County, 773 F.3d at 1189, is misplaced. MIS argues that the district court abused its discretion because MIS made no settlement offer for Chin and Gordon and the district court dismissed EEOC's claims on their behalf before trial on the ground that EEOC did not make out a prima facie case of sexual harassment. See MIS Brf. at 19. MIS fails to appreciate, as this Court expressly stated in Sullivan and has reiterated in other cases, these "general guidelines" are "not hard and fast rules." 773 F.3d at 1189; see also Bonner v. Mobile Energy Servs. Co., 246 F.3d at 1304 n.9; Bruce v. City of Gainesville, 177 F.3d 949, 952 (11th Cir. 1999) (applying same standard to fee application under the Americans with Disabilities Act). Because the relief sought for Chin and Gordon was part of EEOC's sexual harassment claim against MIS, and because EEOC had a basis in fact for seeking such relief, Sullivan does not compel reversal of the district court's discretionary denial of fees here. In sum, although the district court ultimately rejected EEOC's contention that Gilson's treatment of Chin and Gordon was objectively severe or pervasive, there was a factual underpinning for EEOC's contention. Given the varying judicial responses in applying the governing legal standards to the range of factual allegations in hostile environment sexual harassment cases, district courts must be allowed to exercise their statutory discretion to deny fees to defendants who prevail on summary judgment, particularly when a defendant prevails solely because the court concludes that a plaintiff's proffered evidence lacks the requisite "severity" or "pervasiveness." Unless district courts, who are closest to the facts, are upheld in their discretionary denial of attorney's fees to prevailing Title VII defendants, plaintiffs will be discouraged from filing all but the most "air tight" of harassment cases, and Congress's goal of eliminating unlawful harassment from the workplace will be thwarted. See Christiansburg, 434 U.S. at 422, 98 S. Ct. at 700-01 (explaining rationale for applying a more stringent standard for a fee award to a prevailing defendant). For all of these reasons, the district court's discretionary denial of fees here should be affirmed. B. The District Court did not Abuse its Discretion in Denying MIS's Fee Request Based on the Four Potential Claimants that EEOC Voluntarily Dropped. The district court properly refused to award MIS whatever attorney's fees might have been associated with proposed EEOC claimants Tamberly Juda, Kristina Brown, Carly Gilles and Trisha Shirley, whom EEOC identified during discovery and then dropped as claimants in its suit shortly thereafter. EEOC's efforts to obtain relief for these individuals were not "without foundation," as MIS argued. MIS Brf. at 20-22. Rather, each of these women experienced sexually harassing treatment by Robinson similar to the actions the district court found sufficient to go to the jury with respect to Osorio. See, e.g., R.171 (EEOC Fee Opp.) at 4-6 & Ex.F. MIS asserts that EEOC's efforts to obtain relief for Juda, Brown and Gilles were frivolous because these women ceased working at MIS more than 300 days before Osorio filed her charge with the Commission. EEOC has long held the view, however, that relief can be obtained for employees who were subjected to workplace harassment and other forms of unlawful discrimination more than 300 days before the filing of the charge that gives EEOC jurisdiction to investigate. The Commission has, in other lawsuits, successfully sought relief for individuals who did not experience any harassment within 300 days of the charge filing, as long as some of the aggrieved employees experienced harassment within the 300-day period. See, e.g., EEOC v. Dial Corp., 156 F. Supp. 2d 926, 968-69 (N.D. Ill. 2001); EEOC v. Mitsubishi Motors, 990 F. Supp. 1059, 1087 (C.D. Ill. 1998) (denying defendant's request to limit class to persons who experienced harassment during 300-day period); see also EEOC v. Chicago Miniature Lamp Works, 640 F. Supp. 1291, 1296 (N.D. Ill. 1986) ("Because Chicago Miniature engaged in a continuing course of discrimination against black persons, even persons who suffered discrimination during the earlier part of the continuous period (and not just within the 300 days) can become class members entitled to relief."); EEOC v. Rymer Foods, Inc., 50 Fair Empl. Prac. Cas. (BNA) 787, 788 (N.D. Ill. 1980) ("Victims of discrimination occurring beyond the 300 day filing period can become members of a class if one member alleges a violation within the 300 day period.") (citations omitted) (Attachment B). The Supreme Court's decision in Nat'l RR Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061 (2002), does not require a contrary result, as EEOC noted below in opposing MIS's fee application. See R.171 at 13 ("open question" how Morgan will apply in class sex harassment cases). In Morgan the Supreme Court addressed alleged discriminatory acts against a single individual, some recent and some not. The Court contrasted "related discrete acts," such as a series of failure-to-hire decisions, each of which must be challenged within the 300-day period, id. at 111-13, 122 S. Ct. at 2071-72, with a hostile environment claim that, by its nature, consists of acts that occurred "over a series of days or perhaps years," and is "based on the cumulative affect of [those] individual acts." Id. at 115-17, 122 S. Ct. at 2073-74. The Court stated: It does not matter, for purposes of the statute, that some of the component acts of the hostile work environment fall outside the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability. . . . The statute does not separate individual acts that are part of the hostile environment claim from the whole for the purposes of timely filing and liability. . . . Given . . . that the incidents comprising a hostile work environment are part of one unlawful employment practice, the employer may be liable for all the acts that are part of this single claim. Id. at 117-18, 122 S. Ct. at 2074-75 (emphasis added). The Court did not speculate in Morgan how this principle might apply in a case involving multiple aggrieved employees. The opinion is consistent, however, with the view that persons in a multi- victim case might be eligible for relief even if they experienced harassment entirely outside the 300-day charge filing period, as long as some members of the "class" experienced harassment within the charge-filing period. This Court has since applied Morgan's general principle in a multi-victim race harassment case brought under 42 U.S.C. 1981, Shields v. Fort James Corp., 305 F.3d 1280 (11th Cir. 2002). The decision in Shields did not indicate whether any of the aggrieved individuals experienced harassment solely outside the 300-day charge filing period, and this Court need not decide here whether it agrees with the Commission that harassment victims may be entitled to relief even if their entire harm occurred more than 300 days before the charge was filed. The purpose of this discussion is simply to demonstrate that EEOC had a basis for initially identifying Juda, Brown and Gilles as potential claimants in this case, even after the Supreme Court decided Morgan in June 2002. Under this theory, EEOC could have continued to seek relief for Juda, Brown and Gilles. Nevertheless, when MIS objected on timeliness grounds to the inclusion of Brown and Gilles (by letter in March 2003) and Juda (in MIS's summary judgment motion in April 2003), EEOC exercised its prosecutorial discretion and notified MIS that EEOC had decided not to pursue relief for those individuals. This litigation strategy decision does not signal that such a claim for relief would have been "frivolous," nor does it demonstrate any malfeasance on EEOC's part. To the contrary, it reflects the proper narrowing of issues that pre-trial discovery is supposed to produce. Hickman v. Taylor, 329 U.S. 495, 501, 67 S. Ct. 385, 388-89 (1947) (purpose of discovery "to narrow and clarify the basic issues between the parties"); Averbach v. Rival Mfg. Co., 879 F.2d 1196, 1201 (3d Cir. 1989) (same); Dollar v. Long Mfg., 561 F.2d 613, 616 (5th Cir. 1977) (same). Thus, there is no basis for reversing the district court's denial of whatever fees MIS might have incurred in connection with EEOC's brief inclusion of Juda, Gilles and Brown as potential claimants in this lawsuit. It is even more clear that there is no basis to reverse the district court's discretionary denial of attorney's fees with respect to Trisha Shirley, who was dropped from EEOC's lawsuit because she did not wish to cooperate with the Commission. When EEOC interviewed Shirley during the charge investigation, she described harassing behavior comparable to the sexual harassment described by Osorio. R.171 at 5 & Ex.F (statement of T. Shirley). Thus, EEOC had a factual basis for initially including Shirley as a claimant. When EEOC ascertained that Shirley did not wish to cooperate with EEOC's lawsuit, a circumstance entirely outside of EEOC's control, EEOC notified MIS in January 2003, before Shirley was deposed and several months before MIS moved for summary judgment. In sum, EEOC's decision not to seek relief for these four individuals demonstrates the Commission's responsiveness to MIS during the course of this litigation, based on information that arose during discovery. It does not provide a basis for reversing the district court's discretionary denial of fees. C. The District Court did not Abuse its Discretion in Denying MIS's Request for Fees Based on EEOC's Pre-suit Conciliation Efforts. There is no merit to MIS's contention that EEOC's pre-suit conciliation efforts support an award of attorney's fees to MIS. MIS argues the district court abused its discretion in not awarding MIS a portion of its fees because, although EEOC interviewed the six additional women during the course of its charge investigation, EEOC allegedly did not consult with them "about their status as claimants or what damages they were seeking" before EEOC engaged MIS in conciliation. MIS Brf. at 18. In suggesting that EEOC cannot initiate the conciliation process unless it first ascertains the damages that other interested parties might be seeking, MIS misconstrues the nature of EEOC's pre-suit enforcement efforts as well as the role of private citizens in EEOC's enforcement efforts on behalf of the public interest. EEOC issued a Letter of Determination in this case concluding that "Charging Party and other similarly situated females were subjected to a sexually offensive hostile work environment by members of [MIS's] management." R.165 (Appx to MIS's Motion for Attorney's Fees), Ex.2 (emphasis added). Whenever EEOC issues such a "cause" determination, it must offer the respondent employer the opportunity to eliminate the discrimination. 42 U.S.C. 2000e-5(b); see also 42 U.S.C. 2000e- 5(f)(1) (Title VII authorizes EEOC to bring a civil action if EEOC is "unable to secure from the respondent a conciliation agreement acceptable to the Commission . . . ."). As happened here, EEOC often sends the respondent employer an initial conciliation proposal that leaves some of the terms for later specification, if the respondent expresses an interest in providing appropriate relief to resolve the matter through confidential conciliation. Thus, on August 14, 2001, EEOC sent MIS a proposed Conciliation Agreement that included, in addition to relief for Plaintiff-Intervenor Osorio, a "Section III. Class Relief" that provided: Respondent agrees to pay compensatory damages to aggrieved parties. The compensatory damages shall be determined by the EEOC before the ratification of this Agreement. R.165, Ex.3. p.8 (emphasis added). If MIS had been interested in settlement, it could have asked EEOC to specify the amount sought for "class relief" and the Commission's basis for such calculation. MIS did not express such an interest in this case, however. Instead, after indicating on August 20, 2001, that it wanted to engage in settlement discussions, MIS failed to follow up despite the EEOC investigator's repeated efforts to contact MIS's counsel. R.171 (EEOC Fee Opp.), Ex.P. In the absence of actual settlement negotiations, EEOC has no obligation to volunteer information concerning "class relief." Thus, EEOC never provided MIS with the names of the similarly-situated individuals during conciliation because settlement discussions never advanced to that stage (indeed, settlement discussions never even began). Likewise, EEOC did not need to consult with these six other women concerning the adequacy of any proposed relief because MIS never made any settlement offer either before or after conciliation concluded on September 4, 2001. In any event, where EEOC brings an enforcement action on behalf of a group of workers in addition to the charging party, EEOC does not need to consult with each aggrieved individual and ascertain their personal damage demands before proceeding with enforcement efforts. EEOC enforcement is undertaken in the public interest, and EEOC is not bound, in this respect, by the demands of private citizens. EEOC v. Waffle House, Inc., 534 U.S. 279, 291-92, 122 S. Ct. 754, 762-63 (2002) (once discrimination charge is filed, "EEOC is in command of the process"; statute clearly makes EEOC "master of its own case" and confers on the agency "authority to evaluate the strength of the public interest at stake"). Indeed, if an employer makes a conciliation offer that EEOC believes constitutes appropriate relief and a charging party or other aggrieved individual indicates she wants more, EEOC can accept the respondent's offer regardless of whether the aggrieved individual is dissatisfied with the amount. See id. at 291, 122 S. Ct. at 762-63 (relief EEOC seeks cannot be dictated by charging party). At no time in the enforcement process, whether during administrative proceedings or in court, does EEOC "represent" aggrieved individuals, even when the Commission seeks relief on their behalf. When EEOC seeks individual relief, it is as a government enforcement agency acting in the public interest to remedy identified discrimination, not as a claim-processing administrative body seeking to advance the interests of private citizens. See id. at 287-88, 122 S. Ct. at 761 ("EEOC does not function simply as a vehicle for conducting litigation on behalf of private parties") (quoting Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355, 368, 97 S. Ct. 2447 (1977)) . D. Remand for Further Findings is Unnecessary Here. MIS argues that a remand is warranted because the district court's opinion focused on the non-frivolous nature of EEOC's claims on behalf of Osorio, and the district court did not expressly discuss EEOC's efforts to obtain relief for Chin, Gordon and the four individuals EEOC dropped from the case during discovery. MIS is wrong on this point, for several reasons. First, even assuming additional express findings would have been appropriate, a district court's failure to make express findings to support a denial of attorney's fees does not necessarily require a remand. A court of appeals can uphold a district court's ruling on fees, even without express findings, "if there is a reasonable view of the record to support it." EEOC v. Bruno's Restaurant, 13 F.3d 285, 288 (9th Cir. 1993) (citation omitted). As the Ninth Circuit noted, "If the record provides a complete understanding of the issues without the aid of separate findings, the district court's failure to make express findings does not require a remand." Id. (citation omitted). Where this Court has remanded a case because of a district court's failure to explain the denial of fees, it was because the district court denied fees without any explanation, e.g., Head v. Medford, 62 F.3d 351 (11th Cir. 1995), or because this Court could not determine from the record whether the district court's decision was premised on an entirely erroneous view of the law. See, e.g., Hobbs v. Blue Cross/Blue Shield of Ala., 276 F.3d 1236, 1243-44 (11th Cir. 2001) (where district court denied fees to plaintiffs under circumstances that would have ordinarily warranted an award of fees and court of appeals could not tell from record whether district court's denial was based on erroneous determination that removal was proper, court of appeals vacated and remanded for district court's reconsideration). Neither of these circumstances pertains here. Rather, as explained above, the record demonstrates a manifestly reasonable basis for the district court's discretionary denial of fees under a standard that requires the defendant to prove that EEOC's case was utterly lacking in arguable merit. Therefore, no remand is needed. Second, more explicit findings were not necessary here, in any event, because the district court's decision is consistent with the fact that EEOC's complaint stated a single claim of sexual harassment against MIS, albeit on behalf of multiple employees. In arguing to the contrary, MIS misperceives the nature of EEOC lawsuits undertaken to enforce Title VII. When EEOC seeks relief for more than one aggrieved individual during enforcement of the anti-discrimination provisions of Title VII, the Commission's complaint does not state a separate "claim" for each individual who may ultimately be identified as having been adversely affected by the defendant's discriminatory actions. Rather, the "claim" is the violation that EEOC alleges in its suit, and any additional "victims" are simply persons who may also be entitled to relief if EEOC establishes liability. To the extent a district court exercises its judicial management function to limit the issues for trial by determining, on summary judgment, that no relief may be established for certain identified individuals, the court is properly streamlining the trial process, but is not deciding separate "claims" of the EEOC. This case provides a clear example of this. EEOC's complaint contains only two "claims" against MIS: (1) that "[c]ertain management officials of [MIS]" subjected Martiza Osorio and similarly situated female employees" to a hostile, intimidating work environment, and (2) that "[MIS] terminated Maritza Osorio . . . in retaliation for her opposition to Defendant's sexual harassment." R.1 (complaint)  7 a & d. Only the first claim seeks relief for more than one individual. It seeks that relief, however, on a single claim of sexual harassment. Although the district court's summary judgment ruling limited the number of potential claimants to just Osorio, the district court did not dismiss EEOC's "sexual harassment claim" against MIS. The court below therefore properly factored this into its consideration of MIS's fee application when, guided by this Court's decision in Sullivan v. Sch. Bd. of Pinellas County, 773 F.2d at 1188-90, the district court noted that EEOC established a prima facie case with respect to Osorio's allegations. The district court further noted that it "conducted a full blown trial on the merits" and "the jury grappled with the evidence for close to six hours" before ultimately ruling for MIS. R. 185 at 2. Thus, the district court's explanation of why EEOC's sexual harassment claim against MIS was not frivolous fully satisfied the court's obligation to set forth the reasons for denying MIS's application for attorney's fees as a prevailing Title VII defendant. II. EEOC DOES NOT CONTEST MIS'S ENTITLEMENT TO WITNESS FEES. MIS also challenges the district court's failure to award witness fees when the court awarded costs in this case. MIS asserts entitlement to $3,441.99 in witness costs, consisting of $1,191.99 for subpoenas issued to witnesses who testified at trial or were subpoenaed for deposition, and $2,250 attributable to seven and one-half hours spent by MIS's expert witness, Dr. Oren Wunderman, preparing for the depositions conducted by EEOC and Plaintiff-Intervenor Osorio. MIS Brf.. at 23-24. EEOC agrees that MIS is entitled to reimbursement for fact witnesses who appeared at depositions or testified at trial, including Osorio's treating physicians (who testified as fact witnesses), at the statutorily-authorized rate of $40 per person per day under 28 U.S.C. 1821. See Cronin v. Washington Nat'l Ins. Co., 980 F.2d 663, 672 (11th Cir. 1993); R.192 (EEOC's Response to MIS's Detailed Accounting of Costs) at 4-5. EEOC further agrees that MIS is entitled under Fed. R. Civ. P. 26(b) to reimbursement for the six hours its expert spent preparing for EEOC's deposition. See Attachment C. In fact, EEOC paid Dr. Wunderman the full amount he submitted following EEOC's deposition, but neither Dr. Wunderman nor MIS billed the Commission for Dr. Wunderman's preparation time, as Fed. R. Civ. P. 26(b) permits. CONCLUSION For all of the foregoing reasons, EEOC respectfully urges this Court to affirm the district court's denial of MIS's application for attorney's fees under Title VII. EEOC does not object to MIS's claim for witness fees as authorized under 28 U.S.C. 1821 and for reimbursement under Fed. R. Civ. P. 26(b) for the six hours its expert spent preparing for deposition. Respectfully submitted, ERIC S. DREIBAND General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ___________________________ SUSAN R. OXFORD Attorney EQUAL EMPLOYMENT OPP. COMM. 1801 L Street, N.W. Washington, D.C. 20507 Tel. (202) 663-4791 Fax (202) 663-7090 DATED: October 12, 2004 CERTIFICATE OF COMPLIANCE Pursuant to F.R.A.P. , the undersigned hereby certifies that this brief complies with the type-volume limitations set forth in F.R.A.P. 32(a)(7)(B)(i). The brief has been prepared in Times New Roman 14-point type and contains 9,976 words, including footnotes, as determined by the electronic word count function of the word processing program WordPerfect 9. ___________________________ DATED: October 12, 2004 SUSAN R. OXFORD CERTIFICATE OF SERVICE I hereby certify that on this 12th day of October, 2004, I forwarded an original and six copies of the within Answer Brief by regular mail, postage prepaid, to the Clerk of the Court for the U.S. Court of Appeals for the Eleventh Circuit and two copies to MIS's counsel of record at the following address, by the same means: Stanley Kiszkiel, Esq. 9000 Sheridan Street Suite 100, PMB 11 Pembroke Pines, Florida 33024 __________________________________ SUSAN R. OXFORD DATED: October 12, 2004 _________________________________________________ 1 Citations to the record refer to the district court docket entries and are abbreviated “R.” followed by the district court’s docket number. 2 Osorio stated, for example, that Robinson said he had a “big banana;” referred to another female employee’s breasts as “those big balloons” and said he would “like to pop them;” and used a ruler to show how he would like to “spank” Osorio on the buttocks. In addition, Osorio said Robinson repeatedly rubbed and caressed her shoulders, hair, arms and hands, legs, thighs and buttocks, placed his face on Osorio’s neck, sniffed her hair, and said he loved her perfume. R.118 at 3. 3 MIS’s opening brief seeks reversal of the district court’s denial of attorney’s fees only with respect to fees associated with “[EEOC’s] attempts to add six additional claims to the case.” MIS Brf. at 9-10. Similarly, MIS challenges the district court’s cost award only to the extent the district court failed to award “witness fees expended by MIS in the defense of the case.” Id. at 10. These are the only two issues raised by MIS in these consolidated appeals. 4 This Court has adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. See Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc). 5 In Hughes v. Rowe, the Supreme Court held that the same factors apply in determining a prevailing defendant’s right to attorney’s fees under 42 U.S.C. § 1988 as apply under 42 U.S.C. § 2000e-5(k). 449 U.S. at 14-15, 101 S. Ct. at 178-79. 6 Mendoza had claimed that her supervisor constantly stared at her in what she described as a “very obvious fashion” (including staring at her groin accompanied (twice) by a “sniffing” sound), rubbing up against plaintiff once, and following her around the office for a period of several months. 195 F.3d at 1247. 7 Shirley, Brown and Juda’s statements are included in R.171, Ex.F. Although there is no separate statement from Gilles, the statement of Karen Yee discusses Gilles’ complaints about Robinson’s sexually harassing behavior. Id. 8 EEOC’s August 14, 2001, cover letter to the proposed conciliation agreement asked MIS to telephone EEOC Investigator Jacqueline Gabriel by August 20th to “discuss the terms and conditions as necessary.” R.165, Ex.3. After MIS indicated on August 20th that it wished to engage in settlement discussions, Gabriel tried several times to reach MIS between August 27th and 29th. EEOC then extended MIS’s response time to August 31st. R.171, Ex. P, dep. at 64. MIS did not respond by the designated date. MIS left Gabriel a message on September 4th, and the investigator attempted to contact MIS that day and the next, apparently without success. Id. MIS points to nothing in the record to indicate it was seeking to accept EEOC’s proposed conciliation agreement, submit a counter-offer, or extend conciliation efforts further. Indeed, in the parties’ Joint Pre-Trial Stipulation submitted in August 2003, MIS expressly concurred that “EEOC has satisfied the statutory requirements of 42 U.S.C. § 2000e-5(b) by engaging in informal methods of conference, conciliation, and persuasion.” R.121 at 7. Thus, MIS’s present complaints about conciliation appear to be fabricated entirely after-the-fact. 9 MIS’s repeated statement, in its opening brief, that EEOC “refused” to identify the similarly-situated women, MIS Brf. at 16-17, is factually incorrect. EEOC identified the six additional women within two months of receiving the complete list of MIS employees from MIS during discovery. MIS points to nothing in the record to demonstrate it requested this information during conciliation. 10 As a matter of practice, EEOC ordinarily contacts aggrieved individuals to ascertain what would satisfy them if a respondent indicates an interest in settlement and proposes specific relief. 11 For the same reasons, the district court was not obligated to set forth express reasons for denying MIS attorney’s fees with respect to the other four individuals for whom EEOC initially sought relief. In any event, all of these individuals were identified as EEOC witnesses throughout pre-trial discovery, and they remained on EEOC’s witness list up to the time the trial began. R.121, R.137. It is difficult to fathom, therefore, how their change in status from “claimant/witness” to “nonclaimant/witness” could have affected MIS’s attorney’s fees in any material way. MIS would likely have chosen to depose these individuals anyway, to ascertain their knowledge concerning the portion of the case that was tried to a jury. Cf. EEOC v. W&O, Inc., 213 F.3d at 621 (identification of witnesses during pretrial discovery indicated those individuals had information on subject of suit that fell within bounds of discovery and prevailing party might need their deposition transcripts to cross-examine witnesses at trial).