No. 06-50840 ___________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ___________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. MOTHERS WORK, INC., Defendant-Appellee. _________________________________________ CONSOLIDATED WITH No. 06-51149 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. MOTHERS WORK, INC., Defendant-Appellant. ___________________________________________ On Appeal from the United States District Court for the Western District of Texas, San Antonio Division ____________________________________________ REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT AND RESPONSIVE BRIEF AS APPELLEE ____________________________________________ RONALD S. COOPER GAIL S. COLEMAN General Counsel Attorney U.S. EQUAL EMPLOYMENT VINCENT J. BLACKWOOD OPPORTUNITY COMMISSION Acting Associate General Counsel Office of General Counsel 1801 L Street, NW, Room 7034 CAROLYN L. WHEELER Washington, DC 20507 Assistant General Counsel (202) 663-4055 STATEMENT REGARDING ORAL ARGUMENT IN CASE NO. 06-51149 The Equal Employment Opportunity Commission believes that oral argument is unnecessary in Case No. 06-51149, Mothers Work's appeal from the denial of attorney's fees. TABLE OF CONTENTS Statement Regarding Oral Argument in Case No. 06-51149 . . . . . i Table of Authorities . . . . . . . . . . . . . . . . . . . . iv Reply Brief in No. 06-50840 Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 A. Mothers Work misstates the facts and ignores admissible evidence from which a reasonable jury could find for the EEOC. . . . . 2 B. Mothers Work misrepresents the law. . . . . . . . . . 9 C. Mothers Work wrongly seeks to prevent this Court from considering pertinent secondary sources that the EEOC cites not as evidence but to help explain its theory of the case. . . 15 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Brief as Appellee in No. 06-51149 Statement of Jurisdiction. . . . . . . . . . . . . . . . . . . 16 Statement of the Issues. . . . . . . . . . . . . . . . . . . 17 Statement of the Case. . . . . . . . . . . . . . . . . . . . 17 A. Course of Proceedings. . . . . . . . . . . . . . . 17 B. Statement of Facts. . . . . . . . . . . . . . . . . . 18 C. District Court Decision. . . . . . . . . . . . . . . 19 Summary of Argument. . . . . . . . . . . . . . . . . . . . 21 Argument. . . . . . . . . . . . . . . . . . . . . . . . . 22 A. Standard of Review. . . . . . . . . . . . . . . . . . . 22 B. The district court correctly refused to award attorney's fees because this case is not "frivolous, unreasonable, or without foundation.". . . . . . . . . . . . . . . . . . . . . . . . . 22 C. The district court correctly rejected most of Mothers Work's requested costs as unjustified. . . . . . . . . . . . . . . . . 26 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . 28 Addendum: District Court's Denial of Attorney's Fees and Costs Certificate of Service Certificate of Compliance TABLE OF AUTHORITIES Cases Page Burns v. City of Columbus, Dep't of Pub. Safety, Div. of Police, 91 F.3d 836 (6th Cir. 1996). . . . . . . . . . 10 Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978) 19, 22-24 Coletti v. Cudd Pressure Control, 165 F.3d 767 (10th Cir. 1999) .12 Dean v. Riser, 240 F.3d 505 (5th Cir. 2001). . . . . . . . . . 19 EEOC v. Kimbrough Inv. Co., 703 F.2d 98 (5th Cir. 1983). . . . . 22 EEOC v. Kinney Shoe Corp., 104 F.3d 683 (4th Cir. 1997) . . .10, 25 Energy Mgmt. Corp. v. City of Shreveport, 467 F.3d 471 (5th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . 22 Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11 (1st Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . 5 Hedberg v. Ind. Bell. Tel. Co., 47 F.3d 928 (7th Cir. 1995). . . . . . . . . . . . . . . . . . . 9, 10, 11, 25 Lanman v. Johnson County, Kan., 393 F.3d 1151 (10th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . .15 Mauder v. Metro. Transit Auth., 446 F.3d 574 (5th Cir. 2006) . . 13 Mikelson v. N.Y. Life Ins. Co., 460 F.3d 1304 (10th Cir. 2006) . 12 Miller v. Nat'l Cas. Co., 61 F.3d 627 (8th Cir. 1995) . . . 9, 10 Minter v. Great Am. Ins. Co., 423 F.3d 460 (5th Cir. 2005). . . . 4 Morisky v. Broward County, 80 F.3d 445 (11th Cir. 1996) . . . 9, 10 Page Mota v. Univ. of Tex. Houston Health Sci. Ctr., 261 F.3d 512 (5th Cir. 2001). . . . . . . . . . . . . . . 21, 26-27 Sanglap v. LaSalle Bank, 345 F.3d 515 (7th Cir. 2003). . . . . 10 Soileau v. Guilford of Me., Inc., 105 F.3d 12 (1st Cir. 1997) . 14 SWS Erectors, Inc. v. Infax, Inc., 72 F.3d 489 (5th Cir. 1996) .7 Taylor v. Principal Fin. Grp., Inc., 93 F.3d 155 (5th Cir. 1996). . . . . . . . . . . . . . . . . . . . 9, 10 U.S. v. Eagleboy, 200 F.3d 1137 (8th Cir. 1999). . . . . 15 Statutes 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . 17 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . 16 28 U.S.C. § 1920 . . . . . . . . . . . . . . . . . . . 20, 21 42 U.S.C. § 2000e-5(k) . . . . . . . . . . . . . . . . 17, 23 42 U.S.C. § 12102(2)(A). . . . . . . . . . . . . . . . . . .4 42 U.S.C. § 12117(a) . . . . . . . . . . . . . . . 16, 17, 23 Rules Federal Rules of Appellate Procedure Rule 4(a)(1). . . . . . . . . . . . . . . . . . . . . 17 Federal Rules of Civil Procedure Rule 56(e). . . . . . . . . . . . . . . . . . . . . . .7 Page Federal Rules of Evidence Rule 401. . . . . . . . . . . . . . . . . . . . . . . 12 Rule 801(a) . . . . . . . . . . . . . . . . . . . . . .7 Miscellaneous Authority U.S. Dep't of Health & Human Servs., Mental Health: A Report of the Surgeon General – Executive Summary (1999)9, 11 Reply Brief in No. 06-50840 ARGUMENT In its opening brief, the EEOC urged this Court to reverse the district court's summary judgment for Mothers Work. The EEOC argued that a reasonable jury could find that Monica Sarfaty was disabled with bipolar disorder and that her disability was a motivating factor in her termination. (Opening Br. at 28-56.) The EEOC emphasized that a jury could infer discrimination simply from the absurdity of Mothers Work's stated reason for termination: that Sarfaty "abandoned her job" only four days into her company-approved medical leave. (Id. at 53-56.) In its responsive brief, Mothers Work misstates both the facts and the law. Like the district court, Mothers Work also neglects to mention admissible evidence that would support a judgment for the EEOC. Mothers Work argues that its decisionmakers lacked technical knowledge about Sarfaty's disability, but it does not dispute that such knowledge is irrelevant to the extent that its decisionmakers acted based on Sarfaty's symptoms. For the following reasons, the EEOC asks this Court to reject Mothers Work's arguments and to reverse the award of summary judgment. A. Mothers Work misstates the facts and ignores evidence from which a reasonable jury could find for the EEOC. Mothers Work's brief is riddled with factual errors. Notwithstanding the assertions in that brief, the record evidence demonstrates the following: Sarfaty did not tell her subordinates that she intended to take a "false" leave of absence; she said only that she planned to take leave during the busy holiday season -- a time when her stress, already enormous, was sure to increase. (Wise E-Mail ¶ 12, R.63 at Ex. Q Bates MW00417, Vol. 8 at 1500. But see MW Br. at 8, 10.) Sarfaty did not decide during her hospitalization to quit her job with Mothers Work; although she had occasional doubts about whether she should remain in such a stressful environment, she fully intended to return. (Sarfaty Dep. at 190-92, R.63 at Ex. B, Vol. 7 at 1333. But see MW Br. at 11, 15.) Sarfaty did not care for her mother during her six-month hospitalization; rather, her mother cared for Sarfaty. (Sarfaty Dep. at 105, R.63 at Ex. B, Vol. 7 at 1323. But see MW Br. at 12, 36, 41.) Sarfaty did not tell the EEOC that her disability was temporary; she told the EEOC that her inability to work was temporary. (EEOC Memo to File of 3/30/05, R.46 at Ex. P, Vol. 3 at 616 (clarifying Memo to File of 4/16/04). But see MW Br. at 13, 25.) Sarfaty has not formed or maintained friendships with coworkers; she has professional relationships with her colleagues but has no friends at all. (Sarfaty Dep. at 117, R.63 at Ex. B, Vol. 7 at 1326; Sarfaty Aff. ¶ 38, R.63 at Ex. A, R.E. at 5, Vol. 7 at 1308. But see MW Br. at 37.) Sarfaty did not manage to attend daily counseling sessions in October and November 2003 because of her own ability to care for herself; she managed to get to her appointments because her mother pulled her out of bed, forced her to get dressed, and otherwise took charge of her needs. (Sarfaty Dep. at 105, R.63 at Ex. B, Vol. 7 at 1323. But see MW Br. at 41.) Mothers Work's investigation did not reveal that Sarfaty had violated company policies; the company admits that it never completed its investigation (MW Br. at 10), and Sarfaty disputes Mothers Work's allegations. (Sarfaty Dep. at 61-66, R.46 at Ex. B, Vol. 3 at 533-34; Williams Dep. of 10/26/05 at 157, R.59 at Ex. X, Vol. 5 at 1123; see also Sarfaty Dep. at 156, R.63 at Ex. B, Vol. 7 at 1332 (questioning credibility of source). But see MW Br. at 47.) Mothers Work did not fire Sarfaty for violating company policies, as it suggests -- although inconsistently -- for the first time in litigation. (Compare MW Br. at 48-49 (Sarfaty discharged for violating company policies) with MW Br. at 2, 11 (Sarfaty discharged for abandoning her job).) Had Mothers Work actually fired Sarfaty for misconduct, her termination form would have said so. (Cohen Dep. at 87, R.59 at Ex. W, Vol. 6 at 1100.) Not content with misstating the facts described above, Mothers Work also paints a distorted picture by ignoring compelling evidence and by disputing reasonable inferences from that evidence. As Mothers Work admits (MW Br. at 16-17), this Court must view all of the evidence and all reasonable inferences from that evidence in the light most favorable to the EEOC. Minter v. Great Am. Ins. Co., 423 F.3d 460, 465 (5th Cir. 2005). To the extent that Mothers Work wishes to argue opposing inferences from the evidence, its arguments are appropriate before a jury, but not before this Court. Mothers Work disingenuously seeks to shift the Court's focus away from Sarfaty's limitations and onto her abilities. (MW Br. at 33, 36-37, 39- 40.) This strategy ignores the fact that "disability" is determined based not on what an individual can do, but on what she cannot do. 42 U.S.C. § 12102(2)(A). Mothers Work would have this Court rule that Sarfaty is not substantially limited in interacting with others, for example, because she can interact successfully at work. (MW Br. at 33.) The evidence shows, however, that outside of work, Sarfaty avoids going to places where she will have to interact with others. She spends most of her time at home and never invites visitors over. When her mother or brother invites someone over, Sarfaty hides. (Sarfaty Dep. at 109, R.63 at Ex. B, Vol. 7 at 1324; Sarfaty Aff. ¶¶ 39-40, R.63 at Ex. A, R.E. at 5, Vol. 7 at 1308-09.) Sarfaty's interactions at work, while successful, are also difficult. Unlike most people, Sarfaty interacts at work despite struggling with obsessive fears, anxiety, sudden and uncontrollable irritability, and unpredictable mood swings. (Sarfaty Aff. ¶¶ 25, 26, 28, 33, 34, R.63 at Ex. A, R.E. at 5, Vol. 7 at 1303-04, 1306-07.) The fact that she interacts under conditions which are substantially different from those of the average person in the general population suggests that Sarfaty is substantially limited in her professional interactions as well as in her personal ones. See Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11, 23 (1st Cir. 2002) (plaintiff with only one arm raises genuine issue of material fact regarding whether she is substantially limited in lifting even though she can lift 40-50 pounds because "[e]ven if she is able to lift more poundage than many two- handed individuals, the manner in which she lifts and the conditions in which she can lift will be significantly restricted because she has only one available limb"). Hoping, no doubt, to explain why it ignores most of the evidence demonstrating Sarfaty's ongoing limitations, Mothers Work criticizes Sarfaty's affidavit as largely inadmissible. (MW Br. at 27-30.) Contrary to Mothers Work's characterization of this affidavit as "conclusory" and "self- serving" (id. at 27-28), the affidavit contains specific examples derived from Sarfaty's own experience of the ways in which bipolar disorder limits her life. The fact that Sarfaty's highly specific testimony indicates the existence of substantial limitations makes her affidavit compelling, but does not render it "conclusory" or "self-serving." Mothers Work misleads this Court when it says that the district court excluded some portions of Sarfaty's affidavit as hearsay or not based on personal knowledge, and other portions as inconsistent with her deposition. (MW Br. at 28, 30.) The district court did no such thing. It did not even address Mother Work's evidentiary challenges to Sarfaty's affidavit. (Order, R.65, R.E. at 4, Vol. 9 at 1669.) In any event, the affidavit is admissible. The paragraphs that Mothers Work challenges as hearsay or not based on personal knowledge primarily consist of Sarfaty's sworn descriptions of her symptoms and the side effects of her treatment. Because this testimony rests on personal knowledge and would not constitute hearsay if offered in court, it is admissible in affidavit form for purposes of summary judgment. Fed. R. Civ. P. 56(e). Mothers Work also challenges paragraphs describing actions that Sarfaty's doctors took on her behalf. Descriptions of those actions are not hearsay because the actions were not "intended by the person as an assertion." Fed. R. Evid. 801(a). Further, the descriptions are based on Sarfaty's personal knowledge as she was the direct recipient of the doctors' interventions.<1> Contrary to Mothers Work's claim (MW Br. at 30), Sarfaty's affidavit does not contradict her deposition testimony. Mothers Work seizes on a single quotation from the deposition in order to suggest that Sarfaty was completely symptom-free by the time she left the hospital. (Id. at 29.) Other portions of the deposition, however, clarify that although Sarfaty was no longer acutely ill, she continued to struggle with symptoms of her disorder. (Sarfaty Dep. at 93, R.46 at Ex. B, Vol. 3 at 535; id. at 92, R.59 at Ex. K, Vol. 5 at 1014; id. at 104, 106-07, 109-12, 117-19, 123-24, R.63 at Ex. B, Vol. 7 at 1323-28.) The affidavit simply amplifies Sarfaty's deposition testimony. See SWS Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 496 (5th Cir. 1996) ("When an affidavit merely supplements rather than contradicts prior deposition testimony, the court may consider the affidavit when evaluating genuine issues in a motion for summary judgment."). Remarkably, Mothers Work argues that even if this Court considers the evidence in Sarfaty's affidavit, "there is no legitimate evidentiary basis for a fact finder to conclude that any of Sarfaty's alleged problems with thinking or caring for herself or interacting with others are caused by her mental impairment if indeed they exist at all." (MW Br. at 30.) This is nonsense. Sarfaty sought hospitalization because of mental illness. (Barnes Notes at Bates 3005, R.59 at Ex. D, Vol. 5 at 912; Mission Vista Hospital discharge summary at Bates 3450, R.59 at Ex. G, Vol. 5 at 970.) The symptoms that led to her diagnosis of bipolar disorder are the same ones that continue to plague her today in lesser form. (Compare Mission Vista Hospital admission records at Bates 3115, R.59 at Ex. G, Vol. 5 at 942 with Sarfaty Aff. ¶¶ 26-41, R.59 at Ex. B, R.E. at 5, Vol. 5 at 900-05.) By attempting to discount the link between Sarfaty's symptoms and her underlying mental illness, Mothers Work repeats supervisor Monica Gottlieb's error of treating Sarfaty as a malingerer. (See Opening Br. at 47.) Mothers Work goes so far as to say: "It seems more than coincidental that Sarfaty recovered from her alleged illness just as her short term disability benefits ran out." (MW Br. at 12.) The evidence, of course, shows that Sarfaty has not recovered. It appears that Mothers Work, like Gottlieb, shares the widespread stigma that exists in our society against people with mental illness. See U.S. Dep't of Health & Human Servs., Mental Health: A Report of the Surgeon General – Executive Summary xiv (1999) [hereinafter Surgeon General's Report] (noting "stigma that many in our society attach to mental illness and to people who have a mental illness"). B. Mothers Work misrepresents the law. Mothers Work repeatedly misstates the law. Significantly, it is untrue that this or any other federal Court of Appeals requires a plaintiff to establish that her employer knew of the specific nature or details of her disability in order to hold it liable for discrimination under the ADA. (But see MW Br. at 42-44.) It is, of course, true that the ADA does not require an employer to accommodate disabilities about which it has no knowledge. Taylor v. Principal Fin. Grp., Inc., 93 F.3d 155, 163-64 (5th Cir. 1996); Morisky v. Broward County, 80 F.3d 445, 446-47 (11th Cir. 1996); Miller v. Nat'l Cas. Co., 61 F.3d 627, 629-30 (8th Cir. 1995). It is also true that an employer cannot discriminate based on animus towards a particular disability if the employer is completely unaware that an employee may have that disability. Hedberg v. Ind. Bell Tel. Co., 47 F.3d 928, 934 (7th Cir. 1995). All of the appellate cases which Mothers Work cites stand for these two unremarkable propositions. (MW Br. at 42-44 (citing Taylor, Morisky, Miller, and Hedberg).) To the extent that an employer discriminates against an employee based on disability-related symptoms, however, the employer may be held liable whether or not it is aware of the employee's diagnosis. EEOC v. Kinney Shoe Corp., 104 F.3d 683, 686 (4th Cir. 1997); see also Sanglap v. LaSalle Bank, 345 F.3d 515, 520 (7th Cir. 2003) ("[L]iability for disability discrimination does not require professional understanding of the plaintiff's condition. It is enough to show that the defendant knew of symptoms raising an inference that the plaintiff was disabled."); Burns v. City of Columbus, Dep't of Pub. Safety, Div. of Police, 91 F.3d 836, 844 (6th Cir. 1996) (plaintiff must show "that the defendant knew or believed that the plaintiff was disabled, or knew of the plaintiff's symptoms that were caused by the disability") (emphasis added). Liability for discrimination based on symptoms of a disability is especially applicable in a case such as this one, where an employer terminates an employee while that employee is out on company-approved medical leave. At the very least, such an employer should examine its own records justifying the award of medical leave before discharging the employee for the very symptoms that triggered the leave. An employer's failure to examine its own files should not shield the employer from liability. See Hedberg, 47 F.3d at 934 & n.7 ("Nor should deliberate ignorance insulate an employer from liability."). Had Mothers Work examined the records in benefits manager Donna Dougherty's possession, it would have discovered documents stating that Sarfaty suffered from "severe, recurrent major depressive disorder," as well as "severe anxiety" and panic attacks. (Disability Claim Form at Bates 71, R.59 at Ex. F, Vol. 5 at 928.) This information should have been enough to alert Mothers Work to the possibility that Sarfaty's objectionable symptoms were connected to a disability protected under the ADA. Gottlieb's failure to examine the medical records is consistent with society's general tendency to downplay the seriousness of mental illness. See Surgeon General's Report at xiv. A jury could reasonably conclude that Gottlieb failed to investigate the reasons behind Sarfaty's leave because she believed that Sarfaty could have controlled her mood swings, stress, and irritability if she had only tried harder. Because this failure to consider the possibility of a disability would, itself, be rooted in a discriminatory attitude towards the mentally ill, Mothers Work's emphasis on its technical ignorance rings especially hollow. Mothers Work also errs in claiming that evidence of its previous FMLA violations is irrelevant to this ADA case. (MW Br. at 47-48.) To the contrary, evidence that Mothers Work has terminated other employees for taking FMLA leave (whether for pregnancy or any reason) is relevant to proving that Mothers Work also terminated Sarfaty in part for taking FMLA leave. See Fed. R. Evid. 401 (relevant evidence is that which has "any tendency" to make the existence of a material fact more or less probable); cf. Coletti v. Cudd Pressure Control, 165 F.3d 767, 776 (10th Cir. 1999) ("The testimony of other employees about their treatment by the defendant employer is relevant to the issue of the employer's discriminatory intent if the testimony establishes a pattern of retaliatory behavior or tends to discredit the employer's assertion of legitimate motives."). The only reason that Sarfaty took FMLA leave is to obtain treatment for her disability. Thus, in acting against Sarfaty for taking FMLA leave, Mothers Work was acting against her for addressing her disability-related needs. Contrary to Mothers Work's suggestion (MW Br. at 47), a termination may simultaneously violate both the FMLA and the ADA. Cf. Mikelson v. N.Y. Life Ins. Co., 460 F.3d 1304, 1316 (10th Cir. 2006) ("Failure to adhere to the mandates of the FMLA, without sufficient justification, can constitute actionable conduct under Title VII."). Notably, Mothers Work seeks to downplay the connection between Sarfaty's leave and her termination by arguing that "the fact that Sarfaty was terminated four days after Mothers Work granted her medical leave is not evidence of pretext." (MW Br. at 51.) To the contrary, the close temporal proximity between the onset of Sarfaty's leave and her termination is strong evidence of a connection between the two. See Mauder v. Metro. Transit Auth., 446 F.3d 574, 583 (5th Cir. 2006) (temporal proximity can be evidence of pretext). The cases which Mothers Work cites are not to the contrary. They state only that temporal proximity alone is insufficient to demonstrate pretext. (See MW Br. at 51 (acknowledging this qualifier in parentheticals to cited cases).) As described in the EEOC's opening brief, this case does not rest on temporal proximity alone – the record is replete with evidence of discrimination. Relevant evidence in this case includes facts from which a jury could find that Gottlieb was aware of several symptoms of Sarfaty's disability, that she had a negative reaction to those symptoms, and that she wanted to terminate Sarfaty because of them. (Opening Br. at 44-49.) The evidence also includes Mothers Work's history of terminating employees who took FMLA leave. (Id. at 47.) Nothwithstanding Mothers Work's protests (MW Br. at 50), the evidence would allow a reasonable jury to find that Mothers Work is fabricating its claim that it telephoned Sarfaty and mailed her a letter, and that Sarfaty ignored its efforts to reach her. (Opening Br. at 53- 55.) The fact that Mothers Work fired Sarfaty for job abandonment only four days after granting her leave is yet another piece of this larger picture. With the other evidence in the case, this fact helps to support an inference that Mothers Work acted because of disability discrimination. (See Opening Br. at 43-56.) In addition to these larger misstatements of the law, Mothers Work also cites cases throughout its brief that do not support the propositions for which they are offered. Examples of these errors include the following: The First Circuit has not expressed doubt about whether "interacting with others" is a major life activity under the ADA. (But see MW Br. at 32.) The case that Mothers Work cites, Soileau v. Guilford of Me., Inc., 105 F.3d 12 (1st Cir. 1997), involved "getting along with others." Whether an individual gets along with others goes a step beyond whether she interacts with others, and it requires a more subjective determination. The Tenth Circuit did not hold that concentrating is not a major life activity. (But see MW Br. at 37.) Mothers Work cites to a 1999 case but ignores a 2004 opinion cited in the EEOC's opening brief which assumes that thinking is, indeed, a major life activity.<2> See Lanman v. Johnson County, Kan., 393 F.3d 1151, 1157 (10th Cir. 2004). C. Mothers Work wrongly seeks to prevent this Court from considering pertinent secondary sources that the EEOC cites not as evidence but to help explain its theory of the case. In footnote 9 of its brief, Mothers Work makes the startling argument that any secondary sources not introduced to the district court as evidence are off-limits on appeal. This proposition is wrong. An appellant is free to cite all "judicial opinions, treatises, law review articles, public records, and the like . . . for the first time on appeal in support of a legal theory that was raised in the trial court." U.S. v. Eagleboy, 200 F.3d 1137, 1140 (8th Cir. 1999). Mothers Work rightly does not claim that the EEOC is using the challenged articles to introduce a new legal theory. (MW Br. at 20 n.9.) This Court is therefore free to consider the articles as it wishes. CONCLUSION As described more fully in the EEOC's opening brief, the district court erred in granting summary judgment to Mothers Work. A reasonable jury looking at all of the evidence and making all reasonable inferences in favor of the EEOC could find that Sarfaty was disabled and that Mothers Work discriminated against her because of her disability. For the reasons stated above and in the EEOC's opening brief, this Court should reverse the award of summary judgment. Brief as Appellee in No. 06-51149 STATEMENT OF JURISDICTION Mothers Work's jurisdictional statement is incomplete. The district court had jurisdiction over the underlying ADA action pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 12117(a). The district court entered final judgment in the underlying action on May 9, 2006. (Clerk's Judgment, R.66, R.E. at 3, Vol. 9 at 1683.) The EEOC appealed from the final judgment (Notice of Appeal, R.78, R.E. at 2, Vol. 10 at 2997), and this Court docketed the EEOC's appeal as Case No. 06-50840 ("Merits Appeal"). On May 22, 2006, Mothers Work moved for attorney's fees and costs in connection with the ADA claim. (Motion, R.68, Vol. 9 at 1687.) The district court denied attorney's fees but granted part of the requested costs on August 22, 2006.<3> (Order, R.80, Vol. 10 at 3001.) Mothers Work filed a timely notice of appeal on August 30, 2006, pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure. (Notice of Appeal, R.81, Vol. 10 at 3008.) This Court docketed Mothers Work's appeal as Case No. 06-51149 ("Fees Appeal"). This Court has jurisdiction under 28 U.S.C. § 1291. STATEMENT OF THE ISSUES 1. Did the district court act within its discretion in refusing to award attorney's fees based upon its recognition that the EEOC's action was not frivolous, unreasonable, or without foundation? 2. Did the district court act within its discretion in awarding only $4,960.99 of $24,349.44 in requested costs based on its finding that most of the requested costs were unjustified? STATEMENT OF THE CASE This is an appeal from a final judgment of the district court denying attorney's fees and certain costs to Mothers Work pursuant to section 107 of the ADA, 42 U.S.C. § 12117(a) (incorporating by reference 42 U.S.C. § 2000e-5(k)). A. Course of Proceedings The EEOC filed the underlying ADA action against Mothers Work on September 28, 2004. (Complaint, R.1, Vol. 1 at 1.) On May 8, 2006, the district court granted summary judgment to Mothers Work. (Order, R.65, R.E. at 4, Vol. 9 at 1669.) Mothers Work then moved on May 22, 2006, for attorney's fees and costs. (Motion, R.68, Vol. 9 at 1687.) The district court denied attorneys fees and most of the requested costs on August 22, 2006. (Order, R.80, Vol. 10 at 3001.) This appeal followed. This Court has consolidated the Merits Appeal and the Fees Appeal. B. Statement of Facts The EEOC's opening brief fully addresses the facts of the underlying merits action. (Opening Br. at 3-23.) In its motion for attorney's fees and costs, Mothers Work argued that the EEOC "knew, or certainly should have known, from the outset of its investigation that it could not even establish a prima facie case of disability discrimination." (Memo at 2, R.69, Vol. 9 at 1749.) Mothers Work also argued that "the EEOC knew or should have known that [Sarfaty's termination] was for legitimate business reasons and had nothing to do with any alleged disability." (Id.) The EEOC rejected Mothers Work's allegations, maintaining that its lawsuit was both factually and legally reasonable. (Memo at 3, R.72, Vol. 10 at 2849.) The EEOC also observed that Mothers Work had not responded to any of its requests for information prior to the filing of the lawsuit. (Id. at 4, Vol. 10 at 2850 (citing Letter of 3/16/04 from EEOC to Mothers Work, R.72 at Appendix B ex. 4, Vol. 10 at 2888).) Noting that attorney's fees are "presumptively unavailable" for prevailing defendants in civil rights cases (id. at 1, Vol. 10 at 2847 (quoting Dean v. Riser, 240 F.3d 505, 508 (5th Cir. 2001)), the EEOC argued that Mothers Work could not meet its difficult burden of showing that this case was "frivolous, unreasonable, or without foundation." (Id. at 2-3, Vol. 10 at 2848-49 (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978)).) The EEOC also argued that Mothers Work's costs were inflated and otherwise not recoverable. (Id. at 9-14, Vol. 10 at 2855-60.) C. District Court Decision The district court agreed with the EEOC. The court noted that "[t]he extent of Mothers Work's knowledge of Sarfaty's disability and whether the company regarded her as disabled was unknown prior to the EEOC filing this case because Mothers Work failed to explain its reasons for terminating Sarfaty during the EEOC's administrative investigation." (Order at 3, R.80, Vol. 10 at 3003.) Although it ultimately granted summary judgment against the EEOC, the court noted, "the EEOC's case did have arguable merit at the outset of litigation." (Id.) For this reason, the district court refused to award attorney's fees. (Id.) The district court awarded Mothers Work dramatically lower costs than Mothers Work had sought. Mothers Work does not appeal costs that the district court rejected for the following reasons: The court had no discretion to award clerk of court fees. (Id. at 4, Vol. 10 at 3004 (citing 28 U.S.C. § 1920).) Accordingly, the court denied $145.00 in costs. There was no proof that certain witness fees were actually incurred. (Id. at 5, Vol. 10 at 3005.) Accordingly, the court denied $360.00 in costs. Costs associated with duplicating services were duplicative of other requested costs. (Id. at 6, Vol. 10 at 3006.) Accordingly, the court denied $999.36 in costs. The district court rejected additional costs, which Mothers Work does appeal. The court reasoned as follows: The court had already made clear that Mothers Work would bear the costs for the second deposition of Phillip Williams. (Id. at 4-5, Vol. 10 at 3004-05 (citing Transcript of 1/25/06 Hearing, R.72 at Appendix B ex. 7, Vol. 10 at 2902).) Accordingly, the court denied $284.15 in costs. (Id. at 5, 6, Vol. 10 at 3005, 3006.) Expenses connected to online research, telephone and facsimile charges, postage, courier, word processing, internal messenger services, parking and transportation, airfare, meals, and lodging were best characterized as out-of-pocket expenses and not as costs pursuant to 28 U.S.C. § 1920. (Order at 5-6, R.80, Vol. 10 at 3005-06.) Accordingly, the court denied $16,813.22 in costs. Costs associated with videotaped depositions were not recoverable under 28 U.S.C. § 1920, as interpreted by binding precedent. (Id. at 6, Vol. 10 at 3006 (citing Mota v. Univ. of Tex. Houston Health Sci. Ctr., 261 F.3d 512, 529-30 (5th Cir. 2001)).) Accordingly, the court denied $555.00 in costs. The district court granted Mothers Work all other costs that it requested, including fees associated with the service of a subpoena, court reporter fees, and copying expenses. (Id. at 7, Vol. 10 at 3007.) These costs amounted to $4,960.99. (Id.) SUMMARY OF ARGUMENT The district court properly exercised its discretion in denying attorney's fees and most of Mothers Work's requested costs. As the consolidated Merits Appeal demonstrates, the underlying ADA lawsuit was meritorious. Even if this Court upholds the award of summary judgment, the facts and law articulated in the EEOC's merits briefs dispel any argument that the underlying case is frivolous, unreasonable, or without foundation. Additionally, the district court thoroughly analyzed Mothers Work's requested costs. Its careful reasoning demonstrates that the district court exercised its discretion thoughtfully and appropriately. ARGUMENT A. Standard of Review The denial of attorney's fees is reviewed for abuse of discretion. EEOC v. Kimbrough Inv. Co., 703 F.2d 98, 103 (5th Cir. 1983). The denial of costs is also reviewed for abuse of discretion. Energy Mgmt. Corp. v. City of Shreveport, 467 F.3d 471, 483 (5th Cir. 2006). The district court's discretion on this subject is "wide" so long as the court states the reasons for its decision. Id. B. The district court correctly refused to award attorney's fees because this case is not "frivolous, unreasonable, or without foundation." Notwithstanding Mothers Work's continued insistence that this case lacked merit from the outset (MW Br. at 17-18), the facts and the law both support the EEOC's efforts to bring the case to trial. Far from being "frivolous, unreasonable, or without foundation," see Christiansburg Garment Co., 434 U.S. at 421, this case is meritorious and the award of summary judgment should be reversed. (See Opening Br. at 3-56; supra at 1-16.) As Mothers Work concedes (MW Br. at 53), a prevailing defendant in a civil rights action is not presumptively entitled to attorney's fees. Although the ADA permits a district court to award attorney's fees to the prevailing party, 42 U.S.C. § 12117(a) (incorporating by reference 42 U.S.C. § 2000e-5(k)), the court must exercise its discretion to do so within certain limits. Prevailing ADA defendants differ from prevailing ADA plaintiffs in two important ways. As the Supreme Court has recognized, prevailing plaintiffs – but not prevailing defendants – are the "chosen instrument of Congress to vindicate a ‘policy that Congress considered of the highest priority.'" Christiansburg Garment Co., 434 U.S. at 418. Additionally, "when a district court awards counsel fees to a prevailing plaintiff, it is awarding them against a violator of federal law." Id. For these reasons, a prevailing ADA plaintiff may recover attorney's fees "in all but special circumstances." Id. at 417. Prevailing defendants, in contrast, face greater obstacles to the recovery of attorney's fees. The Supreme Court has found that Congress intended only "to protect defendants from burdensome litigation having no legal or factual basis." Id. at 420. Accordingly, the Court held, prevailing defendants may recover fees only "upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." Id. at 421. The Supreme Court cautioned district courts to resist concluding that an action must have been unreasonable or without foundation simply because it was ultimately unsuccessful. Id. at 422-23. The instant litigation does not meet the onerous standard under which a prevailing defendant may recover attorney's fees. Contrary to Mothers Work's claim (MW Br. at 55), the EEOC did not know at the outset of the litigation – and, indeed, continues to deny – that it could not establish a prima facie case. As described in the consolidated Merits Appeal, Sarfaty's condition was neither temporary nor insignificant. The record contains ample evidence – ignored by both the district court and Mothers Work – that Sarfaty was substantially limited in at least three major life activities. (Opening Br. at 31-42; supra at 2-9.) Mothers Work misstates the facts in claiming that Sarfaty told the EEOC that her condition was "temporary." (MW Br. at 57.) To the contrary, Sarfaty said only that her inability to work was temporary. (EEOC Memo to File of 3/30/05, R.46 at Ex. P, Vol. 3 at 616 (clarifying Memo to File of 4/16/04).) Mothers Work is equally misleading when it states that Sarfaty testified "that the effect of her bipolar disorder only lasted for a period of six months." (MW Br. at 57.) Far from testifying as claimed, Sarfaty testified both in her deposition and her affidavit that she remains substantially limited. (Opening Br. at 19-23.) For these and other reasons (Opening Br. at 28-42), the EEOC disagrees with the district court's conclusion that Sarfaty is not disabled. The EEOC also disagrees that the decisionmakers' technical ignorance of Sarfaty's disability can excuse Mothers Work from liability under the facts of this case. (See MW Br. at 55.) The evidence would permit a reasonable jury to find that the decisionmakers relied on Sarfaty's symptoms as a reason to terminate her. (Opening Br. at 44-49.) Discrimination because of symptoms of a disability is the same as discrimination because of the disability itself. Kinney Shoe Corp., 104 F.3d at 686. Moreover, a jury could find that the decisionmakers willfully ignored information in Mothers Work's own files revealing the possibility of a disability. (Opening Br. at 49-53.) Such deliberate blindness is not a defense to ADA liability. Hedberg, 47 F.3d at 934 & n.7. The EEOC urges this Court to reverse the award of summary judgment. Whether or not the Court reverses, the briefs in support of reversal demonstrate that this case is not frivolous, unreasonable, or without foundation. In light of the ample facts and law supporting the EEOC's position, the district court acted within its discretion in refusing to award attorney's fees. C. The district court correctly rejected most of Mothers Work's requested costs as unjustified. The district court acted within its discretion in denying the challenged costs. The bulk of the denied costs ($16,813.22) was for expenses connected to online research, telephone and facsimile charges, postage, courier, word processing, internal messenger services, parking and transportation, airfare, meals, and lodging. (Order at 5-6, R.80, Vol. 10 at 3005-06.) In rejecting these costs as "out-of-pocket expenses" (id.), the district court correctly followed binding precedent. See Mota v. Univ. of Tex. Houston Health Sci. Ctr., 261 F.3d 512, 529 (5th Cir. 2001). In Mota, this Court noted that certain "reasonable out-of-pocket expenses" should be considered as part of an attorney's fee award, as such expenses "are normally charged to a fee-paying client." Mota, 261 F.3d at 529. The Court defined these "out-of-pocket" expenses to include, for example, "postage, photocopying, paralegal services, long distance telephone charges, and travel costs." Id. Based on Mota, the "out-of-pocket" expenses that the district court denied are precisely those which this Court has characterized as part of attorney's fees. In light of the fact that the district court acted within its discretion in denying attorney's fees, see supra, it also acted within its discretion in denying recovery for the challenged "out-of-pocket" expenses. Mothers Work's challenge to the denial of costs connected with videotaped depositions is equally unavailing. Notwithstanding Mothers Work's plea that this Court "should find that costs incurred by a party in connection with video depositions are recoverable" (MW Br. at 59), this Court has already held to the contrary. Mota, 261 F.3d at 529. Because it strictly followed the governing law, the district court did not abuse its discretion in denying costs for videotaped depositions. Finally, the district court also acted within its discretion in denying costs for the second deposition of Phillip Williams. The second deposition became necessary only because Mothers Work asserted the attorney-client privilege at the first deposition – an assertion which it subsequently withdrew. (MW Br. at 61.) As the district court observed, "The Court allowed the EEOC to redepose Williams with the express understanding that Mothers Work would bear the cost." (Order at 5, R.80, Vol. 10 at 3005; see also Transcript of 1/25/06 Hearing at 6, R.72 at Appendix B ex. 7, Vol. 10 at 2902.) It is unreasonable for Mothers Work now to seek recovery when it was clear from the outset that Mothers Work had necessitated the taking of the second deposition and that Mothers Work would therefore be responsible for the associated costs. CONCLUSION For the reasons described in the Merits Appeal, this case is meritorious and the award of summary judgment should be reversed. Even the district court, which ruled against the EEOC, recognized that this case is not frivolous, unreasonable, or without foundation. A full assessment of the record evidence and the controlling law reveals that the EEOC was reasonable in believing that it should prevail in this case. Accordingly, the district court acted within its discretion in denying attorney's fees, and this Court should affirm that ruling. This Court should also affirm the denial of specified costs. As the district court properly found, all of the challenged costs were unjustified. The district court therefore acted within its discretion in denying them. For the foregoing reasons, the EEOC respectfully asks this Court to affirm the denial of attorney's fees and costs. Respectfully submitted, RONALD S. COOPER General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel _______________________________ GAIL S. COLEMAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, Room 7034 Washington, DC 20507 (202) 663-4055 Addendum CERTIFICATE OF SERVICE I, Gail S. Coleman, hereby certify that I filed this brief with the Court on this 20th day of December, 2006, by sending, via first-class mail, postage pre-paid, seven copies together with a computer disk containing a PDF version of the brief. I also certify that I served two copies of this brief, as well as a computer disk containing a PDF version of the brief, this 20th day of December, 2006, by first-class mail, postage pre-paid, to the following counsel of record: Edward S. Mazurek Sarah E. Pontoski MORGAN, LEWIS & BOCKIUS LLP 1701 Market St. Philadelphia, PA 19103 ___________________________ GAIL S. COLEMAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, Room 7034 Washington, DC 20507 (202) 663-4055 CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because the portion of the brief that constitutes the reply brief contains 3360 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B), and the portion of the brief that constitutes the appellee brief contains 2569 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B). In total, the consolidated brief contains 5929 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 with 14 point Times New Roman. ___________________________ GAIL S. COLEMAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, Room 7034 Washington, DC 20507 (202) 663-4055 *********************************************************************** <> <1> To the extent that some of the challenged paragraphs do contain references to out-of-court statements by Sarfaty’s doctors, none of those statements are referenced in the EEOC’s brief and the EEOC does not rely on them on appeal. <2> Mothers Work concedes that “concentrating” and “thinking” are the same. (MW Br. at 37 n.13.) <3> In light of Mothers Work’s failure to submit the required appendix in connection with its appeal, the EEOC has attached the district court’s order as an addendum to this brief.