EEOC v. PVNF, L.L.C. (10th Cir.) Brief as appellant May 22, 2006 _______________________________________________ ORAL ARGUMENT REQUESTED Appeal No. 06-2011 _______________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT _______________________________________________ U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant v. PVNF, L.L.C. d/b/a/ Daggett Motors and Big Valley Auto, Defendant-Appellee. _______________________________________________ On Appeal from the United States District Court for the District of New Mexico (No. 03-cv-00991) The Honorable John E. Conway, Presiding _______________________________________________ OPENING BRIEF OF THE PLAINTIFF-APPELLANT U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION _______________________________________________ JAMES L. LEE Deputy General Counsel LORRAINE C. DAVIS Acting Associate General Counsel DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4571 daniel.vail@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES iv STATEMENT OF RELATED CASES 1 STATEMENT OF JURISDICTION 1 STATEMENT OF THE ISSUES 2 STATEMENT OF THE CASE 2 STATEMENT OF FACTS 5 SUMMARY OF ARGUMENT 25 ARGUMENT 28 I. THE DISTRICT COURT ERRED IN GRANTING CDM'S MOTION FOR JUDGMENT AS A MATTER OF LAW. 28 A. The EEOC Proffered Sufficient Evidence at Trial to Allow a Reasonable Fact Finder to Conclude that CDM Is Liable for Subjecting Segovia to a Sex-Based Hostile Work Environment. 29 B. The EEOC Proffered Sufficient Evidence at Trial to Allow a Reasonable Fact Finder to Conclude that CDM Disciplined Segovia and Reduce Her Compensation Because of Her Sex and/or Because She Complained about Discrimination at CDM. 36 C. The EEOC Proffered Sufficient Evidence at Trial to Allow a Reasonable Fact Finder to Conclude that Segovia Was Constructively Discharged. 45 II. THE DISTRICT COURT ERRED IN RULING THAT THE EEOC'S CASE WAS "FRIVOLOUS, UNREASONABLE, OR WITHOUT FOUNDATION." 49 TABLE OF CONTENTS (con't) CONCLUSION 57 STATEMENT REGARDING ORAL ARGUMENT 58 ADDENDUM A-1 Unpublished Opinions Cited in Appellant's Opening Brief A-2 Dalal v. Alliant Techsys., Inc., 72 F.3d 137 (10th Cir. 1995) (Table), 1995 WL 747442 Pascouau v. Martin Marietta Corp., 185 F.3d 874 (10th Cir. 1999) (Table), 1999 WL 495621 Twilley v. Integris Baptist Med. Ctr., Inc., 16 Fed.Appx. 923 (10th Cir. 2001), 2001 WL 901102 District Court's Summary Judgment Decision A-3 District Court's Oral Grant of Rule 50 Motion at Trial A-4 District Court's Findings of Fact and Conclusions of Law A-5 District Court's Denial of EEOC's Motion to Amend or for New Trial A-6 District Court's Finding of Frivolousness A-7 CERTIFICATE OF COMPLIANCE C-1 CERTIFICATE OF SERVICE C-2 CERTIFICATE OF DIGITAL SUBMISSION C-3 TABLE OF AUTHORITIES Cases Anderson v. Coors Brewing Co., 181 F.3d 1171 (10th Cir. 1999) 40 Annett v. Univ. of Kan., 371 F.3d 1233 (10th Cir. 2004) 38 Berry v. Stevinson Chevrolet, 74 F.3d 980 (10th Cir. 1996) 38 Bristol v. Bd. of County Commr's, 312 F.3d 1213 (10th Cir. 2002) 28 Burlington N. & Santa Fe Ry. Co. v. White, 126 S. Ct. 797 (No. 05-259, Dec. 5, 2005) 39 Campbell v. Cook, 706 F.2d 1084 (10th Cir. 1983) 52 Chavez v. N.M., 397 F.3d 826 (10th Cir. 2005) 30, 33 Chavez v. Thomas & Betts Corp., 396 F.3d 1088 (10th Cir. 2005) 30, 49 Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978) 4, 49, 51, 52, 56, 57, 58 Dalal v. Alliant Techsys., Inc., 72 F.3d 137 (10th Cir. 1995) (Table), 1995 WL 747442 56 Davis v. U.S. Postal Serv., 142 F.3d 1334 (10th Cir. 1998) 28, 48 Derr v. Gulf Oil Corp., 796 F.2d 340 (10th Cir. 1986) 46, 47 TABLE OF AUTHORITIES (con't) Dick v. Phone Directories Co., Inc., 397 F.3d 1256 (10th Cir. 2005) 39 Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117 (10th Cir. 2003) 37 EEOC v. Fruehauf Corp., 609 F.2d 434 (10th Cir. 1979) 52, 54 EEOC v. St. Louis-San Francisco Ry. Co., 743 F.2d 739 (10th Cir. 1984) 50, 53 Elzour v. Ashcroft, 378 F.3d 1143 (10th Cir. 2004) 50 English v. Colo. Dep't of Corr., 248 F.3d 1002 (10th Cir. 2001) 50 Exum v. U.S. Olympic Cmte., 389 F.3d 1130 (10th Cir. 2004) 45 Ferroni v. Teamsters, Chauffeurs, & Warehousemen Local No. 222, 297 F.3d 1146 (10th Cir. 2002) 50, 55 Garrison v. Gambro, Inc., 428 F.3d 933 (10th Cir. 2005) 36-37 Gross v. Burggraf Constr. Co., 53 F.3d 1531 (10th Cir. 1995) 36 Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) 29, 30, 34 Head v. Medford, 62 F.3d 351 (11th Cir. 1995) 56 Hertz v. Luzenac Am., Inc., 370 F.3d 1014 (10th Cir. 2004) 39 TABLE OF AUTHORITIES (con't) Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir. 1987) 35 Hillig v. Rumsfeld, 381 F.3d 1028 (10th Cir. 2004) 38, 39 Homeward Bound, Inc., v. Hissom Mem'l Ctr., 963 F.2d 1352 (10th Cir. 1992) 50 Hughes v. Rowe, 449 U.S. 5 (1980) 49-50, 52, 55 Jane L. v. Bangerter, 61 F.3d 1505 (10th Cir. 1995) 55 Maldonado v. City of Altus, 433 F.3d 1294 (10th Cir. 2006) 39 Marx v. Schnuck Markets, Inc., 76 F.3d 324 (10th Cir. 1996) 38 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) 36, 43 Medina v. Inc. Support Div., 413 F.3d 1131 (10th Cir. 2005) 38 Meiners v. Univ. of Kan., 359 F.3d 1222 (10th Cir. 2004) 40 Meritor Sav. Bank, FSB, v. Vinson, 477 U.S. 57 (1986) 29, 34 Miller v. Eby Realty Group LLC, 396 F.3d 1105 (10th Cir. 2005) 29, 37, 40 Montgomery v. Yellow Freight Sys., Inc., 671 F.2d 412 (10th Cir. 1982) 52-53, 57 TABLE OF AUTHORITIES (con't) Morgan v. Hilti, Inc., 108 F.3d 1319 (10th Cir. 1997) 40 Nulf v. Int'l Paper Co., 656 F.2d 553 (10th Cir. 1981) 52, 54 Olitsky v. O'Malley, 597 F.2d 303 (1st Cir. 1979) 56 Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) 29-30, 33, 35 Orr v. City of Albuquerque, 417 F.3d 1144 (10th Cir. 2005) 37, 38, 39 Pa. State Police v. Suders, 542 U.S. 129 (2004) 30, 35, 45 Pascouau v. Martin Marietta Corp., 185 F.3d 874 (10th Cir. 1999) (Table), 1999 WL 495621 54 Penry v. Fed. Home Loan Bank, 155 F.3d 1257 (10th Cir. 1998) 30, 33, 35 Plotke v. White, 405 F.3d 1092 (10th Cir. 2005) 40 Prochaska v. Marcoux, 632 F.2d 848 (10th Cir. 1980) 52 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) 28, 29, 35, 37 Riske v. King Soopers, 366 F.3d 1085 (10th Cir. 2004) 28, 33 Roberts v. Roadway Express, Inc., 149 F.3d 1098 (10th Cir. 1998) 38 TABLE OF AUTHORITIES (con't) Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221 (10th Cir. 1997) 50 Sanchez v. Denver Pub. Schs., 164 F.3d 527 (10th Cir. 1998) 38 Sandoval v. City of Boulder, 388 F.3d 1312 (10th Cir. 2004) 30, 45 Smith v. Josten's Am. Yearbook Co., 624 F.2d 125 (10th Cir. 1980) 55-56 Smith v. N.W. Fin. Acceptance, Inc., 129 F.3d 1408 (10th Cir. 1997) 34 Smith v. Smythe-Cramer Co., 754 F.2d 180 (6th Cir. 1985) 56 Sorbo v. United Parcel Serv., 432 F.3d 1169 (10th Cir. 2005) 50 St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993) 36 Stahl v. Sun Microsys., Inc., 19 F.3d 533 (10th Cir. 1994) 35 Stewart v. Adolph Coors Co., 217 F.3d 1285 (10th Cir. 2000) 29 Supre v. Ricketts, 792 F.2d 958 (10th Cir. 1986) 50 Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981) 36 Thompson v. State Farm Fire & Cas. Co., 34 F.3d 932 (10th Cir. 1994) 28 TABLE OF AUTHORITIES (con't) Tran v. Trs. of State Colls., 355 F.3d 1263 (10th Cir. 2004) 37, 45-46, 47 Trujillo v. Univ. of Colo. Health Sciences Ctr., 157 F.3d 1211 (10th Cir. 1998) 37 Turnbull v. Topeka State Hosp., 255 F.3d 1238 (10th Cir. 2001) 28 Twilley v. Integris Baptist Med. Ctr., Inc., 16 Fed.Appx. 923 (10th Cir. 2001), 2001 WL 901102 56 Winsor v. Hinckley Dodge, Inc., 79 F.3d 996 (10th Cir. 1996) 33, 35-36 Statutes 28 U.S.C. § 1291 1 28 U.S.C. § 1331 1 28 U.S.C. § 1337 1 28 U.S.C. § 1343 1 28 U.S.C. § 1345 1 42 U.S.C. §§ 2000e et seq. 1 42 U.S.C. § 2000e-2(a)(1) 29 42 U.S.C. § 2000e-5(f)(1) 1 42 U.S.C. § 2000e-5(f)(3) 1 TABLE OF AUTHORITIES (con't) Regulations 29 C.F.R. § 1604.11(a) 29 29 C.F.R. § 1604.11(a)(3) 30 Rules Fed. R. App. P. 4(a)(1)(B) 1 Fed. R. App. P. 4(a)(4)(A) 1 Fed. R. App. P. 32(a)(5) C-1 Fed. R. App. P. 32(a)(6) C-1 Fed. R. App. P. 32(a)(7)(B) C-1 Fed. R. App. P. 32(a)(7)(B)(iii) C-1 Fed. R. Civ. P. 50 passim Fed. R. Civ. P. 50(a) 28 Fed. R. Civ. P. 52(b) 4 Fed. R. Civ. P. 59 4 STATEMENT OF RELATED CASES There are no prior or related appeals. STATEMENT OF JURISDICTION Plaintiff-Appellant the U.S. Equal Employment Opportunity Commission (the "EEOC" or "Commission") filed this lawsuit against Defendant-Appellee PVNF, L.L.C., d/b/a Chuck Daggett Motors and Big Valley Auto ("CDM") under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. ("Title VII"). R.1 at 1,3; AA27,29.<1> This action is authorized and was initiated under 42 U.S.C. § 2000e-5(f)(1). AA28-29. The district court had jurisdiction over the EEOC's suit under 42 U.S.C. § 2000e-5(f)(3) and 28 U.S.C. §§ 1331, 1337, 1343, and 1345. On June 30, 2005, the district court entered final judgment against the EEOC disposing of all claims. R.136; AA107-09. The EEOC filed a timely motion to amend the district court's final judgment or, alternatively, for a new trial. R.137; AA110-134. On November 2, 2005, the district court denied this motion. R.162; AA194-204. The EEOC then filed a timely notice of appeal. R.170; AA213-15. See Fed. R. App. P. 4(a)(4)(A); Fed. R. App. P. 4(a)(1)(B). This Court now has appellate jurisdiction under 28 U.S.C. § 1291. STATEMENT OF THE ISSUES 1. Whether the district court erred in granting CDM's motion for judgment as a matter of law. 2. Whether the district court erred in ruling that the Commission's case was "frivolous, unreasonable, or without foundation." STATEMENT OF THE CASE On August 25, 2003, the EEOC filed this lawsuit alleging that CDM violated Title VII by subjecting employee Marla Segovia to sex-based harassment, and by disciplining her and reducing her compensation because of her sex and/or because she complained about sex discrimination in the CDM workplace. R.1; AA27-35. The Commission also contended that this harassment and discrimination resulted in Segovia's constructive discharge. AA27-31. In addition, the EEOC's complaint alleged that CDM violated Title VII by subjecting Segovia's coworker Joanne Richmond to sex-based harassment and by refusing to give Richmond the same health insurance benefits that CDM provided to some of its male employees. AA27-31.<2> In its complaint, the EEOC requested injunctive relief, back pay, reinstatement or front pay, compensatory and punitive damages, other necessary and appropriate relief, costs, and a jury trial. AA31-33. The EEOC later voluntarily dismissed the portion of its complaint alleging that CDM subjected Richmond to sex-based harassment. R.49. CDM moved for summary judgment with respect to all of the EEOC's remaining claims. R.50; R.51; R.74. The EEOC opposed this motion. R.61; R.62. On March 17, 2005, the district court granted CDM's motion for summary judgment in part and denied it in part. R.94; AA89-100. The district court dismissed the EEOC's claim that CDM denied Richmond health insurance benefits on the basis of her sex. AA97. However, the district court denied CDM's motion as to all of the claims the Commission brought on behalf of Segovia. AA91-99. On May 5, 2005, the case went to trial. The evidence the EEOC presented during its case-in-chief consisted largely of the same evidence the Commission proffered at summary judgment. Compare AA41-58 with AA222-950. On May 9, 2005, at the close of the EEOC's case, CDM moved for Judgment as a Matter of Law under Rule 50 of the Federal Rules of Civil Procedure. AA951. The EEOC opposed this motion. AA966-76. The district court granted CDM's Rule 50 orally at trial.<3> AA978-80. On June 29, 2005, the district court entered written Findings of Fact and Conclusions of Law reiterating its decision to grant CDM's Rule 50 motion. R.135; AA101-06. On June 30, 2005, the district court entered final judgment against the EEOC on all claims with prejudice. R.136; AA107-09. On July 14, 2005, the EEOC filed a timely Motion to Amend the Court's Findings of Fact and Conclusions of Law and Final Judgment and Motion for New Trial under Federal Rules 52(b) and 59. R.137; R.146; AA110-134,160-71. On July 29, 2005, CDM filed a Motion to Determine that Claims Brought or Maintained by EEOC Were Frivolous, Unreasonable or Without Foundation. R.141; R.142; R.155; AA143-59,186-93. The EEOC opposed this motion. R.154; AA172-85. On November 2, 2005, the district court denied the EEOC's motion to amend or for a new trial. AA194-204. That same day, the district court ruled that the EEOC's claims were "frivolous, reasonable, or without foundation" within the meaning of Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), and awarded CDM attorney's fees (in an amount to be determined later).<4> R.163; AA205-12. This appeal followed. R.170; AA213-15. STATEMENT OF FACTS <5> Teague-Strebeck Motors operated a car dealership in Portales, New Mexico. AA746,752. Around June 2000, the owners of Teague-Strebeck Motors sold the dealership to Alva Carter and Chuck Daggett. AA746-47. After this transaction, the dealership began operating under the name of Chuck Daggett Motors ("CDM"). AA473,752. Carter owned fifty-one percent of CDM and Daggett (who had previously owned twenty-five percent of Teague Strebeck Motors) owned the other forty-nine percent of CDM. AA473. Daggett was the General Manager, but Carter was often present at the dealership as well. AA479,523-24,754-55. Daggett and Carter were "equal bosses" of all CDM employees. AA343,473,478,710,754. Teague-Strebeck Motors hired Marla Segovia in November 1996 to be a car salesperson. AA469. When Segovia first went to work for Teague-Strebeck Motors, she signed a "No Harassment Policy/Procedure." AA619. After Teague- Strebeck Motors ceased to exist, CDM redistributed a similar policy under CDM letterhead to new hires, but did not redistribute the new corporation's policy to current employees, as well. AA225-26,251,770. Under this policy, employees could report harassment to their supervisor, or to Daggett, Carter, Kathy Franson (the controller of the dealership), or Joanne Richmond (the office manager and systems administrator). AA223,225,249,710. However, CDM never provided any manager or employee with any training on harassment, retaliation, or any type of discrimination. AA225-26,295,321-22,394,473-74,727,768,771-72. CDM never provided Segovia with any written policies or procedures on harassment, retaliation, or discrimination. AA474. In January 2000, Daggett promoted Segovia to the position of Finance Manager. AA470-71,772. In June 2001, Daggett promoted Segovia to New Car Manager. AA476,478,775.<6> Randy Van Lueven, a male, preceded Segovia as New Car Manager. AA347. At this time, Rodney Ennis was CDM's Used Car Manager. AA347. Ennis testified he was Daggett's "right-hand man." AA348. Daggett testified that a conflict between Segovia and Ennis started right "when she took that job" (i.e., became New Car Manager). AA870. Segovia was paid commissions based on the sale of new cars and Ennis was paid commissions based on the sale of used cars. AA371-72. Segovia, as New Car Manager, earned more money on the sale of a new car if the vehicle the buyer traded-in as part of the new-car deal was valued at a higher amount (since a buyer would be more likely to buy a new car from CDM if the buyer was given an attractive price for their trade-in). By contrast, Ennis, as Used Car Manager, earned more money if the trade-in was valued at a lesser amount (since Ennis could then sell the trade-in at a greater profit). This sometimes created tension between Segovia and Ennis over how a particular trade-in vehicle should be valued. AA422. Ennis testified that Daggett purposely fostered this tension because he thought it was good for the two of them to compete "used cars against new cars" to increase overall sales. AA373. Segovia routinely generated more revenue than Ennis and made more in commissions than he did. AA566. Segovia testified that she was definitely making "a lot more" than Ennis. AA566. Ennis agreed that "she was making more money." AA373. Daggett testified that while Segovia was New Car Manager, she was the highest paid person (besides Daggett) at the dealership. AA855. Daggett later stated that their relative compensation varied from month- to-month, but Segovia "was probably making more" than Ennis. AA931-32. Carter - CDM's principal owner - made numerous sexist and sexual comments to Segovia and other female employees. Segovia testified that the harassment "just started up, and it became kind of haunting over us." AA516. For example, Mandi Wood worked for CDM as a cashier. AA318. At one point, after Wood sought a promotion, Carter told her that "as far as being a woman that I should sit behind the computer and that would be . . . fitting for me" and "as a woman, I should [just] sit and count money." AA320-21. She resigned in July 2001. AA319. When asked why, she said "I felt that it was kind of hostile" and "I didn't want to work there anymore." AA320. She said Carter was "intimidating" and made her "nervous." AA335-36. Michelle Reid worked for CDM from 2000 to 2001 as a title clerk. AA288. Reid said she also resigned "[i]n part because of the comments that Mr. Carter made." Tr.289,309. Reid said Carter made "sexual comments regarding women in the workplace" and that she heard these comments personally while at work. AA289. Reid said that women complained to each other about Carter's comments. AA292. For instance, Reid said Carter told her that women "belong at home barefoot and pregnant." AA290,301. Reid said Carter also said that women "take too much time off of work because they have medical reasons" and said women "belong at home and not in the workplace." AA293,294,301. Another time, when Reid was pregnant and stood up and rubbed her belly, Carter said "What would the customers think if they saw that?" AA290,291. Reid said she complained about this remark, but nothing ever happened. AA292,298. When asked why not, Reid opined that "[p]eople fear for their job." AA292. Reid testified she never heard Carter make similar comments and/or threats to male employees. AA306. Joanne Richmond worked for CDM as the office manager and systems administrator from June 2000 until she was discharged in February 2002. AA223. Richmond stated that after Carter bought into the dealership the working conditions for women there became "very stressful" because "I don't think he likes women. Women are not as revered as men." AA228-29. She testified that she based this assessment on "[t]hings he said to women." AA229. Richmond said that she felt like she had to "walk on eggshells" around Carter and that she discussed this with other women who felt that way, too. AA267. She said she was "sure" the men who worked at Daggett did not feel this way because Carter "didn't treat them the way he treated us." AA267. She said she "never saw him act like that [the way he interacted with women] with men." AA284. Richmond also testified that she heard Carter tell Reid that "women didn't belong in the workplace because they had child care issues." AA230. Another time, Richmond was interviewing a female in her office and Carter opened the door and "said he wanted to see how old [the female applicant] was" and "wanted to know if she had children because of the child care issues." AA232. From roughly July 2000 to September 2001, Segovia was the object of similar and more severe sex-based remarks and negative treatment. For example, when Segovia was the Finance Manager, Carter told Segovia that he liked having her in that role "because of my protective motherly instincts." AA524. Segovia testified that because this comment was "based on my gender" it was not a compliment. AA638.<7> In April 2001, while Segovia was still Finance Manager, she had an argument with a used car salesperson named Forest Griffin. AA348,516-520,588. Griffin worked for Ennis. AA355. Segovia testified that Griffin told her one day, after she had asked him to do some follow-up work on one of Griffin's loans, that "I reminded him of his F'ing ex-wife and that he used to beat her." AA517,352. Segovia said "he reacted really kind of wildly" and "stood up and he just cleared his desk and he called me a bitch. And a plate shattered against the wall, and then he left the dealership. He left the used car department, quitting." AA518. Segovia testified that "he was physically moving, and I was threatened and very scared." AA519. Segovia complained about this to Ennis, Griffin's boss, and to Daggett. AA519. One CDM manager, Chris Wood, thought that Griffin should be fired for treating Segovia that way. AA412. However, Ennis testified that Daggett "asked me to talk to him because Forest sold a lot of cars" and to "see if [I] c[ould] get him to come back to work." AA353. Griffin returned to work the next day. AA354,520. Griffin was never disciplined in any way. AA356.<8> Segovia testified that the harassment became "more haunting" when she became the New Car Manager. AA516. In June 2001, Segovia hired a new female salesperson named Jeannie Shackleford to work in the New Car department. AA527,589. When she informed Carter about it, he said "I don't want a whole bunch of damn women working here. Men don't like to work with women. Men like to dicker with men. They don't like to dicker with women." AA527-28. Carter also told Segovia he thought that women brought their "emotional baggage and problems to the dealership." AA528. During a sales managers meeting, Carter also told Segovia that there was a book on "women in management" that he was going to buy for her. AA530. Segovia testified that this was "offensive" to her because she "was the only woman in the room." AA530. She testified that she has a degree in business and still "I had to be spotlighted for being a woman." AA531. She said that "[w]hen you walk into a meeting and there is one woman sitting there and all the rest of them are men and he's singling me out, I felt it to be discriminatory." AA650. After the sales meeting, Carter "told me that 'the difference between men and women is that women have to take more of a bitch approach.'" AA531. On another occasion, Carter talked about how "Mexican women's nipples turn black - brown after they had babies." AA532. Segovia said this bothered her because her daughter is "half Spanish" and "it was offensive for her." AA532. A different day, Segovia said, her husband visited the dealership and Carter told him that he could get a good deal on a car because "he was sleeping with me." AA533. Segovia complained about Carter's comments to Daggett. AA528. Daggett "told me to just start documenting things." AA529. However, Daggett then told Segovia "we never had this conversation." AA529. Thus, Segovia testified, "I knew he wasn't going to support me." AA529. Daggett testified he remembered Segovia "threatening" to go the EEOC. AA784-85,908-11. However, Daggett said he could not remember what she was complaining about. AA784-85. He stated that "she was cranky some days, and she'd show up and say, 'I'll go to the EEOC,' or something. And I said, "'Well, if I felt that way, I'd do the same thing. Go back to work.' I mean, just more drama." AA784-85.<9> Shaun Belden, another used car salesperson who worked for Ennis, also called Segovia a "bitch" to her face after she required him to split a commission with one of her new car salespeople. AA521-22. Segovia recommended to Ennis that Belden be disciplined for this behavior. AA521-22. Ennis refused, and Belden ended up receiving the entire commission. AA522. Segovia testified that this "overrode my authority." She also said she had "never seen Mr. Ennis do that to [i.e., override the authority of] a male employee." AA523. In early September 2001, Ennis and Segovia got into an argument over the wholesaling of a particular trade-in. AA364,534-38,591. Carter was present during this altercation, which took place outside the main showroom where anyone at the dealership could see it. AA363-64,369-70,596-97. During the disagreement, Ennis indicated that he was tired and Segovia responded by telling him that perhaps he should take a nap and/or go to sleep. AA365,535. Ennis then "flipped off" Segovia and said "F..k you bitch." AA536. Segovia got upset and started to cry and walk away from the dispute. AA368-69,536-37,597. Carter told Segovia "if you want to keep your job, you will get your butt back here and finish this conversation." AA536. Segovia told Carter she did not want to stay in the conversation, but stayed anyway. AA628,537. Ennis testified that he was never "written up" for the incident by either Daggett or Carter. AA370-71. Daggett testified that he "didn't know all of the particulars" of the incident "[b]ut it didn't sound like a big deal to me." AA875.<10> Later on in the evening, after this heated exchange, Segovia decided to talk to Ennis to try to resolve their conflict. AA542. Ennis was busy drinking beer with other employees on the dealership premises. AA542. Segovia thus went back to her office and composed and sent an e-mail to Daggett expressing frustration about the situation. AA543. Segovia later thought better of it and decided to retrieve the message before Daggett could read it. AA544. She accessed his password-protected work e-mail account (without his permission)<11> and erased the message she had sent to him. AA544. While she was in Daggett's e-mail, another e-mail "popped up." AA544,547. It was an e-mail exchange that occurred during work hours between Ennis and one of Segovia's subordinates named Jim Smith. AA383-85,548. Smith had been hired by Daggett and the two of them were very close; in fact Segovia even testified that Daggett never consulted her before hiring Smith and she felt she had no real authority over him at all. AA485-86. Ennis had forwarded this particular e-mail discussion to Daggett. AA385-86, 548. It was about Segovia. In the e-mail exchange, Ennis asked Smith why he could not leave work to buy beer. AA383,986. Ennis asked "Marla [Segovia] got you by the Balls?" AA384,986. Smith replied to Ennis, writing: I wouldn't let that bitch hold my balls if she was the last woman on earth. If she had balls they would be hanging lower tha[n] that nasty fucking skirt she is wearing. At least she wore panties today. And I know that for a fact and I wasn't looking. Just walking in the front door. . . . I got to thinking about that today, every c[u]stomer that walked in this place today saw her nasty crotch. Gotta go fucking throw-up now. . . . AA385,547,987. Segovia testified she was "shocked and surprised" when she saw this e-mail. AA547. She "sat in the dealership for a little while trying to figure out what I should do about this." AA551. Finally, she wrote Daggett an e-mail stating that she would not be at work the next day because she was going to go shopping for "dresses that covered my so-called balls." AA551. She said she "wanted to drive home to him how offended I was by that e-mail." AA551. Segovia did not come to work the next day. AA553. She waited all day for Daggett to call and apologize for the incident. AA553-54. He never called. AA553-54. When she finally called him, Daggett told her that he had "verbally reprimanded" Smith and Ennis. AA554-55. Daggett testified that he told Smith and Ennis to apologize, and "I thought they did. I guess come to find out, they might not have. I'm not sure." AA788. Daggett stated that he just assumed Ennis had apologized and never followed up with Smith to see if Smith had apologized. AA790. Segovia testified that Smith wrote her a sarcastic e-mail later stating "I have been told I have to apologize to you about the e-mail, but I don't understand, Marla, why you just can't take a joke." AA556. Segovia never received any sort of apology from Ennis. AA556,558-59. Ennis testified that Daggett did ask him to send a written apology to Segovia but he "refused to do it." AA386,391-92. Ennis claimed he forwarded the e-mail to Daggett because he was "throwing Smith under the bus" - that is, even though Ennis and Smith were friends Ennis thought Daggett should and would reprimand Smith for sending such an e-mail. AA386,389-90. However, Ennis admitted that in his deposition he had explained simply that he forwarded the exchange to Daggett because Smith "has a history of kind of being a comedian sort of, and I just sent it over there as a stupid story. I mean, just because [Smith] appeared to have gotten pretty creative - pretty creative of this vulgar stuff and I just sent it over there." AA388. Daggett testified that "I think those two guys . . . were just joking around with each other, e-mailing each other back and forth, just messing around, is what it looks like to me." AA880-81. A few days later, Segovia mentioned the e-mail to Carter. AA554,592-93. Carter said "I know about the e-mail" but "You need to go - just go back to work. That can't stop production." AA554-55. Segovia testified she did not personally write Smith (her subordinate) up because "they would have laughed at that." AA557. She also testified that "I was really powerless over [Smith]" because of his close relationship with Daggett. AA558,660. She stated "I mean, I really felt they [i.e., Daggett and Carter] needed to be the ones responsible for reprimanding them for that." AA557. However, Segovia testified, Daggett and Carter "didn't do anything about it" at all. AA555. Less than one month later, on October 4, 2001, Daggett issued to Segovia an "Employee Warning Notice" and a "New Pay Plan." AA593,982-83,984. Both documents were delivered to Segovia at the same time in the same envelope, "folded together" and sealed with a "sticky note" from Daggett stating "Marla, sign and return." AA562-63,982. Neither Daggett nor Carter had ever mentioned to Segovia that they were considering changing her pay plan. AA580,721,732- 33,873. The warning chastised Segovia for "lateness," "working on personal matters," and "unsatisfactory work quality." AA983. The notice stated that Segovia was late "nearly every morning." AA983. It also indicated that "[s]alespeople are complaining that you are not available to work deals because of personal calls and leaving for hours at a time." AA983. Segovia adamantly denied all of the allegations in this Employee Warning Notice. She stated there was "nothing in there that was accurate about me." AA630,578,706. She admitted being late to work, but testified that many other managers like Finance Manager Chris Wood and Fleet Manager Wade Rutter were often late, too. AA494,571. She testified that after Smith joined the management staff as Assistant Finance Manager "there were times we would actually call him and wake him up." AA576. Ennis also testified that other male managers were sometimes late. AA377. Ennis admitted to being late to work himself, but said he thought Segovia was late more often than he was. AA438,445. Segovia testified just the opposite - that Ennis "and I were equally late, if he wasn't even more late than I was." AA494-95,576.<12> Segovia also said that Daggett would "just make a joke or comment" whenever Ennis was late, and "that's it." AA495. Ennis testified that Daggett was "pretty laid back, and he might have said something to me" about being late, "but I didn't receive a written warning for being late from him." AA376,378,446. Daggett acknowledged he never wrote Ennis up for being late. AA805,810,799. Daggett also testified that others were late to work and admitted that Segovia was the only sales manager he had ever written up for being late. AA799. Segovia denied that she would "just disappear for long periods of time." AA570. She indicated that none of her salespeople ever complained to her about being unavailable. AA665. She testified that there could have been occasions when people perceived that she was not available because she was not physically in her office. AA502. She stated "I wasn't glued to my chair" and there "were times I would go into the title office and work on loans back there, check the inventory." AA574. She said she generally had her cell phone with her. AA500. She also said that Ennis, by contrast, "wasn't there attentively like I was." AA725. Segovia stated CDM never gave her any guidelines or instructions on what calls she could or could not make. AA498. She said she was "authorized to make any calls." AA498. She acknowledged using her cell phone to "call customers, look for dealer trades, child care arrangements, working with [other car dealerships], food, order out." AA498-99. However, she denied that she was talking on the phone a lot during the period in question. AA664. Similarly, Segovia denied "working on personal matters" excessively. She said "I mean, working until 7:00 or 8:00 at night, you check on your kids. You might call the bank. You might order lunch. You could do a lot of things that - that working on personal matters, I mean, it was brief." AA572. She testified that other sales managers routinely took care of personal matters at work and/or let personal matters interfere with their work. For example, she said that one of the managers used to leave the dealership practically every day at 3:00 to pick his kids up from school and drop them off at their babysitter's house. AA577. She also said that other managers would go to sporting events and various male employees would sometimes drink beer behind the dealership. AA577.<13> She said "I don't feel that my [working on] personal matters w[as] any more [severe], and I was being productive. I was making money for the dealership." AA578. Daggett testified that Segovia was the only sales manager he wrote up during this period for taking care of personal matters at work. AA804. Ennis admitted he and other employees - including Daggett - drank beer on company premises. AA379-80. Ennis also testified he had never been written up for consuming alcoholic beverages at the dealership. AA380-81. In fact, Ennis admitted that there were no disciplinary write-ups whatsoever in his personnel file. AA377,446. Daggett admitted he drank beer with salespeople at the dealership and testified he never wrote anyone up for doing so, even though he knew CDM's insurance company would not have approved of it and Carter had banned alcohol from company functions. AA805-06,866,926-27. Segovia testified that she had "absolutely no idea" why Daggett would have indicated on the Employee Warning Notice that her "work quality" was "unsatisfactory." AA571. She stated that she was "making great sales in the new car department." AA571. Daggett even testified that "she did fine" as New Car Manager. AA874. He could not recall a single time when Segovia had missed her sales goals. AA945. The New Pay Plan required both Ennis and Segovia to start sharing sixty percent of their combined commissions. AA566,984. Since Segovia had routinely generated greater revenue than Ennis had, it appeared to Segovia that the New Pay Plan effectively reduced her compensation and increased his. AA566. Segovia testified that she "never put the pencil to test that day" to ascertain for sure that her compensation would decrease under the New Pay Plan. AA730. However, she stated, "I knew my old pay plan" and "if you compare the two, you would see - it's just immediate looking at it, you would know the difference." AA730. She said that "I felt like I was giving up half my income to Mr. Ennis, and I was working hard" and "I didn't see any reason for this." AA566,725. Ennis testified that the New Pay Plan "equaled" their salaries and there would be "no more instances" of Segovia making more money than he was making. AA397,428. According to Daggett, a purpose of the New Pay Plan was to reduce salaries dealership-wide because CDM had allegedly been paying its salespeople about fifteen to twenty percent over-market. AA815,819-20,873,893,895. Daggett indicated that Segovia and Ennis were the only ones who received a New Pay Plan at that time. AA818-19,825. Daggett stated that the New Pay Plan represented a "reduction in pay" for "both of them." AA895,946. However, Daggett also testified that CDM "ran the numbers" to "make sure that it wouldn't be something that would absolutely lower their pay or whatever." AA817. Daggett said that "we figured it came out to about the same thing. [Segovia] might have construed it was lower or whatever, but it might have raised her pay, for all she knew." AA826-27. Another reason for the New Pay Plan, Daggett testified, was to eliminate the conflict between Segovia and Ennis over trade-in values. AA815,870-71,893. Daggett stated that by making sixty percent of their pay the same for each of them there would be "no incentive for anybody to under-value or over-value or whatever." AA716. However, Segovia testified that there "could have been so many other ways of eliminating the competition between Mr. Ennis and myself." AA645,579. Segovia testified that "[t]here was a message in that envelope that day." AA723,732-33. She said "I just felt that the write-up is discriminatory" because it was "in the same envelope as the new pay plan, and it was a message given to me that, you know, we are reprimanding you and not Mr. Ennis, not Mr. Smith. We are reprimanding you for stuff that you haven't done." AA579,673,732-33. She said having to give "half of my income" to Ennis "after the e-mail, after the vulgar gestures and verbiage, I felt that it was another way of, 'Marla, shut up. Marla, just work.'" AA579-80,725. She said "it seemed to me as if they were - they were like driving me out." AA579,725. She said she also thought the Employee Warning Notice and the New Pay Plan were "retaliatory" and that Daggett was "trying to build a case in my personnel file against me going to EEOC about the behaviors at the dealership." AA629-30. Segovia immediately informed Daggett that the Employee Warning Notice and New Pay Plan were "unacceptable" and "unfair." AA578. She also told Daggett that the New Pay Plan was discriminatory, and that Daggett should be writing up Ennis instead. AA672-73,725. She testified that she threw the documents down on Daggett's desk and told him "I felt as if they were trying to drive me out of the dealership." AA580. Daggett told her she was being "emotional." AA578. Segovia then resigned that same day. AA593. She testified that while she had been "excited" and "proud" when she first became New Car Manager, "slowly, but surely" her feelings turned to "humiliation." AA596. Segovia had come to the realization that she "wasn't regarded as a manager anymore, that I was more a powerless woman." AA596. She also stated that she "didn't feel any respect" and "didn't feel any authority" and felt "degraded." AA599. She said "I was given this position, and I had no way of making things work. I was wanting to find a solution, and I couldn't make this work. And then the e-mails started, and when the vulgarities started, it was just, 'Why isn't somebody stopping this?'" AA596. She said "after a certain point it bec[a]me so pervasive" and "I would reach out this way and that way, and there was no solution." AA597-98. At that point she concluded that "that job was not life anymore, and especially if this is the way it's going to be. If it wasn't going to change, this is not life anymore." AA599. She stated "I couldn't do it anymore. I couldn't give up my children's life for this anymore." AA599,729. She told Daggett "I'm done. I can't do this position anymore. I can't be in this target position anymore." AA583.<14> She said she suggested to Daggett that maybe she could do something else at the dealership (e.g., serve as a "fill-in") instead. AA583. She testified that she made this suggestion because "I wasn't sure financially if I could handle it at that point. That was going to wipe my family out financially." AA583. She testified that she only considered this possibility "on the day I left." AA610. Segovia testified that Carter once told her specifically that he would not fire anyone. AA720. He said simply "I will make their life a living hell until they leave." AA720. After Segovia left CDM, Carter told Chris Wood that it was "good" that Segovia was now "at home with her kids" because "that's where she should be." AA587. Fleet Manager Wade Rutter then took Segovia's place as New Car Manager. AA429. He was subject to the same New Pay Plan. AA429. Segovia filed a charge with the EEOC on May 30, 2002. R.48 Exh.A. This suit followed. SUMMARY OF ARGUMENT The district court erred in granting CDM's motion for judgment as a matter of law on each of the claims the Commission brought on behalf of Segovia. First, the EEOC introduced enough evidence at trial to enable a reasonable fact finder to determine that CDM subjected Segovia to a hostile work environment because of her sex. The cumulative sex-based and sex-related comments and conduct Segovia suffered while working at CDM were sufficiently severe and/or pervasive to constitute actionable harassment. In ruling that no reasonable jury could reach this conclusion, the district court violated Rule 50 principles and ignored the substantive legal standards governing hostile work environment claims (e.g., by failing to consider the totality of the record evidence and making other legal errors, such as requiring the EEOC to show severe and pervasive harassment). Second, the Commission also proffered sufficient proof at trial to allow a reasonable jury to find that CDM discriminated against Segovia unlawfully because of her sex and/or retaliated against her because she complained about sex- based discrimination at the dealership by issuing the Employee Warning Notice and imposing the New Pay Plan. The Supreme Court has ruled that a plaintiff may survive judgment as a matter of law on claims such as these by proving a prima facie case of discrimination and showing that the defendant's alleged non- discriminatory explanation for its actions is pretextual. Given the abundant evidence amassed by the Commission, a reasonable jury could easily find that the EEOC had met this burden. In concluding otherwise, the district court inappropriately found facts in CDM's favor. Third, the district court also wrongly ruled that the EEOC had not proffered sufficient evidence to support the Commission's claim of constructive discharge. Under Supreme Court and this Court's precedent the standard for constructive discharge is an objective one. The proper inquiry is whether a reasonable person in the victim's situation would have felt compelled to reason - whether the discrimination suffered on-the-job was of such a magnitude that resignation would qualify as a "fitting response" to it. Here, given the unrelenting and unremedied barrage of sex-based epithets, cruel jokes, humiliating treatment, and even veiled threats Segovia endured - and/or given that CDM disciplined Segovia on trumped up charges and cut her pay while rewarding one of her male harassers with an increase in pay - a reasonable jury could quite plausibly conclude that she had no other choice but to quit. In ruling for CDM, the district court misconstrued the pertinent record evidence on this claim. Finally, the district court erred in ruling that the EEOC's case was "frivolous, unreasonable, or without foundation" and that CDM was thus entitled to an unspecified amount of attorney's fees. The district court apparently reached this conclusion simply because the EEOC did not prevail at trial and because the district court did not want to "penalize" CDM with the costs of defending against this action. However, in awarding attorney's fees here, the district court discounted the abundant evidence the EEOC proffered at summary judgment and introduced at trial supporting the Commission's claims - evidence that easily should have foreclosed any finding that its case was frivolous. The district court clearly contravened the Supreme Court's carefully-crafted and long-standing standard for determining when a prevailing Title VII defendant is entitled to attorney's fees. ARGUMENT I. THE DISTRICT COURT ERRED IN GRANTING CDM'S MOTION FOR JUDGMENT AS A MATTER OF LAW. This Court reviews the district court's grant of CDM's Rule 50 motion de novo and applies the same standard the district court should have used to evaluate the evidence. Riske v. King Soopers, 366 F.3d 1085, 1088 (10th Cir. 2004) (citing Thompson v. State Farm Fire & Cas. Co., 34 F.3d 932, 941 (10th Cir. 1994)). When a defendant seeks judgment as a matter of law, "the controlling question 'is whether the plaintiff has arguably proven a legally sufficient claim.'" Bristol v. Bd. of County Commr's, 312 F.3d 1213, 1216-17 (10th Cir. 2002) (quoting Turnbull v. Topeka State Hosp., 255 F.3d 1238, 1241 (10th Cir. 2001)). Dismissal under Rule 50(a) is proper "only if the evidence points but one way and is susceptible to no reasonable inferences which may support the opposing party's position." Id. at 1088 (quoting Davis v. U.S. Postal Serv., 142 F.3d 1334, 1339 (10th Cir. 1998)); see also Fed. R. Civ. Proc. 50(a). In entertaining a Rule 50 motion, the court must "review all of the evidence in the record." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). However, it must "disregard all evidence favorable to the moving party that the jury is not required to believe" and "give credence to the evidence favoring the nonmovant." Id. at 151. When resolving the motion, the court must draw all reasonable inferences in favor of the nomoving party, may not make credibility determinations, and cannot weigh the evidence. Id. at 150; see also Miller v. Eby Realty Group LLC, 396 F.3d 1105, 1110-11 (10th Cir. 2005) (same); Stewart v. Adolph Coors Co., 217 F.3d 1285, 1288 (10th Cir. 2000) (same). The district court erred under this standard when it granted CDM's motion for judgment as a matter of law with respect to the hostile work environment, disparate treatment, retaliation, and constructive discharge claims the EEOC brought on behalf of Segovia. The evidence the Commission proffered at trial was sufficient to allow a reasonable jury to find for the EEOC on any of these claims. Accordingly, this Court must reverse the district court's ruling on the merits. A. The EEOC Proffered Sufficient Evidence at Trial to Allow a Reasonable Fact Finder to Conclude that CDM Is Liable for Subjecting Segovia to a Sex-Based Hostile Work Environment. Unlawful discrimination under Title VII includes harassment on the basis of sex. See 42 U.S.C. § 2000e-2(a)(1); 29 C.F.R. § 1604.11(a). As the Supreme Court and this Court have repeatedly held, an employer violates Title VII if it subjects an employee, because of the employee's sex, to a workplace permeated with unwelcome "discriminatory intimidation, ridicule, and insult" that is "sufficiently severe or pervasive to alter the conditions of [the victim's] employment and create a[] [hostile or] abusive working environment." Meritor Sav. Bank, FSB, v. Vinson, 477 U.S. 57, 65-67 (1986); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (same); Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998) (same); Pa. State Police v. Suders, 542 U.S. 129, 146-47 (2004) (same); Chavez v. Thomas & Betts Corp., 396 F.3d 1088, 1096 (10th Cir. 2005) (same); Sandoval v. City of Boulder, 388 F.3d 1312, 1327 (10th Cir. 2004) (same); see also 29 C.F.R. § 1604.11(a)(3). According to the Supreme Court: This is not, and by its nature cannot be, a mathematically precise test. . . . [W]hether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. . . . [N]o single factor is required. Harris, 510 U.S. at 22-23; see also Oncale, 523 U.S. at 81-82 (similarly stressing the need to look at "all the circumstances"); Chavez v. N.M., 397 F.3d 826, 832-33 (10th Cir. 2005) (same); Penry v. Fed. Home Loan Bank, 155 F.3d 1257, 1262 (10th Cir. 1998) (same). Here, a reasonable jury easily could have concluded that Segovia was subjected to severe or pervasive harassment because of her sex. Carter - CDM's majority owner - made numerous sex-based comments to Segovia. He commented on her "motherly" instincts. He talked about women's nipples. He insinuated that Segovia's husband could get a good deal on a CDM vehicle because she was performing sexual acts with him. He singled Segovia out, in front of a roomful of male managers, by telling her she needed a book on "women in management" (and he later highlighted the differences between women and men, telling her that "women have to take more of a bitch approach"). He told Segovia "I don't want a whole bunch of damn women working here," that "men don't like to work with women," that "men like to dicker with men," and that women brought "emotional baggage and problems" to the workplace. He refused to discipline Ennis even after he personally witnessed Ennis call Segovia a "bitch" and tell her to "f..k off" (and instead ordered her to stay in the conversation with Ennis if she wanted to keep her job). He completely dismissed Segovia's complaint about the Smith/Ennis "nasty crotch" e-mail exchange by telling her not to let it "stop production." After Segovia resigned, he stated that it was "good" she was "at home with her kids" because "that's where she should be." Daggett - CDM's other owner - also subjected Segovia to sex-based harassment. He failed to reprimand Belden for calling Segovia a "bitch." He also refused to discipline Griffin, even though Griffin also called Segovia a "bitch," told Segovia she "reminded him of his F'ing ex-wife," and implicitly threatened Segovia by indicating that he "used to beat" his ex-wife. Daggett focused instead on making sure Griffin returned to work because he "sold a lot of cars." He said the fact that Ennis told Segovia "F..k you Bitch" and "flipped her off" "didn't sound like a big deal to me" and he did nothing to reprimand Ennis for it. Daggett also declined to "write up" Smith or Ennis for their e-mails - an exchange containing three separate references to "balls," again referring to Segovia as a "bitch," and commenting on her "nasty f...ing skirt," her "panties," and her "nasty crotch." To the contrary, Daggett apparently fostered a working environment in which male employees felt free to forward such degrading e-mails about Segovia among themselves and to Daggett himself, and gave his male employees the impression that even though he was the General Manager of the dealership he would entertain such vulgarities, finding them to be "pretty creative" and "funny." By contrast, Daggett disciplined Segovia allegedly for committing infractions Segovia testified she never committed and/or for pursuing personal business at work while male employees admitted to engaging in such conduct and worse - like being consistently late to meetings, drinking beer on company property, calling Segovia "bitch," "flipping her off," making veiled physical threats, and sending explicit and derogatory e-mails referencing her genitalia - with impunity. In determining at trial and in post-trial rulings that this was not actionable harassment, the district court misapplied governing law and failed to properly evaluate the EEOC's evidence. For example, the district court rendered a "conclusion of law" stating that "the fact that Mr. Ennis was not formally reprimanded for calling Segovia a 'bitch' is insufficient to establish gender bias" and "Segovia failed to establish that she was the object of harassment because of her gender." AA104. If, by this, the district court meant that Carter and/or Daggett had not harassed Segovia specifically because of her sex, this conclusion is not sustainable. All of the comments and conduct the EEOC emphasized at trial were sex-specific or sex-related. See, e.g., Oncale, 523 U.S. at 80 (recognizing that "harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex" and finding that a "trier of fact might reasonably find such discrimination, for example, if a female victim is harassed in such sex-specific and derogatory terms . . . as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace"); Riske, 366 F.3d at 1091 ("We consider evidence of all conduct that is either gender-based or has 'gender-related implications.'" (quoting Penry, 155 F.3d at 1263)); Winsor v. Hinckley Dodge, Inc., 79 F.3d 996, 1000 (10th Cir. 1996) ("Sexual epithets" such as "bitch" are "intensely degrading to women" (collecting cases)); see also Chavez v. N.M., 397 F.3d 826, 836 (10th Cir. 2005) (calling plaintiff a "f...ing bitch" was "severe" sex-based harassment). The district court's view that "[t]aking any comments made by Mr. Carter in the context of Ms. Segovia having been consistently promoted" it "cannot be inferred that any of the comments Segovia attributes to Alva Carter interfered with her work performance," AA104, similarly reflects the district court's flawed analysis. Carter had nothing to do with Daggett's decisions to promote Segovia to Finance Manager or New Car Sales Manager. Moreover, the EEOC was not obligated to show that Segovia's work performance was affected by the harassment - only that her working conditions had become abusive or hostile. See, e.g., Harris, 510 U.S. at 22-23 (clearly indicating that whether harassment interferes with an employee's work performance is but one, non-dispositive factor to consider in determining whether a work environment has become sufficiently abusive or hostile). The district court similarly erred in ruling that the Smith/Ennis e-mail exchange was "insufficient to establish the requisite severity and pervasiveness sufficient to support a hostile work environment claim." AA104. This "legal conclusion" misstates the law. The EEOC did not have to establish, as the district court explicitly held, that the harassment was "severe and pervasive" - only that it was severe or pervasive. See Meritor, 477 U.S. at 67; Smith v. N.W. Fin. Acceptance, Inc., 129 F.3d 1408, 1413 (10th Cir. 1997) ("The Meritor test is a disjunctive one, requiring that the harassing conduct be sufficiently severe or sufficiently pervasive."). Further, contrary to the district court's conclusion, the EEOC never argued that Segovia suffered a hostile work environment because of this e-mail exchange alone. Rather we pointed to a plethora of harassing comments and conduct. The district court erred in singling out this one (albeit serious) incident and ignoring the need to consider the totality of the EEOC's evidence - including evidence that numerous other female employees (Mandi Wood, Michelle Reid, and Joanne Richmond) were also subjected to sex-based harassment - in evaluating whether Segovia was subjected to severe or pervasive harassment. See, e.g., Oncale, 523 U.S. at 81-82 (emphasizing the need to consider the "constellation of surrounding circumstances" in these cases); Reeves, 530 U.S. at 150 (on a Rule 50 motion the court must review the record "taken as a whole"); Penry, 155 F.3d at 1262 ("Indeed, the very term 'environment' indicates that allegedly discriminatory incidents should not be examined in isolation."); Stahl v. Sun Microsys., Inc., 19 F.3d 533, 538 (10th Cir. 1994) (holding that incidents of sexual harassment directed at employees other than the plaintiff may be used as proof that the plaintiff's work environment was hostile (citing Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415-16 (10th Cir. 1987))). Given the totality of the evidence the EEOC introduced at trial, a reasonable fact finder could have concluded that Segovia's supervisors subjected her to demeaning, degrading, intimidating, and insulting harassment precisely because she is a woman, and that this harassment was sufficiently severe or pervasive to have created an abusive or hostile working environment. See, e.g., Suders, 542 U.S. at 145 (finding that a supervisor's "power and authority invests his or her harassing conduct with a particularly threatening character" (internal citation omitted)); Winsor, 79 F.3d at 1000 ("It is beyond dispute that evidence that a woman was subjected to a steady stream of vulgar and offensive epithets because of her gender would be sufficient to establish a claim under Title VII." (quoting Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1539 (10th Cir. 1995))). In fact, the district court concluded as much at summary judgment. AA94 (ruling that "a reasonable jury could conclude, given the totality of the circumstances, that Segovia was subjected to a hostile work environment"). For this reason, the district court's ruling granting CDM's motion for judgment as a matter of law on the EEOC's harassment claim must be reversed. B. The EEOC Proffered Sufficient Evidence at Trial to Allow a Reasonable Fact Finder to Conclude that CDM Disciplined Segovia and Reduced Her Compensation Because of Her Sex and/or Because She Complained about Discrimination at CDM. The EEOC also presented enough evidence at trial to enable a jury to find that CDM issued the Employee Warning Notice and instituted the New Pay Plan because of Segovia's sex and/or to retaliate against her for opposing practices made unlawful by Title VII. The district court committed legal error in concluding otherwise. The Commission can prove its claim of disparate treatment and retaliation through circumstantial evidence using the burden-shifting framework formulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and routinely applied by this Court. See id.; see also Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); Garrison v. Gambro, Inc., 428 F.3d 933, 936-37 (10th Cir. 2005) (sex discrimination); Tran v. Trs. of State Colls., 355 F.3d 1263, 1266-67 (10th Cir. 2004) (retaliation). Under this evidentiary scheme, a district court generally should not grant a defendant's Rule 50 motion if the plaintiff proffers sufficient evidence to create a genuine issue of fact as to the prima facie case and as to whether the defendant's explanation for its actions is pretextual. See Reeves, 530 U.S. at 148- 49 (ruling that this combination of evidence enables a fact finder to conclude that discrimination was motivating the employer and thus renders judgment as a matter of law inappropriate); see also Miller, 396 F.3d at 1111-12 (same); Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117, 1135-36 (10th Cir. 2003) (same). The EEOC made this showing in this case. A plaintiff may establish a prima facie case of sex discrimination by showing that (1) the charging party was a member of a protected class; (2) the charging party suffered an adverse employment action; and (3) the employer treated similarly situated employees outside the protected class differently or more favorably. See, e.g., Orr v. City of Albuquerque, 417 F.3d 1144, 1149 (10th Cir. 2005); Trujillo v. Univ. of Colo. Health Sciences Ctr., 157 F.3d 1211, 1215 (10th Cir. 1998). The EEOC met this burden at trial. The evidence introduced by the EEOC established that Segovia was clearly a member of a protected class (i.e., she was female). The evidence also showed that Segovia suffered an adverse employment action (i.e., as part of one punitive measure, CDM issued the Employee Warning Notice and imposed the New Pay Plan, effectively reducing her pay). See, e.g., Medina v. Inc. Support Div., 413 F.3d 1131, 1137 (10th Cir. 2005) (finding that "[d]isciplinary proceedings, such as warning letters and reprimands, can constitute an adverse employment action") (citing Roberts v. Roadway Express, Inc., 149 F.3d 1098, 1104 (10th Cir. 1998); Marx v. Schnuck Markets, Inc., 76 F.3d 324, 329 (10th Cir. 1996)); see also Orr, 417 F.3d at 1150 (actions which deprive a plaintiff of compensation she otherwise would have earned "clearly constitute adverse actions for purposes of Title VII") (internal citation omitted); Annett v. Univ. of Kan., 371 F.3d 1233, 1239 (10th Cir. 2004) (the concept of "adverse employment action" certainly encompasses monetary losses in the form of decreased wages or diminished benefits).<15> Finally, the evidence revealed that a similarly situated male employee - Ennis - was treated more favorably (i.e., CDM never disciplined Ennis for any of his workplace infractions and actually increased his pay at the same time it decreased Segovia's pay). The EEOC thus established a prima facie case of sex discrimination. A plaintiff can create a prima facie case of retaliation by demonstrating that (1) the charging party engaged in protected opposition to discrimination; (2) the charging party suffered an adverse employment action; and (3) there is a causal connection between the protected opposition and the adverse action. See, e.g., Maldonado v. City of Altus, 433 F.3d 1294, 1308-09 (10th Cir. 2006); Dick v. Phone Directories Co., Inc., 397 F.3d 1256, 1267 (10th Cir. 2005) (same). Here again, the EEOC satisfied this standard. Segovia engaged in protected opposition to discrimination (i.e., she complained to Carter and Daggett on multiple occasions about the sex discrimination she was experiencing at the dealership). See Orr, 413 F.3d at 1136 (protected "opposition" includes complaining informally to supervisors); Hertz v. Luzenac Am., Inc., 370 F.3d 1014, 1015 (10th Cir. 2004) (same). As already noted, Segovia suffered an adverse employment action. See, e.g., Hillig v. Rumsfeld, 381 F.3d 1028, 1031-33 (10th Cir. 2004) (the standard for an "adverse action" in a retaliation case is the same in this Circuit as the standard for other (e.g., sex) discrimination claims).<16> Finally, the EEOC established the necessary causal connection between the protected activity and the adverse action (i.e., the evidence showed that Daggett issued the Employee Warning Notice and imposed the New Pay Plan less than one month after Segovia made her final complaint to Daggett and Carter about the Smith/Ennis e-mail exchange). See, e.g., Meiners v. Univ. of Kan., 359 F.3d 1222, 1231 (10th Cir. 2004) (the requisite causal connection can be established by showing that the adverse action was taken six weeks after the protected opposition); Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999) (assuming a lapse of over two months is even enough to support an inference of retaliation). The Commission thus also created a prima facie case of retaliation. A plaintiff can show pretext by revealing "'such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence.'" Plotke v. White, 405 F.3d 1092, 1102 (10th Cir. 2005) (quoting Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997)); see also Miller, 396 F.3d at 1111 (explaining that "[p]retext exists when an employer does not honestly represent its reasons"). At trial, the EEOC presented enough evidence to enable the jury to find that the reasons CDM gave for issuing the Employee Warning Notice and imposing the New Pay Plan were pretextual. CDM contended that Daggett gave Segovia a written warning because she was repeatedly late, talked on the phone too much, and disappeared for hours at a time. Segovia's testimony directly contradicted these claims. Further, it is undisputed that Daggett never wrote Ennis up for being late - even though he was late as or more often than Segovia was. Daggett never issued written reprimands to any male subordinates for similar or more egregious workplace violations (such as drinking beer on CDM premises, leaving in the middle of most days to take kids to babysitters, attending sporting events, sending derogatory and sexually explicit e-mails, calling Segovia a "bitch" on multiple occasions, "flipping her off," making veiled physical threats, erupting violently and smashing plates against the workplace walls, etc.). Given that Daggett did not deem it necessary to correct or discipline male employees who committed arguably more serious infractions, his purported concern with correcting Segovia's alleged shortcomings seems implausible. In addition, since Daggett testified that Segovia always met her sales goals and was performing fine as New Car Manager (indeed, she was working diligently enough to be making more money than anyone at the dealership except Daggett), his supposed concern with her "unsatisfactory work quality" seems particularly suspect. Daggett claimed he devised the New Pay Plan to eliminate the conflict between Segovia and Ennis. Yet, the New Pay Plan affected only sixty percent of their commissions and the conflict would still have persisted with respect to the remaining forty percent. Moreover, Ennis himself testified that Daggett fostered this competition on purpose since he thought their conflict was good for business. In addition, Daggett never discussed the New Pay Plan with Segovia before issuing it. He thus had no way of knowing whether the new arrangement would placate his sales managers or how they would react to it. In fact, given that the New Pay Plan would have required Segovia to relinquish much of her hard-earned commissions to Ennis - a man who had belittled and berated her - it seems implausible that Daggett really could have believed this "solution" would resolve their conflict (indeed, it would have been much more likely to intensify it). Daggett also claimed he initiated the New Pay Plan as part of a larger effort to reduce salaries dealership-wide. However, only Segovia's compensation was negatively affected as a result (i.e., no other salespeople were given pay cuts at that time). In addition, Daggett testified both that the plan was designed to reduce Segovia's and Ennis's salaries by fifteen to twenty percent and that they "ran the numbers" to "make sure that it wouldn't be something that would absolutely lower their pay" and "we figured it came out to about the same thing." This conflicting testimony simply cannot be reconciled. In short, CDM's explanation for its actions is internally inconsistent, contradictory, implausible, and unworthy of credence. A reasonable jury could thus find CDM's purportedly non-discriminatory rationale pretextual and find that the real reason that Daggett disciplined Segovia and reduced her compensation was sex-based discrimination and/or retaliation. That is, a fact finder could conclude that the Employee Warning Notice and New Pay Plan were imposed on Segovia because she was a woman (e.g., and Daggett wanted to treat his "right hand man" Ennis more favorably) and/or because Segovia had complained (per Daggett, Segovia had "threatened" to go to the EEOC). These claims should have gone to the jury. Indeed, the district court concluded as much at summary judgment. AA96,98 (ruling that "the EEOC has sufficient evidence to make a prima facie case under the [McDonnell Douglas] analysis" and "from which a reasonably jury could find Defendant's justification pretextual"; also finding that "a reasonable jury could find that Segovia was retaliated against because of her opposition to workplace discrimination"). The district court further erred by weighing the evidence, determining credibility, and/or drawing inferences in the light most favorable to CDM. Despite evidence suggesting the contrary, the district court issued a "finding of fact" that "[a]s part of an overall salary reduction effort, and in order to equalize the pay between the New and Used Car Manager, Ms. Segovia and Mr. Ennis received a new pay plan." AA103. Thus, the district court essentially resolved the conflicting evidence by finding as fact that Daggett issued the New Pay Plan for the reasons Daggett gave. In doing so, the district court clearly usurped the role of the jury.<17> In addition, the district court provided a "conclusion of law" that "[n]either the New Pay Plan nor the Warning notice was shown to have a discriminatory purpose or effect, nor did the evidence pertaining to either document support a retaliation claim." AA105. This conclusion cannot be sustained. As explained above, if the district court had properly interpreted and applied the relevant substantive law, it should have concluded that the EEOC presented enough evidence at trial to create a prima facie case of sex discrimination and retaliation, and to show that CDM's rationale was pretextual - and thus to enable a reasonable fact finder to conclude that CDM discriminated against Segovia on the basis of her sex and/or retaliated against her. For these reasons, the district court's decision granting CDM's Rule 50 motion should be reversed. C. The EEOC Proffered Sufficient Evidence at Trial to Allow a Reasonable Fact Finder to Conclude that Segovia Was Constructively Discharged. Similarly, the district court should not have granted judgment as a matter of law on the Commission's constructive discharge claim. The Supreme Court recently enunciated the standard for determining whether an employer has constructively discharged an employee for Title VII purposes. In Pennsylvania State Police v. Suders, 542 U.S. 129 (2004), the Supreme Court explained that: Under the constructive discharge doctrine, an employee's reasonable decision to resign because of unendurable working conditions is assimilated to a formal discharge for remedial purposes. . . . The inquiry is objective: Did working conditions become so intolerable that a reasonable person in the employee's position would have felt compelled to resign? Suders, 542 U.S. at 141; id. at 134 (similarly holding that to establish constructive discharge, the plaintiff must "show that the abusive working environment became so intolerable that her resignation qualified as a fitting response"); Exum v. U.S. Olympic Cmte., 389 F.3d 1130, 1135 (10th Cir. 2004) (same (citing Suders)); Sandoval, 388 F.3d at 1325 (applying essentially the same objective standard pre- Suders and requiring that the employee have "no other choice but to quit" (emphasis in original)). This Court has held that, "[i]n determining whether an employee's working conditions would cause such feelings, we apply an objective test under which neither the employee's subjective views of the situation, nor her employer's subjective intent with regard to discharging her, are relevant." Tran, 355 F.3d at 1270; see also Derr v. Gulf Oil Corp., 796 F.2d 340, 343-44 (10th Cir. 1986) (same). A reasonable jury could find that Carter's and Daggett's harassment and/or the discriminatory and/or retaliatory issuance of the Employee Warning Notice and imposition of the New Pay Plan were sufficient to compel a reasonable person in Segovia's position to resign. Segovia was subjected to an unrelenting and humiliating barrage of sex-based and/or sexual epithets. Her co-workers and even subordinates were effectively encouraged by CDM's top management to, and did, treat her with utter disrespect (e.g., called her "bitch," told her to "f..k off" in public, made veiled physical threats, sent degrading e-mails to the dealership's General Manager about her genitalia, etc.). Company owners clearly ensured that she was a manager in name only, stripped her of any real authority, disciplined her on trumped-up charges while allowing male coworkers to commit similar or worse infractions without consequence, forced her to relinquish her hard-earned commissions to a man who had harassed her, and ignored her repeated complaints of discrimination. Under the totality of these circumstances, a reasonable jury could have found that Segovia's decision to quit was a "fitting response" to this relentless discrimination. The district court, once again, inappropriately granted judgment as a matter of law for CDM on the Commission's constructive discharge claim applying erroneous legal analysis and inaccurate assessments of the record evidence. For example, the district found as fact that Segovia "left her employment with Defendant because she realized her children were her first priority and that her job 'wasn't worth it' anymore.'" AA104. In a "conclusion of law," the district court similarly stressed that "Segovia's own statement that she quit her job because it wasn't worth it anymore and her children came first further undermines any contention that she was constructively discharged" and "Segovia's admitted desire to return to work for Defendant eviscerates her contention that the workplace was intolerable." AA105. The district court also stated at trial that Segovia "said, if you recall, in her testimony, that she was quitting so that she could see her kids more. She didn't say, 'I'm quitting because this place is bad.' So she's just out of luck in my court." AA979. However, because Segovia's subjective views of the situation are not dispositive on the legal determination of whether constructive discharge occurred, the district court committed legal error in treating it as such, even if true. See, e.g., Tran, 355 F.3d at 1270; Derr, 796 F.2d at 343-44. But most importantly, the district court's characterization of the evidence misrepresents the actual testimony. Segovia did not testify that she quit because she wanted to spend time with her children - she stated she resigned because no reasonable person would continue to make the personal sacrifices she had been making to advance her professional career in the face of unrelenting discrimination. And she did not say she definitively wanted to return to CDM - she testified she merely momentarily questioned her decision to resign upon contemplating the harsh financial consequences that accompanied her constructive discharge, and simply wondered whether returning to CDM in a less high-profile position might help mitigate the discrimination she had endured. In any event, professing a desire to return to work one enjoys (with the hope and expectation that one would return to a harassment- free environment) does not preclude a finding that an employee was nevertheless forced to quit because of intolerable conditions. Cf. Davis, 142 F.3d at 1341 ("Title VII does not presume that the reasonable employee is incapable of separating the deleterious effects of a hostile environment from the aspects of the job which she enjoys and finds fulfilling, and it is in part intended to provide her with means to put an end to the hostile or abusive behavior so she can continue in otherwise desirable employment.") Viewed properly, therefore, the record evidence supports, and in no way eviscerates, the EEOC's constructive discharge claim. The district court, in ruling to the contrary, made impermissible factual findings and failed to draw evidentiary inferences in the light most favorable to the EEOC. Its "conclusion of law" that the EEOC presented insufficient evidence to support its claim of constructive discharge, AA104, simply cannot be sustained. In sum, the district court committed substantive legal errors and ignored well-established Rule 50 constraints in disposing of the EEOC's harassment, disparate treatment, retaliation, and constructive discharge claims. For the same reasons, the district court also abused its discretion in denying the EEOC's timely motion to amend the district court's finding of facts and conclusions of law, to alter or amend its judgment and/or for a new trial. See Chavez v. Thomas & Betts Corp., 396 F.3d 1088, 1095 (10th Cir. 2005). II. THE DISTRICT COURT ERRED IN RULING THAT THE EEOC'S CASE WAS "FRIVOLOUS, UNREASONABLE, OR WITHOUT FOUNDATION." If this Court concludes that the district court erred in granting CDM's Rule 50 motion and remands this case for a new trial, whether the district court also erred in ruling that CDM was entitled to attorney's fees will be mooted. However, even if this Court does not reverse the district court's ruling on liability, it should still overturn the district court's attorney's fees finding. Prevailing Title VII defendants may only recover attorney's fees in the most extraordinary of cases. This is not one of them. Under the Supreme Court's decision in Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), a district court can only award attorney's fees to a prevailing Title VII defendant if the plaintiff's cause of action was "frivolous, unreasonable, or without foundation." See id. at 421; see also Hughes v. Rowe, 449 U.S. 5, 14-15 (1980) ("The plaintiff's action must be meritless in the sense that it is groundless or without foundation."); Sorbo v. United Parcel Serv., 432 F.3d 1169, 1181 (10th Cir. 2005) (same); Ferroni v. Teamsters, Chauffeurs, & Warehousemen Local No. 222, 297 F.3d 1146, 1153 (10th Cir. 2002) (same); English v. Colo. Dep't of Corr., 248 F.3d 1002, 1012 (10th Cir. 2001) (same). The district court's decision to award attorney's fees is reviewed for abuse of discretion, but the district court's legal analysis on this issue is reviewed de novo. See, e.g., Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221, 1231 (10th Cir. 1997) (holding that "'a district court's statutory interpretation or legal analysis which provides the basis for [a] fee award is reviewable de novo'" (quoting Homeward Bound, Inc., v. Hissom Mem'l Ctr., 963 F.2d 1352, 1355 (10th Cir. 1992))); Supre v. Ricketts, 792 F.2d 958, 961 (10th Cir. 1986) (same).<18> Here, the district court held that the EEOC's case met this high legal threshold. In its attorney's fees ruling, the district court pointed out that it "allowed the claims brought on half of Segovia to proceed to trial because, viewing all evidence in the most favorable light to Plaintiff, summary judgment did not appear appropriate." AA206. However, the district court noted, a "plaintiff's obligation to avoid frivolous litigation is a continuing one" and "advocacy of a claim after it is clearly no longer tenable may subject the plaintiff to attorney's fees even if the complaint was not initially frivolous." AA207-08. The district court found that the "EEOC is charged with evaluating claims prior to filing suit and throughout the litigation process and the evidence marshaled in this case does not support the claims asserted." AA209. According to the district court, the EEOC "continued to wield its administrative authority and expend its time, money and efforts to pursue these claims even after it was apparent that they lacked merit." AA210. The district court ruled that the EEOC "not only offered insufficient evidence to support its claims at trial, but was forced to concede many points that undermined and defeated those claims." AA210. Finally, the district court observed that CDM should not "be penalized for the Court's decision to allow the claims to proceed to trial." AA208. Consequently, the district court concluded, an award of attorney's fees to CDM was proper. AA210. This ruling is untenable, for multiple reasons. The mere fact that the EEOC did not actually prevail at trial does not mean the Commission's case was ever frivolous. In Christiansburg, the Supreme Court explicitly cautioned that: . . . [I]t is important that a district court 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. This kind of hindsight logic could discourage all but the most airtight claims, for seldom can a prospective plaintiff be sure of ultimate success. . . To . . . assess[] attorney's fees against plaintiffs simply because they do not finally prevail would substantially add to the risks inhering in most litigation and would undercut the efforts of Congress to promote the vigorous enforcement of the provisions of Title VII. Hence, a plaintiff should not be assessed his opponent's attorney's fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so. Christiansburg, 434 U.S. at 421-22; see also Hughes, 449 U.S. at 14 ("The fact that a plaintiff may ultimately lose his case is not in itself a sufficient justification for the assessment of fees."); Campbell v. Cook, 706 F.2d 1084, 1086 (10th Cir. 1983) (same); Nulf v. Int'l Paper Co., 656 F.2d 553, 564 (10th Cir. 1981) (same); Prochaska v. Marcoux, 632 F.2d 848, 853-54 (10th Cir. 1980) (same); EEOC v. Fruehauf Corp., 609 F.2d 434, 436 (10th Cir. 1979) (same). As explained above (in analyzing why the district court committed reversible error in granting CDM's Rule 50 motion), a reasonable jury could have found for the EEOC on any or all of the claims we presented at trial. The evidence of discrimination the EEOC produced at trial was a fortiori sufficient to preclude a finding that the Commission's case was "frivolous, unreasonable, or without foundation." See, e.g., Montgomery v. Yellow Freight Sys., Inc., 671 F.2d 412, 414 (10th Cir. 1982) (refusing to find that the plaintiff's action was "frivolous, unreasonable, or without foundation" because "[t]here was some evidence of disparate treatment in the record" and holding that to award fees to a prevailing defendant "we must be persuaded that the record is devoid of any evidence of discrimination"); EEOC v. St. Louis-San Francisco Ry. Co., 743 F.2d 739, 744 (10th Cir. 1984) (reversing an award of fees to a prevailing defendant because the EEOC had created a prima facie case of discrimination). The fact that the district court itself found at summary judgment that the EEOC's case was meritorious enough to warrant a trial bolsters this view of the evidence. The district court's subsequent conclusion that the EEOC's case became frivolous - and that the EEOC should be charged with CDM's attorney's fees for failing to recognize this and continuing to litigate it - has no basis in fact or law. The district court apparently concluded that at some point, the EEOC suddenly should have recognized that its claims had become baseless and voluntarily dismissed its case. The district court gave no reason for this conclusion and we can discern none. Its assessment is all the more puzzling given that it denied CDM's motion for summary judgment in all important respects, ruling that, with the exception of the single claim brought on behalf of Richmond, every aspect of the EEOC's case was meritorious enough to warrant a trial. AA99. Nothing changed between summary judgment and trial, and nothing occurred at trial that should somehow have convinced the Commission to abdicate its case.<19> The EEOC certainly had no reason or duty to voluntarily dismiss its own claims before all of the evidence was even in (e.g., before the Commission had had the chance to cross examine CDM's witnesses) - which is when the district court summarily truncated the trial. Because the district court's fees ruling is premised on the erroneous assumption that the Commission was obligated to abandon its meritorious case (apparently mid-trial), its finding that the suit was frivolous is untenable. See Nulf, 656 F.2d at 564 (reversing an award of attorney's fees because the plaintiff's claims were not "groundless at the outset" and there were "factual issues in dispute which only a trial could resolve"); Fruehauf Corp., 609 F.2d at 436 (reversing an award of fees against the EEOC, stating that "[t]here is nothing in the record before us to support the trial court's finding that the action was frivolous from its inception, or that in prosecuting the action EEOC was motivated by something other than good faith"); see also Pascouau v. Martin Marietta Corp., 185 F.3d 874 (10th Cir. 1999) (Table), 1999 WL 495621, at *10 (reversing a grant of fees to a prevailing defendant because "the issues and evidence presented in this case called for careful consideration of several questions at trial, especially with regard to the severity and pervasiveness of the alleged sexually-harassing conduct in the workplace"). Even the claim the EEOC brought on behalf of Richmond, which the district court dismissed at summary judgment, was hardly groundless. The mere fact that a claim is dismissed prior to trial does not compel a finding of frivolousness. Indeed, the Supreme Court and this Court have ruled repeatedly that even cases that are dismissed for failure to state a claim are not necessarily "frivolous, unreasonable, or without foundation." See Hughes, 449 U.S. at 15-16 (even "allegations that were properly dismissed for failure to state a claim" which "deserved and received careful consideration" (e.g., as evidenced by detailed district court opinions analyzing the claims) are not necessarily "groundless" or "without foundation" simply because they prove "legally insufficient to require a trial"); Ferroni, 297 F.3d at 1153 ("Claims that are dismissed for failure to state a claim are not automatically frivolous." (citing Jane L. v. Bangerter, 61 F.3d 1505, 1513 (10th Cir. 1995))). Here, CDM never filed a motion to dismiss for failure to state a claim and the EEOC marshaled enough evidence through discovery to continue litigating the claim. AA54-55. Notably, at summary judgment, the district court indicated that we had created a prima facie case that CDM had discriminated against Richmond on the basis of her sex. AA96-97. Thus, the EEOC should not be required to pay CDM's attorney's fees simply because the Commission did not voluntarily dismiss this claim before summary judgment. See, e.g., Smith v. Josten's Am. Yearbook Co., 624 F.2d 125, 127 (10th Cir. 1980) (rejecting a defendant's argument that it was entitled to fees because the plaintiff should have known its case was frivolous and voluntarily dismissed it after discovery, noting that such "voluntary dismissal is, except in unusual circumstances, almost alien to our adversary system" and that "[o]nce a lawsuit has been commenced, it is the rare attorney who will voluntarily throw in the towel") (citing Olitsky v. O'Malley, 597 F.2d 303, 306 (1st Cir. 1979))); see also Dalal v. Alliant Techsys., Inc., 72 F.3d 137 (10th Cir. 1995) (Table), 1995 WL 747442, at *5-6 (affirming a district court's refusal to award fees to a prevailing defendant even though the district court had granted the defendant's motion for summary judgment); Twilley v. Integris Baptist Med. Ctr., Inc., 16 Fed.Appx. 923, 296 (10th Cir. 2001), 2001 WL 901102, at **2 (holding that the Christiansburg standard "is met when a party utterly fails to produce any evidence in support of material issues necessary to withstand summary judgment" (citing Head v. Medford, 62 F.3d 351, 355 (11th Cir. 1995), and Smith v. Smythe-Cramer Co., 754 F.2d 180, 183 (6th Cir. 1985))). Indeed, the fact that the EEOC did voluntarily dismiss the hostile work environment claim it had initially brought on behalf of Richmond before summary judgment, R.49, demonstrates that the EEOC takes seriously its obligation to ensure that the claims it pursues in litigation are well-grounded. The district court's reluctance to "penalize" CDM for the district court's decision to deny summary judgment here is unfounded. The Supreme Court weighed the relative interests of litigants when it devised the Christiansburg standard and ruled that prevailing Title VII defendants cannot recover fees unless the plaintiff's case is meritless. Inasmuch as the Christiansburg standard already encompasses any legitimate concern that employers not be unduly burdened in defending claims of discrimination, and that standard clearly is not met in this case, the district court's concern about "penalizing" CDM is misplaced. See, e.g., Montgomery, 671 F.2d at 414 (recognizing that "to penalize the plaintiff with attorneys' fees, we must be persuaded that the record is devoid of any evidence of discrimination" (emphasis added)). The district court's ruling that the EEOC's case was "frivolous, unreasonable, or without foundation" should be overturned. CONCLUSION For all the foregoing reasons, the EEOC's respectfully requests that this Court reverse the district court's grant of CDM's Rule 50 motion (on liability and punitive damages), vacate the district court's adverse Findings of Fact and Conclusions of Law, vacate the district court's ruling that the EEOC's case was frivolous and its order awarding costs, vacate the final judgment entered against the EEOC, and remand this case for a new trial on all issues. STATEMENT REGARDING ORAL ARGUMENT This appeal requires this Court to analyze numerous legal issues central to the interpretation and enforcement of Title VII (e.g., whether the district court properly observed Rule 50 principles, correctly applied the governing legal standards to the EEOC's substantive claims, and accurately interpreted the Supreme Court's Christiansburg rule for awarding attorney's fees to prevailing Title VII defendants). Given the importance of these matters, we believe oral argument would significantly aid this Court in resolving this appeal. Respectfully submitted, JAMES L. LEE Deputy General Counsel LORRAINE C. DAVIS Acting Associate General Counsel _____________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4571 daniel.vail@eeoc.gov ADDENDUM Unpublished Opinions Cited in Appellant's Opening Brief Dalal v. Alliant Techsys., Inc. 72 F.3d 137 (10th Cir. 1995) (Table), 1995 WL 74744 NOTICE: THIS IS AN UNPUBLISHED OPINION.(The Court's decision is referenced in a "Table of Decisions Without Reported Opinions" appearing in the Federal Reporter. Use FI CTA10 Rule 36.3 for rules regarding the citation of unpublished opinions.) United States Court of Appeals, Tenth Circuit. Samir DALAL, Plaintiff-Appellee, v. ALLIANT TECHSYSTEMS, INC., doing business as Metrum Information Storage; and Honeywell Inc., Defendants-Appellants. No. 94-1483. (D.C.No. 92-C-1065) Dec. 18, 1995. Before HENRY, HOLLOWAY, and MURPHY, Circuit Judges. ORDER AND JUDGMENT FN1 FN1. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order. 151 F.R.D. 470 (10th Cir.1993). *1 Alliant Techsystems, Inc. (Alliant) appeals the district court's order granting postjudgment relief to the plaintiff, Samir Dalal, and denying Alliant's motion for attorney's fees and costs. We affirm in part, vacate in part, and remand the case for reconsideration by the district court. BACKGROUND Mr. Dalal is a former employee of the defendant corporation.FN2 He was discharged in 1990 and thereafter filed a complaint against Alliant alleging age and national origin discrimination under Title VII, ERISA, the ADEA, and state law. Prior to trial, the district court granted partial summary judgment in favor of Alliant on Mr. Dalal's Title VII claim and on his claim that Alliant breached the duty of good faith and fair dealing, and public policy under Colorado law (state law claim). At that time, the district court denied Alliant's request for attorney's fees incurred in defending the dismissed claims. Alliant subsequently made a comprehensive offer of judgment pursuant to Fed.R.Civ.P. 68 in the amount of $150,000.00, which was rejected by Mr. Dalal. FN2. Although Mr. Dalal was actually an employee of Honeywell, Inc., Alliant Techsystems, Inc. is Honeywell's successor. Thus, for the sake of efficiency we refer to Mr. Dalal's employer as "Alliant" throughout the opinion. The case then proceeded to trial, where Mr. Dalal succeeded on his ADEA claim. Although Mr. Dalal argued during trial that he had lost $159,300.00 due to his inability to find comparable work subsequent to his discharge, the jury returned a judgment in the amount of $36,075.00 for back pay damages. The district court also awarded costs to Mr. Dalal. Both parties filed post-trial motions. Mr. Dalal's motions requested various forms of postjudgment relief including front pay or reinstatement, attorney's fees, and prejudgment interest. Alliant's motion renewed its request for attorney's fees incurred in defending the claims that were dismissed and also requested costs. After a hearing on these motions, the district court entered judgment in favor of Mr. Dalal and against Alliant. Specifically, the district court determined that Mr. Dalal was entitled to $90,000.00 in front pay, $146,666.00 in attorney's fees-which included an award of $3,950.00 allowable to expert witness fees incurred by the plaintiff during trial, and $6,450.29 in prejudgment interest. The district court also denied Alliant's renewed request for attorney's fees and costs pursuant to Fed.R.Civ.P. 68. Alliant now appeals that judgment in all respects. DISCUSSION The ADEA provides a very liberal remedial scheme. The pertinent provision reads: In any action brought to enforce this chapter the court shall have jurisdiction to grant such legal or equitable relief as may be appropriate to effectuate the purposes of this chapter, including without limitation judgments compelling employment, reinstatement or promotion.... 29 U.S.C. 626(b). "The purpose of the equitable remedies under the ADEA is to make a plaintiff whole-to put the plaintiff, as nearly as possible, into the position he or she would have been in absent the discriminatory conduct." Sandlin v. Corporate Interiors, Inc., 972 F.2d 1212, 1215 (10th Cir.1992). With these factors in mind, we discuss each portion of the district court's order separately below. Front Pay *2 In his motion for postjudgment relief, Mr. Dalal requested that he be reinstated or, in the alternative, that he be awarded front pay. The district court made several findings in its judgment awarding front pay: 1. That as concerns possible reinstatement for the Plaintiff, no local facilities of the defendant corporations now exist, although both defendant companies are doing business at locations outside of Colorado; That the Court has received no indication from Plaintiff that he would be willing to move outside of the State of Colorado, to a job location where the defendant companies presently have operating facilities; That testimony at the Trial established a great deal of evidence of hostile environment; and That, consequently, for all of the foregoing reasons, reinstatement of the Plaintiff appears not to be appropriate in this case. 2. That a strong probability exists in the record that Mr. Dalal would have been laid off for legitimate business reasons at some date during the third year after his September 30, 1990 lay off. 3. That the Plaintiff's annual net loss of future earnings, conservatively determined, is $35,000.00 per year (gross salary at Honeywell, Inc. of $55,000.00 per year less the sum of $20,000.00 which represents the Plaintiff's average annual earnings from part-time employment since his lay off). Aplt.App. at 216-17. During the hearing on this motion, the district court explained how it arrived at the $90,000.00 front pay award: THE COURT: Well, I find that there was a strong probability that Mr. Dalal would have been laid off for legitimate business reasons sometime before the time of the trial. I can't exactly fix that, but the circumstances of the business indicate that. .... I believe it would be excessive and unfair to award the plaintiff the amount that he's asking for front pay, but I believe it would also be improper to not award him any. In these cases, the Court has to work on its best estimates. If you take the difference as his $55,000 salary and total income at the time that he was laid off and subtract 20,000, the first year he would have lost $35,000, using rough figures. If you assume that he would have continued in the job for two years, then he would have lost 70,000, for three years, 105,000. My best estimate is that he would have been laid off sometime in that third year, judging by the circumstances of this company. Therefore, I'm going to award him $90,000 in front pay. Aplee. Supp.App. at 20-21. Although reinstatement is the preferred remedy under the ADEA, this Court has recognized that front pay is available to compensate an ADEA plaintiff when reinstatement is not appropriate. See EEOC v. Prudential Fed. Sav. & Loan Ass'n, 763 F.2d 1166, 1172 (10th Cir.), cert. denied, 474 U.S. 946 (1985). "[A]n award of future damages in lieu of reinstatement furthers the remedial purposes of the ADEA by assuring that the aggrieved party is returned as nearly as possible to the economic situation he would have enjoyed but for the defendant's illegal conduct." Id. at 1173. However, this court has also held that "any award of front pay is limited by the estimated remaining tenure plaintiff would have enjoyed with his company absent the discriminatory conduct." Sandlin, 972 F.2d at 1215. Thus, "When the defendant company has ceased to do business before judgment, plaintiff necessarily would have been discharged with the rest of the work force ... and front pay [is] inappropriate." Id. *3 Because front pay is an award of future damages, Alliant argues that the district court erred in awarding front pay because it also found a "strong probability" that Mr. Dalal would have been legitimately laid off prior to trial in any event. Alliant also argues that because the jury only awarded Mr. Dalal $36,075.00 rather than the $159,300.00 he requested at trial, the jury must have determined that Mr. Dalal would have been legitimately terminated from his employment some time between his unlawful discharge and trial. Thus, the Alliant argues, the district court's front pay award was in error and should be vacated. After thoroughly reviewing the record in this case, we are unable to determine with certainty the basis of the district court's front pay award. Although the district court repeatedly stated that it did not want to speculate as to why the jury awarded Mr. Dalal less than one-quarter of the amount he requested in back pay, the method the district court used to calculate the front pay award appeared to account for the probability that Mr. Dalal would have been laid off prior to trial. Specifically, the court appeared to base the front pay award on what Mr. Dalal would have made during the three-year period before his trial, which was the period the court estimated Mr. Dalal would have worked prior to being legitimately laid off. It therefore appears that the district court awarded Mr. Dalal front pay for the period after his discharge and prior to his trial. As we have already stated, however, front pay is an alternative to the remedy of reinstatement, and thus it is an award of future damages. Compensation for the period prior to trial constitutes back pay, a matter that was already submitted to the jury and that cannot be awarded again by the court as front pay. Consequently, to the extent the district court intended the award to compensate Mr. Dalal for the period prior to trial, the district court was in error. We therefore vacate the award of front pay and remand the case to the district court for reconsideration of its front pay award in light of these principles. Any award of front pay by the district court on remand must be based on the amount the district court finds Mr. Dalal would have earned as an employee of Alliant after the trial if he could have been reinstated.FN3 FN3. We are mindful of the fact that the trial judge has resigned since this judgment was entered. With respect to reconsideration which is required by this order and judgment, the judge assigned this case may on remand consider the present record or may have further proceedings that the judge feels advisable. Plaintiff's Attorney's Fees Alliant also argues that the district court erred by awarding $146,666.00 to Mr. Dalal as reasonable attorney's fees. Alliant makes four general arguments, and we discuss each in turn. First, Alliant argues that the district court erred by including $3,950.00 for expert witness fees incurred by Mr. Dalal at trial. Mr. Dalal has conceded that the district court was in error on this point, and we agree. See Gray v. Phillips Petroleum Co., 971 F.2d 591, 596-97 (10th Cir.1992) (holding that expert witness fees incurred by a plaintiff in an ADEA case are not recoverable as part of reasonable attorney's fees). This portion of the district court's order must therefore be reversed. *4 Second, Alliant argues that the amount of attorney's fees awarded to Mr. Dalal is unreasonable. "The amount of an award of attorney's fees is within the discretion of the district court, and the appellate court reviews the award for abuse of discretion. Even under this standard of review, great weight is given to the district court's determination of an appropriate fee." Hall v. Western Prod. Co., 988 F.2d 1050, 1057 (10th Cir.1993) (citations omitted). After thoroughly reviewing the record on appeal, we cannot say that the district court abused its discretion in this case. In particular, we note that Mr. Dalal's motion was accompanied by an affidavit of a Denver attorney who attested that the customary rate in the Denver community is at least $10.00 an hour more than the rate charged by Mr. Dalal's attorney. Additionally, Mr. Dalal has noted, and Alliant admitted at oral argument, that Alliant incurred an attorney's fee in excess of $200,000.00 in defending the action. In light of these factors, we do not believe that the district court abused its discretion in this regard. Third, Alliant argues that because it was granted summary judgment on Mr. Dalal's Title VII and state law claims, any award of attorney's fees should be discounted so that Mr. Dalal is not awarded fees for work performed pursuing those claims. In his motion for attorney's fees, Mr. Dalal attached an affidavit of his attorney stating that, at most, ten percent of the total hours expended in this case were related to his Title VII claim. He then reduced the requested amount of attorney's fees by ten percent, and the district court awarded the reduced figure. We believe that the district court could have reasonably relied on this information to support an award of attorney's fees to Mr. Dalal. Nevertheless, we note that Mr. Dalal's attorney apparently did not discount his fees for hours expended pursuing the state law claim. This court has previously allowed a full fee award under the ADEA even though the award also reflected hours spent pursuing "unsuccessfully asserted state law claims." See Spulak v. K Mart Corp., 894 F.2d 1150, 1160 (10th Cir.1990). In Spulak we recognized that a fee award "should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit' " so long as the plaintiff's claims were based on "a common core of facts or on related legal theories" and the plaintiff obtained "excellent results." Id. (quoting Hensley v. Eckerhart, 461 U.S. 424, 435 (1983)). It is still unclear, however, how beneficial the results obtained in this case are to Mr. Dalal because the district court will be reconsidering the front pay award on remand. We therefore direct the district court to reconsider whether Mr. Dalal is entitled to attorney's fees incurred in pursuing his Colorado state law claim. In this regard, the court should determine whether Mr. Dalal's claims were based on "a common core of facts or on related legal theories" and whether he obtained "excellent results." Id. *5 Finally, Alliant argues that Mr. Dalal should not have been awarded attorney's fees that were incurred after Alliant made an offer of judgment in compliance with Fed.R.Civ.P. 68. Under Rule 68, if a party rejects an offer of judgment and "the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer." Id. Alliant relies on the Supreme Court case of Marek v. Chesny, 473 U.S. 1 (1985). In that case, the Supreme Court held that "[a]bsent congressional expressions to the contrary, where the underlying statute defines costs' to include attorney's fees, we are satisfied such fees are to be included as costs for purposes of Rule 68." Id. at 9. Thus, if the statute giving rise to the plaintiff's cause of action includes attorney's fees as "costs," the plaintiff may not recover attorney's fees if he has rejected a Rule 68 offer of judgment that exceeded his ultimate recovery. We note, however, that the Marek Court specifically limited its holding to cases where the underlying statute defines "costs" to include attorney's fees. The ADEA provides for an award of attorney's fees by reference to the Fair Labor Standards Act (FLSA), 29 U.S.C. 216(b). See 29 U.S.C. 626(b). The FLSA, in turn, does not describe attorney's fees as "costs." See 29 U.S.C. 216(b) (stating that the district court shall "allow a reasonable attorney's fee to be paid by the defendant, and costs of the action"). Thus, "Rule 68 does not bar any award of attorney fees in an FLSA case for services rendered after a Rule 68 offer is made and a plaintiff recovers less than the amount offered in settlement." Haworth v. State of Nevada, 56 F.3d 1048, 1052 (9th Cir.1995). Because the ADEA provides for an award of attorney's fees by reference to the FLSA, this rule also applies in the context of the ADEA. Consequently, Rule 68 does not bar recovery of attorney's fees under these circumstances. In sum, although we believe the district court did not abuse its discretion in determining the amount of a reasonable attorney's fee in this case, and the district court was not precluded from awarding such a fee under Rule 68, we must still vacate the attorney's fee award in this case because the district court erred to the extent it awarded the $3,950.00 for expert witness fees. On remand, the court should also determine whether Mr. Dalal received "excellent results" in this case so as to justify an award of attorney's fees incurred pursuing his state law claim. Additionally, because we are remanding this case to the district court so that it may reconsider the front pay award, the district court should also reconsider its fee award in light of any effect our holding may have on Mr. Dalal's ultimate recovery in this case. Defendant's Attorney's Fees Alliant argues that the district court abused its discretion by denying Alliant's motions for attorney's fees incurred in defending Mr. Dalal's Title VII claim and his state law claim. As we previously noted, the district court granted summary judgment against Mr. Dalal on these claims. When Alliant moved both before and after trial for attorney's fees incurred in defending these claims, the district court denied its motions without making specific findings. *6 "[A] plaintiff [in a Title VII action] should not be assessed his opponent's attorney's fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so," or if the court finds that the plaintiff brought the claim in bad faith. Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978). With regard to Mr. Dalal's state law claim, attorney's fees may be awarded only if the court finds that the claim "lacked substantial justification." Colo.Rev.Stat. 13-17-102(4). This means that Mr. Dalal's claim must have been "substantially frivolous, substantially groundless, or substantially vexatious." Id. Given these stringent standards, and given the fact that in federal court "[f]indings of fact and conclusions of law are unnecessary on decisions of motions," Fed.R.Civ.P. 52(a), we do not find error in the district court's denial of Alliant's motions. Costs Alliant also argues that the district court's award of costs should be remanded for reconsideration by the district court. Specifically, Alliant argues that if on remand the district court reduces the amount of front pay, Mr. Dalal's total recovery may fall below the $150,000.00 offer of judgment made to Mr. Dalal prior to trial pursuant to Fed.R.Civ.P. 68. We agree with Alliant that, if the ultimate outcome of this case is such that Mr. Dalal's recovery is less favorable than the $150,000.00 offer of judgment, Rule 68 would require Mr. Dalal to pay all costs incurred after the offer was made. The district court's judgment awarding costs must therefore be vacated and reconsidered on remand of this case. Prejudgment Interest Alliant makes many arguments that the district court erred by awarding prejudgment interest to Mr. Dalal. We review the district court's award of prejudgment interest for an abuse of discretion. U.S. Indus., Inc. v. Touche Ross & Co., 854 F.2d 1223, 1255 & n. 43 (10th Cir.1988). Alliant provides no legal authority for these arguments, and we discuss only those arguments that have some merit. Alliant first argues that Mr. Dalal waived his right to prejudgment interest because he did not request it in his complaint and a request was not included in the pretrial order. We agree with Mr. Dalal, however, that under Fed.R.Civ.P. 54(c), his failure to request prejudgment interest earlier did not preclude the district court from making the award. See id. ("[E]very final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party's pleadings."). Alliant also argues that the district court erred by awarding prejudgment interest on Mr. Dalal's back pay award without first discounting the award for taxes. Alliant cites no authority for this proposition, and the relevant case law supports the district court's award of prejudgment interest on the gross back pay award. See, e.g., Artis v. United States Indus. & Int'l Ass'n of Machinists & Aerospace Workers, 822 F.Supp. 510, 511 (N.D.Ill.1993) (holding that prejudgment interest should be awarded on the entire back pay award in employment discrimination case because it is better to confer a windfall upon the claimant than the defendant in order to discourage future discrimination); see also Johnston v. Harris County Flood Control Dist., 869 F.2d 1565, 1580 (5th Cir.1989), cert. denied, 493 U.S. 1019 (1990). We accordingly hold that the district court did not abuse its discretion in its award of prejudgment interest to Mr. Dalal in this case. CONCLUSION *7 The district court's judgment awarding front pay is VACATED. The district court's judgment awarding attorney's fees to the plaintiff is VACATED. The district court's judgment denying attorney's fees to the defendant is AFFIRMED. The district court's judgment awarding costs to the plaintiff is VACATED. The district court's judgment awarding prejudgment interest to the plaintiff is AFFIRMED. The district court's judgment is AFFIRMED in all other respects. The case is REMANDED for further proceedings consistent with this order and judgment. C.A.10 (Colo.),1995. Dalal v. Alliant Techsystems, Inc. 72 F.3d 137, 1995 WL 747442 (C.A.10 (Colo.)) END OF DOCUMENT Pascouau v. Martin Marietta Corp. 185 F.3d 874 (10th Cir. 1999) (Table), 1999 WL 495621 NOTICE: THIS IS AN UNPUBLISHED OPINION.(The Court's decision is referenced in a "Table of Decisions Without Reported Opinions" appearing in the Federal Reporter. Use FI CTA10 Rule 36.3 for rules regarding the citation of unpublished opinions.) United States Court of Appeals, Tenth Circuit. Renee L. PASCOUAU, Plaintiff-Appellant, v. MARTIN MARIETTA CORPORATION, d/b/a, Martin Marietta Aeronautics Group, a Maryland Corporation doing business in Colorado, Defendant-Appellee. No. 98-1099. July 14, 1999. (D.Colo.) (D.Ct. No. 93-K-471). Before BRORBY, HOLLOWAY, and BRISCOE, Circuit Judges. ORDER AND JUDGMENT FN* FN* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir.R. 36.3.BRORBY. *1 This case involves allegations of hostile work environment sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and various common-law tort claims brought by Appellant Ms. Renee Pascouau against her former employer, Appellee Martin Marietta Corporation (Martin Marietta). She challenges the district court's award of partial summary judgment dismissing her tort claims, the court's adverse decisions on her remaining Title VII claims after a bench trial, and the court's subsequent decision to award attorney's fees and costs to Martin Marietta. We exercise jurisdiction under 28 U.S.C. § 1291, and affirm in part and reverse in part. I. Background Ms. Pascouau began her employment as a word processor with Martin Marietta in November 1982. In 1988, Martin Marietta transfered her to a different position in Document Control/Defense Systems (Document Control), where she worked until March 1991. During this time in Document Control, Ms. Pascouau alleges various Martin Marietta co-workers and supervisors committed acts of sexual harassment against her that created a hostile work environment. She claims her male co-workers and supervisors frequently engaged in lewd discussions in the workplace about sex and their own sexual experiences. They also brought sexually suggestive materials into the office, including pornographic magazines and a novelty item called a "condom tree." In addition, she claims they used vulgar language and told dirty jokes in her presence, and called her nicknames like "bumper" and "bullets"- names that ostensibly refer to her breast size. She also alleges her male co-workers verbally ridiculed and belittled her, speculated about her sexual preferences, inappropriately commented about the physical attributes of other women in her presence, and engaged in "farting contests" and other offensive behavior in the office. Ms. Pascouau contends her direct supervisors knew about and participated in some of these activities, and did nothing to prevent the alleged harassment. In addition to this evidence of hostile work environment sexual harassment, Ms. Pascouau claims that after she complained about the situation in her workplace, Martin Marietta personnel failed to deal with the problem through investigation and discipline of the offending employees. Ms. Pascouau also alleges that her complaints to supervisors led to retaliation by other Martin Marietta employees in the form of verbal reprimands, poor work performance appraisals (id. at 26), offloading,FN1 and demotion. FN1. "Offloading" is a term used by Martin Marietta to refer to the process of leaving a project or assignment. Ms. Pascouau filed suit against Martin Marietta in 1992, bringing claims under federal law and Colorado common law. Her final amended complaint included allegations of hostile work environment sexual harassment, quid pro quo sexual harassment, retaliation, and Equal Pay Act violations under Title VII, as well as common-law claims for breach of contract, promissory estoppel, extreme and outrageous conduct, invasion of privacy, and negligent supervision. The district court granted Martin Marietta's subsequent motion for partial summary judgment on the tort claims, finding Title VII preempted her common-law claims that were based on the same conduct. The remaining claims were heard at a bench trial. Almost three years after the trial was completed, the court issued a Memoradum Opinion and Order deciding in favor of Martin Marietta. Following its decision, the district court awarded attorneys' fees and costs to Martin Marietta as the prevailing party. II. Discussion *2 Ms. Pascouau raises numerous issues for our consideration on appeal. First, she claims the district court erred in granting partial summary judgment for Martin Marietta because Title VII does not preempt or subsume her state law remedies. Second, she urges us to reverse the trial judgment because of the district court's unusually long delay in passing judgment, and the fact that it based its decision on a review of the trial record which did not contain portions of her direct testimony. Third, she claims we should reverse because, without the missing portions of her direct testimony, she cannot present a complete record to this court for review. Fourth, she challenges the district court's apparent reliance on a hostile work environment standard which, when assessing the severity and pervasiveness of the alleged hostile work environment, took into account her co-workers' experience and education level. Fifth, she claims the district court erred in ruling the conduct of Martin Marietta's employees did not constitute a hostile work environment. Sixth, she alleges the district court incorrectly concluded Martin Marietta did not subject her to retaliation for opposing its allegedly unlawful employment practices. Seventh, she claims the district court abused its discretion when it admitted illegally obtained evidence. Eighth, she asserts the district court should not have allowed Martin Marietta to introduce evidence of her sexual history. Finally, she contends the district court erred in awarding attorneys' fees to Martin Marietta because it did not find her testimony credible. FN2 We ordinarily would begin by reviewing the district court's summary judgment rulings. However, because the district court's resolution of the Title VII issues at the bench trial has some impact on our analysis of the state tort claims, we leave our discussion of the court's partial summary judgment ruling on those state claims until the end. FN2. Although considered by the district court in the proceedings below, Ms. Pascouau did not raise any of the following issues on appeal: quid pro quo theory of sexual harassment, discriminatory failure to promote based on gender, discriminatory unequal pay based on gender, breach of contract, and promissory estoppel. Therefore, we consider these issues waived. See State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n. 7 (10th Cir.1994) (failure to raise an issue in the opening brief waives the issue). A. Delay in Rendering Decision and Effect of the Incomplete Record Ms. Pascouau claims we must automatically reverse the district court's decision because the court purposely and punitively delayed its decision for almost three years after the bench trial, and then decided the case by relying on a trial transcript which did not contain a portion of Ms. Pascouau's direct testimony. We disagree. Although the district court apparently requested the trial transcripts before issuing its final ruling, that does not mean the court derived all of its conclusions, especially those regarding the credibility of witnesses, solely from the incomplete record. The judge deciding this case presided over the bench trial, and presumably assessed the veracity of the witnesses and the weight of the evidence at that time. See Green v. Branson, 108 F.3d 1296, 1305 (10th Cir.1997) ("We assume that the district court performed its review function properly in the absence of evidence to the contrary.") Ms. Pascouau offers no evidence to the contrary. Accordingly, we hold the district court did not err in rendering a decision without the benefit of having a portion of the transcript of Ms. Pascouau's direct testimony. *3 Ms. Pascouau contends the extended period of deliberation reflects the judge's desire to punish her for underestimating the time needed for trial. The district court's order lends some credence to this claim. However, even assuming the court's long deliberation in this instance was punitive, Ms. Pascouau has produced no evidence showing this delay inherently prejudiced the judge's findings. Thus, while we are troubled by the length of time between trial and judgment, and encourage more efficient and speedy resolution of judicial matters whenever possible, in the absence of some showing of prejudice resulting from the delay, we find no reversible error. See, e.g., Petrilli v. Drechsel, 94 F.3d 325, 328-29 (7th Cir.1996) (refusing, in the absence of any affirmative evidence of prejudice beyond the fact of a three-year delay, to order a new trial). B. Incomplete Record on Appeal Focusing again on the incomplete record, Ms. Pascouau asserts we must reverse the district court's decision because, without the missing portions of her direct testimony, we cannot determine whether the district court erred in its findings and conclusions. We disagree with her assessment. Ms. Pascouau's argument ignores the clear instruction contained in Fed R.App.P. 10(c) which provides "[i]f the transcript of a hearing or trial is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant's recollection." Under this rule, Ms. Pascouau could have prepared a statement reiterating her direct testimony and submitted it along with the Appellee's objections and proposed amendments to the district court for settlement and approval. The parties then could have included the statement in the record on appeal for our review. However, Ms. Pascouau did not avail herself of this remedy or show sufficient cause for her inability or failure to do so.FN3 Consequently, we proceed based on the record before us, and we decline to reverse for a new trial because of the missing testimony. FN3. Ms. Pascouau claims she could not reconstruct her missing testimony because she did not find out about the lost transcript until over two and a half years had gone by. However, we find it difficult to believe the passage of time caused her to completely forget the substance of her testimony at trial, and rendered her unable to assist her attorney in recapitulating her prior statements. In short, we do not find Ms. Pascouau's claimed loss of memory excuses her failure to utilize the remedy available under Fed.R.App.P. 10(c). C. Hostile Work Environment With regard to the resolution of her Title VII claims at the bench trial, Ms. Pascouau asserts the district court erred (1) when it found her co-workers conduct did not create a hostile work environment, and (2) when, in reaching this decision, the court relied on a standard which took into account the relative education and experience level of the perpetrators. We examine these issues separately. 1. Hostile Work Environment Standard *4 As for Ms. Pascouau's dispute over the standard the district court used to assess her hostile work environment claim, we agree that if, in fact, the district court's decision hinged solely on consideration of the experience and education of her co-workers, the court committed error. The standard applicable to hostile work environment claims is well-settled. The plaintiff must show "the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (citations and internal quotation marks omitted); Penry v. Federal Home Loan Bank, 155 F.3d 1257, 1261 (10th Cir.1998), cert. denied, 526 U.S. 1039, 119 S.Ct. 1334, 143 L.Ed.2d 498 (1999). The court must focus on both an objective and subjective analysis of the work environment with consideration given to "all the circumstances," Harris 510 U.S. at 23; Smith v. Northwest Fin. Acceptance, Inc., 129 F.3d 1408, 1413 (10th Cir.1997), and "the social context in which particular behavior occurs and is experienced by its target." Oncale v. Sundowner Offshore Serv. Inc., 523 U.S. 75, ----, 118 S.Ct. 998, 1003, 140 L.Ed.2d 201 (1998). The court's Memoradum Opinion and Order states in part that it found "in their totality, the speech, jokes and conduct of the employees in the Document Unit were consistent with their level of education and experience and, as such, constituted a work environment that was not so severe and pervasive as to alter Plaintiff's conditions of employment so as to violate Title VII." Although Ms. Pascouau asserts that the court's apparent reliance on education and experience level is impermissible, we do not believe the district court erroneously rested its decision solely on the education and experience level of the perpetrators. Instead, a review of the court's findings shows it merely considered the education and experience of the employees in Document Control as two of the many factors affecting the social context in which the allegedly offensive behavior occurred. Moreover, Ms. Pascouau ignores the fact that in the opening paragraph of its findings of fact and again in its conclusions of law, the district court stated the proper criteria for assessing a hostile work environment-complete with citations to appropriate Supreme Court authority. Given these repeated references to accepted legal standards and the court's overall analysis, we do not believe the district court relied on any improper criteria to assess the work environment. 2. Hostile Work Environment Findings *5 Ms. Pascouau also claims the district court erred in concluding the evidence did not show hostile work environment sexual harassment. Because the Title VII claims in this case already have been fully tried, we review the district court's findings of fact only for clear error. David v. City & County of Denver, 101 F.3d 1344, 1359 (10th Cir.1996), cert. denied, 522 U.S. 858, 118 S.Ct. 157, 139 L.Ed.2d 102 (1997); Fed.R.Civ.P. 52(a). We accept the findings of the district court unless they are without support from the record, or unless, after reviewing all of the evidence, we are left with the definite and firm conviction that a mistake has been made. See Hicks v. Gates Rubber Co., 928 F.2d 966, 971 (10th Cir.1991). Whether this court would have made the same decision is not the issue. "We cannot reverse simply because we might have decided the case differently." Id. Ms. Pascouau raises several arguments contesting the district court's findings. She initially challenges the court's reliance on the testimony of other women employees to establish that the harassment was not sufficiently severe to constitute a hostile work environment. She claims the women's testimony contradicts the court's findings, and argues the court erred when it stated that one of the female witnesses testified that Ms. Pascouau openly joked about her own breast size with other employees, when, in fact, the witness only said joking occurred in the workplace on a daily basis and she could not specifically remember Ms. Pascouau joking about her own breasts. We disagree with Ms. Pascouau's assessment and find the other women's testimony, taken as a whole, supports the district court's conclusions. The other women co-workers, whose testimony Ms. Pascouau cites as contradicting the district court's findings, stated they did not find the Document Control working environment sexually harassing or offensive, nor did Ms. Pascouau ever express to them any complaints she had about sexual harassment. Even though the court may have mistakenly stated the substance of a portion of the testimony of one witness to support a point in its Memoradum Opinion and Order, that error alone does not merit reversal of a decision based on over a week of extensive evidence presented by the parties. See Nulf v. International Paper Co., 656 F.2d 553, 561 (10th Cir.1981) (holding defects and inconsistencies in individual findings by the trial court that are so minor that they could not have been relevant to the outcome do not merit reversal). Ms. Pascouau further claims the district court did not adequately consider the fact that all of the women in Document Control complained about the "farting contests" that occurred, and found the conduct offensive. She admits the district court correctly decided the conduct is offensive irrespective of gender, but argues the court should not have refused to consider it as some evidence of generally offensive conduct and divisive behavior along gender lines. We conclude the district court properly refused to consider the "farting contests" as evidence of a hostile work environment. Although offensive, this conduct is clearly not harassment on the basis of gender-even when viewed in concert with other conduct Ms. Pascouau claims is sexually harassing. See Stahl v. Sun Microsystems, Inc., 19 F.3d 533, 538 (10th Cir.1994) ("If the nature of an employee's environment, however unpleasant, is not due to her gender, she has not been the victim of sex discrimination as a result of that environment."). *6 Ms. Pascouau also claims the district court improperly characterized her sexual harassment allegation as "secondary" to her equal pay and promotion complaint, and incorrectly found that she did not complain to the human resources supervisor about vulgar joking in the office. We agree with Ms. Pascouau that whether her sexual harassment complaint was secondary to other complaints is immaterial, and the record evidence appears to support her argument that she did make some complaint about the joking occurring in Document Control. Nevertheless, these arguments do not affect our evaluation of the district court's treatment of Ms. Pascouau's hostile work environment claim. The record shows the court thoroughly considered her sexual harassment claims and plainly acknowledged the fact that some vulgar joking occurred in the workplace, but not to a degree sufficient to create a sexually harassing hostile work environment. In light of the court's obvious consideration of her harassment claim and the vulgar joking, its characterization of her harassment claim as "secondary" and its failure to acknowledge that she complained about the joking to a supervisor does not render its overall hostile work environment decision infirm. In another argument, Ms. Pascouau contends the district court made no specific findings about whether the lewd talk by the men in Document Control alone was sufficiently severe or pervasive to alter the working environment. This argument is also unavailing in light of the court's overall inquiry, which took into account "the coarse language, joking, and other inappropriate and immature behavior," in deciding her hostile work environment claim. Ms. Pascouau also asserts the district court erred in discounting the significance of the presence of pornographic magazines in the workplace, because the evidence shows she knew about the magazines and expressed shock when she discovered them. Again, we are persuaded the district court fully considered this evidence and correctly found that, although inappropriate for the workplace, because the magazines were not openly displayed, nor were employees involuntarily subjected to viewing them, their presence did not contribute to the creation of a hostile work environment. Finally, Ms. Pascouau faults the district court for concluding that because she may have joked with other employees about her breast size and used some vulgar language, she invited the use of sexually-suggestive nicknames, vulgar language, and derogatory remarks referring to her breast size by her male co-workers. We agree that a plaintiff's participation in some lewd joking and isolated use of vulgar language does not mean that others in the workplace may then freely engage in what would otherwise constitute sexually harassing behavior toward him or her. However, we again emphasize that the district court's analysis of hostile work environment claims does not turn exclusively on the nature of certain isolated incidents, but on the totality of the circumstances. Harris, 510 U.S. at 23. The factfinder must assess the "real social impact of workplace behavior," based "on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed." Oncale, 523 U.S. at ----, 118 S.Ct. at 1003. The analysis requires the exercise of "[c]ommon sense, and an appropriate sensitivity to social context ... to distinguish between simple teasing ... and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive." Id. Under this standard, even though some inappropriate comments and conduct occurred, the court could still find these acts did not create a sexually harassing hostile work environment.FN4 FN4. Ms. Pascouau also challenges the district court for failing to acknowledge Martin Marietta's negligent mishandling of her hostile work environment complaint, and mistakenly construing the company's offer of another position as a sufficient remedial measure. However, in light of the court's finding that Martin Marietta never subjected Ms. Pascouau to actionable hostile work environment sexual harassment, we need not reach the subsidiary issues of whether Martin Marietta negligently handled her complaint or failed to take adequate remedial steps. *7 Having reviewed each of Ms. Pascouau's challenges, we find no meaningful instance where the district court's decision is unsupported in fact or merits reversal. The court's findings, although not comprehensive, are adequate to inform us of the factual basis for its decision, and we recognize no grounds for concluding that the court proceeded under an erroneous view of the law or failed to give Ms. Pascouau's evidence proper consideration. Although the behavior exhibited in Ms. Pascouau's workplace was plainly boorish, insensitive, and inappropriate, the district court permissibly found the conduct did not rise to the level of actionable hostile work environment sexual harassment under Title VII. D. Retaliation Ms. Pascouau also claims she suffered retaliation from her department supervisor and co-workers following repeated complaints she made to Martin Marietta personnel responsible for Equal Employment Opportunity compliance, and the district court improperly decided this claim by ignoring all of the adverse actions against her except Martin Marietta's decision to off-load her from Document Control. Again, we emphasize that when a Title VII case has been fully tried, we review the district court's ultimate finding of no retaliation for clear error. Curtis v. Oklahoma City Pub. Schls. Bd. of Educ., 147 F.3d 1200, 1217 (10th Cir.1998). "If there are two permissible views of the evidence, the fact-finder's choice between them cannot be clearly erroneous." Id. (internal quotation marks and citation omitted). We must give due regard to the district court's firsthand opportunity to judge the credibility of the witnesses and weigh the evidence presented. Fed.R.Civ.P. 52(a); Ebert v. Lamar Truck Plaza, 878 F.2d 338, 338 (10th Cir.1989). Our review of the record establishes there was evidence supporting the court's finding of no retaliation. Martin Marietta presented evidence at trial to support its assertion that the decision to off-load Ms. Pascouau was based on the business necessity created by overall downsizing and budget cuts, not in retaliation for her complaints. The evidence also establishes that Martin Marietta made decisions about which employees to off-load based on non- discriminatory factors like job performance, unit chemistry, and work history. We find the trial court reasonably inferred from the evidence that Martin Marietta's decision to off-load Ms. Pascouau was based on non- discriminatory motives, not in retaliation for complaining to Martin Marietta supervisors. Although Ms. Pascouau further claims retaliation based on "all of the other patently adverse incidents leading up to the off-load, and ... demotion 'offer,' " she cites nothing in the record to substantiate her claims. In the absence of essential record references in Ms. Pascouau's opening brief, we will not address her contentions or sift through the record to find support for her arguments. S.E.C. v. Thomas, 965 F.2d 825, 827 (10th Cir.1992). Consequently, we affirm the district court's ruling on Plaintiff's Title VII retaliation claim. E. Evidentiary Rulings *8 Ms. Pascouau contends the district court made two erroneous evidentiary rulings during the trial that merit reversal and remand for retrial. First, she claims the court erroneously permitted Martin Marietta to introduce prejudicial, illegally-obtained evidence from a confidential Personal Security Questionnaire. Martin Marietta sought to use the information from the questionnaire in support of an after-acquired evidence affirmative defense showing Ms. Pascouau submitted false information about her past use of illicit drugs during the process of obtaining security clearance from the government, and therefore would not have been retained in her position in Martin Marietta's classified or restricted access program in any event. Second, Ms. Pascouau contends the trial court erroneously refused to exclude prejudicial evidence of her past sexual history. We review the district court's decision to exclude or admit evidence under an abuse of discretion standard. Sanjuan v. IBP, Inc., 160 F.3d 1291, 1296 (10th Cir.1998). The "trial court's decision will not be disturbed unless [we] [have] a definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances." McEwen v. City of Norman, 926 F.2d 1539, 1553 (10th Cir.1991) (internal quotations omitted). In bench trials "questions raised relative to the admission or exclusion of evidence ... become relatively unimportant," because the rules of evidence relating to admission and exclusion of evidence are "intended primarily for the purpose of withdrawing from the jury matter which might improperly sway the verdict." United States v. Norman T., 129 F.3d 1099, 1107 (10th Cir.1997) (quotation marks and citations omitted), cert. denied, 523 U.S. 1031, 118 S.Ct. 1322, 140 L.Ed.2d 485 (1998). In fact, we have held that "where a cause was tried before the court without a jury, it will be presumed on appeal that ... the court considered only competent evidence and disregarded that which was incompetent." Id. (quotation marks and citation omitted). Both Ms. Pascouau's arguments pertaining to the admission of evidence are unavailing. In her first claim, the evidence she alleges the district court erroneously admitted relates to Martin Marietta's after-acquired evidence affirmative defense. Because the district court found Martin Marietta did not retaliate against Ms. Pascouau or subject her to a hostile work environment, the trial court did not need to examine the merits of Martin Marietta's affirmative defense. Likewise, our decision to affirm the district court's conclusions on appeal makes it unnecessary for us to examine affirmative defenses or the court's treatment of evidence supporting those defenses. See Cannon Oil & Gas Well Serv., Inc. v. Evertson, 836 F.2d 1252, 1257 (10th Cir.1987) (ruling that in light of the jury's finding for the defendant on the merits, and the court's finding of sufficient evidence to support the findings, the issue of the trial court's handling of the affirmative defenses is moot). *9 As for the district court's decision to admit evidence of Ms. Pascouau's sexual history, we assume without deciding the district court erroneously allowed the introduction of evidence of her sexual history without requiring proper compliance with Fed.R.Evid. 412.FN5 Nevertheless, we find any error was harmless. "Evidence admitted in error can only be prejudicial if it can be reasonably concluded that ... without such evidence, there would have been a contrary result." Sanjuan 160 F.3d at 1296 (quotation marks and citations omitted). Ms. Pascouau points to no particular instances in the record where the district court admitted prejudicial sexual history testimony over her objection. An examination of the record and district court findings persuades us that excluding the evidence Ms. Pascouau challenges would not have changed the result. Indeed, the district court's findings reveal no meaningful reliance on any of the sexual history evidence Martin Marietta presented. The court's only reference to Ms. Pascouau's sexual history is a passing comment in its recapitulation of expert psychiatric testimony about the effect of her past unsuccessful intimate relationships. Accordingly, we decline to reverse on this basis. FN5. Ms. Pascouau correctly notes the court may only admit evidence offered to prove the sexual behavior or predisposition of any alleged victim of sexual misconduct if its proponent satisfies the "balancing test" articulated in Fed.R.Evid. 412(b)(2). In addition, Fed.R.Evid. 412(c) requires the proponent to follow certain procedures in order to determine the admissibility of evidence proffered under the rule-including filing a written motion at least fourteen days before trial that specifically describes the evidence and states the purpose for which it is offered. Fed.R.Evid. 412(c)(1)(A). The trial court must then conduct an in camera hearing and afford the victim and parties a right to attend and voice any objections. Fed.R.Evid. 412(c)(2). In this case Martin Marietta admittedly failed to follow these procedures, yet the court still allowed the presentation of sexual history evidence. F. Attorneys' Fees Ms. Pascouau asserts the district court improperly awarded attorneys' and expert witness fees to Martin Marietta as the prevailing party. See 42 U.S.C. § 2000e-5(k). We ordinarily review the court's decision regarding attorneys' fees for an abuse of discretion. Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1201 (10th Cir.1986). In this case, however, our review is somewhat complicated by the fact the district court granted Martin Marietta's motion for attorneys' and expert witness fees, and its motion to amend the order granting the fees, without expressing reasons for its decision. We are left to presume the court agreed with and based its decision on the arguments set forth in Martin Marietta's original motion. *10 The Supreme Court instructs that "a district court may in its discretion award attorney's fees to a prevailing defendant in a Title VII case upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." Christiansburg Garment Co. v. Equal Employment Opportunity Comm'n, 434 U.S. 412, 421, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978); see also, Jane L. v. Bangerter, 61 F.3d 1505, 1513 (10th Cir.1995). Martin Marietta's primary contention in the original motion requesting attorneys' and expert witness fees was that because the court did not find Ms. Pascouau's testimony credible, the court should consider her claim frivolous. We do not agree. A review of the record persuades us that Ms. Pascouau's lawsuit was not frivolous, unreasonable or without foundation. Although the district court ultimately rejected her claims and discredited her testimony, such findings alone do not mean her lawsuit was devoid of any legitimacy. On the contrary, the issues and evidence presented in this case called for careful consideration of several questions at trial, especially with regard to the severity and pervasiveness of the alleged sexually-harassing conduct in the workplace. Consequently, we find the court abused its discretion in awarding attorney's and expert witness fees to Martin Marietta and revrse the award.FN6 FN6. Having decided to reverse the district court's award of attorney's fees on other grounds, we need not reach the issue raised by Ms. Pascouau regarding the retroactive application of the expert witness fees provision of 42 U.S.C. § 2000e-5(k). G. Partial Summary Judgment on State Law Claims We review de novo the district court's decision to award partial summary judgment, employing the same legal standard as the district court and construing the factual record and the reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. See Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir.1996). Summary judgment is appropriate if the record shows "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue of material fact is genuine only if a party presents facts sufficient to show that a reasonable jury could find in favor of the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In its order granting partial summary judgment for Martin Marietta on Ms. Pascouau's claims of outrageous conduct, negligent supervision, and invasion of privacy, the district court ruled that the federal statutory scheme under Title VII preempted these state tort law actions. The court reasoned that because the state claims were based on the same conduct as the alleged employment discrimination, permitting Ms. Pascouau to proceed on those claims would allow her to circumvent the "administrative and remedy restrictions of Title VII." *11 We disagree with the district court's preemption analysis. Section 708 of Title VII, 42 U.S.C. § 2000e-7, makes it plain Title VII does not "exempt or relieve" defendants from any "liability" or "duty" of state law unless such law requires or permits "the doing of any act which would be an unlawful employment practice" under Title VII. Accordingly, the test for determining if Title VII preempts state law is whether the state law permits employment practices that violate or contradict Title VII. See California Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 290- 91, 107 S.Ct. 683, 93 L.Ed.2d 613 (1987). Federal law generally preempts state law only in cases where "compliance with both federal and state regulations is a physical impossibility," Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963), or the state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941). Guerra makes it plain that Title VII does not manifest Congress' intent to " 'occupy the field' of employment discrimination law," 479 U.S. at 281, especially in cases like this, where the state tort claims Ms. Pascouau made merely augment her federal claims and do not conflict with the provisions of Title VII or prevent the accomplishment of its purposes. See Hirase-Doi v. U.S. West Communications, Inc. 61 F.3d 777 (10th Cir.1995) (implicitly deciding Title VII does not preempt state tort claims by considering without objection both an employee's state tort and Title VII claims against her employer). Consequently, we hold the district court should not have granted summary judgment on this basis. See, e.g., Alexander v. Gardner-Denver Co., 415 U.S. 36, 48-49, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974) ( "[T]he legislative history of Title VII manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes."). However, this conclusion does not end our analysis. "We are free to affirm a district court decision on any grounds for which there is a record sufficient to permit conclusions of law, even grounds not relied upon by the district court." United States v. Sandoval, 29 F.3d 537, 542 n. 6 (10th Cir.1994). In this instance, then, we may look beyond the preemptive effect of Title VII and examine the sufficiency of Ms. Pascouau's state tort claims in light of relevant findings and conclusions from the bench trial. Our analysis of the state tort claims may go beyond a de novo review of the record before the district court at the time it considered the motion for summary judgment and examine the potentially dispositive effects of the district court's ultimate Title VII factual findings on the previously dismissed state claims, because the state tort actions dismissed on summary judgment rely on essentially the same conduct as the federal Title VII claims adjudicated at the subsequent trial.FN7 FN7. Ms. Pascouau expressly admits she relies on the same evidence to support both her Title VII and state common-law claims. 1. Outrageous Conduct / Intentional Infliction of Emotional Distress *12 Colorado law sets a high standard for outrageous conduct claims. In order to prove outrageous conduct or intentional infliction of emotional distress, the behavior must be "so extreme in degree, as to go beyond all possible bounds of decency, and ... be regarded as atrocious, and utterly intolerable in a civilized community." Coors Brewing Co. v. Floyd, 978 P.2d 663, 1999 WL 9769 *4 (Colo. Jan.11, 1999) (en banc) (quotation marks and citation omitted & emphasis added). The "defendant's conduct must be more than unreasonable, unkind or unfair; it must truly offend community notions of acceptable conduct." Grandchamp v. United Air Lines, Inc., 854 F.2d 381, 383 (10th Cir.1988) (applying Colorado law), cert. denied, 489 U.S. 1080, 109 S.Ct. 1534, 103 L.Ed.2d 838 (1989). Simply stated, "liability ... does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities." Restatement (Second) of Torts § 46, cmt. d (1965). Thus, as a threshold matter, we examine all the evidence before the district court in the light most favorable to Ms. Pascouau and determine whether any reasonable juror could find the conduct she complains of meets the high standard set forth in Coors. We conclude the comments made toward her and the conduct of her co-workers, although sexually explicit, immature, and rude, were not "egregious" enough for any reasonable juror to find they constitute outrageous conduct. Coors, 978 P.2d 663, 1999 WL 9769 *3. For this reason, we affirm summary judgment on Ms. Pascouau's outrageous conduct claim. 2. Negligent Supervision Colorado law recognizes the tort of negligent supervision, holding "[a]n employer may ... be subject to liability for negligent supervision if he knows or should have known that an employee's conduct would subject third parties to an unreasonable risk of harm." Moses v. Diocese of Colo., 863 P.2d 310, 329 (Colo.1993) (quotation marks and citation omitted)., cert. denied, 511 U.S. 1137, 114 S.Ct. 2153, 128 L.Ed.2d 880 (1994). In support of her negligent-supervision claim, Ms. Pascouau argues that Martin Marietta has a duty under Title VII, Equal Employment Opportunity Commission rules, and its own internal policies and procedures to properly supervise its agents and investigate, remediate, and discipline instances of sexual harassment and retaliation. She contends Martin Marietta breached its duty by allowing her co-workers and various supervisors to engage in continuing acts of harassment and retaliation against her. *13 We find these allegations insufficient to support a negligent-supervision claim in light of the district court's findings in this case. After having the opportunity to prove her Title VII claims at trial, Ms. Pascouau was unable to establish that Martin Marietta employees sexually harassed her, subjected her to a hostile work environment, or caused her harm or injury as a result of their conduct. Because an element of Ms. Pascouau's negligent supervision claim-having been subjected to an unreasonable risk of harm-was dependent on the proof of the same conduct and injury as she alleged in support of her Title VII claim, the failure of her Title VII claim renders her negligent supervision claim legally deficient as well. We therefore affirm summary judgment on this claim. 3. Invasion of Privacy The final pre-trial order sets out Ms. Pascouau's claims for invasion of privacy, including: (1) "false light" based on Martin Marietta employees' alleged false statements about her mental stability and sexuality, and the retributive removal of her security access and clearance in a way that falsely indicated to others that she committed a security breach; and (2) "intrusion into seclusion" based on the same factual allegations of sexual harassment supporting her Title VII claims.FN8 We examine these claims in turn. FN8. In a later Motion for Reconsideration-in which Ms. Pascouau requested the court's permission to amend her complaint-she attempted to bolster her invasion of privacy claim and separate it from the facts underlying her discrimination claims by asserting Martin Marietta collected and possessed inherently private information about her and other employees without their consent. The district court denied this motion for reconsideration and the request to amend. Thus, our consideration of those additional allegations on appeal is limited to a review of the district court's decision to deny the motion. Although Ms. Pascouau raised the issue of the court's refusal to grant her leave to amend in her Notice of Appeal, she waived the argument by not presenting or developing it in her opening brief. See State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n. 7 (10th Cir.1994). In order for Ms. Pascouau to prevail under Colorado law for false light invasion of privacy, she must show she "was placed before the public in a 'false-light' and that it was done with knowledge of its falsity or in reckless disregard of the truth." McCammon & Assoc., Inc. v. McGraw-Hill Broadcasting Co., 716 P.2d 490, 492 (Colo.Ct.App.1986) (emphasis added); see Restatement (Second) of Torts § 652E (1977). The element of publicity is critical to this cause of action. See Restatement (Second) of Torts § 652E cmt. a. Restatement (Second) of Torts § 652D cmt. a, defines publicity as making a matter public "by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge." *14 We hold as a matter of law Ms. Pascouau's allegations and supporting evidence presented to the district court prior to summary judgment do not fulfill this essential "publicity" element of false light invasion of privacy. Even if we assume Martin Marietta employees called her sexually suggestive names, ridiculed her, and implied Ms. Pascouau posed a security risk, she made no allegation and presented no evidence to show that Martin Marietta or its agents engaged in such conduct or disseminated private information that placed her in a false light before a public audience more extensive than her relatively small circle of co-workers in Document Control. See also Ozer v. Borquez, 940 P.2d 371, 377 (Colo.1997) (en banc) (publicity "requires communication to the public in general or to a large number of persons, as distinguished from one individual or a few"). Without some evidence showing the requisite publicity, her claim of false light invasion of privacy is deficient. Accordingly, we affirm summary judgment on this claim. As for Ms. Pascouau's "intrusion into seclusion" invasion of privacy claim, Colorado law requires her to show that another person "has intentionally intruded, physically or otherwise, upon [her] seclusion or solitude," and that a reasonable person would consider such intrusion offensive. Doe v. High-Tech Inst., Inc., 972 P.2d 1060, 1065 (Colo.Ct.App.1998) (citing Restatement (Second) of Torts § 652B (1981)). In the usual case, intrusion into seclusion involves physical intrusion into a place where a plaintiff has secluded herself-such as a defendant forcing his way into the plaintiff's home. See Restatement (Second) of Torts § 652B cmt. b. However, intrusion into seclusion may also occur by the use of the physical senses to oversee or eavesdrop on the plaintiff's private affairs. Id. In the present case, Ms. Pascouau alleges no independent facts supporting her intrusion into seclusion claim. Instead, she merely includes by reference the conduct underlying her Title VII claims. A review of the allegations and evidence Ms. Pascouau proffers does not show Martin Marietta and its employees pried or intruded without consent into her private life and seclusion either physically or by other means. Even if we assume, as Ms. Pascouau argues, that her co-workers bothered her with inappropriate, prying questions about her sex life and sexual preferences, such conduct alone does not support a claim for intrusion into seclusion. The sexually suggestive questions were only requests for information. The tort of intrusion into seclusion requires more than a mere inquiry that reveals nothing; liability attaches only to an unconsented invasion through physical or other means that actually gleans private information. See High-Tech Inst., 972 P.2d at 1065 ("intrusion upon seclusion focuses on the manner in which information that a person has kept private has been obtained"). For these reasons, Ms. Pascouau fails to support an action for intrusion into seclusion invasion of privacy. Thus, we affirm summary judgment on this claim. III. *15 For the foregoing reasons, we AFFIRM the district court's ruling in part. We REVERSE and REMAND with directions to vacate the order awarding attorney and expert witness fees to Martin Marietta. C.A.10 (Colo.),1999. Pascouau v. Martin Marietta Corp. 185 F.3d 874, 1999 WL 495621 (C.A.10 (Colo.)), 1999 CJ C.A.R. 4272 Briefs and Other Related Documents (Back to top) • 98-1099 (Docket) (Mar. 24, 1998) END OF DOCUMENT Twilley v. Integris Baptist Med. Ctr., Inc. 16 Fed.Appx. 923 (10th Cir. 2001), 2001 WL 901102 This case was not selected for publication in the Federal Reporter.Please use FIND to look at the applicable circuit court rule before citing this opinion. Tenth Circuit Rule 36.3. (FIND CTA10 Rule 36.3.) United States Court of Appeals,Tenth Circuit. E. Dale TWILLEY, an individual, Plaintiff-Appellant and Cross-Appellee, v. INTEGRIS BAPTIST MEDICAL CENTER, INC., an Oklahoma corporation, Defendant-Appellee and Cross- Appellant. Nos. 00-6091, 00-6173, 00-6196. Aug. 10, 2001. Terminated employee sued his former employer, alleging that he was terminated because of his disability in violation of the Americans with Disabilities Act (ADA) and in retaliation for exercising his rights under the Family and Medical Leave Act (FMLA). The United States District Court for the Western District of Oklahoma granted summary judgement to employer and granted part of employer's attorney's fee request. Employee appealed and employer cross-appealed. The Court of Appeals, Paul J. Kelly, Jr., Circuit Judge, held that: (1) employer showed it terminated employee for a non-discriminatory reason; (2) the district court did not abuse its discretion in awarding attorney's fees to employer; and (3) the district court did not err in reducing requested award. Affirmed. West Headnotes [1] Civil Rights 78 1540 78 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1534 Presumptions, Inferences, and Burden of Proof 78k1540 k. Discrimination by Reason of Handicap, Disability, or Illness. Most Cited Cases (Formerly 78k240(2)) Civil Rights 78 1541 78 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1534 Presumptions, Inferences, and Burden of Proof 78k1541 k. Retaliation Claims. Most Cited Cases Labor and Employment 231H 389(2) 231H Labor and Employment 231HVI Time Off; Leave 231Hk381 Actions 231Hk389 Evidence 231Hk389(2) k. Presumptions and Burden of Proof. Most Cited Cases (Formerly 255k40(1) Master and Servant) The analytical framework set forth in McDonnell Douglas governed review of a terminated employee's ADA discrimination and FMLA retaliation claims. Family and Medical Leave Act of 1993, § § 2-404, 29 U.S.C.A. § § 2601-2654; Americans with Disabilities Act of 1990, § § 2-103, 42 U.S.C.A. § § 12101-12213. [2] Civil Rights 78 1552 78 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1543 Weight and Sufficiency of Evidence 78k1552 k. Discrimination by Reason of Handicap, Disability, or Illness. Most Cited Cases (Formerly 255k30(6.10) Master and Servant) Labor and Employment 231H 368 231H Labor and Employment 231HVI Time Off; Leave 231Hk361 Rights of Employee; Violations 231Hk368 k. Discharge or Layoff. Most Cited Cases (Formerly 78k1231, 78k173.1) Terminated employee could not recover on his ADA discrimination and FMLA retaliation claims where employer presented evidence that employee was discharged because employer had evidence that he altered a medical release form to reflect that he was sick on days that he was actually on vacation, and there was ample evidence in the record to support employer's claim that it honestly believed that employee had committed the alteration. Family and Medical Leave Act of 1993, § § 2-404, 29 U.S.C.A. § § 2601-2654; Americans with Disabilities Act of 1990, § § 2-103, 42 U.S.C.A. § § 12101-12213. [3] Civil Rights 78 1484 78 Civil Rights 78III Federal Remedies in General 78k1477 Attorney Fees 78k1484 k. Awards to Defendants; Frivolous, Vexatious, or Meritless Claims. Most Cited Cases (Formerly 78k299) A prevailing defendant in an action under the ADA should ordinarily only recover attorney's fees if the district court finds that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith. Americans with Disabilities Act of 1990, § 505, 42 U.S.C.A. § 12205. [4] Civil Rights 78 1592 78 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1585 Attorney Fees 78k1592 k. Awards to Defendants; Frivolous, Vexatious, or Meritless Claims. Most Cited Cases (Formerly 78k299) The district court did not abuse its discretion in awarding attorney's fees to defendant employer in an action under the ADA, where the employee failed to produce any evidence that employer's proffered explanation for his termination was pretextual and his claims were based on mere speculation and conjecture, and where employee continued to litigate after it became clear during discovery that his claims lacked evidentiary support, so that the claims were frivolous and unfounded. Americans with Disabilities Act of 1990, § 505, 42 U.S.C.A. § 12205. [5] Civil Rights 78 1594 78 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1585 Attorney Fees 78k1594 k. Amount and Computation. Most Cited Cases (Formerly 78k302) In suit under the ADA, the district court did not err in reducing prevailing employer's attorney's fee award from the requested $52,796 to $20,000, where the court found that the total number of hours billed by employer's counsel was excessive given that the legal and factual issues were not complex and the litigation was decided at the summary judgment stage, and took into consideration employee's financial resources and the fact that he suffered from a life- threatening illness. Americans with Disabilities Act of 1990, § 505, 42 U.S.C.A. § 12205. Before EBEL, PORFILIO, and KELLY, Circuit Judges. ORDER AND JUDGMENT FN* FN* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir.R. 36.3. PAUL KELLY, Jr., Circuit Judge. **1 After examining the briefs and appellate record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argument.*925 See Fed.R.App.P. 34(f); 10th Cir.R. 34.1(G). These cases are therefore ordered submitted without oral argument. Plaintiff E. Dale Twilley appeals the district court's grant of summary judgment to defendant, his former employer, on his complaint alleging that defendant terminated his employment because of his disability in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § § 12101-12213, and in retaliation for exercising his rights under the Family and Medical Leave Act (FMLA), 29 U.S.C. § § 2601-2654. Plaintiff also appeals the district court's award of attorney's fees to defendant; defendant cross-appeals the district court's denial of its full attorney's fee request. We affirm. I. ADA and FMLA Claims The parties are familiar with the facts, which are set out and fully addressed by the district court in its order filed January 25, 2000. We review a grant of summary judgment de novo, applying the same legal standard as used by the district court. Anderson v. Coors Brewing Co., 181 F.3d 1171, 1175 (10th Cir.1999). [1] The analytical framework set forth in McDonnell Douglas Corp. v.. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), governs our review of plaintiff's ADA and FMLA claims. Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir.1997). Once plaintiff has established a prima facie case of an ADA discrimination claim or a FMLA retaliation claim, the burden shifts to defendant to offer a legitimate, non-discriminatory or non-retaliatory motive for its employment decision. Id. If defendant meets that burden, the burden then shifts to plaintiff to show that "there is a genuine dispute of material fact as to whether the employer's proffered reason for the challenged action is pretextual-i.e., unworthy of belief." Id. (quotation omitted). Pretext can be demonstrated by "showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence." Id. (quotations omitted). [2] The district court concluded that plaintiff failed to establish the last element in the analysis-namely, an inference that defendant terminated his employment based on his disability or in retaliation for his taking leave under FMLA. Defendant presented evidence that plaintiff was discharged because it had evidence that he altered a medical release form to reflect that he was sick on days that he was actually on vacation. We have carefully reviewed the parties' briefs and the entire record in the case. There is ample evidence in the record to support defendant's claim that it honestly believed that plaintiff had committed the alteration. We find no evidence in the record that creates a genuine issue of material fact suggesting that defendant's explanation was unworthy of belief. Accordingly, we affirm the district court's grant of summary judgment in favor of defendant. II. Attorney's Fee Award **2 [3] Plaintiff argues the district court erred by awarding defendant attorney's fees under the ADA. On cross- appeal, defendant argues the court erred by reducing its requested fees. The ADA permits the district court, in its discretion, to award the prevailing party "a reasonable attorney's fee, including litigation expenses and costs." 42 U.S.C. § 12205. The Supreme Court held in Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978), that a prevailing defendant in an action brought under Title VII of the Civil Rights Act of 1964 should ordinarily only recover attorney's *926 fees if the district court finds "that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." Id. at 421, 98 S.Ct. 694. This standard applies as well to the recovery of attorney's fees by prevailing defendants in ADA actions. Bruce v. City of Gainesville, Ga., 177 F.3d 949, 951-52 (11th Cir.1999). [4] We review the decision to award attorney's fees, and the amount awarded, for abuse of discretion. Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1249 (10th Cir.1998). Under the abuse of discretion standard, we will not disturb the district court's decision unless we have "a definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances." Moothart v. Bell, 21 F.3d 1499, 1504 (10th Cir.1994) (quotation omitted). After reviewing the briefs and the record, we cannot say that the district court abused its discretion in awarding attorney's fees to defendant. The standard in Christiansburg Garment is met when a party utterly fails to produce any evidence in support of material issues necessary to withstand summary judgment. Head v. Medford, 62 F.3d 351, 355 (11th Cir.1995); Smith v. Smythe-Cramer Co., 754 F.2d 180, 183 (6th Cir.1985) ("Courts have awarded attorneys fees to prevailing defendants where no evidence supports the plaintiff's position or the defects in the suit are of such magnitude that the plaintiff's ultimate failure is clearly apparent from the beginning or at some significant point in the proceedings after which the plaintiff continues to litigate."). We are satisfied from our review of the record that plaintiff failed to produce any evidence that defendant's proffered explanation for the termination was pretextual and we agree that his claims were based on mere speculation and conjecture. Of course, "mere conjecture that [the] employer's explanation is a pretext ... is an insufficient basis for denial of summary judgment." Branson v. Price River Coal Co., 853 F.2d 768, 772 (10th Cir.1988). Yet, plaintiff continued to litigate after it became clear during discovery that his claims lacked evidentiary support. Thus, we agree with the district court's finding that plaintiff's claims were frivolous and unfounded. The district court's award does not conflict with the standards articulated in Christiansberg Garment, nor does it exceed the bounds of its permissible choice. **3 [5] The district court reduced defendant's attorney's fee request from more than $52,796 to $20,000. The court found that the total number of hours billed by defendant's counsel was excessive given that the legal and factual issues were not complex and the litigation was decided at the summary judgment stage. See Case, 157 F.3d at 1250 (holding that court must ensure that counsel exercised "billing judgment" and that hours expended were reasonable). The court also took into consideration plaintiff's financial resources and the fact that he suffers from a life- threatening illness. See Gibbs v. Clements Food Co., 949 F.2d 344, 345 (10th Cir.1991) (holding that non- prevailing civil rights plaintiff's financial condition and resources are relevant to amount of attorney's fees to be awarded to prevailing defendant). We find no error in the district court's reduction of the fee request. See Case, 157 F.3d at 1250 (general reduction of attorney's fees to prevailing party not erroneous where sufficient reasons given). For substantially the reasons stated by the district court in its orders filed January 25, 2000, and May 11, 2001, we AFFIRM. C.A.10 (Okla.),2001. Twilley v. Integris Baptist Medical Center, Inc. 16 Fed.Appx. 923, 2001 WL 901102 (C.A.10 (Okla.)), 2001 DJCAR 4087, 21 NDLR P 157 Briefs and Other Related Documents (Back to top) • 00-6196 (Docket) (Jun. 14, 2000) • 00-6173 (Docket) (May. 23, 2000) • 00-6091 (Docket) (Mar. 14, 2000) END OF DOCUMENT District Court's Summary Judgment Decision District Court's Oral Grant of Rule 50 Motion at Trial District Court's Findings of Fact and Conclusions of Law District Court's Denial of EEOC's Motion to Amend or for New Trial District Court's Finding of Frivolousness CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 14,000 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). I certify that 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 in Times New Roman 14 point. ______________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4571 daniel.vail@eeoc.gov CERTIFICATE OF SERVICE I certify that on May 22, 2006, I served the requisite number of originals/copies of this brief by mailing them first-class, postage prepaid, to: Patrick J. Fisher, Jr. Clerk of Court U.S. Court of Appeals for the Tenth Circuit Byron White U.S. Courthouse 1823 Stout Street Denver, CO 80257 Linda G. Hemphill Stephanie A. Fuchs Linda G. Hemphill, P.C. 834 Dunlap Street Santa Fe, NM 87501 I further certify that on May 22, 2006, I will e-mail a version of this brief in Digital Form (containing portions of the Addendum available in Digital Form) to the following: esubmission@ca10.uscourts.gov (E-mail for Clerk of the Court) lindaghemphill@aol.com (E-mail for Opposing Counsel) ______________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4571 daniel.vail@eeoc.gov CERTIFICATE OF DIGITAL SUBMISSION I certify that: 1. All required privacy redactions (NONE) have been made. 2. The version of this brief submitted in Digital Form will be an exact copy of the written document filed with the Clerk of the U.S. Court of Appeals for the Tenth Circuit (with the exception of those portions of the Addendum to the brief that were not available in Digital Form). 3. This digital submission has been scanned for viruses by the EEOC's virus scanning software, and, according to this program, is free of viruses. The EEOC uses Symantec AntiVirus Version 9.03. The software was most recently updated in May 2006. ______________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4571 daniel.vail@eeoc.gov ********************************************************** <> <1> All references to “R.” are to the corresponding entry on the district court’s docket sheet. All references to “AA” are to the corresponding page in the Appellant’s Appendix. <2> The complaint also contained pregnancy discrimination claims on behalf of Tammy Hulce and Michelle Reid. AA27-31. The EEOC and CDM settled these claims via a consent decree. R.17. <3> This apparently included a ruling denying EEOC’s claim for punitive damages. When CDM moved for a directed verdict on the EEOC’s claim for punitive damages, specifically, the district court said “Oh, forget that” – “Forget that, punitive damages.” AA964. <4> CDM also asked for taxable costs and other non-taxable expenses. R.143; R.144. The EEOC opposed these motions. R.152; R.153. On November 16, 2005, the district court granted CDM’s motion for costs in part. R.164. The next day, CDM filed an application for attorney’s fees in the amount of $183,497.86, and additional non-taxable expenses. R.165; R.166. In a subsequent filing, CDM increased this request for attorney’s fees and non-taxable expenses to a total of $188,850.62. R.168. The EEOC opposed this application. R.167. The district court has not yet ruled on CDM’s motion for non-taxable expenses or on its application for fees. <5> Unless otherwise indicated, the facts below are based on trial testimony. <6> Carter was not involved with the dealership when Daggett promoted Segovia to Finance Manager and had nothing to do with the decision to promote Segovia to New Car Manager. AA776,850. <7> Ironically, on another occasion while Segovia was still Finance Manager and was with a customer, Segovia’s daughter came to the dealership crying and ran to greet her mother. Carter “grabbed her up and pulled her into his office.” AA525. Segovia wanted to go to her daughter, but Carter told her to “[j]ust get back to work” and to “finish that transaction” and “don’t stop production.” AA526. Segovia testified that she never saw Carter “stop the men, the males from bringing their children to work” or restrain them from “interacting with their children.” AA526-27. <8> Segovia testified that, as New Car Manager, she did not have the authority to discipline any CDM employees who worked outside the new car department (e.g., used car salespeople like Griffin). AA487. <9> Segovia testified that she did not go to the EEOC at that time because she did not want to get the dealership or Carter “in trouble. I just wanted this kind of behavior to stop.” AA529. <10> Segovia did not complain directly to Daggett about the incident because “Carter was technically Mr. Daggett’s boss. I mean, he had the final say as to what went on in that dealership.” AA538,718. In addition, she said, “I don’t know that Mr. Daggett could have done anything, and after my incident with Jean Shackleford, I didn’t know that Mr. Daggett would do anything.” AA538. <11> Richmond said “[e]verybody knew” Daggett’s e-mail password. It was “common knowledge.” AA239. <12> Richmond testified Ennis was “noticeably late” to “all” manager meetings. AA233. She said “nothing would happen” to him as a result, and “everybody joked about it.” AA233-34. <13> Richmond also observed Fleet Manager Wade Rutter taking care of personal matters at work. AA234. She said she never complained about things Rutter did because “[i]t wouldn’t do any good to complain” since “Wade is a good old boy” and “he’s one of the men.” AA235. <14> Segovia later told her friend (the Finance Manager) Chris Wood that she was “suffering from PMS” the day she quit. AA584,688. However, she testified, “I had emotionally had enough. I had physically had enough. I was financially going to have enough, regardless – I don’t think anybody would just walk away from a job like that unless they just had enough, regardless of their PMS.” AA584. <15> This Court “liberally defines” adverse action in an effort to best effectuate Title VII’s remedial purposes. See, e.g., Hillig v. Rumsfeld, 381 F.3d 1028, 1031-32 (10th Cir. 2004); see also Sanchez v. Denver Pub. Schs., 164 F.3d 527, 532 (10th Cir. 1998); Berry v. Stevinson Chevrolet, 74 F.3d 980, 986-87 (10th Cir. 1996) (same). <16> The Supreme Court will soon decide the proper standard for “adverse employment action” in the context of Title VII retaliation claims. See Burlington N. & Santa Fe Ry. Co. v. White, 126 S. Ct. 797 (No. 05-259, Dec. 5, 2005) (granting certiorari to resolve a circuit split on this issue). <17> The district court made the same error more than once. It also found as a “fact” that “Segovia presumed that the new pay plan would affect her adversely, though she did not review the plan thoroughly before reaching her conclusion.” AA104. At trial, the judge also told the jury that “[t]he male got his salary cut, too, or got the same treatment” and “[n]obody seems to be able to come up with whether their salaries were cut or not.” AA978-79. However, the record evidence clearly indicates that Segovia’s assessment of the new arrangement was accurate. Segovia testified that it was obvious from the face of the New Pay Plan that it would have reduced her commissions. Ennis also testified that Segovia made more money than he did and that the New Pay Plan would have effectively “equalized” their salaries. Daggett admitted that Segovia was the highest-paid manager at CDM (except for Daggett himself) before the New Pay Plan went into effect. By discounting this testimony and drawing a contrary conclusion, the district court improperly weighed the evidence, resolved conflicting testimony, and/or failed to draw inferences in the light most favorable to the EEOC. <18> In addition “[c]ommitting a legal error or making a factual finding that is not supported by substantial record evidence is necessarily an abuse of discretion.” Elzour v. Ashcroft, 378 F.3d 1143, 1150 n.9 (10th Cir. 2004); cf. EEOC v. St. Louis-San Francisco Ry. Co., 743 F.2d 739, 744 (10th Cir. 1984) (“While the district court here recited the proper standard, we find that it abused its discretion by awarding attorney’s fees.”). <19> In its attorney’s fees ruling, the district court indicated that at trial the EEOC “was forced to concede many points that undermined and defeated [its] claims.” AA210. The district court never elaborated upon this vague statement and failed to explain what specific points the Commission conceded at trial that suddenly rendered our case groundless. We are aware of no such concessions.