IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ________________________________________ No. 02-55928 & 02-56179 __________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. ROBERT L. REEVES & ASSOCIATES, A Professional Corporation, Defendant-Appellee. _______________________________________________________ On Appeal from the United States District Court for the Central District of California No. CV-00-10515-DMT _______________________________________________________ CORRECTED BRIEF OF PLAINTIFF-APPELLANT THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION _______________________________________________________ NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ANNE NOEL OCCHIALINO Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7030 Washington, D.C. 20507 (202) 663-4724 TABLE OF CONTENTS PAGE TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . i TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . iv STATEMENT OF JURISDICTION . . . . . . . . . . . . . . .. . 1 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . 2 Nature of the Case and Course of Proceedings . . . . . . 2 Statement of Facts . . . . . . . . . . . . . . . . . . . 3 a. Pregnancy Discrimination . . . . . . . . . . . . . . 3 b. Hostile Environment. . . . . . . . . . . . . . . . . 5 c. Investigation and Conciliation . . . . . . . . . . . 18 District Court Decision. . . . . . . . . . . . . . . . . 23 STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . 24 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . 24 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . 27 THE DISTRICT COURT ERRED IN DISMISSING THE EEOC'S PREGNANCY DISCRIMINATION CLAIM. . . . . . 28 A. The EEOC Submitted Evidence Establishing a Prima Facie Case with Respect to Saez' Discharge. . . . . . . . . . 38 B. The EEOC Submitted Evidence Demonstrating Pretext. 32 II. THE DISTRICT COURT ERRED IN DISMISSING THE EEOC'S SEXUAL HARASSMENT CLAIM BECAUSE THE EEOC OFFERED EVIDENCE THAT WOULD ALLOW A REASONABLE JURY TO CONCLUDE THAT REEVES & ASSOCIATES SUBJECTED ITS FEMALE EMPLOYEES TO A HOSTILE WORK ENVIRONMENT. . . . . . . . . . . . . . . 35 A. The EEOC Presented Sufficient Evidence to Show an Objectively Hostile Environment. . . . . . . . . . . . . . . . 36 B. The EEOC's Evidence was Sufficient to Establish that Each Victim Subjectively Perceived the Environment as Abusive.. . . . . . . . . . . . . . . . . . . . . . . . . 47 THE EEOC'S ACTION WAS NOT FRIVOLOUS, UNREASONABLE, OR WITHOUT FOUNDATION, AND THE DISTRICT COURT THEREFORE ABUSED ITS DISCRETION IN AWARDING FEES UNDER TITLE VII. . . 51 A. The EEOC's Action was Not Frivolous, Unreasonable, or Without Foundation. . . . . . . . . . . . . . . . . . . . . . . . 51 B. Investigation and Reasonable Cause . . . . . . . . . . . . . . . . 53 C. Conciliation . . . . . . . . . . . . . . . . . . . . . . . . . . 54 D. Litigation Conduct . . . . . . . . . . . . . . . . . . . . . . . . 57 E. Even if Fees are Warranted, the District Court Erred in Calculating the Amount. . . . . . . . . . . . . . . . . . . . . . . . . 61 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 63 STATEMENT OF RELATED CASES . . . . . . . . . . . . . . . . . . . .. 64 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Abeita v. Transamerica Mailings, Inc., 159 F.3d 246 (6th Cir. 1998) -41-, -43- Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654 (9th Cir. 2002) -28-, -29-, -32- Barry v. Fowler, 902 F.2d 770 (9th Cir. 1990) -51-, - 52- Bradley v. Harcourt Brace & Co., 104 F.3d 267 (9th Cir. 1996) -24-, -33- Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000) -45- Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) -36- Burns v. McGregor Elec. Indus. Inc., 955 F.2d 559 (8th Cir. 1992) -36- Burrell v. Star Nursery, Inc., 170 F.3d 951 (9th Cir. 1999) -44- Caudle v. Bristow Optical Co., Inc., 224 F.3d 1014 (9th Cir. 2000) -28- Corder v. Gates, 947 F.2d 374 (9th Cir. 1991) -62- Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978) -2-, -23-, -51- Crowley v. L.L. Bean, Inc., 303 F. 3d 387 (1st Cir. 2002) -47- Dey v. Colt Const. & Dev. Co., 28 F.3d 1446 (7th Cir. 1994) -49- Draper v. Coeur Rochester, Inc., 147 F.3d 1104 (9th Cir. 1998) -44-, -49-, -50- DuMoulin v. Formica, 968 F. Supp. 68 (N.D.N.Y. 1997) -30- EEOC v. Astra USA, Inc., 94 F.3d 738 (1st Cir. 1996) -60- EEOC v. Bruno's Rest., 13 F.3d 285 (9th Cir. 1993) -25-, -52-, -55-, -57- EEOC v. Cosmair, Inc., 821 F.2d 1085 (5th Cir. 1987) -60- EEOC v. Dial Corp., 156 F. Supp. 2d 926 (N.D. Ill. 2001) -58- EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184 (10th Cir. 2000) -34- EEOC v. Jordan Graphics, Inc., 769 F. Supp. 1357 (W.D. N.C. 1991) -56- EEOC v. Keco, 748 F.2d 1097 (6th Cir. 1984) -53-, -54-, -57- EEOC v. Kenneth Balk & Assoc., 813 F.2d 197 (8th Cir. 1987) -53-, - 54 - EEOC v. Pierce Packing Co., 669 F.2d 605 (9th Cir. 1982) -55- EEOC v. Prudential Fed. Sav. & Loan Ass'n, 763 F.2d 1166 (10th Cir. 1985) -55- EEOC v. Reichhold Chemicals, Inc., 988 F.2d 1564 (11th Cir. 1993) -53- EEOC v. Waffle House, Inc., 534 U.S. 279,122 S. Ct. 754 (2002) -59- Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991) -35-, -44- Ensor v. Painter, 661 F. Supp. 21 (E.D. Tenn. 1987) -30- Faragher v. City of Boca Raton, 524 U.S. 775 (1998) -36- Fernot v. Crafts Inn, Inc., 895 F. Supp. 668 (D. Vt. 1995) -43- General Tel. Co. of the Northwest, Inc. v. EEOC, 446 U.S. 318 (1980) -59- Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) -35-, -44-, -46-, -48-, -50- Hensley v. Eckerhart, 461 U.S. 424 (1983) -61- Hughes v. Rowe, 449 U.S. 5 (1980) -52- Jackson v. Quanex Corp., 191 F.3d 647 (6th Cir. 1999) -42- Kerzer v. Kingly Mfg., 156 F.3d 396 (2d Cir. 1998 -30- Lindahl v. Air France, 930 F.2d 1434 (9th Cir. 1991) -33- MacDonald v. Eastern Wy. Mental Health Ctr., 941 F.2d 1115 (10th Cir. 1991) -29- McDonnell Douglas v. Green, 411 U.S. 792 (1972) -29- Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75 (1998) -35- Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000) -44- Schwapp v. Town of Avon, 118 F.3d 106 (2d Cir. 1997) -42- Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87 (2d Cir. 2001) -29- Steiner v. Showboat Operating Co., 25 F.3d 1459, 1463 (9th Cir. 1994) -48- Thurman v. Yellow Freight Systems, Inc., 90 F.3d 1160, 1167 (6th Cir. 1996) -34- Williams v. General Motors Corp., 187 F.3d 553 (6th Cir. 1999) -36-, -47- Woods v. Graphic Communications, 925 F.2d 1195 (9th Cir. 1991) -42- Wyler Summit P'Ship v. Turner Broadcasting System, Inc., 235 F.3d 1184 (9th Cir. 2000) . . . -27- FEDERAL STATUTES 28 U.S.C. § 1291 -2- 28 U.S.C. §§ 1331, 1345 -1- 29 U.S.C. § 211(a) -60- 29 U.S.C. § 215(a)(3) -60- 42 U.S.C. § 1981(b)(3)(A) -21- 42 U.S.C. § 2000e -1-, -3- 42 U.S.C. § 2000e-5(k) -23- OTHER AUTHORITY Model Civ. Jury Instr. 9th Cir. § 3.6(2) (2001) -41- IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ________________________________________ No. 02-55928 & 02-56179 _________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. ROBERT L. REEVES & ASSOCIATES, A Professional Corporation, Defendant-Appellee. STATEMENT OF JURISDICTION a. The EEOC brought this action against Robert L. Reeves & Associates (“Reeves & Associates”) under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., alleging pregnancy discrimination and sexual harassment against a class of female employees. The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1345. b. The district court granted Reeves & Associates' motions for summary judgment and entered a final judgment dismissing the case under Fed. R. Civ. P. 54(b) and entered judgment awarding attorney's fees and costs. RE393,<1> RE513. This Court has jurisdiction over the district court's judgments. 28 U.S.C. § 1291. c. On March 21, 2002, and on May 6, 2002, the district court entered final judgments on the merits and attorney's fees and costs, RE481, RE601, and on May 20, 2002, and July 10, 2002, the Commission filed timely notices of appeal under Fed. R. App. P. 4(a)(1)(B). RE515; RE517. STATEMENT OF THE ISSUES 1. Whether the district court erred in granting summary judgment for Reeves & Associates on the EEOC's claim of pregnancy discrimination on the ground that the EEOC failed to establish a prima facie case. 2. Whether the district court erred in granting summary judgment for Reeves & Associates on the EEOC's hostile work environment claim on the ground that the EEOC failed to establish the objective and subjective elements of its claim. 3. Whether the district court abused its discretion in awarding attorney's fees against the EEOC under Title VII and Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978). STATEMENT OF THE CASE Nature of the Case and Course of Proceedings On September 29, 2000, the EEOC brought this Title VII action against Reeves & Associates alleging pregnancy discrimination and sexual harassment against a class of female employees. RE1. See 42 U.S.C. §§ 2000e, et seq. In orders filed September 24, 2001, October 18, 2001, January 22, 2002, and February 19, 2002, the district court granted Reeves & Associates' three motions for summary judgment seeking dismissal of the EEOC's two claims. RE56, RE78, RE188, RE375. On March 21, 2002, the court entered a Statement of Facts and Conclusions of Law as to All Claims and entered final judgment dismissing the case. RE395; RE393. On May 6, 2002, the court awarded fees and costs to Reeves & Associates, and on May 15, 2002, the court entered final judgment. RE483; RE513. 2. Statement of Facts Reeves & Associates is a small law firm founded by Robert L. Reeves, the sole shareholder and ultimate decision-maker on all firings, hirings, promotions, and demotions. RE372-73. a. Pregnancy Discrimination During a six-month span in 1997, Reeves threatened to fire or fired three receptionists who were pregnant or on maternity leave.<2> Deanna Saez, a former client, told Reeves in November 1996 that she was going to move to New York to look for a job to pay her attorney's fees. RE179-80. Reeves offered her a position as a receptionist. RE180. Saez believed she was being hired for a full-time permanent position and abandoned her plan to move. RE185, RE102, ¶6. Maria Marcelo, the office manager, also believed Saez was hired on a non-temporary full-time basis, RE398, ¶12, RE367, and nothing in Saez' personnel file indicates she was hired on a temporary basis. RE107. When Saez began working for Reeves, he moved Rowena Silva, a receptionist whose pregnancy showed, “off to the side so clients could not see her.” RE102, ¶4. According to Jennifer Latman, the desk supervisor, Saez was a good worker. RE398, ¶12; RE100. Saez performed all of her duties, including copying, sending facsimiles, delivering packages, and getting Reeves his lunch. RE102, ¶8; RE186-87. During her employment, Saez never heard any complaints about her performance, RE102, ¶7, RE103, ¶9 and her personnel file is devoid of any warnings or reprimands, RE107-29. Sometime in early 1997, Saez told Reeves she was pregnant. RE101,¶3. On February 10, 1997, Reeves suddenly fired her, claiming she “‘could not make photocopies.'” RE103, ¶11. Saez, however, never told anyone she would not make photocopies and never refused to make copies. RE183; RE368-69. On Saez' last day of work, Marcelo and two other employees took Saez to lunch, and one of them told Saez she was being fired only because she was pregnant.<3> RE103, ¶13. b. Hostile Environment According to multiple employees, Reeves maintained a sexually-charged work atmosphere characterized by dirty jokes, sexual comments and advances, unwanted touching, and leering. Dan Hanlon, a non-shareholding named partner from early 1997 until June 30, 1999, stated that “many employees . . . were afraid of [] Reeves,” who was “a tall (over 6'2"), large, heavy, physically imposing man who acted in an intimidating manner toward employees,” and “could easily bully” female employees. RE46, ¶1, RE50, ¶15. Colin Greene, an attorney who eventually left with Hanlon to start another firm,<4> said that Reeves told “jokes of a sexual nature,” made “comments of a sexual nature that pertain to female employees that were [] offensive and inappropriate,” “frequently reference[d] Viagra in conversations,” and “consistently ma[d]e comments about women's clothing and ma[d]e faces indicating his approval or disapproval.” RE53-54. On “many occasions” Greene saw “Reeves gawking at female[ ] employees” and trying “to brush up against them.” RE54. According to Greene, Reeves “ma[d]e degrading remarks about female employees,” for example, telling Greene his secretary “was too expensive” and that Greene should “get one of those younger gals.” RE54. Maureen Rodriguez, another attorney, stated that her female co-workers were “subjected to offensive conduct,” that Reeves' “conduct was particularly offensive towards” Liao and Jacobson, and that Reeves told jokes about Viagra at staff meetings. RE362, ¶5, RE363, ¶12. Employee Elizabeth Babida recalls that Reeves told two or three dirty jokes about women. RE205-08. Attorney Nancy Miller remembers Reeves joking about Viagra and telling her and Jacobson a joke about briefcase and penis size. RE278, 279. Attorney Miwa Arai and Babida heard rumors about or suspected Reeves of having sex in his office with employees or past clients. RE131; RE209-11. Frank Nelson, an attorney, told Arai that he “came to the office on a Sunday and . . . walked in on a romantic situation between” Reeves and Yindi Boettcher, a former client. RE131, RE133-34. Reeves then instituted a policy “where [attorneys] . . . weren't supposed to come in on Sundays without his permission.” RE132. One morning at work, Babida saw a woman, who worked on weekends, go into Reeves' office. RE210-11. Latman told Babida that when Reeves' door was closed “‘and when she's here do not disturb him.'” RE211. “Everybody” in the office said Reeves had sex in his office. RE212. The facts with respect to the five women for whom the EEOC seeks relief are set forth below. Nikki Jacobson Nikki Jacobson, an attorney, worked full-time at Reeves & Associates from April 1998 until July 1999. RE233. Reeves' inappropriate behavior began at her interview when he looked her up and down. RE411, ¶109; RE352. The first question he asked was, “‘What are we going to do about your hair?'” RE352. Reeves also asked whether Jacobson was married or lived with her parents. RE352; RE411, ¶109. By August 1998, Reeves' inappropriate, sexually suggestive comments made Jacobson “feel weird about being in the room with him,” and she began avoiding him. RE249. One Friday night, Reeves came into Jacobson's office and asked what she was doing that night. RE239. When she replied she had a date, and then refused to tell him with whom, he said, “‘I want to know who my competition is.'” RE239. When Jacobson was helping Reeves find a conference room table, he asked her, “Wouldn't it be . . . a great table to have sex on?” RE234. Jacobson thought Reeves was thinking of having sex on the table with her. RE354. Another time, Jacobson followed Reeves into his office to get some Advil, and he “took out condoms,” saying, “‘Do you know that my son calls these the Kennedys?'” RE251. On another occasion, Reeves said something about “falling down on his boat, everything else doesn't work but lucky for [her] one other part does work,” which she interpreted as a reference to his penis. RE234; RE354. In response to one comment, Jacobson said, “Shouldn't you be telling that to your wife?” RE355. At a happy hour, Jacobson declined another drink and Reeves responded, “‘Don't worry, I've taken my Viagra for today. I'll take you home.'” RE239. Reeves again offended Jacobson when he told her and Miller that “guys with small briefcases have small dicks.” RE239-40. At a Monday morning meeting, Reeves said, “Women can't be pretty and smart – it's got to be one or the other.” RE353. Jacobson said she was offended. RE21. Reeves also said, in reference to a male assistant,“[D]on't worry, I'll keep him around even though he doesn't have boobs.” RE246. Reeves commented twice about Jacobson's breasts. After a breast biopsy, Reeves said something like, “‘It's okay if they took some out, you still have enough'” or “‘they're still big enough,'” which Jacobson interpreted as a sexual advance. RE247-48; RE353. Another time, Reeves came into Jacobson's office, stared down her blouse, and said, “[O]oh, look at those” or something about “the view. ” RE22; RE244; RE353. She was so upset that she left her office. RE22. Jacobson put a copy of the sexual harassment policy in Reeves' in-box. RE355. Reeves also commented on Jacobson's hair and body, said how form-fitted clothes and short shirts added to the office, and “watch[ed] [Jacobson] intently as she walked about the office.” RE363, ¶9. About once a month, when Jacobson wore her red suit, Reeves leered at her. RE250. Reeves frequently told Jacobson dirty jokes, frequently in her office. RE352-53. One day he stuck his head in Jacobson's office, said, “[H]i beautiful,” and joked about the warning label on cigars now saying “not for vaginal use.” RE22. Reeves also joked about two ninety-year-olds having sex “and the guy waking up in the morning and saying, if I knew you were a virgin I would have taken it easy on you, and she . . . says, well, if I knew you were going to be able to perform I would have taken off my panty hose.” RE237. After hearing the joke, which disgusted her, she left the office. RE22. Jacobson complained to others about Reeves. RE355. The joke about the briefcase offended her. RE240. Although Jacobson conceded that the jokes “could be funny, I guess,” she testified they “were still offensive.” RE230-31. Jacobson sometimes repeated them in the context of saying, “‘Can you believe he just said [that].'” RE230. Approximately three times after winning cases, Reeves touched Jacobson inappropriately by hugging her longer than necessary. RE354. Reeves' behavior at a Houston conference they attended with attorneys Rodriguez and Clarice Liao troubled her. RE355. As she explained, Reeves tried to slow dance with Liao; his treatment of other female employees made her uncomfortable. RE355. Jacobson complained numerous times to Hanlon. RE355, RE236. Jacobson feared being fired if she complained to Reeves. RE355. After an EEOC investigator talked with her about Quilaton's charge, Jacobson called the investigator and anonymously requested that she look into Reeves' sexual harassment of female employees. RE150, RE152. Because Jacobson was looking for a job and did not want Reeves to black-list her, she was afraid to file a charge. RE152. Jacobson left Reeves & Associates in part because of Reeves' sexual harassment. RE245. Lisa Wilkerson Wilkerson, a receptionist and then office coordinator, began work in May 1997. RE314. Reeves twice subjected her to unwanted touching. Six months after starting work, Wilkerson was standing near her cubicle when Reeves came by and said she was doing a good job. RE317. Reeves simultaneously “put his hand on [her] shoulder and slowly his hand went down to [her] butt and patted it.” RE316. Afterward, she felt “uncomfortable coming to work and having to see him” and “tried avoiding him as much as [she] could” “for fear that he might try and [] touch [her] in some way that would make [her] feel uncomfortable.” RE318-19. Wilkerson managed to reduce her contact with Reeves from about ten to five minutes a day, actively avoiding him by leaving files in his office in his absence and avoiding whatever side of the office he was on. RE320-21. The second unwanted touching incident occurred about a month later. Reeves tapped her shoulder and moved his hand down her back, stopping short of her buttocks. RE322. On a daily basis, Wilkerson heard Reeves make sexual comments. RE340. Reeves' conduct towards her included “look[ing] at [her] up and down” and making “comments that would make [her] feel uncomfortable.” RE315. Between two and twenty times, Reeves asked her to wear tight shirts, saying something like, “because [she] was more developed on top, and to reveal [herself].” RE329-30. When Wilkerson told Gladys Martinez, the office manager, she responded that “it might be a good idea . . . so [she] can get the promotion,” making Wilkerson feel uncomfortable and self-conscious. <5> RE 331, RE333. When Wilkerson wore tighter clothes, Reeves “would say [she] looked good.” RE335. Reeves also said, “Why don't you wear . . . a shorter skirt to show off your legs.” RE334. Reeves' comments about tight-fitting clothes made her feel sexually demeaned. RE340. Wilkerson once heard Reeves comment that “[s]he gives good head,” which Wilkerson believed to be a reference to Lisa Chang, a client.<6> RE327-28. Chang would spend “several hours” in Reeves' office. RE328. When she would emerge, her “lipstick would be messed up and she would be readjusting her clothing.” RE340. In addition to Wilkerson's personal observation, “[a] lot of secretaries” told her “that there were sexual favors done.” RE326. Wilkerson was told by other employees that some of her co-workers performed sexual favors for Reeves to get their visas. RE340. Wilkerson described her experience at Reeves & Associates as “hell.” RE337. She did not complain about the harassment “[b]ecause I would have to go to the boss and the boss is the one that's doing the harassment.” RE336. She was laid off on April 24, 1998. RE314. Clarice Liao Liao, an attorney, began working on March 2, 1998. RE253. In June 1998, she began to notice the sexually charged atmosphere. RE253-54. Other women in the office warned Liao “not to be alone in the office late at night” with Reeves. RE273. Reeves made “jokes about Viagra” that included “references to penises and erections and sexual potency.” RE254. After Viagra came out, Reeves made sexual jokes at least once a day. RE261. At an attorney meeting he joked about “a golfer and a fax coming out of his ass and something else coming out of his penis.” RE262. Liao complained to other attorneys about Reeves' jokes. RE263. Some time in 1998, Reeves told Liao that they should get the X-rated cable channel when she suggested getting the Disney channel for the children's room. RE410, ¶99; RE346. When Liao was talking to an assistant, Reeves looked her “up and down” and with a “leery” tone said, “‘You look beautiful today.'” RE255. Liao interpreted his comment as a sexual advance. RE256. Another time, Liao finished translating for a Spanish-speaking client and asked if Reeves still needed her. RE270. He replied, “I always need you.” RE270. Liao thought he meant something sexual by it, and she felt uncomfortable. RE271. Like her co-workers, she heard that Reeves had “comment[ed] . . . about having sex on the conference table” and that “he had sex with a client in his office.” RE346, RE275. Liao's co-workers confirmed that Reeves' behavior towards Liao was inappropriate and made her uncomfortable. Jacobson observed Reeves pursuing Liao and that Liao “was fearful of Mr. Reeves's conduct and frequently begged [her] not to leave her alone with him.” RE355. According to Rodriguez, Reeves' “conduct was particularly offensive towards Ms. Liao.” RE362, ¶5. Rodriguez stated that at the Houston conference, Reeves hit on Liao and said “how much more attractive [] Liao was than he had noticed at the office.” RE362, ¶6. When Rodriguez responded that Liao was a very knowledgeable attorney, Reeves again commented on her attractiveness. Id. Reeves asked Liao to dance at the banquet, and when she refused, he moved his body in a sexually suggestive way, gyrating close to her. RE254, RE266. Jacobson observed Reeves asking Liao to dance and that she grabbed Jacobson's arm in an attempt not to dance with him. RE355. Liao returned to her room “upset, fighting tears,” “embarrassed and horrified,” and told Rodriguez that Reeves told her “‘she could go a long way with him' and how beautiful she was.” RE362, ¶7. Rodriguez told Liao she was being sexually harassed and advised her to keep a diary of events. RE362, ¶7. At an August 1998 party at Reeves' house, Liao tried to shake Reeves' hand, but Reeves “grabbed” her and gave her “a big hug,” making her feel uncomfortable. RE257. Liao brought a date because she thought if she went alone, Reeves would find a way to be with her. RE267. Liao did not like working at Reeves & Associates and “wanted to quit” because of the sexually charged atmosphere. RE253. As a result of the harassment, she felt “like not wanting to come to work . . . it was an effort to get up in the morning to get ready to come to work.” RE272. She saw Reeves at least once a day and tried avoiding him by using the back door at lunch and at the end of the day. RE274. In September 1998, Liao gave notice but decided to stay after Reeves offered a raise. RE269. In January 1999 Liao quit, even though she had no other job, RE268, and testified that she wanted to quit because she did not like the sexually charged atmosphere. RE253. Jeanette Catuira Catuira, who was approximately twenty-three, worked as a secretary from March 1997 until January 1998. RE404, ¶59; RE226. On one occasion, Reeves came up behind her, said something like, “oh, this is why I put the photocopy machine here, so we can do some body bumping” and rubbed the “frontal part of his body” against her back, even though he could have walked around in another direction without touching her. RE216-17, RE227-28. Catuira was offended and felt uncomfortable. RE218. Reeves leered at Catuira, giving her “probably more than five” and “maybe not” more than twenty inappropriate, “head to toe” looks. RE219. Catuira also heard Reeves tell inappropriate sexual jokes or make inappropriate comments to other women in the office. RE221-22. Catuira specifically recalls overhearing Reeves ask another attorney “if anything sexual happened on [his] date,” which Reeves had arranged. RE233. Latman told Catuira that Reeves had looked at her (Latman's) chest and said, “you look healthy today.” RE221-22. Although “whoever was in the lunchroom” also told jokes, she was not offended by them. RE224. Catuira felt uncomfortable and tried to avoid Reeves as much as possible. RE225. Nadia Preciado Nadia Preciado began working in August 1998 as a file clerk and, later, a receptionist. RE282. About once a day, Reeves stared inappropriately at her and grinned when she caught him looking. RE290. Reeves' staring caused her emotional pain in the form of stress. RE289. Preciado also observed Reeves staring at clients and, on a daily basis, at other women in the office. RE287-88, RE305-06. Reeves looked at women “up and down,” “like he's a pervert.” RE312. Preciado specifically recalls Reeves following a client, into the conference room and staring at her back with his head crooked to the side. RE307-08. One time, when Reeves called looking for his wife, he said, “‘[t]ell that bitch to come downstairs. I'm waiting for her in my car.'” RE304. Preciado stated that Reeves told everyone dirty jokes. RE292, RE300. He told Preciado between one and five dirty jokes. RE292. He told the first joke, involving a half-naked girl, at the firm Christmas party when Preciado was sitting at his table with other employees. RE 295-96. The joke was “something about Santa Claus coming down the chimney, that there was Mrs. Santa Claus waiting for him in lingerie” and “and he said something like, ho, ho, ho.” RE294. The joke made her uncomfortable; no one laughed. RE295. Although the jokes did not cause her stress or affect her work, they made her uncomfortable and disturbed her. RE301-03. Preciado knew that Reeves' conduct also made other women uncomfortable. For example, Jacobson told Preciado stories, “such as” that Reeves had looked down her shirt and also had said that it would be nice to have sex on the conference table. RE297-99. Shirley Lamb told Preciado that Reeves said she (Lamb) had nice legs. RE311. Reeves asked Preciado inappropriate personal questions, including whether her children had the same father, who she lived with, and who bought her car. RE285-86. He criticized Preciado's clothes and her hair color. RE284. Preciado experienced emotional suffering while at Reeves & Associates but did not immediately leave when she found another job because the commute was not worth the salary and because her car was not “that great for . . . driving all the way over there.” RE289-B. c. Investigation and Conciliation On August 11, 1997, Judith Quilaton filed a charge of discrimination alleging she had been terminated based on pregnancy. RE98. The EEOC's investigator, Deborah Kinzel-Barnes, submitted a request for information seeking documentation of Quilaton's alleged performance deficiencies or tardiness (such as work schedule, evaluations, notes from supervisors, copies of incorrect phone messages) and interviewed at least two employees to try to substantiate Reeves' claim he had surveyed Quilaton's performance before firing her. RE137-41. Kinzel-Barnes was unable to substantiate Quilaton's alleged tardiness or performance deficiencies. RE138, RE140-41. After Quilaton told Kinzel-Barnes that other pregnant employees had been fired and that one might have been “Diana,” Kinzel-Barnes searched the files and found Deanna Saez and Rowena Silva. RE143-44. Kinzel-Barnes interviewed Saez. RE145-46. Kinzel-Barnes also interviewed Silva and obtained her affidavit. RE147. Because Silva said she felt forced to resign because of Reeves' treatment when she returned from maternity leave, Kinzel-Barnes thought Silva may have been constructively discharged. RE148. Kinzel-Barnes recommended finding cause to believe Reeves violated Title VII when he fired Quilaton. RE149. Before the notice of violation issued, however, Kinzel-Barnes received information on a “like and related issue.” Id. An anonymous female caller said she was currently employed at Reeves & Associates and thought the EEOC should look into Reeves' sexual harassment of female employees. RE149-50. The caller refused to file a charge because she was looking for employment and did not want her name to get out. RE151-52. The caller, who was upset, provided names of individuals she thought had been harassed and “examples of sexual harassment . . . that she considered vulgar, offensive.” RE153-55. To investigate these allegations, the EEOC decided to interview Hanlon and Greene, thinking they would be good witnesses since they had left the firm and might speak more freely, and because Hanlon had been a partner.<7> RE156, RE159. The EEOC wanted to re-interview Jacobson because Kinzel-Barnes thought she was the anonymous caller. RE159. Within a short time, Kinzel-Barnes issued subpoenas and interviewed Hanlon, Greene, and Jacobson. RE160. Greene and Hanlon substantiated allegations of a sexually hostile work environment. RE163, RE167. While Hanlon mentioned he and Reeves were in litigation, Kinzel-Barnes did not think that fact was relevant to sexual harassment or pregnancy discrimination; she simply weighed it with other evidence in the file. RE161-62. On June 20, 2000, the EEOC issued a Letter of Determination (“LOD”) stating that the EEOC had found reasonable cause to believe that Reeves & Associates had violated Title VII by terminating Quilaton because of pregnancy, that “pregnant females as a class[ ] were terminated in violation of Title VII . . . and that females as a class[ ] were subjected to frequent harassment that was intimidating, hostile and offensive and unreasonably interfered with work performance in violation of Title VII.” RE443. On July 5, 2000, the EEOC sent a letter “to initiate the conciliation process,” referencing the LOD, and setting forth requested remedies, including injunctive relief and $50,000 in compensatory damages and $50,000 in punitive damages for Quilaton and “any identified aggrieved individuals.” RE445. The letter mistakenly requested $50,000 in punitive and $50,000 in compensatory damages when, under 42 U.S.C. § 1981(b)(3)(A), the statutory cap is $50,000 total.<8> Reeves called Kinzel-Barnes and asked who the harasser was, and she told him, “You.” RE173. She refused to tell him the names of witnesses alleging harassment. Id. On July 21, 2000, Reeves & Associates sent a letter stating that its ability to respond to the allegations of sexual harassment had been “severely jeopardized” by the EEOC's refusal to provide names of the aggrieved individuals, that its internal investigation revealed that no one had complained to the EEOC about harassment, and that the harassment claim was “far beyond the scope” of Quilaton's charge. RE447. The letter concluded, “[f]or the foregoing reasons, among others, Reeves & Associates is not in the position to accept the settlement proposal set forth in your July 5, 2000 letter.” Id. Based on her conversation with Reeves and the letter, Kinzel-Barnes concluded that Reeves & Associates “didn't want to pay the money at all” and was uninterested in conciliation. RE173. After the EEOC filed suit, the EEOC and Reeves & Associates conferred concerning Reeves & Associates' proposed motion to dismiss and “discussed the possibilities of not proceeding with the litigation and beginning conciliation.” RE477, ¶4. In an October 24, 2000 letter, the EEOC's attorney stated that inadequate conciliation was not grounds for dismissal and “that a stay would be an abuse of discretion because Defendant's counsel of record at the time is responsible for the failure of conciliation, having told EEOC her client had no interest in pursuing meaningful pre-suit conciliation.” RE472. Nevertheless, the EEOC attorney repeated the position she articulated at the meeting, “that if Defendant wished to . . . engage in good faith, confidential settlement discussions, I would be amenable to doing so.” RE473. 3. District Court Decision On March 21, 2002, the district court issued a statement of facts and conclusions of law, reiterating the factual findings and legal conclusions the court made in its prior summary judgment rulings. RE395. The district court concluded that the EEOC's pregnancy claim failed as to each of the three women on whose behalf the EEOC sought relief – Quilaton, Saez, and Silva.<9> As to Saez, the court concluded that the EEOC's claim failed because the EEOC did not show that she was satisfactorily performing her duties or that she was discharged under circumstances suggestive of discrimination, and therefore the EEOC had failed to establish a prima facie case. RE402. In assessing the sexual harassment claim, the court concluded that although Reeves' conduct was “offensive and reprehensible,” “no triable issue exists about whether the conduct was frequent, severe or abusive enough.” RE72, RE392. Finding that the EEOC failed to establish either the objective or subjective elements of a hostile work environment, the court granted summary judgment to Reeves & Associates. The district court granted in part and denied in part Reeves & Associates' motion for attorney's fees under 42 U.S.C. § 2000e-5(k) and Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978). RE483. In awarding fees, the district court criticized the Commission's investigation and cause finding, RE489-90, what it believed was an inappropriate use of discovery to pursue a separate investigation of a potential Equal Pay Act violation, RE490-91, the Commission's failure to stipulate to dismissal of claims for some women named as claimants, RE491, and the adequacy of the Commission's conciliation efforts, RE492-95. The court also assessed the merits of the lawsuit and concluded that the EEOC's pregnancy discrimination claim and its sexual harassment claim as to all identified individuals except Catuira, Jacobson, and Wilkerson, were either frivolous, unreasonable, or without foundation. RE496-506. Reeves & Associates sought fees in the amount of $482,916.34, which the court reduced for a variety of reasons to $363,075.21. RE506-10. The court also awarded costs of $23,434.60. RE513-14. STANDARD OF REVIEW This Court reviews a grant of summary judgment de novo, “viewing the evidence in the light most favorable to the non-moving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law.” Bradley v. Harcourt Brace & Co., 104 F.3d 267, 269 (9th Cir. 1996) (citation omitted). An award of attorney's fees under 42 U.S.C. § 2000e-5(k) is reviewed for an abuse of discretion. EEOC v. Bruno's Rest., 13 F.3d 285, 287 (9th Cir. 1993). SUMMARY OF ARGUMENT The district court erred in granting summary judgment for Reeves & Associates on the EEOC's pregnancy discrimination claim. Looking at the evidence in the light most favorable to the EEOC, the EEOC's evidence was more than sufficient to establish a prima facie case of pregnancy discrimination as to Saez because it demonstrates she was qualified and was fired under circumstances giving rise to an inference of discrimination. Reeves & Associates' shifting reasons for firing Saez, the EEOC's evidence refuting those reasons, and the timing of Saez' termination also give rise to a factual question as to whether Reeves & Associates' proffered reasons for firing Saez are unworthy of credence, thereby raising a triable issue on pretext. Analyzed under the proper legal standards, the EEOC's evidence also precludes summary judgment on the hostile work environment claim. When viewed under the totality of the circumstances standard, the evidence is sufficient to establish a genuine issue of material fact as to whether a reasonable woman would find Reeves' conduct – which included dirty jokes, sexual comments, sexual advances, unwanted touching, and leering – to be severe and pervasive enough to alter the terms and conditions of her workplace and create a hostile work environment. The district court granted summary judgment by impermissibly resolving factual disputes in Reeves & Associates' favor, disaggregating the EEOC's claim claimant-by-claimant and then incident-by-incident, and misapplying the law to the facts. The court also erred by concluding that no victim subjectively viewed the environment as abusive. In making this finding, the district court wrongly held the EEOC to the higher constructive discharge standard, which requires a showing that the workplace was so intolerable that quitting was the only option, and suggested that the victims' failure to resign or seek counseling precluded a finding that they subjectively viewed the environment as abusive. To the contrary, the victims' testimony that they felt uncomfortable, sexually demeaned, upset, and angry, and went out of their way to avoid Reeves, is sufficient to establish the subjective element of the EEOC's hostile work environment claim. The district court abused its discretion in awarding attorney's fees by mischaracterizing the facts, misunderstanding the nature of the EEOC's authority and this lawsuit, and misapplying the Christiansburg standard. As argued above, the EEOC clearly had a sufficiently plausible case to satisfy the minimal evidentiary threshold imposed under Christiansburg, which precludes a fee award and obviates the need for further analysis of the EEOC's pre-litigation or litigation conduct. Further, the EEOC's pre-suit and litigation conduct provide no independent basis for a fee award in this case: the reasonableness of its investigation and cause finding are subsumed in the analysis of the merits of the lawsuit itself, and in any event, were entirely reasonable; its conciliation efforts and belief in the failure of conciliation were reasonable; and the EEOC's discovery conduct did not warrant sanctions. ARGUMENT The district court misapplied the summary judgment standard by resolving disputed facts in favor of Reeves & Associates.<10> The district court also misstated the legal standard for establishing a prima facie case of discriminatory discharge and misapplied the standards for establishing a hostile work environment and awarding fees under Title VII. Therefore, the Commission urges this Court to reverse the district court and remand this case for trial. THE DISTRICT COURT ERRED IN DISMISSING THE EEOC'S PREGNANCY DISCRIMINATION CLAIM. The EEOC Submitted Evidence Establishing a Prima Facie Case with Respect to Saez' Discharge. This Court has emphasized “that ‘[t]he requisite degree of proof necessary to establish a prima facie case for Title VII . . . on summary judgment is minimal and does not even need to rise to the level of a preponderance of the evidence.'” Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654, 659 (9th Cir. 2002) (citation omitted, alteration in original). The district court ruled that the EEOC failed to establish the second and fourth elements of its prima facie case of pregnancy discrimination, which require the EEOC to show that Saez was qualified and that she was discharged under circumstances giving rise to an inference of discrimination. See Aragon, 292 F.3d at 659; Caudle v. Bristow Optical Co., Inc., 224 F.3d 1014, 1025 (9th Cir. 2000). To establish that Saez was qualified, the EEOC submitted Saez' personnel file, which is devoid of any documented performance issues or reprimands, and Saez' declaration asserting that she performed all of her tasks. RE107, RE102, ¶¶8-9. The EEOC also presented evidence that Saez had never been orally counseled about any performance shortcomings and that Latman found her a “good” worker. RE102, ¶7, RE100. This evidence was more than sufficient to establish Saez was qualified. See Aragon, 292 F.2d at 659-60 (evidence sufficient where plaintiff “presented evidence that there were no formal write-ups for poor performance or disciplinary notices” and “asserted that his performance was equal to his coworkers and that his trucks brought in an average amount of garbage”). In concluding otherwise, the district court erred by appearing to “conflate the minimal inference needed to establish a prima facie case with the specific, substantial showing [the EEOC] must make at the third stage of the McDonnell Douglas [v. Green, 411 U.S. 792 (1972)] inquiry to demonstrate that R[eeves]'s reasons for laying [Saez] off were pretextual.” Id. at 659. See also Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 92 (2d Cir.) (“The qualification prong must not . . . be interpreted . . . to shift onto the plaintiff an obligation to anticipate and disprove, in his prima facie case, the employer's proffer of a legitimate, non-discriminatory basis for its decision.”), cert. denied, 122 S. Ct. 348 (2001); MacDonald v. Eastern Wy. Mental Health Ctr., 941 F.2d 1115, 1119-21 (10th Cir. 1991) (holding that employer's articulated reason for discharging plaintiff could not be used to defeat prima facie case). The EEOC also presented sufficient evidence to satisfy its minimal burden of showing that Reeves & Associates' firing of Saez occurred under circumstances giving rise to an inference of discrimination. Saez' termination on February 10, 1997, shortly after she disclosed her pregnancy to Reeves, and the lack of any event precipitating her abrupt termination, “gives rise to at least an inference of discrimination.” DuMoulin v. Formica, 968 F. Supp. 68, 70 (N.D.N.Y. 1997) (finding inference where plaintiff fired day before maternity leave without precipitating event); accord Ensor v. Painter, 661 F. Supp. 21, 23-24 (E.D. Tenn. 1987) (articulated reasons for terminations pretextual where plaintiffs disclosed pregnancies on same day, one plaintiff fired next day, and other plaintiff fired one month later after being removed from work schedule). The district court's reasoning that the EEOC failed to establish the fourth prong of its prima facie case because Saez was “hired as a result of her need to pay off her legal fees and was terminated soon after,” RE198, reveals both the court's conflation of the prima facie case and the pretext evidence and its failure to adhere to the summary judgment standard. The EEOC offered evidence disputing that Reeves hired Saez on a short-term basis, thus supporting an inference of discrimination. See Kerzer v. Kingly Mfg., 156 F.3d 396, 402 (2d Cir. 1998) (holding that plaintiff was discharged under circumstances giving rise to inference of discrimination, in part because plaintiff cast doubt on employer's claim it no longer needed her). The EEOC put in evidence that Saez denied that she was hired on a short-term basis (which Marcelo corroborates), that she was thinking of moving to New York when she started at Reeves & Associates, or that at the time of her termination she told Reeves she was planning to move to New York. RE102-03,¶¶6,11; RE367. Furthermore, Saez' personnel file includes a copy of Reeves' signed response to a request for information about Saez' application for unemployment benefits, dated April 10, 1997, which states that Saez' lay-off was “involuntary” and the result of “delinquency/Neglect her duties” – not, as Reeves & Associates now claims, the voluntary result of the end of a mutually agreed-upon term of temporary employment. RE111. The record thus suggests that Reeves & Associates invented this reason solely in response to litigation. Instead of looking at this evidence in the light most favorable to the EEOC, the court ignored it and accepted as true Reeves & Associates' version of events. Because the EEOC satisfied its minimal burden of showing that Saez was qualified and discharged under suspicious circumstances, the district court erred in granting summary judgment. The EEOC Submitted Evidence Demonstrating Pretext.<11> In addition to presenting rebuttal evidence on the reason the court accepted as true, the EEOC presented the “substantial and specific evidence required to” demonstrate that Reeves & Associates' other proferred reasons for firing Saez were a pretext for discrimination. Aragon, 292 F.3d at 663. At the time of her termination, Reeves told Saez it was because she “can't make photocopies.” RE182. Saez, however, denied saying she would not make photocopies and did not recall saying she could not make copies. RE183. Nothing in her personnel file substantiates this proferred criticism.<12> RE107. Saez' denial was corroborated by Marcelo, who testified that Saez never refused to make copies for her and that she had no knowledge of Saez' refusing to make copies for anyone else. RE368-69. The EEOC also offered evidence refuting Reeves & Associates' later explanation that it fired Saez for overall performance deficiencies and because her supervisor, Anna Reyes, had to work overtime when Saez refused to perform a number of duties. According to Saez, she performed all of her assigned duties, including copying, sending facsimiles, and delivering packages. RE102, ¶8; RE186-87. Saez affirmatively denied that Reyes had to do any overtime to cover for her and stated that the first she heard of Reyes' complaints was four years after her termination. RE103, ¶9. Saez' personnel file is devoid of any performance complaints, and Latman called Saez a good worker. RE100, RE107. Thus, although a plaintiff's subjective claim that she “had been performing her job adequately and had received no feedback indicating otherwise” does not, standing alone, raise a genuine issue of material fact on pretext, Bradley, 104 F.3d at 270, the EEOC offered objective evidence to counter Reeves & Associates' claims of poor performance and inability to make photocopies. Finally, as detailed above, the EEOC offered evidence refuting Reeves & Associates' third proffered reason for firing Saez: that Reeves had hired Saez only on a short-term basis so she could pay off her attorney's fees before moving to New York. See Lindahl v. Air France, 930 F.2d 1434, 1438 (9th Cir. 1991) (concluding that employer's failure to provide, until after litigation began, “straightforward answer” to employee for refusing to promote “might suggest that the [post-litigation] explanation was a later fabrication”). In short, the Commission offered specific and substantial evidence raising a genuine issue of material fact on whether the reasons for firing Saez were pretextual, especially when viewed in combination with the timing of the termination and Reeves & Associates' shifting explanations for it. See EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1200 (10th Cir. 2000) (holding that EEOC's evidence, when “viewed in the aggregate,” was sufficient “to raise a genuine doubt about Defendant's motivation”). Furthermore, the very fact that Reeves & Associates offered three shifting reasons to explain its abrupt termination of Saez is itself evidence of pretext. See Thurman v. Yellow Freight Systems, Inc., 90 F.3d 1160, 1167 (6th Cir. 1996) (“An employer's changing rationale for making an adverse employment decision can be evidence of pretext.”) (citations omitted). Therefore, this Court should reverse the district court's entry of summary judgment in favor of Reeves & Associates on the EEOC's pregnancy discrimination claim. THE DISTRICT COURT ERRED IN DISMISSING THE EEOC'S SEXUAL HARASSMENT CLAIM BECAUSE THE EEOC OFFERED EVIDENCE THAT WOULD ALLOW A REASONABLE JURY TO CONCLUDE THAT REEVES & ASSOCIATES SUBJECTED ITS FEMALE EMPLOYEES TO A HOSTILE WORK ENVIRONMENT. To avoid summary judgment on its hostile work environment claim, the EEOC had to raise a triable question as to whether the working environment was both objectively and subjectively abusive. This requires a showing that a reasonable woman would consider the harassing conduct severe or pervasive enough to alter her conditions of employment and to create an abusive working environment, and that each victim subjectively perceived her environment to be abusive. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993); Ellison v. Brady, 924 F.2d 872, 875-76 (9th Cir. 1991). “Whether an environment is ‘hostile' or ‘abusive' can only be determined by looking at all the circumstances,” which “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.” Harris, 510 U.S. at 23; see also Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81-82 (1998) (“The real social impact of workplace behavior often depends 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.”). A. The EEOC Presented Sufficient Evidence to Show an Objectively Hostile Environment. In contravention of the Supreme Court's totality-of-the-circumstances standard, the district court disaggregated the EEOC's claim, “which robbed the incidents of their cumulative effect,” Williams v. General Motors Corp., 187 F.3d 553, 561 (6th Cir. 1999), first by examining in isolation the conduct experienced by each victim, and then by discounting or minimizing that conduct incident-by-incident. Courts must look, however, at the cumulative effect of harassment rather than “carv[ing] the work environment into a series of discrete incidents and then measur[ing] the harm occurring in each episode.” Burns v. McGregor Elec. Indus. Inc., 955 F.2d 559, 564 (8th Cir. 1992), abrogated on other grounds, Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998). When the totality of the evidence of Reeves' conduct is considered, it is clear there is at least a triable question whether there was an objectively abusive environment. Dirty Jokes The evidence of a hostile environment included a steady stream of dirty jokes that were a regular and prominent feature of the workplace. RE352 (Jacobson) (Reeves told dirty jokes or made sexual comments on a “near daily basis”); RE261 (Liao Depo.) (after Viagra came out, Reeves told sexual jokes at least once a day); RE220-21(Catuira Depo.) (heard Reeves tell sexual jokes); RE292, RE300 (Preciado Depo.) (Reeves told everyone dirty jokes); RE363, ¶12 (Rodriguez Decl.) (at staff meetings, Reeves told Viagra jokes); RE205-08 (Babida Depo.) (Reeves told two or three dirty jokes about women, one “about breasts” and “buttocks”); RE278 (Miller Depo.) (Reeves told jokes a lot, some sexual). Sexual Comments and Advances A second feature of the working environment was Reeves' frequent sexual comments and advances, which included asking Jacobson who she was dating so he would know who his “competition” was, RE239, telling Jacobson he thought the conference table would be great for sex, RE234, telling Jacobson after he fell on his boat that it was lucky for her that one part still worked, which she interpreted as a sexual advance, RE234, RE354, telling Jacobson at a happy hour that he would take her home and had taken his Viagra that day, RE239, and showing Jacobson some condoms in his desk drawer and saying his son called them “Kennedys,” RE251. At an attorney meeting, Reeves said, women “can't be pretty and smart – it's got to be one or the other,” RE353, and at a happy hour said he would keep a male assistant even though he lacked “boobs,” RE246. Jacobson also thought Reeves was making sexual advances when he twice commented about her breasts. RE244, RE247-48, RE353. Reeves suggested to Liao that they get an X rated cable channel and said in a way Liao found sexual that he “always” needed her. RE410, ¶99, RE346, RE270. At the Houston conference, Reeves asked Liao to dance by gyrating in front of her. RE254, RE266. Liao's discomfort was obvious to Jacobson, who described Liao as grabbing her arm in an attempt not to dance with him. RE355. Another variation of Reeves' sexual comments was his frequent comments about the appearance of his female employees. Reeves suggested to Wilkerson on two to twenty occasions that she wear tight shirts “because [she] was more developed on top, and to reveal [herself]” and suggested she wear shorter skirts to show off her legs. RE329-30, RE334. Reeves also commented on Jacobson's hair and her body and said how form-fitted clothes and short shirts added to the office. RE363, ¶9. Reeves looked Liao up-and-down and in a “leery” tone told her “‘You look beautiful today,'” which Liao interpreted as meaning he wanted to have sex with her. RE255-56. The impact of Reeves' sexual comments and comments about his female employees' bodies and appearances was heightened by the widely-held belief that Reeves had sex in his office with various women. In such an atmosphere, Reeves' comments and advances could reasonably be viewed as more threatening. For example, Wilkerson heard Reeves comment, “[s]he gives good head,” which Wilkerson believed to be in reference to Lisa Chang, a former client, who would spend several hours in Reeves' office and emerge with messy lipstick and out-of-place clothes.<13> RE 327-38, RE340. “A lot of secretaries” told Wilkerson “that there were sexual favors done.” RE326; see also RE209-11 (Babida Depo.) (when a woman, who worked on weekends, went into Reeves' office, she was told not to disturb Reeves and that he was having an affair). There was evidence of an office policy against attorneys coming to the office on Sundays to preserve Reeves' privacy in conducting sexual liaisons. RE132. Unwanted Touching Reeves rubbed “the frontal part of his body” against Catuira's back as she stood at the copy machine, saying “oh, this is why I put the photocopy machine here, so we can do some body bumping.” RE216-17; RE227-28. Approximately three times after winning cases, Reeves hugged Jacobson in a way she found inappropriate. RE354. Reeves also hugged Liao at a party, making her uncomfortable. RE257. Reeves twice touched Wilkerson inappropriately; once, he “put his hand on [her] shoulder and slowly his hand went down to [her] butt and patted it,” RE316, and another time he moved his hand down her back, stopping short of her buttocks. RE322. Leering Reeves routinely leered or stared at his female employees and clients. RE315 (Wilkerson Depo.) (Reeves “[s]ometimes [] would look at [her] up and down”); RE219 (Catuira Depo.) (Reeves leered at her between five and twenty times); RE290-91, RE305, RE307 (Preciado Depo.) (Reeves stared at her up-and-down for a few seconds, “once a day, maybe,” and grinned when she caught him and stared at his own clients); RE250 (Jacobson Depo.) (Reeves leered at her once a month when she wore red suit). Preciado observed Reeves staring, “up and down” “like he's a pervert,” on a daily basis at other women. RE287-88, RE305-06, RE312. The district court erred in several fundamental respects in analyzing the evidence of harassing conduct. First, the court discounted Reeves' pervasive dirty jokes because, in its view, the victims' failure to recall the details of Reeves' jokes precluded a jury from determining whether a reasonable woman would feel sexually harassed. See, e.g. RE387 (“without knowing the content of the jokes, a fact finder could not objectively determine whether these jokes were such that a reasonable woman would find it sexual harassment.”). While the victims do not recall the content of all of Reeves' jokes, collectively they remember many of them, which would enable a jury to understand the nature of Reeves' jokes and their contribution to the hostile environment. See Abeita v. Transamerica Mailings, Inc., 159 F.3d 246, 252 (6th Cir. 1998) (holding that the plaintiff's ability to recall only a few specific instances of sexually inappropriate comments “goes to the weight of her testimony, a matter for the finder of facts” where she testified that the comments were commonplace, ongoing, and continual); see also Model Civ. Jury Instr. 9th Cir. § 3.6(2) (2001) (in considering testimony, jury may take into account the witness' memory). Second, the district court erroneously held that Reeves' inappropriate sexual comments overheard by, or relayed to, the victims could not contribute to a hostile work environment. See, e.g. RE61-62 (discounting dirty jokes because Catuira could not recall them and discounting comments overheard or relayed to Catuira, stating, “thus, Catuira's claim rests on the 5 second bump and the stares”); RE383 (“Wilkerson admits that this conversation [‘she gives good head'] was only overheard by her”). This Court has recognized the impact of second-hand harassment, holding that a hostile work environment existed where the plaintiff worked in an atmosphere “unquestionably polluted” by racial hostility, even though only a few remarks and incidents were directed towards the plaintiff. See Woods v. Graphic Communications, 925 F.2d 1195, 1202 (9th Cir. 1991); accord Jackson v. Quanex Corp., 191 F.3d 647, 559-60 (6th Cir. 1999) (holding that court erred by refusing to consider harassment directed at co-workers); Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997) (“the fact that a plaintiff learns second-hand of a racially derogatory comment or joke by a fellow employee or supervisor also can impact the work environment”) (citation omitted). In this case, each victim's environment included all she knew about Reeves' treatment of other women in the workplace because that knowledge provided the context for remarks or conduct directed at her. Thus, the district court should have considered evidence that Jacobson heard Reeves tell jokes and make sexual comments to other female employees, RE354-55; that on a daily basis, Wilkerson heard Reeves make sexual comments, RE340; that Catuira heard Reeves tell dirty jokes and make inappropriate comments to other women in the office, RE220-21; that Latman told Catuira that Reeves had stared at Latman's chest and said, “you look healthy today,” RE221-23; that on a daily basis Preciado saw Reeves looking other women in the office up-and-down, “like he's a pervert,” RE287-88, RE305-06, RE312; that Jacobson told Preciado stories, “such as” Reeves looked down her shirt and said the conference table would be nice for sex, RE297-99; that Lamb told Preciado that Reeves said she had nice legs, RE311, and that Reeves referred to his wife as “bitch” in front of Preciado, RE304. Third, the district court erred in failing to accord any significance to the fact that Reeves was not just a co-worker, or even a supervisor, but the senior partner and sole shareholder with ultimate hiring, firing, promotion, and demotion power. See Abeita, 159 F.3d at 252 (reversing summary judgment on hostile work environment claim, stating, “Katz, the President of TransAmerica, made all of the statements at issue here and the plaintiff worked with Katz on a daily basis” and that these “factors can be considered in determining whether the conduct was severe”). The district court also failed to consider that “many employees . . . were afraid of” the 6'2" Reeves, who is a “large, heavy, physically imposing man who acted in an intimidating manner toward employees” and “could easily bully” his female workers. RE50, ¶15. See Fernot v. Crafts Inn, Inc., 895 F. Supp. 668, 678 (D. Vt. 1995) (“The persistence of the advances, Passannante's size and temper and the unwanted touching would put a reasonable person in fear of sexual assault.”). Reeves was much older than his youngest victims, including Catuira, who was twenty-three. RE226. Fourth, the district court simply failed to give effect to this Court's instruction that “[t]he required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct.” Ellison, 924 F.2d at 878 (citation omitted). Thus, this Court has held that “[r]epeated derogatory or humiliating statements . . . can constitute a hostile work environment.” Ray v. Henderson, 217 F.3d 1234, 1245 (9th Cir. 2000); see also Harris, 510 U.S. at 19-23 (evidence that harasser subjected plaintiff to sexual innuendo, sex-based insults, and comments could support a finding of unlawful sexual harassment). Under this Court's precedent, the EEOC's evidence was more than sufficient to create a jury question regarding the severity or pervasiveness of Reeves' harassment. See Burrell v. Star Nursery, Inc., 170 F.3d 951, 954, 957 (9th Cir. 1999) (genuine issue of material fact regarding hostile environment where supervisor “sexually harassed [plaintiff] by making comments that contained sexual references; saying he wanted to take a trip to the mountains with her; and making comments about how [plaintiff] looked and how ‘well built' she was”); Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1105-06 (9th Cir. 1998) (triable issue on hostile environment where plaintiff alleged supervisor “often inquired into [plaintiff's] personal life and wanted to know whom she was dating,” regularly made sexual comments like sex with his wife was not very good, told plaintiff his sexual fantasies, told a dirty joke, commented on plaintiff's “ass,” made other sexual remarks in front of co-workers, and laughed at plaintiff's complaints). The facts of this case are at least as egregious as those in Burrell and Draper. As in Burrell, Reeves made numerous sexual comments, many of which were interpreted by his victims as sexual advances, and he frequently commented on his employees' appearance and bodies, for instance, telling Wilkerson she should wear tighter, more revealing clothes and shorter skirts, and commenting about Jacobson's breasts. Like the supervisor in Draper, Reeves inquired into Jacobson's and Preciado's personal lives, asked Jacobson who she was dating, and regularly made sexual comments and told dirty jokes, and frequently commented about his victims' bodies and appearance. Fifth, the district court failed to appreciate that Reeves' pervasive sexual harassment was reasonably seen by his victims as a term or condition of their employment, because Reeves did not just tolerate harassing behavior but was himself the perpetrator. See Brooks v. City of San Mateo, 229 F.3d 917, 927 (9th Cir. 2000) (question is whether “tolerating harassing behavior” is “a term or condition of . . . employment”). Finally, the court also failed to apply the proper legal standards addressing whether Reeves' harassment interfered with his victims' conditions of employment. “[T]he test is not whether work has been impaired, but whether working conditions have been discriminatorily altered.” Harris, 510 U.S. at 25 (Scalia, J., concurring). A plaintiff need only prove the harassment made it more difficult to do the job. See id. (Ginsburg, J., concurring); see also Steiner v. Showboat Operating Co., 25 F.3d 1459, 1463 (9th Cir. 1994) (abusive sexual conduct violates Title VII “if such hostile conduct pollutes the victim's workplace, making it more difficult for her to do her job, to take pride in her work, and to desire to stay on in her position”). The Commission's evidence would support a finding that Reeves' harassment made it more difficult for his victims to do their jobs, take pride in their work, and desire to remain employed. For instance, Reeves' comments offended and upset Jacobson, she felt “weird” being in a room with him and avoided him, and he told dirty jokes in her office that angered her, causing her to leave her office. RE240, RE249, RE355, RE277, RE54, RE22. Reeves' conduct made Wilkerson feel “uncomfortable coming to work and having to see Reeves,” and because she feared he would touch her again, she reduced her contact with Reeves from ten to five minutes a day and actively avoided him, although she was the office coordinator. RE318-21. Reeves' conduct made Liao dislike going to work, and she tried to avoid Reeves by using the back door at lunch and at the end of the day. RE274. Reeves' conduct also made Liao want to quit, which she eventually did. RE253. Catuira felt uncomfortable with Reeves and tried to avoid him. RE218, RE225. Preciado felt stress. RE289. In sum, the district court erred by dismantling the EEOC's claim victim-by-victim and incident-by-incident, “which robbed the incidents of their cumulative effect.” Williams, 187 F.3d at 561. The EEOC's evidence showed that the victims worked in a small office where they encountered their harasser, who had ultimate firing and hiring authority, on a daily basis and were subjected to a working environment they knew to be polluted by sexual comments and advances, dirty jokes, unwanted touching, comments about their bodies, and leering. “‘[B]y focusing only on the specific incidents'” the court failed “‘to capture the residual and cumulative effect that [Reeve]'s campaign of harassment had on [his victim]s' working conditions.'” Crowley v. L.L. Bean, Inc., 303 F. 3d 387, 400 (1st Cir. 2002) (citation omitted). B. The EEOC's Evidence was Sufficient to Establish that Each Victim Subjectively Perceived the Environment as Abusive. The EEOC offered more than enough evidence to support a finding that each victim subjectively perceived the environment as abusive. Although the district court's finding on this issue seemed to turn on the victims' failure to complain to Reeves or others, “the subjective component of the prima facie case does not require that a plaintiff report a hostile work environment.” Williams, 187 F.2d at 566. Furthermore, the victims were understandably reluctant to complain to Reeves about his harassing behavior since he was the boss. See id. (“Williams's reluctance to report the incidents is entirely understandable considering that one of the alleged aggressors was her supervisor and she wanted to get along at work.”) (citation omitted). While the district court emphasized that Wilkerson and Jacobson did not receive any counseling, RE383, RE391, Title VII does not require psychological harm. See Harris, 510 U.S. at 23. As discussed, supra, all five of the victims testified to feeling uncomfortable or “weird” around Reeves and most tried to avoid him. In addition, Preciado testified that Reeves' staring caused her stress. RE289. Wilkerson called working in the office “hell” and felt sexually harassed and demeaned. RE337, RE339-40. According to Rodriguez, Liao returned to their hotel room “upset, fighting tears” after Reeves hit on her. RE362, ¶7. Liao testified that because of the sexually charged atmosphere, she wanted to quit and that the harassment made it an effort to get up in the morning to go to work. RE253, RE272. Jacobson felt upset and sometimes cried because of Reeves' conduct. RE355. Reeves' comment about her breasts made her “extremely upset.” RE363, ¶9, RE54. She even put a copy of the sexual harassment policy in Reeves' box. RE355. This evidence is more than sufficient to show that the victims subjectively perceived their environment as abusive. See Draper, 147 F.3d at 1106 (stating that Draper “felt uncomfortable, angry, and humiliated much of the time” and reversing summary judgment on hostile environment claim); Dey v. Colt Const. & Dev. Co., 28 F.3d 1446, 1454 (7th Cir. 1994) (plaintiff established factual question whether she subjectively perceived environment as abusive where conduct “upset and embarrassed her[,] . . . made her . . . uncomfortable,” and caused her “on more than one occasion” to leave harasser's office, even though “daily sexual banter did not prevent her from fulfilling her responsibilities in a timely manner”). Finally, the district court erred in essentially holding the EEOC to the higher standard of showing constructive discharge by reasoning that because the harassment did not cause the victims to quit, they did not think they were harassed. See RE63 (“When Catuira left Defendant, it was to go to school.”); RE68 (“Preciado . . . interviewed for other jobs, received an offer, but didn't accept”); RE388 (stating that Liao never sought employment prior to leaving to start own firm); RE389 (noting that Jacobson left to teach, to be of-counsel, and because Hanlon and Greene left). Since the EEOC did not bring a constructive discharge claim, the EEOC did not have to show that Reeves & Associates intentionally created or knowingly permitted conditions so intolerable that they effectively forced the victims' resignation. See Draper, 147 F.3d at 1110. Instead, the EEOC simply had to show that “working conditions had been discriminatorily altered.” Harris, 510 U.S. at 25 (J. Scalia, concurring). In sum, the EEOC presented evidence that Reeves' victims felt uncomfortable around him and that they tried to avoid him. The EEOC also offered evidence that Reeves' conduct caused them stress, made them upset, made them feel sexually harassed and demeaned, made them angry, and made them dislike being at work. Under Title VII and this Court's precedent, this evidence was sufficient to satisfy the subjective element of the EEOC's hostile work environment claim. See Draper, 147 F.3d at 1106. III. THE EEOC'S ACTION WAS NOT FRIVOLOUS, UNREASONABLE, OR WITHOUT FOUNDATION, AND THE DISTRICT COURT THEREFORE ABUSED ITS DISCRETION IN AWARDING FEES UNDER TITLE VII. “Attorneys' fees in civil rights cases should only be awarded to a defendant in exceptional circumstances.” Barry v. Fowler, 902 F.2d 770, 773 (9th Cir. 1990) (citation omitted). This is not one of them. Here, the district court abused its discretion by mischaracterizing the proceedings below, fundamentally misunderstanding the nature of the EEOC's authority and this lawsuit, and by misapplying the Christiansburg standard, which permits fees to be awarded to prevailing defendants only “upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation.” Christiansburg, 434 U.S. at 421; see Bruno's, 13 F.3d at 287 (award of fees under Title VII reviewed for abuse of discretion). Therefore, this Court should reverse the district court's award of attorney's fees. A. The EEOC's Action Was Not Frivolous, Unreasonable or Without Foundation As discussed in Sections I and II, the EEOC established a genuine issue of material fact as to its pregnancy discrimination and hostile work environment claims, precluding an award of fees. Even if this Court affirms the district court's dismissal of the EEOC's case, the district court's award of fees constitutes an abuse of discretion, however, because the EEOC had a sufficiently plausible case to clear the minimal evidentiary threshold imposed under the Supreme Court's Christiansburg standard. See Hughes v. Rowe, 449 U.S. 5, 15-16 (1980) (“Allegations that, upon careful examination, prove legally insufficient to require a trial are not, for that reason alone, ‘groundless' or ‘without foundation' as required by Christiansburg.”); Barry, 902 F.2d at 771 n.2, 773 (reversing fee award although district court granted directed verdict on plaintiff's civil rights action). The EEOC has only two claims in this lawsuit – one for pregnancy discrimination and one for sexual harassment. The pregnancy discrimination claim cannot be seen as groundless, even if ultimately unsuccessful, where the EEOC reasonably believed that Reeves fired or threatened to fire three pregnant receptionists for reasons the EEOC believed were untrue. See Bruno's Rest., 13 F.3d at 289. Furthermore, the district court's conclusion that the EEOC's “claims” “on behalf of” Catuira, Wilkerson, and Jacobson were not frivolous, unreasonable, or without foundation, necessarily means that even the district court thought the EEOC's hostile work environment claim had some merit. RE498-502. In a case involving multiple victims, the failure to establish liability or damages as to some victims does not render the overall claim frivolous. Put another way, if there is merit to the “claims” of some of the victims, the harassment claim itself, of which the individual claims for relief are a subset, cannot be frivolous. Therefore, even if this Court affirms summary judgment, the district court's finding that the EEOC had some basis for believing Reeves' conduct towards Catuira, Wilkerson, and Jacobson constituted sexual harassment precludes an award of fees under Christiansburg as to the EEOC's hostile work environment claim. See EEOC v. Kenneth Balk & Assoc., 813 F.2d 197, 198 (8th Cir. 1987) (“however unpersuasive the EEOC' evidence ultimately proved to be, this evidence provided ‘some basis' for the EEOC's claim. Accordingly, the district court misapplied the Christiansburg standard”); EEOC v. Reichhold Chemicals, Inc., 988 F.2d 1564, 1571 (11th Cir. 1993) (“[E]ven if the EEOC did not provide adequate evidence to support this charge, it met the Christiansburg burden because the claim was not baseless.”). B. Investigation and Reasonable Cause Whatever this Court's finding as to whether the EEOC's lawsuit was frivolous, unreasonable, or without foundation, this Court need not separately consider the EEOC's pre-suit conduct because the agency's investigation and finding of reasonable cause are matters within the EEOC's discretion that do not adjudicate rights or liabilities. See EEOC v. Keco, 748 F.2d 1097, 1100 (6th Cir. 1984) (“It was error for the district court to inquire into the sufficiency of the Commission's investigation.”). An investigation merely enables the EEOC to make a cause determination, which in turn provides notice to the employer and provides a basis for conciliation. “If the charge is not meritorious, procedures are available to secure relief, i.e., a de novo trial in the district court.” See Keco, 748 F.2d at 1100 (citation omitted). Thus, any defects in the EEOC's investigation or reasonable cause determination relevant to the Christiansburg standard would necessarily resurface in an analysis of whether the EEOC's lawsuit was frivolous, unreasonable, or without foundation, making it redundant to apply the Christiansburg standard by analyzing the EEOC's pre-suit conduct as well as the suit itself. Finally, even if the EEOC's investigation and cause determination can be considered under Christiansburg, the district court abused its discretion in awarding fees because, as discussed supra at pp. 18-22, the investigation was thorough and supported the finding of reasonable cause. C. Conciliation The district court erred in resting its fee award on its view that the EEOC failed “to adequately attempt to conciliate the claims.” RE495. While this Court has awarded attorney's fees against the EEOC for failing to conciliate, the court has only done so when the EEOC has failed to conduct any investigation or to make any reasonable cause determination. See EEOC v. Pierce Packing Co., 669 F.2d 605, 607-09 (9th Cir. 1982). Here, in contrast, the record demonstrates that the EEOC investigated, made a reasonable cause determination, and reasonably believed that its conciliation efforts were adequate. Therefore, the district court abused its discretion in awarding fees for an alleged failure to attempt conciliation. See Bruno's, 13 F.3d at 289 (holding that EEOC could reasonably believe its conciliation efforts were adequate where defendant refused to engage in discussions about individual claim in pattern and practice case). In determining the adequacy of conciliation, Reeves & Associates' conduct must also be considered. See EEOC v. Prudential Fed. Sav. & Loan Ass'n, 763 F.2d 1166, 1169 (10th Cir. 1985) (“Courts have recognized that ‘[b]ecause conciliation involves at least two parties, we must evaluate one party's efforts with an eye to the conduct of the other party.'”) (citation omitted). Based on her conversation with Reeves and counsel's July 21, 2000 letter, investigator Kinzel-Barnes reasonably believed that Reeves & Associates was not interested in conciliation at all. RE173. Reeves & Associates did not respond to the July 5, 2000 letter with a counter-offer, a request to conciliate in person, a request for an extension of time, an inquiry about the number of victims, or even a statement that it was interested in conciliation.<14> Instead, Reeves & Associates reiterated its objection to the EEOC's sexual harassment investigation and rejected the EEOC's July 5, 2000 settlement proposal.<15> RE447. Had Reeves & Associates been serious about conciliation, and genuinely believed that the EEOC had prematurely concluded that conciliation had failed, Reeves & Associates could have contacted the EEOC after receiving its August 3, 2000 failure-of-conciliation letter and requested that conciliation resume. Moreover, conciliation is not designed to allow an employer to contest the soundness of the EEOC's reasonable cause finding or engage in a mini-adjudication of the EEOC's authority. Instead, conciliation is designed to provide an employer the opportunity to resolve a claim before the EEOC files suit. The EEOC did this. Since “[t]he EEOC is under no duty to attempt further conciliation after an employer rejects its offer,” Keco, 748 F.2d at 1101-02, and because Reeves & Associates rejected the EEOC's offer and never indicated through conduct or correspondence that it wanted to conciliate, the EEOC reasonably believed its conciliation attempt had failed. See Bruno's, 13 F.3d at 289. Finally, Reeves & Associates cannot argue that it was prejudiced by any alleged inadequacy in conciliation since, by its own admission, it made a settlement offer as late as July 2001 and engaged in a settlement conference in January 2002, neither of which produced a settlement. RE433, ¶10. D. Litigation Conduct The district court's award of fees for the EEOC's alleged discovery misconduct is particularly inappropriate in this case because the magistrate judge – who was in the best position to determine whether the EEOC actually engaged in any misconduct – never awarded any sanctions against the EEOC. Contrary to what the district court stated, RE491, the magistrate judge explicitly declined to issue “terminating sanctions” in response to Reeves & Associates' motion.<16> RE95. While the magistrate judge stated that “in many respects the EEOC did not comply with this Court's order of August 6, 2001,” he stated that “monetary sanctions of $2000 per day, as requested by Defendant, are unwarranted.” RE95. The magistrate judge continued, “As for ‘terminating sanctions' requested by Defendant, the Court finds those inappropriate, if Defendant means that Judgment should be entered in favor of Defendant because of Plaintiff's violation of this Court's order of August 6, 2001.” RE95. Based on the EEOC's representation that it would not rely on any incidents concerning Arai, Wang, or Eum as proof of its claim, the magistrate judge precluded the EEOC “from offering into evidence at trial any incident concerning” them, but allowed the EEOC to call them as “witnesses to incidents involving others.” RE92. The magistrate judge concluded that “‘preclusion' sanctions” were not warranted with respect to any other testimony. RE94. Finally, the magistrate judge stated that “inadvertence, sloppiness and witness inconsistency appear to have combined to produce answers that in many cases are not entirely satisfactory,” but that attorney's fees were not warranted. RE94. Thus, the district court improperly gave Reeves & Associates two bites at the apple by awarding fees for conduct the magistrate judge explicitly found not warranting “terminating sanctions,” monetary sanctions, or fees. As for the EEOC's refusal to dismiss certain “claimants,” RE491-92, the district court's finding reflects a misunderstanding of the EEOC's authority and its relationship to discrimination victims. The EEOC is a federal agency charged with vindicating the public interest – not a private attorney representing a group of plaintiffs. See, e.g., General Tel. Co. of the Northwest, Inc. v. EEOC, 446 U.S. 318, 326 (1980) (“When the EEOC acts, albeit at the behest of and for the benefit of specific individuals, it acts also to vindicate the public interest in preventing employment discrimination.”); EEOC v. Waffle House, Inc., 534 U.S. 279, – , 122 S. Ct. 754, 763 (2002) (stating that EEOC is “the master of its own case” and holding that EEOC can prosecute even where charging party signed arbitration agreement). Since the victims for whom the EEOC seeks relief are not parties to the action, there is no technical way they can be “dismissed” from the suit, and the EEOC's representation that it would not be pursuing the claims for relief on behalf of Wang, Arai, and Eum was sufficient. The district court's misunderstanding of the EEOC's authority and the facts of this case also led it to improperly conclude that the EEOC's investigation of an EPA violation as to Arai was improper and warranted attorney's fees. RE490-92. Here, the EEOC learned that Reeves & Associates had potentially violated the EPA by having Arai sign a release prohibiting her from filing suit or initiating administrative proceedings or from even participating in any administrative proceedings or lawsuits against Reeves & Associates. RE7, ¶5. Such a waiver violates public policy and the EPA. See, e.g. EEOC v. Astra USA, Inc., 94 F.3d 738, 743-44 (1st Cir. 1996); EEOC v. Cosmair, Inc., 821 F.2d 1085, 1090 (5th Cir. 1987); 29 U.S.C. § 215(a)(3) (anti-retaliation provision of EPA). Because the EEOC cannot turn a blind eye towards violations of the statutes it enforces, DNRE475, ¶8, the EEOC initiated a separate investigation and issued a separate director's charge.<17> RE467, ¶14. The EEOC explained the independent nature of the charge to the district court, stating, “[T]his is a matter that is not a part of the litigation before us.” RE512. Therefore, the EPA investigation and charge cannot properly justify the fee award. Even if the EPA investigation can be considered, the EEOC's actions do not warrant fees. The court clearly erred when it faulted the EEOC for initiating the EPA investigation on the grounds that Arai signed a release, never complained to the EEOC, and had refused to consent to the investigation. RE490. Since the EPA does not contain a charge-filing requirement, the EEOC did not need Arai's consent to investigate a potential EPA violation. See 29 U.S.C. § 211(a). The district court also misunderstood what occurred during discovery when it stated that “[t]he EEOC pursued the EPA claim with what appeared to be improper discovery tactics by filing a motion to compel discovery of irrelevant and improper information (e.g., social security numbers of third parties not involved in this action, among others), which led Magistrate Judge Zarefsky to issue a sua sponte order of protection.” RE490-91. In fact, the EEOC's request for the social security numbers of Reeves & Associates' employees was related to this action – not to investigation of the EPA charge – and the district court failed to cite anything in the record to the contrary. Moreover, the district court's own order on reconsideration of the protective order makes no finding that the EEOC's request for social security numbers and other information was related to the EPA charge. DN73. E. Even if Fees are Warranted, the District Court Erred in Calculating the Amount. Even if fees should be awarded, the district court improperly calculated the award. “[A] party seeking an award of fees should submit evidence supporting the hours worked and rates claimed,” and a court may reduce a fee award “[w]here the documentation of hours is inadequate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). As the EEOC argued below, Reeves & Associates failed to submit sufficient evidence to support its request for fees. While attorney Richard Wilner's affidavit states that he is “sometimes required to counsel my corporate clients on labor and employment law as they arise in the context of immigration,” this vague assertion is insufficient to justify $250 an hour for an associate who received his J.D. in 1995 and was admitted to practice in 1996, and whose “firm practices immigration and nationality law exclusively.” RE439, ¶6. At most, Wilner's hourly fee should equal that of John Schaedel, an associate attorney admitted in 1995 whose “practice has been devoted exclusively to labor and employment law” for “virtually his entire legal career,” and whose hourly rate is $190 an hour. RE431, ¶7 (emphasis added). Although the district court reduced Wilner's fees by 30% to account for duplicative billing, the court failed to state why it did so. RE509; see Corder v. Gates, 947 F.2d 374, 380 (9th Cir. 1991) (“district courts must clearly articulate sound reasons in support of their fee awards”) (citation omitted). According to Wilner and Schaedel's declarations, Schaedel attended or read each deposition transcript taken by Reeves & Associates, and Wilner attended all but two of Reeves & Associates' depositions, RE428, ¶3 & RE437, ¶3, and performed many of the same tasks. Compare RE428, ¶4 & RE437, ¶4. Since the court failed to consider properly the EEOC's claim of duplicative billing, this Court should remand this case to the district court to make the appropriate findings. Finally, the court abused its discretion in not reducing the fee award by hours billed to defend against the EPA charge, which, as discussed above, is not a part of this lawsuit. CONCLUSION This Court should reverse the district court's entry of summary judgment in favor of Reeves & Associates on the EEOC's claims of pregnancy discrimination and hostile work environment, reverse the district court's award of attorney's fees and costs, and remand this case for trial. Respectfully submitted, NICHOLAS M. INZEO Acting Deputy General Counsel Attorney PHILIP SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ___________________________________ ANNE NOEL OCCHIALINO Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4724 STATEMENT OF RELATED CASES This consolidated appeal (Civ. No. 02-56179 and Civ. No. 02-55928) is not related to any other known case pending in this Court. CERTIFICATE OF SERVICE I, Anne Noel Occhialino, hereby certify that I served two copies of the foregoing brief, this 14th day of November, 2002 by Fed Ex, postage pre-paid, to the following: Richard M. Wilner Robert L. Reeves & Associates 2 N. Lake Ave., Suite 950 Pasadena, CA 91101 Courtesy Copy also sent to: David Gurnick, Esq. Suite 244 ARTER & HADDEN, LLP 5959 Topanga Canyon Boulevard Woodland Hills, CA 91367 ______________________ ANNE NOEL OCCHIALINO Attorney EEOC, Office of General Counsel 1801 L Street, N.W., Washington, D.C. 20507 (202) 663-4724 November 14, 2002 1 “RE” refers to the record excerpts. 2 The Commission does not challenge the district court's rejection of the Commission's claim for relief for two of the pregnant receptionists, Rowena Silva and Judith Quilaton, and thus omits discussion of the evidence of Reeves' treatment of these women. 3 Similarly, after Reeves fired Judith Quilaton, another pregnant receptionist, Quilaton was told that other women had been fired because of pregnancy; Marcelo also told Quilaton that there was a “pattern” of terminating pregnant women. RE176-77. 4 On June 30, 1999, Hanlon and Greene left to start their own firm. In Reeves v. Hanlon, Reeves & Associates obtained a $200,000 judgment against Hanlon and Greene, jointly and severally with their corporation. RE449. 5 Although Wilkerson did not follow Martinez' advice, she received the promotion. RE332. 6 In her interrogatory response, Wilkerson stated that Chang was a secretary. RE327. 7 The caller told Kinzel-Barnes that Hanlon and Greene had left the firm. RE158. 8 Kinzel-Barnes' testimony suggests she knew the cap is $50,000 per claimant for an employer the size of Reeves & Associates and that she did not realize she mistakenly requested $100,000 per claimant in the letter. RE170. 9 As to Quilaton and Silva, see supra n.2. 10 The district court's failure to adhere to the summary judgment standard is perhaps best exemplified by the court's verbatim adoption of Reeves & Associates' Proposed Statement of Facts and Conclusions of Law as to All Claims, making only six minor changes, including crossing out the word “Proposed” on the first page. See Wyler Summit P'Ship v. Turner Broadcasting System, Inc., 235 F.3d 1184, 1196 (9th Cir. 2000) (“We have frowned upon the practice of adopting counsel's proposed orders verbatim because it raises the possibility that there was insufficient independent evaluation of the evidence and may cause the losing party to believe that its position has not been given the consideration it deserves.”) (citations omitted). 11 Because the district court concluded that the EEOC had failed to establish a prima facie case, the court did not discuss pretext. As the discussion in the text demonstrates, affirmance of the summary judgment ruling on this alternative basis would be improper. 12 In its Statement of Facts & Conclusions of Law, the district court stated that “Saez claims she was concerned about making photocopies because she was pregnant, but she never refused to do so.” RE402. The cited deposition pages, however, do not support the factual assertion that she was concerned about making photocopies. To the contrary, Saez explicitly testified that nothing about her pregnancy prevented her from photocopying. RE186. 13 Chang apparently visited Reeves' in his office several times. RE328. 14 Nor did Reeves & Associates point out that the EEOC had mistakenly requested twice the statutory cap for compensatory and punitive damages, undermining any claim that conciliation failed because of the error. 15 The EEOC has no duty to identify the victims of harassment during conciliation. See EEOC v. Dial Corp., 156 F. Supp. 2d 926, 942 (N.D. Ill. 2001) (“I simply am not convinced that the EEOC['s] failure to identify every class member during the conciliation process rendered [ ] its efforts to conciliate inadequate.”); EEOC v. Jordan Graphics, Inc., 769 F. Supp. 1357, 1361 (W.D. N.C. 1991) (“It is immaterial that the EEOC did not specifically state in the determination letter all of the alleged discriminatory practices and all of the class members. What is material is whether Defendant was provided with an opportunity to conciliate.”) (citations omitted). Requiring the EEOC to identify victims before litigation is approved runs the risk of needlessly inviting retaliation and overlooks the fact that discovery is the tool by which the EEOC learns the identity of many discrimination victims. 16 Reeves & Associates first requested Rule 37 sanctions in a September 14, 2001 motion that the magistrate judge denied without prejudice for failure to give proper notice. DN120, DN121, DN144. 17 The EEOC has not yet issued an LOD.