EEOC v. RPH Management, Inc., d/b/a McDonald's (11th Cir.) Brief as appellee Jan. 9, 2006 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _______________________ No. 05-15457-GG _______________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. RPH MANAGEMENT, INC., d/b/a McDONALD'S, Defendant-Appellant. ____________________________________________________ On Appeal from the United States District Court for the Northern District of Alabama ____________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE ____________________________________________________ JAMES L. LEE Deputy General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel PAUL D. RAMSHAW Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7040 Washington, DC 20507 (202) 663-4737 Paul.Ramshaw@eeoc.gov CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record for the EEOC, plaintiff/appellee/cross- appellant, certifies that the following listed persons and parties have an interest in the outcome of this case: Armstrong, the Hon. Robert R., Jr., United States Magistrate Judge Barkley, Justin A., attorney for appellant RPH Barrett, Mason D., former attorney for appellee EEOC Blackwood, Vincent J., attorney for appellee EEOC Chubb Group of Insurance Companies, insurer of appellant RPH DeLeonardo, Prisca M., former attorney for appellee EEOC Equal Employment Opportunity Commission, appellee Guerrier, Charles E., former attorney for appellee EEOC Hanna, Richard P., president of appellant RPH Harbuck, Jonathan S., former attorney for appellant RPH Inzeo, Nicholas M., former attorney for appellee EEOC Johnston Barton Proctor & Powell LLP, law firm for appellant RPH Kullman Firm, PLC, former law firm for appellant RPH Lee, James L., Deputy General Counsel for appellee EEOC Lindsay, Heather F., attorney for appellant RPH McDonald's Corporation, franchisor of the appellant RPH Powell, Charles A., III, attorney for appellant RPH Ramshaw, Paul D., attorney for appellee EEOC Robichaud, Samantha, charging party/plaintiff-intervenor RPH Management, Inc., d/b/a McDonald's, appellant Reams, Gwendolyn Young, former attorney for appellee EEOC Smith, the Hon. C. Lynwood, Jr., United States District Judge Wheeler, Carolyn L., attorney for appellee EEOC ______________________________ Paul D. Ramshaw Attorney for appellee EEOC Equal Employment Opportunity Commission 1801 L St., NW, Room 7040 Washington, DC 20507 202-663-4737 (voice) 202-663-7090 (fax) Paul.Ramshaw@eeoc.gov TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS C-1 TABLE OF CONTENTS ii TABLE OF AUTHORITIES iv STATEMENT OF JURISDICTION 1 STATEMENT OF THE ISSUES 1 STATEMENT OF THE CASE 2 A. Nature of the Case. . . . . . . . . . . . . . . . . . . . . . . . 2 B. Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . 2 C. District Court's Decision . . . . . . . . . . . . . . . . . . . .11 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . .13 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 I.STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . 14 II. THE DISTRICT COURT'S DECISION DENYING FEES UNDER THE ADA WAS WELL WITHIN ITS DISCRETION. . . . . . . . . . . . . . . .15 A. The district court applied the correct legal standard.. . . . . .15 B. The district court applied the standard properly. . . . . . . . .24 II. THE DISTRICT COURT ACTED WELL WITHIN ITS DISCRETION IN DENYING FEES UNDER § 1927 AND RULE 11.. . . . . . . . .33 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . .38 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Cases Baker v. Alderman, 158 F.3d 516 (11th Cir. 1998) . . . . . . . . . . . . . .15 Bonner v. City of Prichard, 661 F.2d 1206 . . . . . . . . . . . . . . . . .21 Byrne v. Nezhat, 261 F.3d 1075 (11th Cir. 2001) . . . . . . . . . . . . 23, 35 * Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S. Ct. 694 (1978)passim Cordova v. Dillard's, Inc., 419 F.3d 1169 (11th Cir. 2005) . . .14, 15, 17, 35 EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256 (11th Cir. 2003) . . . . passim EEOC v. Bruno's Restaurant, 13 F.3d 285 (9th Cir. 1992) . . . . . . . . . . 19 EEOC v. Johnson & Higgins, Inc., 91 F.3d 1529 (2d Cir. 1996) . . . . . . . .25 EEOC v. Klinger Elec. Corp., 636 F.2d 104 (5th Cir. Feb. 5, 1981) . 21, 22, 31 EEOC v. Magnolia Electric Power Ass'n, 635 F.2d 375 (5th Cir. Jan. 26, 1981).30 EEOC v. Pet, Inc., 612 F.2d 1001 (5th Cir. Mar. 3, 1980) (per curiam) . 21, 31 EEOC v. Pierce Packing Co., 669 F.2d 605 (9th Cir. 1982)11 EEOC v. Zia Co., 582 F.2d 527 (10th Cir. 1978) . . . . . . . . . . . . . . .31 Head v. Medford, 62 F.3d 351 (11th Cir. 1995) . . . . . . . . . . . . . . . 32 Hughes v. Rowe, 449 U.S. 5 (1980)32, . . . . . . . . . . . . . . . . . . . 34 Lauricia v. MicroStrategy Inc., 114 F. Supp. 2d 489 (E.D. Va. 2000), rev'd, 268 F.3d 244 (4th Cir. 2001) . . . . . . . . . . . . . . . . . . . .25 Marshall v. Sun Oil Co., 605 F.2d 1331 (5th Cir. 1979) . . . . . . . . . . .24 Pelletier v. Zweifel, 921 F.2d 1465 (11th Cir. 1991) . . . . . . . . . . . .35 Quintana v. Jenne, 414 F.3d 1306 (11th Cir. 2005) . . . . . . . . . . . . . 17 Schwartz v. Millon Air, Inc., 341 F.3d 1220 (11th Cir. 2003) . . . . . .15, 34 Sullivan v. School Board, 773 F.2d 1182 (11th Cir. 1985) . . . . . . . . . .18 Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982) . . . . . . . . . .30 Statutes 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . 1 § 1331 . . . . . . . . . . . . . . . . . . 1 § 1343(a)(4) . . . . . . . . . . . . . . . 1 § 1345 . . . . . . . . . . . . . . . . . . 1 § 1927 . . . . . . . . . . .1, 14, 15, 33-35 42 U.S.C. § 1988 . . . . . . . . . . . . . . . .32, 34 § 2000e-5(b) . . . . . . . . . . . . . . .20 § 2000e-5(f)(1) . . . . . . . . . . . 21, 31 § 2000e-5(f)(3) . . . . . . . . . . . . . .1 § 2000e-5(k) . . . . . . . 1, 12, 13, 23, 34 § 12111 et seq. . . . . . . . . . . . . . 2 § 12117(a) . . . . . . . . . . . . . . . .20 § 12205 . . . . . . . . . . . . . . . .1, 13 Rules Federal Rule of Civil Procedure 11 . . . . . . . 1, 14, 15, 33, 35-36 Miscellaneous Lindemann, Barbara, & Paul Grossman, Employment Discrimination Law (3d ed. 1996) . . . . . . . . . . . . . . . . . . . . . . . . .24 STATEMENT OF JURISDICTION The district court had jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1343(a)(4) and 1345, and 42 U.S.C. §§ 2000e-5(f)(3) and 12117. The district court dismissed the claims brought by the Equal Employment Opportunity Commission on August 11, 2004, and the court entered an order on May 3, 2005, dismissing the plaintiff-intervenor's claims pursuant to a stipulated settlement. Docket entry 57 ("R-57"), R-79. The court entered an order on September 2, 2005, denying the defendant's motion for attorney's fees and sanctions against the Commission, and closed the case. R-89, R-90. On September 30, 2005, the defendant filed a timely notice of appeal from the September 2 order. R-91. This court has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. STATEMENT OF THE ISSUES 1. Whether the district court acted within its discretion when it found the Commission's action was not frivolous and denied the defendant's request for attorney's fees under § 12205 of the ADA and § 706(k) of Title VII. 2. Whether the district court acted within its discretion when it found the Commission's action was not frivolous and denied the defendant's request for attorney's fees under 28 U.S.C. § 1927 and its request for sanctions under Fed. R. Civ. P. 11. STATEMENT OF THE CASE A. Nature of the Case This is an appeal from an order denying the defendant's request for attorney's fees and sanctions in this enforcement action under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12111 et seq. The Equal Employment Opportunity Commission filed a complaint on March 6, 2003, alleging that the defendant violated the ADA by failing to promote and constructively discharging Samantha Robichaud because of her disability. R-1. The district court granted Robichaud's request to intervene in June 2003. R-21. The district court dismissed the Commission's complaint in August 2004, holding that the agency failed to satisfy the statutory conciliation requirement. R-53, R-57. The court dismissed Robichaud's complaint in May 2005 pursuant to a stipulated settlement between Robichaud and the defendant. R-79. In September 2005 the district court denied the defendant's motion seeking attorney fees and sanctions against the Commission. R-89. B. Statement of Facts RPH Management owns and operates several McDonald's fast-food franchises. Samantha Robichaud began working at one of RPH's restaurants in August 2000. R-10, Exhibit E ("R-10-E"), attached page marked "P28." Robichaud was born with Sturge Weber syndrome, evidenced by a port-wine- colored birthmark covering much of her face. Robichaud left her job in January 2001 and filed a charge with the EEOC on April 2, 2001, alleging that RPH discriminated against her by failing to consider her for promotion, harassing her, and constructively discharging her, all due to her perceived disability, her facial disfigurement. R-16-B. Brenda Owens was assigned to investigate the complaint for the EEOC. R-97-2, p. 11. On August 30, 2001, after reviewing information RPH had provided and conducting further investigation, she prepared an investigator's memorandum, which her supervisor reviewed and approved. R-16- A, ¶ 4c. Owens testified that she conducted a telephonic pre-determination interview on September 5, 2001, with Richard Hanna, RPH's president, informing him of the agency's proposed findings and inviting him to submit rebuttal evidence. R-16-A, ¶ 4c. On September 10, the director of the Commission's Birmingham office issued a letter of determination finding reasonable cause to believe that violations had occurred. R-10-D. In the letter, the Commission found that although RPH management was aware that Robichaud was continually subjected at work to demeaning and derogatory comments relating to her facial disfigurement, the company failed to take steps to stop it. R-10-D. The Commission also found that Robichaud was denied promotion to a management position because of her disability. The Commission had evidence that an RPH manager told Robichaud that, due to her disfigurement, she would not be promoted to a management position, and that "the store owner, Rick Hanna, did not want [her] to be a manager because he felt like [she] was detrimental to the business." R-16-B; R- 10-D. The investigation revealed no evidence of documented performance problems. R-10-D. In the letter transmitting the EEOC's determination, the director invited RPH to participate in conciliation by, among other things, proposing a conciliation agreement by Monday, September 24. R-16-A, ¶ 4d. On Wednesday, September 19, Jonathan Harbuck, RPH's attorney, left a telephone message for Owens about conciliation. That same day Owens returned the call (at a time when Harbuck happened to be busy) and left a message. Owens informed her supervisor, Leon Kennedy, about Harbuck's call and asked Kennedy to contact Harbuck. R-16-A, ¶ 4e. On Monday, September 24, Owens received a letter (that the district office had received on Friday) from Harbuck dated September 12. R-16-A, ¶ 4e. The letter requested more time to respond to the invitation to conciliate. R-10-C. Owens called Harbuck that day, and Harbuck told her that Kennedy had already given him an extension until Friday, September 28. R-16-A, ¶ 4e. On Thursday, September 27, Harbuck delivered a letter to the district office setting forth RPH's view of the case. R-16-A, ¶ 4e; R-10-E. The letter states that Harbuck's personal investigation revealed that: (a) Robichaud had not been harassed or constructively discharged; and (b) the reason Robichaud had not been promoted to swing manager before she left was that she had not mastered the duties of the drive-through-window position. Harbuck nonetheless offered to settle the matter for back pay of about $6,090, less Robichaud's interim earnings, if any, during the relevant period. According to the letter, the company decided not to offer any damages for pain and suffering in part because of Robichaud's "statement to her manager that she has accommodated herself to negative public reactions [to her disfigurement] for her entire life." R-10-E. Owens immediately transmitted RPH's offer to Robichaud, telling her how much RPH had offered and how that figure had been calculated. R-97-1, pp. 33- 35. Robichaud rejected the offer, saying, "Absolutely no way!" R-97-1, p. 35. Robichaud told Owens that she considered the offer an insult, and that she wanted more for pain and suffering. R-16B ("EEOC Submission of Evidence for In Camera Review"), Conciliation Log ("Concil. Log"), p. 2; R-97-2, pp. 82, 97. Robichaud testified repeatedly that hearing about the low offer felt like being slapped or kicked in the face. R-97-1, pp. 36, 42, 58, 61. Robichaud told Owens she would contact her attorney and submit a written rejection of the offer. R-16B- 2, Concil. log, p. 2; R-97-2, p. 97. The next day, Friday, September 28, Owens received a letter from Robichaud's attorney, Wilbor Hust, stating that RPH's offer "is unacceptable to my client and she has no counter offer at this time." R-16B-2, Concil. log, p. 2; and R-16B-4, 9/28/01 Hust letter. Hust asked the EEOC to "issue the appropriate ‘right to sue' letter so that we can proceed to protect her interest in court." R-16B-4, 9/28/01 Hust letter.<1> That same day, acting on the basis of Robichaud's reaction to RPH's offer and Hust's letter, Owens recommended that the Commission declare the conciliation unsuccessful. R-16B-2, Concil. Log, p. 2. In her deposition Owens testified that the Commission had trained her periodically in how to conduct conciliation, but she did not recall being trained in positional bargaining, or being taught that during negotiations employers will often start with an offer lower than the amount for which they are later willing to settle. R-97-2, pp. 13-14. Owens believed that the EEOC's primary role during conciliation is to facilitate communication between the charging party and the employer. R-97-2, pp. 122-23; R-97-3, p. 151. She indicated that the conciliation process depends on the willing participation of the two parties, and testified that if, as she believed had happened here, the charging party decisively rejects the employer's offer, states that she is unwilling to make a counter-offer, and asks the Commission to issue her a right- to-sue notice so she can go to court, the agency should usually consider further conciliation futile. R-97-2, pp. 37-39, 90, 96. Allen Gosa, who has worked for the Commission for over 30 years and has supervised intake, investigations, and conciliations, testified that: (a) investigators are trained to know that respondents will start low and charging parties will start high, and to evaluate those proposals and try to bring the parties together; (b) the investigator should give the employer an idea of what the Commission would consider a reasonable settlement, and if the employer makes an offer, the investigator should usually evaluate it; (c) the conciliation agreement must be acceptable to the EEOC as well as to the employer and the charging party; and (d) when the charging party has been unreasonable, the agency has on rare occasions entered a conciliation agreement with only the employer. R-97-5, pp. 23-25, 28- 31, 41-42, 49, 58-62. Later on September 28, Kennedy, Owens's supervisor, approved her recommendation to fail conciliation. R-97-4, pp. 55-56.<2> September 28 was the last business day in the EEOC's fiscal year, and Kennedy instructed his investigators to close as many cases as possible before the fiscal year ended. R- 97-4, pp. 68-69. Kennedy agreed with Owens that it was common for the Commission to fail conciliation if either party indicated that it was unwilling to pursue the process further, and that in this case he read Hust's letter as saying, "We don't want to negotiate with these people anymore." R-97-4, pp. 55-56, 76- 77. On Sunday, September 30, the district office enforcement manager signed letters addressed to RPH and Robichaud declaring that conciliation had failed. R- 10-F. He testified that he sometimes worked on Sundays if his managerial duties required it. R-51-10, ¶ 4. During discovery, RPH's attorney showed several EEOC employees a letter addressed to the EEOC, signed by Harbuck and dated Thursday, October 4, 2001. R-97-2, Ex. 6. The letter expresses RPH's "disappoint[ment at] learn[ing] that the Commission has abandoned conciliation, since we heard nothing from you after our settlement proposal was hand-delivered to Mr. Leon Kennedy on September 27." Id. The letter states: "Our client hopes and believes that conciliation can be successful, assuming the Charging Party is willing to negotiate." Id. RPH failed to present any evidence that this letter was ever mailed or received by the EEOC, and none of the Commission-employee deponents recalled having seen it before. R-97-2, p. 132; R-97-4, p. 23; R-97-5, p. 187.<3> About 17 months later, in March 2003, the EEOC filed this enforcement action, alleging that RPH violated the ADA by refusing to consider Robichaud for promotion and constructively discharging her because of her facial disfigurement. R-1. On April 22, RPH filed its answer and a motion to dismiss for lack of subject matter jurisdiction grounded on the Commission's alleged "fail[ure] to engage in good faith conciliation efforts." R-3, 5 & 10. Robichaud moved to intervene on May 5, and the district court granted that motion on June 12. R-13 & 21. On April 28, 2004, the magistrate judge issued a report recommending that the EEOC's claims be dismissed because of the agency's failure to conciliate in good faith. The magistrate judge ruled that Owens, like "every litigator," "sure[ly]" knew that negotiators' first offers are rarely their last offers, and that parties tend to commence negotiations by advancing "inflated demand[s]" and "stingy offer[s]." R-53, p. 8. After noting that the Commission did not tell RPH what relief it would consider reasonable, that Owens did not discuss with Robichaud the option of making a counter-offer or seeking a better offer from RPH, and that Owens did not communicate Robichaud's reaction to RPH and afford the company the opportunity to increase its offer, the magistrate judge "concluded that the EEOC made no real effort to conciliate Robichaud's claims." Id.<4> He therefore recommended that the Commission's complaint be dismissed. He did not specify whether the dismissal should be with or without prejudice. The Commission filed objections to this report, arguing both that it was not unreasonable for the agency to conclude on September 30 that further conciliation efforts would be futile, and that if the EEOC's conciliation efforts had indeed been inadequate, the appropriate remedy was to stay the case, rather than dismiss it. R- 55. On August 11, 2004, the district court adopted the magistrate judge's recommendation and dismissed the Commission's claims with prejudice. R-57. Robichaud's claims as intervenor were not affected by the order. Later in August RPH filed a motion seeking attorneys' fees and costs totaling approximately $104,000. R-60. In January 2005, while that motion was still pending, the magistrate judge stayed proceedings in the case and referred RPH and Robichaud to mediation. R-75. By early May, RPH and Robichaud reached a settlement and asked the court to dismiss her claims, and the court did. R-78, R-79. Since all claims had now been resolved, the EEOC in June asked the court to extend the time for appealing the August 2004 order dismissing the agency's complaint until the court decided the motion for fees, and the court granted that motion. R-83, R-85. On September 2, 2005, the magistrate judge issued an order denying RPH's request for fees and expenses, and closing the case. R-89. C. District Court's Decision In opposing an award of fees, the EEOC had first argued that RPH was not a "prevailing party" because, in August 2004, after the district court dismissed the agency's claims, RPH still faced the prospect of liability to Robichaud as intervenor for the same actions that were at issue in the EEOC's claims. In rejecting this argument, the magistrate judge relied on the following rationale: (a) the Eleventh Circuit in EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256, 1261 (11th Cir. 2003), in affirming the district court's dismissal and fee award to defendant, had cited EEOC v. Pierce Packing Co., 669 F.2d 605, 608 (9th Cir. 1982); and (b) in Pierce Packing, where the district court had dismissed and awarded fees because the Commission had satisfied none of the statutory preconditions for litigation, the Ninth Circuit had called the defendants the prevailing parties. R-89, pp. 3-4. The magistrate judge recognized, however, that a prevailing defendant is entitled to attorney's fees under § 706(k) only if the action was frivolous or unreasonable. R-89, p. 4 (citing Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S. Ct. 694, 700 (1978)). He found that RPH was not entitled to fees under this standard. The magistrate judge distinguished the facts of this case from the facts in Asplundh, where the Eleventh Circuit affirmed an award of attorney's fees against the EEOC after the agency's claims were dismissed, as in this case, for failure to conciliate. R-89, pp. 7-8. The magistrate judge noted that, in this case, "there is no evidence of further contact from the defendant after the Commission told the defendant that it would make no further efforts at conciliation," and concluded: "This is not a case of coercion but more of negligence or lack of due diligence on the part of the EEOC to engage in the traditional ‘back and forth' aspect of negotiations." R-89, p. 8. The magistrate judge therefore denied fees under § 706(k). The magistrate judge also rejected RPH's request for attorney's fees under 28 U.S.C. § 1927, Rule 11 of the Federal Rules of Civil Procedure, and the court's inherent powers, ruling that the Commission did not expose the company to unreasonable or meritless claims, because Robichaud sued on the same claims, and the case continued after the agency was dismissed. R-89, pp. 8-9. SUMMARY OF ARGUMENT RPH argues that the district court should have awarded the company its fees under § 12205 of the ADA and § 706(k) of Title VII because the Commission brought this suit without first satisfying the statutory conciliation requirement. The argument should be rejected. First, this Court affirms a district court decision denying fees unless the district court abused its discretion. Second, the issue that the district court properly addressed was not whether the Commission had satisfied the preconditions to litigation, but whether the agency's lawsuit was frivolous. Here, that meant asking not whether the agency was right (when it claimed that it had satisfied the conciliation requirement), but whether the agency had a non-frivolous argument that it was right. Third, the district court did not abuse its discretion in finding that the EEOC's lawsuit was not frivolous, because it reasonably found on this record that the Commission had a non-frivolous argument that it acted reasonably in terminating conciliation when it did: namely, the agency reasonably believed in late September 2001 that the charging party and her attorney were not interested in participating any further in the conciliation process. If one of the parties to conciliation is not interested in pursuing conciliation any further, it is reasonable for the Commission to conclude that additional conciliation would be futile and to terminate conciliation, as it did in this case. On this record, therefore, it was not an abuse of discretion for the district court to find the Commission's lawsuit non- frivolous and to deny fees. RPH also sought fees under 28 U.S.C. § 1927 and sanctions under rule 11. The district court's decision denying these requests was not an abuse of discretion because the Commission had a reasonable and good faith belief that it had satisfied the conciliation requirement (and its lawsuit was therefore not frivolous), and because Robichaud was also suing RPH on the same claims (and the Commission's pleadings therefore did not vexatiously multiply the proceedings). ARGUMENT I. STANDARD OF REVIEW RPH erroneously states that "[a] denial of attorney's fees should be reversed where the record supports a finding that the plaintiff's action was frivolous." RPH Br. at 25 (footnote omitted). On the contrary, a district court decision denying attorney fees will be reversed on appeal only if it is found to be an abuse of discretion. Cordova v. Dillard's, Inc., 419 F.3d 1169, 1179 (11th Cir. 2005). In reviewing the district court's reasoning, this Court "view[s] the evidence in the light most favorable to the non-prevailing plaintiff." Id. The district court abused its discretion only if it arrived at the wrong result because it applied the wrong legal standard or based its decision on clearly erroneous factual findings. Id. at 1180. The mere fact that the record could support a contrary conclusion is insufficient to justify reversal of the district court's order. The same abuse-of-discretion standard applies when this Court reviews a district court decision denying attorney fees under 28 U.S.C. § 1927 or rule 11. Schwartz v. Millon Air, Inc., 341 F.3d 1220, 1225 (11th Cir. 2003) (§ 1927); Baker v. Alderman, 158 F.3d 516, 521 (11th Cir. 1998) (§ 1927 and rule 11). II. THE DISTRICT COURT'S DECISION DENYING FEES UNDER THE ADA WAS WELL WITHIN ITS DISCRETION. A. The district court applied the correct legal standard. RPH contends that the district court abused its discretion by applying the wrong legal standard. According to RPH, a fee award against the Commission is "warranted" based solely on the "EEOC's breach of its duty to conciliate," RPH Br. at 16; see also 20 ("[T]he EEOC's violation of statutory or regulatory law, even if not in bad faith, is sufficient for awarding fees to a prevailing defendant under Title VII and the ADA.") (citation omitted). RPH also argues that the district court erred by requiring the company to show that the Commission acted in bad faith. RPH Br. at 14, 19-21. RPH is wrong on both counts. First, an award of attorney's fees to RPH, the defendant in this ADA enforcement action, is not warranted based solely on the district court's conclusion that the Commission failed to satisfy a procedural prerequisite to suit. As the Supreme Court held in Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S. Ct. 694, 700 (1978), a district court may award fees to a prevailing defendant only if it finds that the plaintiff's action "‘was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.'" Secondly, contrary to the company's argument, the district court applied this standard, which it cited repeatedly in its decision (R-89, pp. 2 (quoting Christiansburg, 434 U.S. at 421, 98 S. Ct. at 700), 4, 8), and did not require RPH to establish bad faith. 1. Like Title VII, the ADA provides that "[i]n any action . . . commenced pursuant to this chapter, the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee . . . ." 42 U.S.C. § 12205 (compare to § 706(k) of Title VII, 42 U.S.C. § 2000e-5(k)). The statute does not distinguish between prevailing plaintiffs and prevailing defendants, but the Supreme Court has held that, while prevailing plaintiffs should recover their attorneys' fees "unless special circumstances would render such an award unjust," a prevailing defendant is eligible for a fee award only when "the plaintiff's action was frivolous, unreasonable, or without foundation." Christiansburg, 434 U.S. at 416-17, 421, 98 S. Ct. at 698, 700. These different standards derive from the contrasting equitable and policy considerations supporting the two types of awards. Prevailing plaintiffs should normally recover their fees, the Court reasoned, because Congress relies on them "to vindicate a policy that Congress considered of the highest priority," and because the losing defendants have violated federal law. Id. at 418, 98 S. Ct. at 699. The rationale supporting fee awards to prevailing defendants, however, is to protect employers from the burden of defending against lawsuits "having no legal or factual basis." Id. at 420, 98 S. Ct. at 700. The Christiansburg Court stressed that if courts award prevailing defendants fees in non-frivolous cases, potential plaintiffs will be discouraged from bringing what seem to be meritorious claims unless they are airtight, because potential litigants can rarely predict how the litigation will proceed, and "[d]ecisive facts may not emerge until discovery or trial." Id. at 422, 98 S. Ct. at 700. "Even when the law or the facts appear questionable or unfavorable at the outset," the Court stated, "a party may have an entirely reasonable ground for bringing suit." Id., 98 S. Ct. at 701. Awarding fees to prevailing defendants in non-frivolous cases, the Court concluded, "would undercut the efforts of Congress to promote the vigorous enforcement of the provisions of Title VII." Id. In most cases applying Christiansburg, the issue is whether the plaintiff's claim was frivolous on the merits. See, e.g., Cordoba v. Dillard's, Inc., 419 F.3d 1169, 1186-87 (11th Cir. 2005) (even though properly dismissed at summary judgment, plaintiff's ADEA claim had some legal and factual basis, and the district court therefore abused its discretion in awarding defendant fees); Quintana v. Jenne, 414 F.3d 1306, 1310-11 (11th Cir. 2005) (where the plaintiff established a prima facie case of discrimination, his failure to prove pretext did not render his claim frivolous, and the fee award was therefore an abuse of discretion); Sullivan v. School Bd., 773 F.2d 1182, 1189 (11th Cir. 1985) (in determining whether to award fees to defendant in case dismissed on the merits, court should consider whether the plaintiff established a prima facie case, whether the defendant offered to settle, and whether the claim went to trial). In this case, however, RPH does not argue that the Commission's claims were frivolous on the merits; the merits of the allegations against the company were not considered by the district court. Instead the company argues that this action was frivolous because it was not maintainable for procedural reasons. There can be no question that the Christiansburg standard applies to cases like this one where claims are dismissed for procedural reasons because Christiansburg itself was such a case. In Christiansburg, the district court dismissed an EEOC enforcement action because Title VII did not authorize the agency to sue on the basis of a charge which had been closed prior to the 1972 amendments to Title VII. Without questioning the correctness of the district court's dismissal, the Supreme Court affirmed the denial of the defendant's request for attorney's fees because it agreed with the district court that the EEOC's interpretation of the 1972 amendments "was not frivolous," and that the defendant was therefore not eligible for an award of fees. 434 U.S. at 423-24, 98 S. Ct. at 701. Accordingly it is clear that, under Christiansburg, a defendant is not entitled to attorney's fees based merely on a ruling that the EEOC was not authorized to bring suit against it. On the contrary, as the district court recognized, RPH is not entitled to attorney's fees if the Commission had a non-frivolous argument that it had satisfied the conciliation requirement before bringing suit – that is, if the agency had a non-frivolous argument that it had acted reasonably in terminating conciliation when it did. Cf. EEOC v. Bruno's Restaurant, 13 F.3d 285, 290 (9th Cir. 1992) ("To justify an award of fees, the district court had to find not merely that the EEOC failed to adequately conciliate, but that [the agency's] belief that its conciliation efforts were adequate was unreasonable."). 2. Although the district court repeatedly cited the Christiansburg standard, including the point that a showing of bad faith is not necessary, RPH argues that the court imposed a bad faith requirement because the court found it significant that the Commission's conduct of the conciliation of Robichaud's charge did not amount to "coercion." This argument reflects the company's confusion about the proper application of Christiansburg to this case. In the course of determining whether the Commission's lawsuit was frivolous under the Christiansburg standard, the district court compared the Commission's conduct in this case with this Court's description of the Commission's conduct in EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256 (11th Cir. 2003), a recent decision affirming an award of attorney's fees against the Commission in a Title VII action that was also dismissed based on the inadequacy of the agency's conciliation efforts. The district court here found that, unlike in Asplundh, the deficiencies in the agency's conciliation efforts in this case were due to negligence and poor judgment, and not due to "coercion" by the Commission. R-89, p. 8. Taking this statement out of context, and ignoring the court's repeated articulation of the correct standard, RPH argues that the district court's denial of fees was an abuse of discretion because the court "incorrectly thought that Asplundh created a new standard that the agency's conduct must be ‘coercive' for a fee award to be appropriate." RPH Br. at 19. On the contrary, the court's discussion when viewed in context represents a wholly appropriate and convincing basis for concluding that it was not frivolous for the Commission to believe that it had engaged in good faith conciliation efforts in this case, as distinguished from Asplundh. Before filing an ADA lawsuit, the Commission must attempt to resolve the charge via conciliation. The ADA incorporates the enforcement provisions of Title VII, 42 U.S.C. § 12117(a), and § 706(b) of Title VII states that, if the EEOC investigates a charge and finds reasonable cause to believe an unlawful employment practice occurred, "the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion." 42 U.S.C. § 2000e-5(b). Section 706(f)(1) of Title VII provides that, if the Commission "has been unable to secure from the respondent a conciliation agreement acceptable to the Commission," the agency may bring an enforcement action against the employer, but the district court may, upon request, "stay further proceedings . . . pending . . . further efforts of the Commission to obtain voluntary compliance." 42 U.S.C. § 2000e-5(f)(1). This Court has ruled that these statutory provisions require the Commission to make a good-faith attempt to resolve the charge via conciliation. EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256, 1261 (11th Cir. 2003). The Commission fulfills its statutory duty to attempt conciliation, this Court has stated, if it "outline[s] to the employer the reasonable cause for its belief that [the ADA] has been violated, offer[s] an opportunity for voluntary compliance, and respond[s] in a reasonable and flexible manner to the reasonable attitudes of the employer." Id. at 1259 (quoting EEOC v. Klinger Elec. Corp., 636 F.2d 104, 107 (5th Cir. Feb. 5, 1981)). Furthermore, the Fifth Circuit, in decisions which are binding precedent in this Court,<5> has stated that, where the Commission initiates conciliation efforts in good faith but terminates the process prematurely, the district court should usually not dismiss the agency's complaint. Rather, it should stay the proceedings, as Title VII itself provides, to allow the Commission to conduct further conciliation. Klinger Elec., 636 F.2d at 107; EEOC v. Pet, Inc., 612 F.2d 1001, 1002-03 (5th Cir. Mar. 3, 1980) (per curiam). In Klinger the district court ruled that the agency had failed to conciliate adequately, and the court of appeals reversed because the district court had not conducted a sufficient inquiry into whether the Commission's action in failing conciliation was reasonable. 636 F.2d at 107. The court of appeals added that if on remand the district court found the EEOC's efforts inadequate, it should stay proceedings rather than dismissing the case, especially since the agency had participated in negotiations for two years. Id. In Pet, the court of appeals agreed with the district court that the Commission's conciliation efforts had been inadequate – and indeed "smack[ed] more of coercion than of conciliation" – but again stated that it would have been better to stay the proceedings rather than dismiss them. Under Christiansburg, RPH would be eligible for an award of attorney's fees if it could establish that it was objectively unreasonable for the Commission to believe that it had met the requirement of good faith conciliation under the applicable standard. As RPH points out, and as the district court recognized by quoting the Christiansburg standard, it was not necessary for RPH to establish that the Commission acted in subjective bad faith when it filed suit. RPH's argument that the court imposed a bad faith standard is based entirely on the fact that the court, in distinguishing this case from Asplundh, found that the Commission's conduct in the conciliation process in this case did not amount to "coercion." Contrary to the company's argument, however, this does not indicate that the court imposed a heavier burden on RPH than Christiansburg provides. First, although Christiansburg holds that a showing of bad faith is not required, a defendant may still recover attorney's fees under Christiansburg, or under the American Rule, if it establishes that a law suit was brought for an improper purpose. Christiansburg, 434 U.S. at 419, 98 S. Ct. at 699 (even without § 706(k), court may award defendant fees if plaintiff brought action in bad faith). This Court's decision in Asplundh suggests that fees were found appropriate in that case primarily because the Court believed that the Commission acted in bad faith by deliberately filing suit without adequate conciliation in pursuit of publicity. Asplundh, 340 F.3d at 1261 (supporting affirmance of fee award by quoting Byrne v. Nezhat, 261 F.3d 1075, 1106 (11th Cir. 2001), as saying, "The key to unlocking a court's inherent power [to award sanctions] is a finding of bad faith" (citation deleted, brackets in Asplundh)). RPH argued vigorously in the district court, and continues to argue on appeal, that this case is controlled by Asplundh. R-68, pp. 8-11; RPH Br. at 17-20, 29, 31-32. Accordingly, it was necessary for the district court to explain why the Asplundh rationale does not support an award of attorney's fees in this case. Furthermore, although the Christiansburg analysis focuses primarily on the objective reasonableness of the Commission's belief that it had satisfied the prerequisites to suit, RPH's argument that agency officials conducted the conciliation efforts in bad faith is clearly relevant to the question of whether it was reasonable for the Commission to believe, when it filed suit, that it had conciliated in good faith as required by statute. If, as the company argues, the Commission's conciliation efforts were intentionally coercive, it would be less likely that the agency had a reasonable belief that it had satisfied the statutory requirement to conciliate in good faith. Accordingly, the district court's consideration of – and rejection of – RPH's argument that this case is controlled by Asplundh does not suggest in any way that the court effectively required RPH to show that the Commission acted coercively or in bad faith in order to be eligible for attorney's fees. B. The district court applied the standard properly. The district court did not abuse its discretion when it found that the Commission had a non-frivolous argument that it acted reasonably in terminating conciliation when it did. Conciliation is a voluntary process on the part of the charging party and the employer. The EEOC has no authority to compel either party to participate in the process in good faith. "The goal of conciliation usually is to reach a tripartite agreement signed by the parties and the Commission." 2 Barbara Lindemann & Paul Grossman, Employment Discrimination Law 1237 (3d ed. 1996); see also Marshall v. Sun Oil Co., 605 F.2d 1331, 1335 (5th Cir. 1979) ("Conciliation is not a one-way street. It is an attempt to reach a reasonable, voluntary and mutual understanding."). If either the employer or the charging party reaches a point where that party is unwilling to participate in this voluntary process any further, the Commission cannot force them to do so, and may legitimately decide that further conciliation efforts would be futile. Cf. EEOC v. Johnson & Higgins, Inc., 91 F.3d 1529, 1535 (2d Cir. 1996) ("If the [employer] refuses the invitation to conciliate or responds by denying the EEOC's allegations, the EEOC need not pursue conciliation and may proceed to litigate . . . ."); Lauricia v. MicroStrategy Inc., 114 F. Supp. 2d 489, 496-97 (E.D. Va. 2000) (it was "plainly not unreasonable" for the EEOC to fail conciliation "based on the [charging party's] lack of interest in conciliation," especially in light of the antagonistic relationship between the charging party and the employer) (dictum), rev'd on other grounds, 268 F.3d 244 (4th Cir. 2001). At the time conciliation efforts were halted in this case, the Commission had a reasonable basis for believing that Robichaud was not willing to participate in conciliation any further. Both Robichaud and her attorney had unequivocally rejected RPH's offer and her attorney had conveyed his intention to file suit against the company. When Owens described the company's offer, Robichaud emphatically rejected it, saying, "Absolutely no way!" R-97-1, p. 35. She told Owens that she considered the offer an insult, and that she would contact her attorney and submit a written rejection of the offer. R-16B-2, p. 2. The next day Hust, Robichaud's lawyer, delivered a letter to the EEOC stating that RPH's offer "is unacceptable to my client" and she "has no counter offer at this time." R-16B- 4. Hust then asked the agency to "issue the appropriate ‘right to sue' letter so that we can proceed to protect her interest in court." R-16B-4. Given the charging party's emphatic rejection of the company's de minimis offer and her attorney's indication that she had decided to initiate litigation, it was not unreasonable for the Commission to believe that even if the district court felt that further conciliation efforts should have been made, it would stay the action for further conciliation rather than dismiss it with prejudice. RPH cites no case – and the Commission knows of none – holding that the EEOC must continue its conciliation efforts after one of the parties has informed the agency that it is unwilling to participate any further in the conciliation process. While it is true that the Commission could in theory have continued conciliation efforts with RPH even without Robichaud's participation, it would not be unreasonable to conclude that where, as here, the charging party is represented by counsel who has stated an intent to file suit, the employer would be unwilling to enter into a meaningful conciliation agreement with the EEOC that would leave the charging party free to proceed with her action. RPH makes three principal arguments in support of its contention that the EEOC's conciliation efforts were "woefully inadequate." RPH Br. at 16. These arguments are all based on a distorted and one-sided view of the factual record. The district court did not clearly err when it rejected the company's version of events and found that the EEOC could reasonably believe that its conciliation efforts were adequate. First, RPH argues that it was unreasonable for the Commission to decide that conciliation efforts were futile based solely on the opinion of Robichaud, who "did not understand traditional bargaining techniques." RPH Br. at 22-23. However, this ignores the crucial fact that, before the Commission failed conciliation, it had received a letter from Robichaud's lawyer also unequivocally rejecting the company's offer and requesting a notice of right to sue. There is nothing in the record indicating that Robichaud's lawyer was not familiar with bargaining techniques. Furthermore, his request for a notice of right to sue could reasonably be construed as an indication that Robichaud was no longer interested in resolving her complaint prior to litigation. RPH also argues that it was unreasonable for the Commission to end conciliation when it did because Robichaud herself was open to further conciliation at the time. RPH Br. at 17, 22-23. However, in making this argument, the company relies on statements Robichaud made at her October 2003 deposition. There is no evidence that Robichaud communicated this openness to any Commission representative in late September 2001. See supra p. 6 n.1. Indeed, Robichaud testified that she did not tell Owens in September 2001 that she was open to considering further offers from RPH. R-97-1, p. 50. Finally, RPH argues that the district court clearly erred in finding that the company made no effort to reopen conciliation after it received notification that the Commission considered conciliation to have failed. RPH Br. at 19, 23. On the contrary, the district court's finding has ample support in the record. RPH showed several Commission-employee deponents a copy of a letter that Harbuck allegedly wrote on October 4, 2001. See R-97-2, p. 132; R-97-4, p. 23; R-97-5, p. 187. However, RPH offered no evidence that Harbuck mailed this letter and the Commission received it. The Commission-employee deponents testified they did not recognize it. Id. In February 2004, in the hearing on the motion to dismiss, the Commission's attorney introduced a copy of the letter in order to respond to RPH's argument that the company had requested re-opening and the Commission had ignored that request. R-50, p. 21. The EEOC attorney stated: "This correspondence [Harbuck's October 4 letter] was received after EEOC Exhibit 9 [Hust's September 28 letter], wherein the attorney [Hust] had indicated that they were not willing to negotiate, has that caveat in it, [‘]assuming that the charging party is willing to negotiate.[']" It is clear that the point the Commission attorney was making was that even assuming that the agency received Harbuck's October 4 letter, that letter did not contain a clear request to re-open conciliation – because the letter itself conditioned its optimistic "hopes and beliefs" concerning the success of continued conciliation on the assumption that Robichaud was still willing to negotiate, and the Commission had good reason to believe that neither she nor her attorney was willing to do that. R-97-2, Ex. 6; cf. R-16B-4. In addition, any implication that this statement at the February 2004 hearing constituted a concession that the EEOC had received the Harbuck letter should have been dissipated by the express statement in the agency's May 2004 objections to the magistrate judge's report and recommendation: "While Respondent claims to have sent this [October 4] letter to [the district director], no one at the EEOC ever saw the letter." R-55, p. 7. Given this state of the record, it was not clearly erroneous for the district court to find that "there is no evidence of further contact from the Defendant after the EEOC told the Defendant that it would make no further attempts at conciliation." R-89, p. 8.<6> RPH also repeatedly argues that the inadequacy of the Commission's conciliation efforts deprived the district court of jurisdiction over the agency's suit, and that this somehow enhances its entitlement to attorney's fees. RPH Br. at 1, 12 ("Circuit precedent . . . mandated the dismissal for lack of jurisdiction"), 13 (describing conciliation as a "jurisdictional prerequisite"), 14 (same), 27.<7> Under Christiansburg, however, it makes no difference whether the ADA's conciliation requirement is jurisdictional or not; the availability of attorney's fees against the Commission turns on whether the Commission had a non-frivolous argument that the requirement was met. This is plain from Christiansburg itself, where the Supreme Court held that, notwithstanding the fact that the Commission lacked the authority to bring the underlying Title VII action, the defendant was not entitled to attorney's fees because the Commission had a non-frivolous argument that it in fact had such authority.<8> RPH argues that, even if the Commission's lawsuit was not frivolous when it was filed, it became frivolous in August 2003 when this Court issued its decision in Asplundh. RPH Br. at 17-19. This argument fails because Asplundh did not purport to change the legal principles applicable to Title VII's conciliation requirement. Instead it reaffirmed this Court's existing rule that, in assessing the adequacy of the Commission's conciliation efforts, "‘the fundamental question is the reasonableness and responsiveness of the EEOC's conduct under all the circumstances.'" Asplundh, 340 F.3d at 1259 (quoting Klinger, 636 F.2d at 107). The Asplundh Court simply applied existing principles to the facts of that case. Accordingly, the inquiry for the district court – and for the Commission in assessing the reasonableness of filing suit against RPH – did not change after Asplundh. Applying those same principles to the facts of this case, the district court concluded that it was not unreasonable for the Commission to believe that its conciliation efforts were adequate. Finally, RPH contends that the district court's decision denying fees in this case "must be reversed under Head v. Medford," 62 F.3d 351 (11th Cir. 1995). The contention should be rejected. After the plaintiff in Head conceded that her federal claims were "surplusage" and that she "‘cannot . . . state[ ] a cognizable claim for relief in a Federal forum,'" this Court held that Head's federal claims were "frivolous as a matter of law," and that the district court should accordingly award defendants their fees fees under 42 U.S.C. § 1988<9> unless special circumstances dictated otherwise. Id. at 356. In this case, by contrast, the Commission did not concede that its claims were meritless, but consistently maintained below that the conciliation requirement was satisfied. In light of Robichaud's settlement with RPH, the Commission has decided not to pursue an appeal from the dismissal of its claims. However, as explained in detail above, we still maintain that there was at least a reasonable basis for believing that the procedural prerequisites to a Commission suit were met in this case. II. THE DISTRICT COURT ACTED WELL WITHIN ITS DISCRETION IN DENYING FEES UNDER § 1927 AND RULE 11. RPH also sought fees under § 1927 and rule 11. The district court denied these requests. Section 1927 and rule 11 both protect litigants against frivolous claims and pleadings, and the district court had just ruled that the Commission's lawsuit was not frivolous. In addition, the court ruled, the Commission had not unnecessarily multiplied proceedings, because Robichaud also sued RPH raising the same claims, and RPH would have had to defend itself against those claims, or settle them, even if the Commission had never sued the company, just as it had to do after the agency's claims were dismissed. R-89, pp. 8-9. On appeal RPH argues that, the district court erred because, if the EEOC had tried harder to conciliate Robichaud's claims, the parties might have been able to resolve the charges in conciliation and avoid the costs of litigation entirely. RPH Br. at 19. The argument is speculative, and RPH provides no rationale and no case authority justifying – let alone requiring – a decision by this Court finding an abuse of discretion by the district court. Having referred RPH and Robichaud to mediation, and having observed the amount of time those parties took to reach a settlement – even after the Commission was no longer present as a third party – the district court was in a good position to assess whether the Commission's litigation vexatiously multiplied proceedings, and it found it did not. In any event, since the Commission had a non-frivolous and good faith belief that it acted reasonably in terminating conciliation when the charging party and her attorney opted to sue instead of conciliate, the district court acted well within its discretion in denying RPH's requests for fees under 28 U.S.C. § 1927 and Federal Rule of Civil Procedure 11.<10> Section 1927 authorizes a fee award against an attorney or party that engages in unreasonable or vexatious conduct that unnecessarily multiplies the proceedings. Schwartz v. Millon Air, Inc., 341 F.3d 1220, 1225 (11th Cir. 2003). An award under § 1927 is not justified merely because the district court rules that the party's position lacked merit. Rather, the section is designed to sanction attorneys who "willfully abuse the judicial process by conduct tantamount to bad faith," the type of bad faith shown when an attorney "knowingly or recklessly pursues a frivolous claim." Id. The district court found that the Commission's lawsuit was not frivolous, and we have shown supra that the district court did not abuse its discretion in so ruling, because the Commission had a non-frivolous argument that it acted reasonably in failing conciliation when it did. If the EEOC had a non-frivolous and good faith belief that it satisfied the statutory conciliation requirement, it follows a fortiori that the agency was not acting in bad faith when it advanced that argument in opposing RPH's motion to dismiss. The district court did not find that the Commission acted in bad faith when it opposed RPH's motion, and the company has failed to show that such a finding is required on this record. RPH's reliance on Byrne v. Nezhat, 261 F.3d 1075 (11th Cir. 2001), is misplaced. This Court found a fee award under § 1927 proper in Byrne, where the plaintiff's attorney failed to investigate the facts or the law before signing the complaints, knowingly lodged and re-lodged legally groundless claims in an attempt to extort a settlement, and failed to inform the federal court of a state appellate decision disposing of one of plaintiff's claims. 261 F.3d at 1107-17. To summarize the case is to expose its dissimilarity to the current case. Cordova is more on point, because there this Court vacated a fee award under § 1927 as an abuse of discretion when it ruled that the plaintiff's suit was not frivolous. 419 F.3d at 1186-87. Sanctions under rule 11 may be awarded in the following situations: (1) when a party files a pleading that has no reasonable factual basis; (2) when the party files a pleading that is based on a legal theory that has no reasonable chance of success and that cannot be advanced as a reasonable argument to change existing law; and (3) when the party files a pleading in bad faith for an improper purpose. Pelletier v. Zweifel, 921 F.2d 1465, 1514 (11th Cir. 1991). A court assessing a request for rule 11 sanctions first determines whether the party's claims are objectively frivolous, and, if so, whether the party was or should have been aware that they were frivolous. Id. at 1514 n.88. We have shown supra that the Commission's argument (that it acted reasonably in failing conciliation when it did) was not objectively frivolous. Since the district court found that the argument was not objectively frivolous, it did not need to proceed to the second step and assess whether the Commission knew or should have known it was frivolous. The district court did not abuse its discretion in finding the Commission's lawsuit non- frivolous, and it therefore did not abuse its discretion in denying sanctions under rule 11. CONCLUSION For the foregoing reasons, the Commission respectfully requests this Court to affirm the district court decision denying the defendant's request for attorney's fees and sanctions. Respectfully submitted, JAMES L. LEE Deputy General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ______________________________ PAUL D. RAMSHAW Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7040 Washington, D.C. 20507 (202) 663-4737 CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), it contains 8,019 words, as counted by Microsoft Word 2003. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. Paul D. Ramshaw Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7040 Washington, D.C. 20507 Dated: January 9, 2006 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing brief was served today by mailing it first class to the following counsel of record: Charles A. Powell, III Heather F. Lindsay Justin A. Barkley Johnston Barton Proctor & Powell LLP 2900 AmSouth/Harbert Plaza 1901 Sixth Ave. North Birmingham, AL 35203-2618 Paul D. Ramshaw Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7040 Washington, D.C. 20507 202-663-4737 January 9, 2006 ******************************************************************** <> <1> RPH states in its brief that Robichaud “remained open to settling her charge [and] expected Owens to obtain another offer from RPH.” RPH Br. at 7. Robichaud did testify in October 2003 that if RPH, back in September 2001, had come back to her with a higher offer, she would have considered it. R-97-1, pp. 52-54. RPH offered no evidence, however, that Robichaud or Hust communicated this openness to the EEOC at the time. Indeed, Robichaud expressly denied having done so. R-97-1, p. 50 (“Q. Did you [Robichaud] tell her [Owens] anything to the effect of I don’t want to make a counter offer, but if they have something else to offer, I will consider it? A. No.”). <2> Kennedy considered Owens, who had worked as an EEOC investigator for more than two decades, a “seasoned investigator” and did not supervise her work closely. R-97-4, pp. 30, 110; R-97-2, p. 7. <3> At a hearing on February 11, 2004, on RPH’s motion to dismiss, in the course of arguing that the request to reopen conciliation in Harbuck’s October 4 letter was conditional rather than absolute, the Commission’s attorney stated: “This correspondence [the October 4 letter] was received after EEOC Exhibit 9 [Hust’s September 28 letter] . . . .” R-50, p. 21. In May 2004, on the other hand, in its objections to the magistrate judge’s report and recommendation, the Commission stated: “While Respondent claims to have sent this [October 4] letter to [the district director], no one at the EEOC ever saw the letter.” R-55, p. 7 (emphasis added). Believing that the magistrate judge had made a finding that the agency received and ignored the October 4 letter, the Commission argued that the evidence in the record did not support this finding. R-55, p. 7 & n.4. RPH responded by pointing out that the magistrate judge had not made that finding, and that in any event whether the EEOC received the October 4 letter “is not material to the determination that the EEOC failed to engage in good faith conciliation efforts.” R-56, pp. 20-21 (emphasis added). <4> The magistrate judge stated in a footnote: “In an October 4, 2001 letter, the defendant’s attorney requested that conciliation be reopened.” R-53, p. 8, n.3.) <5> In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981. <6> Moreover, RPH should not be heard to argue on appeal that the district court made a material error in finding that there was no evidence that the Commission received a request to re-open when the company argued in the district court that the question of whether the Commission received such a request was “not material to the determination that the EEOC failed to engage in good faith conciliation efforts.” R-56, pp. 20-21. <7> RPH repeatedly states that the district court dismissed this case for lack of jurisdiction. RPH Br. at 14, 27, 29. Neither the magistrate judge nor the district court stated that this lawsuit was dismissed for lack of jurisdiction. <8> The Fifth Circuit stated that adequate conciliation is a jurisdictional requirement in EEOC v. Magnolia Electric Power Ass’n, 635 F.2d 375, 378 (5th Cir. Jan. 26, 1981). However, Magnolia was decided before Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982), which held that filing a timely charge is “not a jurisdictional prerequisite to suit in federal court.” The Zipes Court stressed that the provision granting district courts jurisdiction over Title VII actions does not limit that jurisdiction to actions based on a timely charge. Id. at 393-94 (citing § 706(f)(3)). Similarly, that statutory provision does not limit a district court’s jurisdiction to cases in which the Commission’s conciliation efforts were adequate. Moreover, Title VII itself provides that when the Commission has not conciliated a charge adequately, the district court may stay proceedings to allow for further conciliation. § 706(f)(1) of Title VII, 42 U.S.C. § 2000e-5(f)(1) (last sentence) (“Upon request, the court may, in its discretion, stay further proceedings . . . pending . . . further efforts of the Commission to obtain voluntary compliance.”). The Fifth Circuit approved that procedure in Klinger, 636 F.2d at 107, and Pet, 612 F.2d at 1002-03, and the procedure presumes that the district court has subject matter jurisdiction over the lawsuit, because otherwise it would lack the jurisdiction to grant the stay. Cf. EEOC v. Zia Co., 582 F.2d 527, 533 (10th Cir. 1978) (rejecting argument that adequate conciliation is a jurisdictional prerequisite). <9> The standard for awarding fees to prevailing defendants under § 1988 is the same as the standard under Title VII. Hughes v. Rowe, 449 U.S. 5, 18 (1980). <10> RPH also maintains that the district court should have awarded fees under 42 U.S.C. § 1988. RPH Br. at 24-25. As noted supra, p. 32 n.9, the standard for awarding fees under § 1988 is the same as for awarding fees under § 706(k) of Title VII. Hughes, 449 U.S. at 12. Accordingly, if the district court did not abuse its discretion in finding the Commission’s action non-frivolous under § 706(k), it did not abuse its discretion in finding the action non-frivolous under § 1988.