No. 07-4134 ___________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT ___________________________________________ REBECCA LEIGH DEHART and U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiffs-Appellees, v. STEVENS-HENAGER COLLEGE, INC., Defendant-Appellant. _____________________________________________ On Appeal from the United States District Court for the District of Utah Hon. Paul G. Cassell _____________________________________________ ANSWER BRIEF OF PLAINTIFF-APPELLEE THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION _____________________________________________ RONALD S. COOPER U.S. EQUAL EMPLOYMENT General Counsel OPPORTUNITY COMMISSION 1801 L St. NW, Rm. 7024 LORRAINE C. DAVIS Washington, D.C. 20507 Acting Associate General Counsel (202) 663-4870 James.Tucker@EEOC.gov JAMES M. TUCKER Attorney ____________________________________ ORAL ARGUMENT IS NOT REQUESTED ____________________________________ Table of Contents Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . ii Statement of Related Cases. . . . . . . . . . . . . . . . . . . . . . . . 1 Jurisdictional Statement. . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of the Issue Presented for Review. . . . . . . . . . . . . . . 2 Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . 3 District Court Decision. . . . . . . . . . . . . . . . . . . . . . . . . 13 Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . 14 Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 I. Attorney's fees are permitted for a prevailing defendant in a Title VII case only in the "rare" case where the plaintiff's litigation efforts were frivolous, unreasonable, or without foundation.. . . . . . . . . . . . . . . . . . . . . 17 II. The district court did not abuse its discretion in ruling that the Commission's claims were amply supported by evidence and as such were not clearly frivolous, unreasonable, or without foundation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 A. The Commission's salary discrimination claim was amply supported by evidence. . . . . . . . . . . . . . . . . . . . . 27 B. The Commission's discriminatory discharge claim was supported by sufficient evidence to support the district court's finding that it was not frivolous, unreasonable, or without foundation . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 III. Stevens-Henager's remaining arguments do not show that the district court abused its discretion. . . . . . . . . . . . . . . 41 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Oral Argument is Not Requested. . . . . . . . . . . . . . . . . . . . . 44 Certificate of Compliance Certificate of Service Certificate of Digital Service Table of Authorities Cases page(s) Burlington N. & Santa Fe Ry. Co. v. White, -- U.S. --, 126 S. Ct. 2405 (2006). . . . . . . . . . . . . . . 27 Cardoso v. Calbone, 490 F.3d 1194 (10th Cir. 2007). . . . . . . . . . . . . . . . . . 41 Carlile v. Conoco, Inc., Nos. 00-2345, 00-2383, 2001 WL 1580911 (10th Cir. Dec. 12, 2001). . .19 Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978). . . . . . . . . . . . . . . . . . . . . passim Dalal v. Alliant Techsystems, Inc., No. 94-1483, 1995 WL 747442 (10th Cir. Dec. 18, 1995). . . . . . 20 Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). . . . . . . . . . . . . . . . . . . . . . . . . 23 EEOC v. Kimbrough Inv. Co., 703 F.3d 98 (5th Cir. 1983). . . . . . . . . . . . . . . . . . . . . 22 EEOC v. L.B. Foster Co., 123 F.3d 746 (3d Cir. 1997). . . . . . . . . . . . . . . . . . . . . 21 EEOC v. PVNF, L.L.C., 487 F.3d 790 (10th Cir. 2007). . . . . . . . . . . . . . . . . . 19 EEOC v. St. Louis-San Francisco Ry. Co., 743 F.2d 739 (10th Cir. 1984). . . . . . . . . . . . . . . . . . 14 Etsitty v. Utah Transit Auth., 502 F.3d 1215 (10th Cir. 2007). . . . . . . . . . . . . . . . . . 38 Ferroni v. Teamsters, Chauffeurs & Warehousemen Local No. 222, 297 F.3d 1146 (10th Cir. 2002). . . . . . . . . . . . . . . . . 16, 19 Greenberg v. Hilton Int'l Co., 870 F.2d 926 (2d Cir. 1989). . . . . . . . . . . . . . . . . . . . . 22 Greenberg v. Hilton Int'l Co., 875 F.2d 39 (2d Cir. 1989). . . . . . . . . . . . . . . . . . . . . 22 Hensley v. Eckerhart, 461 U.S. 424 (1983). . . . . . . . . . . . . . . . . . . . . . . . 18 Houston v. Norton, 215 F.3d 1172 (10th Cir. 2000). . . . . . . . . . . . . . . . . . 17 Hughes v. Rowe, 449 U.S. 5 (1980). . . . . . . . . . . . . . . . . . . . . . . . 17 Irwin v. Board of Regents of Oklahoma Agricultural and Mechanical Colleges, No. 95-6379, 1996 U.S. App. LEXIS 5682 (10th Cir. Mar. 28, 1996). . . . . . . . . . . . . . . . . . . . 20, 21 Jane L. v. Bangerter, 61 F.3d 1505 (10th Cir. 1995). . . . . . . . . . . . . . . . . . 18 Jencks v. Modern Woodmen of Am., 479 F.3d 1261 (10th Cir. 2007). . . . . . . . . . . . . . . . . . 38 Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220 (10th Cir. 2000). . . . . . . . . . . . . . . . . . 37 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). . . . . . . . . . . . . . . . . . . . . . . . 27 Medina v. Ramsey Steel Co., 238 F.3d 674 (5th Cir. 2001). . . . . . . . . . . . . . . . . . . . .21 Mickelson v. New York Life Ins. Co., 460 F.3d 1304 (10th Cir. 2006). . . . . . . . . . . . . . . 27, 29, 30 Miller v. Auto. Club of N.M., Inc., 420 F.3d 1098 (10th Cir. 2005). . . . . . . . . . . . . . . . . . 27 Mitchell v. City of Moore, Okla., 218 F.3d 1190 (10th Cir. 2000). . . . . . . . . . . . . . . . . .18, 19 Pascouau v. Martin Marietta Corp., No. 98-1099, 1999 WL 495621 (10th Cir. July 14, 1999). . . . . . 19 Plotke v. White, 405 F.3d 1092 (10th Cir. 2005). . . . . . . . . . . . . . . 27, 36, 37 Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711 (1983). . . . . . . . . . . . . . . . . . . . . . . . 23 Rogers v. Mo. Pac. R. Co., 352 U.S. 500 (1957). . . . . . . . . . . . . . . . . . . . . . . . 23 Sullivan v. Sch. Bd. of Pinellas County, 773 F.2d 1182 (11th Cir. 1985). . . . . . . . . . . . . . . 19, 21, 22 Supre v. Rickets, 792 F.2d 958 (10th Cir. 1986). . . . . . . . . . . . . . . . . . 16 United States v. DeWitt, 946 F.2d 1497 (10th Cir. 1991). . . . . . . . . . . . . . . . . 24, 31 United States ex rel. Fine v. MK-Ferguson, 99 F.3d 1538 (10th Cir. 1996). . . . . . . . . . . . . . . . . . 16 Statutes 42 U.S.C. § 2000e-5(k). . . . . . . . . . . . . . . . . . . . . . . . . . 17 Statement of Related Cases The Commission is unaware of any prior or related appeals, with the exception of Appeal No. 07-4140, brought in this same case by the Commission but voluntarily dismissed shortly after being docketed. Jurisdictional Statement This action was brought in the United States District Court for the District of Utah by the U.S. Equal Employment Opportunity Commission ("Commission") under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. As such, the district court had jurisdiction over this case pursuant to 42 U.S.C. § 2000e-5(f)(3), which confers upon the federal district courts jurisdiction over actions brought under Title VII. The district court also had jurisdiction over this case pursuant to 28 U.S.C. §§ 410, 1331, 1337, 1343, and 1345. After the case was tried to a jury, the district court, on April 11, 2007, entered final judgment. Appellant's Brief Appendix ("Apx.") 422. Subsequently, Stevens-Henager filed its motion for costs and attorney's fees, which, on June 4, 2007, the district court denied as to the latter. Apx.471-72. On June 8, 2007, Stevens-Henager timely filed its notice of appeal. Apx. 473-74. This Court has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, which provides the Circuit Courts of Appeals with jurisdiction over appeals from the final decisions of United States District Courts. Statement of the Issue Presented for Appeal Whether the district court abused its discretion when it denied Stevens- Henager's motion for attorney's fees, based on the court's assessment that a reasonable jury could have found in favor of the Commission and its claims were not frivolous, unreasonable, or without foundation. Statement of the Case This case was brought by the Commission against Stevens-Henager under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), and the Equal Pay Act of 1963, 29 U.S.C. § 206(d) ("EPA"). Apx.28. In its complaint, the Commission alleged that Stevens-Henager unlawfully paid four employees-Rebecca Leigh DeHart, Jennifer Morris, Jana Miller, and Stacy Nelson-less than it paid its male employees performing substantially equal work. Apx.28-32. The Commission further alleged that Stevens-Henager discharged Morris from her employment on the basis of her sex, in violation of Title VII. In her separate complaint, DeHart alleged that Stevens- Henager paid her less than a male colleague for substantially the same work, and retaliated against her for complaining about the pay disparity, in violation of Title VII and the EPA. Apx.37-38. Shortly after these suits were filed, the court consolidated the cases on the Commission's motion. Apx.5 (District Court Docket Number ("R.") 9). After discovery concluded, the Commission and DeHart jointly moved for partial summary judgment as to a number of Stevens-Henager's affirmative defenses, Apx.10 (R.67, 68), and Stevens-Henager moved for summary judgment on the merits of the plaintiffs' substantive claims, Apx.60-61 (R.69, 70). After the parties filed their respective responses, and a hearing on the motions, the court granted the Commission's motion in part and denied Stevens-Henager's motion in its entirety. Apx.294-95. On March 26-29, 2007, the case was tried to a jury. On the last day of trial, the court heard, and denied, Stevens-Henager's motion for a directed verdict as to all the plaintiffs' claims. Apx.20 (R.178). Thereafter, the jury returned a verdict in favor of Stevens-Henager on all counts. Apx.20 (R.179). On April 11, 2007, Stevens-Henager moved for an award of costs and attorney's fees. Apx.367-68. The court denied the motion for attorney's fees. Apx.471-72. Statement of Facts It is uncontested that at all times relevant to this litigation, Rebecca DeHart, Jenna Miller, and Jana Morris were each employed by Stevens-Henager in the position of non-high school Admissions Consultant ("AC") at its Ogden, Utah campus. Appellant's Brief ("AtBr.") at ix, par. 1. In that position, they were responsible for recruiting new students by taking inbound telephone inquiries, making appointments, interviewing prospective students, helping students enroll and ensuring they start on the correct day, and making outgoing calls based on "old leads or follow-ups on people that had inquired in the past." Apx.679 (Morris Dep. at 45); see also Apx. 623 (DeHart Deposition Transcript ("Dep.") at 111-12). Stevens-Henager required these women to also occasionally perform "outside," off-campus admissions recruiting, in addition to the "inside," on-campus recruiting work described above. Apx. 621-22, 673, 679 (DeHart Dep. at 103-04, 107; Miller Dep. at 45-46; Morris Dep. at 45). Admissions Consultants performed this "outside" work because it was part of their job, and because Stevens-Henager asked them to do so. Apx.621-22 (DeHart Dep. at 103-04, 107); see also Apx.119 (Hurtado Dep. at 81 (ACs were permitted, and encouraged, to do outside recruiting)). Examples of DeHart's "outside" recruiting activities include visits to two local businesses to discuss Stevens-Henager's programs, distributing written information about Stevens-Henager at these businesses, meeting with the local Chamber of Commerce, and representing Stevens-Henager at a local job fair. Apx.620-23 (DeHart Dep. at 100-111). DeHart and other ACs were also required to work in a recruiting booth at the Weber County Fair over a few days, and to perform recruiting duties at "Peach Days," a five-day carnival in Brigham City, Utah. Apx.620-21 (DeHart Dep. at 100-01). In addition to working at Peach Days, Miller's "outside" duties included staffing a table at a health fair at a local mall, and going to a local Wal-Mart "a couple of times" and dropping off brochures. Apx.673-74 (Miller Dep. at 46-49). Morris' "outside" activities included attending a health fair at a local mall, working "some shifts" at the Weber County Fair and the Peach Days event, and distributing brochures around the community. Apx.679-80 (Morris Dep. at 45-46). During the tenure of DeHart, Morris, and Miller, Stevens-Henager also hired two people into the position it titled "Inside/Outside" AC-Patrick Young and Stacy Nelson. Apx.90, 687 (Young Dep. at 23-24; Nelson Dep. at 27). While these two individuals, as well as two Stevens-Henager officials, Vicki Dewsnup, then president of the Ogden campus, and Wynn Hurtado, the Director of Admissions and supervisor of all the Admissions Consultants, testified that Nelson and Young were hired as "Inside/Outside" ACs, there was also evidence that this position differed only in title from the AC position.<2> DeHart and Miller both testified that Young performed the "same exact" duties as they did, and that he did not leave the campus to recruit more than they did. Apx.626-27, 675 (DeHart Dep. at 132-33, Miller Dep. at 54). Todd Knecht, the male AC who replaced Morris at the Ogden campus, offered complementary deposition testimony, stating that Stevens-Henager had no "per se" or "strictly inside" ACs, and that his duties as an AC were "all over the page. One day I could be doing just inside stuff. The next day I could be doing Mall stuff, trade show stuff, high school stuff." Apx.666, 668 (Knecht Dep. at 30-31). Even Young 's testimony suggests there was no real difference in the jobs. Young stated that over the course of his four-month employment at Stevens- Henager, the only "outside" recruiting activities he could recall performing consisted of spending one day at a job fair in Salt Lake City, staffing a kiosk at a mall for "a couple of days," and meeting with "less than five" other businesses. Apx.699 (Young Dep. at 27-28). Young testified that his job responsibilities involved "taking the inbound calls and setting appointments, like the other consultants were," and also "expanding into this concept of going out to career fairs and doing kiosks and visiting businesses and trying to generate additional admissions." Id. (Young Dep. at 25). Young added, however, that "to be honest" his job duties as an "Inside/Outside" AC "were primarily inbound," just like the "Inside" ACs. Id. Nelson's deposition testimony presented further evidence that there was no substantive difference between the "Inside" and "Inside/Outside" AC positions. Nelson was hired as an "Inside/Outside" AC just one week after Young was hired, and she occupied the position for just short of a full year-and almost eight months longer than Young's four-month tenure. Apx. 451. In all of that time, Nelson went "outside" to perform recruiting functions on only four occasions, two of which were with Young. Apx.693-94 (Nelson Dep. at 35-36). Nelson stated that she used the same skills and effort to generate leads and recruit students regardless of whether she was doing inside or outside work, and spent her work days "[b]asically answering the phones, taking messages, and booking people who came through the door," just like the "Inside" ACs. Apx.687, 726, 728 (Nelson Dep. at 27; Nelson Aff. Par. 9). Nelson was never asked to go outside and generate leads. Apx.687-88 (Nelson Dep. at 27-28). ACs, be they "Inside" or "Inside/Outside," were only permitted to perform "outside" duties if they were not otherwise too busy with inside sales calls. Apx.623, 680 (DeHart Dep. at 109-111; Morris Dep. at 47 (ACs needed to get permission to do "outside" recruiting)). Despite performing substantially identical job duties as the others, Young was paid substantially more than his female coworkers. It is uncontested that Young's salary at Stevens-Henager was $48,000, while DeHart's salary was $36,000, Morris's salary was $38,000, Miller's salary was $41,000, and Nelson's salary was $45,000. AtBr. at ix, par. 2-4. There was also significant evidence that the disparity between Young's pay and that of the four women was not attributable to his "impressive resume . . . in sales" or his ability to effectively negotiate his salary.<3> AtBr. at 9-10. For example, Kennan Beckstrand, Stevens-Henager's former Director of Human Resources, testified that he witnessed both Dewsnup and Carl Barney, CEO and owner of Stevens-Henager, state that men were paid more than women because they "have to support their families." Apx.606, 613-14 (Beckstrand Dep. at 5, 36- 37). The Commission also presented evidence that Stevens-Henager actually considered Nelson more qualified and experienced than Young. Hurtado testified that for the "Inside/Outside" AC position, there was a training period which involved a "three month learning curve," but she only gave Young "basic training" consisting of "telephone script" and "interview script" and never got to more specific training because he was only with Stevens-Henager for about four months. Apx.116, 120 (Hurtado Dep. at 69-70, 87). In contrast, Hurtado testified that Nelson did not need such training. Hurtado "assumed, with [Nelson's] prior history, she, you know, had training and knew how to do that job" and "knew how to get involved in promotions and different things like that." Apx.650 (Hurtado Dep. at 86, 88). According to Hurtado, Nelson "knew her job duties were to go out and do what she had been doing" at the University of Phoenix, Nelson's prior employer and a competitor of Stevens-Henager. Apx.650, 726, 728 (Hurtado Dep. at 85-88; Nelson Aff. Par. 6-7). And according to Nelson, during her interviews with Stevens-Henager, Hurtado and Dewsnup seemed very interested in Nelson's work with her prior employer, a competitor of Stevens-Henager, and told her that "having such similar prior experience was a valued asset." Apx.728 (Nelson Aff. Par. 7). There is nothing in the record to suggest that Stevens-Henager was amenable to engaging in salary negotiations with DeHart, Miller, Morris, or Nelson. In fact, the evidence suggests that, unlike Young, the female employees could not negotiate with Stevens-Henager for a higher salary. Young testified that he and Stevens-Henager engaged in negotiations to arrive at his salary. Apx.703 (Young Dep. at 45-46). Hurtado initially offered him "about 38,000" and that "opened up the discussions." Id. (Young Dep. at 45). Young replied that the offer was "pretty low" and that he was "used to making about $80,000 a year." Apx.213-14(Young Dep. at 48-49). According to Young, after this initial exchange, Hurtado "had to talk about it" with Dewsnup "and see what they could do on salary." Apx.214 (Young Dep. at 49). Eventually, Young was hired at the salary of $48,000 per year. Apx. 451. In contrast, Nelson-who was hired just one week after Young- testified that in her interview Hurtado told her that the salary was "around $45,000." Apx.96 (Nelson Dep. at 24). When Nelson responded that she would "like them to match what she was making at [the] University of Phoenix," which was $49,500, Hurtado replied that "at that time they were not able to go any higher." Id. There is no evidence that Hurtado took Nelson's request for more money to Dewsnup, despite the fact that she did so for Young, who was hired the week before Nelson. The Commission also presented evidence to support its claim that Stevens- Henager terminated Morris because of her sex, possibly as part of Hurtado's desire to thin the ranks of female ACs, whom she perceived to be undesirable employees. During a conversation with Nelson regarding the need to hire new ACs, Hurtado remarked "[w]omen bring too much drama into the workplace." Apx.726, 728-29 (Nelson Aff. Par. 10). On at least one other occasion, while culling through applications and/or resumes of applicants for the AC position, Hurtado was overheard by Nelson to react to female applicants by stating "[t]hat isn't a good candidate, it's a woman. I don't want any more drama." Id. In mid-November 2003, Hurtado "called [Morris] aside, or came up to [her] as [she] was sitting at her desk . . . and said, come on, let's go take a walk." Apx.682 (Morris Dep. at 78). The two proceeded to take a walk outside around the building, where Hurtado "expressed to [Morris] that she could tell [Morris] was a little stressed and concerned." Id. At that time, Morris had been "stressed out" because she had taken a week of vacation time the month prior to take her son to an out-of-state college, and as a result she felt pressure in regard to her being able to generate the same number of leads and enrollments as the other ACs. Apx.682- 83 (Morris Dep. at 80-82). Hurtado assured Morris that she "was doing a good job and [her] job was not in jeopardy and to not worry about it." Apx.682 (Morris Dep. at 78). Nevertheless, ten days later, on November 24, 2003, Hurtado terminated Morris. Apx.682, 736, 743 (Morris Dep. at 78-79; SJ Opp. Exh. 18, p. 35). Initially, Hurtado told Morris that she was being fired "because of [her] numbers"-that is, her enrollment numbers were down-or, as Hurtado later stated to an EEOC investigator, "not meeting standards on a regular basis." Apx.682, 736, 743 (Morris Dep. at 78-79; SJ Opp. Exh. 18, p. 35). However, the evidence showed that for the six month period preceding her termination, Morris' enrollment numbers were equal to, or better than, those of her coworkers who were not terminated. See Apx.714-15, 17, 719-24 (SJ Opp. Ex. 14). In her deposition testimony, Hurtado changed her rationale for the termination from Morris' "numbers" to her supposed ongoing "negative" and "poor me" attitude. Apx.123 (Hurtado Dep. at 153). Hurtado also stated that Dewsnup made the "bulk" of the decision to terminate Morris' employment. Id. Dewsnup, however, testified that it was Hurtado who made the decision to terminate Morris-"I told her she could do what she felt she needed to do"-and that the reasons behind the termination were Morris' negative personality and Hurtado's belief that Morris "didn't believe in the product." Apx.639 (Dewsnup Dep. at 84). Morris was immediately replaced by a man. Beginning in late October or early November 2003, Todd Knecht, an AC working at Stevens-Henager's Logan, Utah location, contacted Dewsnup regarding his interest in transferring to the Ogden campus. Apx.666-67 (Knecht Dep. at 27). Within a very few days of Morris' termination, Knecht was introduced to the Ogden ACs, and he began working in the Ogden location about a month later. Apx.667, 709 (Knecht Dep. at 28; DeHart Aff. at par. 6). Hurtado acknowledged that Knecht took Morris' place at the Ogden location. Apx.736, 744-45 (Hurtado interview transcript at 40-41). District Court Decision In denying Stevens-Henager's motion for attorney's fees, the district court applied the Supreme Court's mandate in Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), that a district court, when deciding a motion seeking attorney's fees from an unsuccessful Title VII plaintiff, must "'resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable and without foundation.'" Apx.471 (quoting Christiansburg, 434 U.S. at 421-22). Then, after having presided over the trial, the court found that "[t]his was a hotly contested case in which a jury could reasonably have found for either party." Apx.472. The court accordingly held Stevens-Henager was not entitled to fees because it had "failed to meet its burden of showing that that the plaintiffs' claims were frivolous, unreasonable, or without foundation." Apx.471 (citing generally Christiansburg, 434 U.S. 412; EEOC v. St. Louis-San Francisco Ry. Co., 743 F.2d 739 (10th Cir. 1984)). The court also recognized that while Stevens-Henager had prevailed at trial, "the court has no reason to believe that the plaintiffs were motivated by anything other than good faith." Apx.472. Summary of the Argument Under Christiansburg, a prevailing defendant in a Title VII action is only entitled to an award of attorney's fees in that rare circumstance where the plaintiff's case has been proven to be frivolous, unreasonable, or without foundation. This Court and others have recognized that when the plaintiff presents evidence in support of its legally cognizable claims, it is not subject to a Christiansburg award. As the district court correctly found, throughout this litigation the Commission marshaled ample evidence in support of every element of its discrimination claims on which it bore the burden of proof, such that its claims were in no way frivolous, unreasonable, or without foundation. After discovery, the Commission had evidence that Stevens-Henager paid DeHart, Morris, Miller, and Nelson a lower salary than Young, a male, for performing substantially the same work. The Commission also had evidence that Stevens- Henager's proffered justifications for the pay disparity were merely pretext for sex discrimination. The Commission's evidence also showed that Morris was terminated under circumstances which give rise to an inference of sex discrimination, and that the company's proffered reasons for her termination were merely pretext masking unlawful sex discrimination. Stevens-Henager's numerous claims of error fail to establish that the district court abused its considerable discretion when it denied the company's motion for attorney's fees. The majority of Stevens-Henager's claims of error are based upon its profound misunderstanding of the standard set out by the Supreme Court in Christiansburg, as well as a misapplication of the standards to the evidence adduced by the Commission throughout this litigation. Stevens-Henager also fails to understand the proper role of this Court in reviewing the district court's decision denying attorney's fees to Stevens-Henager. In arguing that this Court should reverse the district court, Stevens-Henager ignores the overwhelming caselaw contrary to its position and fails to cite a single appellate decision supporting its view. As the record, viewed under the proper legal principles, shows that the Commission's litigation was in no way frivolous, unreasonable or without foundation, the district court's denial of the company's motion for attorney's fees does not constitute an abuse of discretion and should be affirmed. Standard of Review This Court reviews a denial of attorney's fees for abuse of discretion. Ferroni v. Teamsters, Chauffeurs & Warehousemen Local No. 222, 297 F.3d 1146, 1153 (10th Cir. 2002). "Under the abuse of discretion standard, the decision of a trial court will not be disturbed unless the appellate court 'has a definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.'" United States ex rel. Fine v. MK-Ferguson, 99 F.3d 1538, 1548-49 (10th Cir. 1996) (quoting in part Supre v. Rickets, 792 F.2d 958, 961 (10th Cir. 1986)). Argument In concluding that Stevens-Henager was not entitled to an award of attorney's fees, the district court determined that the Commission's case was not frivolous, unreasonable, or without foundation, as the evidence was sufficient for a reasonable jury to have found for either party. Apx.471-72. In order to prevail on appeal, Stevens-Henager faces profoundly difficult obstacles which it has failed to meet. It must make the rigorous showing that the Commission's claims were so lacking in merit as to be "frivolous, unreasonable, or without foundation," Christiansburg, 434 U.S. at 421, and that the district court abused its discretion in determining that the company failed to meet this burden. An examination of the Commission's evidence under the proper legal principles-both the Christiansburg standard for awarding attorney's fees to a prevailing defendant, and the substantive legal standards applicable to a plaintiff's Title VII claim of illegal sex-based salary discrimination or termination-amply supports the district court's ruling.<4> I. Attorney's fees are permitted for a prevailing defendant in a Title VII case only in the "rare" case where the plaintiff's litigation efforts were frivolous, unreasonable, or without foundation. Title VII provides that a district court, in its discretion, "may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee (including expert fees) as part of the costs." 42 U.S.C. § 2000e-5(k). This statutory language has been interpreted to permit prevailing defendants to recover their attorney's fees only "upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." Christiansburg, 434 U.S. at 421. That is, "'[t]he plaintiff's action must be meritless in the sense that it is groundless or without foundation.'" Houston v. Norton, 215 F.3d 1172, 1174 (10th Cir. 2000) (alteration in original) (quoting Hughes v. Rowe, 449 U.S. 5, 14 (1980)). In setting the boundaries of the district court's discretion to make such a finding, however, the Supreme Court cautioned that: In applying these criteria, it is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation. This kind of hindsight logic could discourage all but the most airtight claims, for seldom can a prospective plaintiff be sure of ultimate success. No matter how honest one's belief that he has been the victim of discrimination, no matter how meritorious one's claim may appear at the outset, the course of litigation is rarely predictable. Christiansburg, 434 U.S. at 421-22.<5> Consistent with the Supreme Court's strong words of caution for courts considering whether to award attorney's fees to a prevailing defendant, this Court has recognized that the Christiansburg standard is "a difficult standard to meet, to the point that rarely will a case be sufficiently frivolous to justify imposing attorney fees on the plaintiff." Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1203 (10th Cir. 2000)).<6> Accordingly, this Court has recognized that prevailing Title VII defendants are not candidates for a fees award in cases where the plaintiff's claims are legally cognizable and supported by evidence. See, e.g., EEOC v. PVNF, L.L.C., 487 F.3d 790, 807 (10th Cir. 2007) (citing Sullivan v. Sch. Bd. of Pinellas County, 773 F.2d 1182, 1189 (11th Cir. 1985)), for the proposition that "[i]n cases where the plaintiffs introduced evidence sufficient to support their claims, findings of frivolity typically do not stand"). In fact, the large number of decisions by this and other Courts concluding that the prevailing defendant was not entitled to a fee award evinces this Court's recognition in Mitchell and other cases that the Christiansburg standard will rarely be met. See, e.g., Ferroni, 297 F.3d at 1153 (summary judgment granted to defendant, but the district court's denial of fees was not an abuse of discretion); Carlile v. Conoco, Inc., Nos. 00-2345, 00-2383, 2001 WL 1580911, at *3 (10th Cir. Dec. 12, 2001) (unpublished) (in suit brought under the Americans with Disabilities Act, summary judgment granted to defendant, but the district court's denial of fees was not an abuse of discretion); Mitchell, 218 F.3d at 1203 (plaintiff's summary judgment response was found to be inadequate, but noting this "is an entirely different finding than branding the suit itself frivolous," and the district court's denial of fees was not an abuse of discretion); Pascouau v. Martin Marietta Corp., No. 98-1099, 1999 WL 495621, at *10 (10th Cir. July 14, 1999) (unpublished) (reversing the district court's fee award to the defendant, as "the issues and evidence . . . called for careful consideration of several questions at trial"); Dalal v. Alliant Techsystems, Inc., No. 94-1483, 1995 WL 747442, at *6 (10th Cir. Dec. 18, 1995) (unpublished) (summary judgment granted to defendant on Title VII claims, but the district court's denial of fees was not an abuse of discretion). Naturally, even rarer are instances where a court of appeals has done what Stevens-Henager urges this Court to do-reverse for abuse of discretion a district court for denying attorney's fees to a prevailing defendant where the district court conducted the trial and determined the claims were not frivolous, unreasonable, or without foundation. Perhaps this explains why Stevens-Henager has been unable to cite a single case where an appellate court has done so. Instead, Stevens-Henager cites one decision from this Court-the unpublished decision in Irwin v. Board of Regents of Oklahoma Agricultural and Mechanical Colleges, No. 95-6379, 1996 U.S. App. LEXIS 5682 (10th Cir. Mar. 28, 1996), which actually supports the Commission's position. In reviewing what it characterized as "a fairly close case," this Court recognized that review of the district court's ruling was highly deferential, and "limited to whether the district court abused its discretion, not whether we would have reached the same conclusion had the motion for attorney's fees been before us in the first instance." Irwin, No. 95-6379, at *9. In light of the highly deferential standard of review, this Court found no abuse of discretion. Id. Consistent with this Court's recognition that a plaintiff's case supported by evidence cannot be deemed frivolous within the meaning of Christiansburg, courts have accordingly determined that where a plaintiff presents sufficient evidence to survive summary judgment the case can hardly be deemed frivolous, unreasonable, or without foundation. See Medina v. Ramsey Steel Co., 238 F.3d 674, 686 (5th Cir. 2001) ("Having found that at least some of Medina's claims are sufficient to survive summary judgment, it cannot be said that his claims were frivolous or that he litigated in bad faith."); EEOC v. L.B. Foster Co., 123 F.3d 746, 755 (3d Cir. 1997) ("We offer no opinion on whether this evidence was sufficient to carry the day but merely point out that it was enough to establish a prima facie case of retaliatory discrimination. Accordingly, we conclude that there was some factual basis for the EEOC's retaliation claim, and the district court therefore abused its discretion in awarding L.B. Foster its fees on that claim."); Sullivan, 773 F.2d at 1189 ("Cases where findings of 'frivolity' have been sustained typically have been decided in the defendant's favor on a motion for summary judgment or a . . . motion for involuntary dismissal. In these cases, the plaintiffs did not introduce any evidence to support their claims. In cases where the plaintiffs introduced evidence sufficient to support their claims, findings of frivolity typically do not stand."). This is also consistent with those courts that consider whether the plaintiff established a prima facie case, and whether the case went to trial, as factors relevant to the propriety of a fee award to a prevailing defendant, as these factors relate directly to whether the plaintiff's claims have a sufficient evidentiary basis. See Sullivan, 773 F.3d at 1189 (citing EEOC v. Kimbrough Inv. Co., 703 F.3d 98, 103 (5th Cir. 1983)) (other citations omitted).<7> Stevens-Henager further asserts that the district court abused its discretion because the company had "direct evidence" which "established" the "truth" of its position, while the Commission had "only sketchy circumstantial evidence" to support its case. AtBr. at 10-11. Stevens-Henager argues, in effect, that whether evidence is direct or circumstantial bears on the Christiansburg analysis, with direct evidence being more significant. Stevens-Henager's argument is legally flawed. There is, as a matter of law, no distinction to be made between direct or circumstantial evidence for purposes of a fee award under Christiansburg, that decision makes no such distinction, see 434 U.S. at 421-22, and Stevens-Henager identifies no authority to support its position. Moreover, in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), the Supreme Court put to rest any notion that direct evidence is of any greater probative value than circumstantial evidence in Title VII cases. The Court stated unequivocally that a plaintiff proves his or her Title VII case by "using 'direct or circumstantial evidence.'" Desert Palace, 539 U.S. at 99 (emphasis added) (quoting in part Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714 n.3 (1983)). In recognizing that circumstantial evidence is not subordinate or otherwise inferior to direct evidence, the Court further explained that "[t]he reason for treating circumstantial and direct evidence alike is both clear and deep rooted: 'Circumstantial evidence is not only sufficient, but may also be more certain, satisfying, and persuasive than direct evidence.'" Id. at 100 (quoting in part Rogers v. Mo. Pac. R. Co., 352 U.S. 500, 508 n.17 (1957)). Moreover, "juries are routinely instructed that '[t]he law makes no distinction between the weight or value to be given to either direct or circumstantial evidence.'" Id. (citation omitted). As such, the distinction drawn by Stevens-Henager is completely irrelevant to the present inquiry. What matters is whether the Commission had evidence-direct or circumstantial-which, if believed, supported its claims. Stevens-Henager further exhibits a fundamental misunderstanding of Christiansburg by arguing that the district court erred in failing to consider "other relevant factors," such as distinctions between the Commission and private plaintiffs "in determining the reasonableness of the Commission's litigation efforts," and "Congress' intent" to "diminish the likelihood of unjustified suits being brought." AtBr. at 22-24. Because Stevens-Henager makes these arguments for the first time on appeal, this Court should not consider them. See generally Apx.370-81, 443-49 (Stevens-Henager's opening and reply memoranda in support of its attorney's fees motion, making no argument on these points); see also United States v. DeWitt, 946 F.2d 1497, 1499 (10th Cir. 1991) (failure to raise issue below waives the issue for purposes of appeal) (citation omitted). In any event, neither of these contentions has any merit. The Supreme Court in Christiansburg plainly and unequivocally rejected the notion that a heightened standard applies when a prevailing defendant seeks fees from the Commission. The Court noted that district courts "may," but by no means must, "consider distinctions between the Commission and private plaintiffs" in assessing whether the litigation efforts were reasonable, but the Court was unequivocal that there are "no grounds for applying a different general standard whenever the Commission is the losing plaintiff." Christiansburg, 434 U.S. at 422. Stevens-Henager's contention that the court failed to take into account "Congress' intent" to "diminish the likelihood of unjustified suits being brought" is similarly infirm. Again, Stevens-Henager presents no authority which supports the proposition that such a separate analysis must be undertaken in assessing a prevailing defendant's motion for fees-and there is none. See AtBr. at 23-24. Furthermore, Stevens-Henager's argument ignores the fact that the Christiansburg standard is itself the mechanism by which courts safeguard against the bringing of unfounded lawsuits. See 434 U.S. at 420-22 (expressly recognizing Congressional concerns which gave rise to the fees provision in Title VII, and adopting the "frivolous, unreasonable, or without foundation" standard for shifting fees in such cases). As such, there is no "separate" inquiry to be made regarding "Congress' intent," as the Christiansburg standard itself embodies that intent. Stevens-Henager also asserts that the district court erred in concluding it "ha[d] no reason to believe that the plaintiffs were motivated by anything other than good faith," see Apx.471-72, because, the company claims, "good faith is immaterial" to whether fees should be awarded to a prevailing defendant under Christiansburg. AtBr. at 19. The company's argument here is disingenuous at best. First, the district court addressed the Commission's good faith in response to Stevens-Henager's own arguments that it was entitled to fees because the Commission had litigated in bad faith. Apx.370-71, 376-79 (Stevens-Henager's opening memorandum in support of its attorney's fees motion, at 2, 7-10). Having itself raised the issue, Stevens-Henager cannot now be heard to complain that the district court made a finding on that very issue.<8> Additionally, because Christiansburg recognizes that where bad faith is also present "there will be an even stronger basis for charging [the plaintiff] with the attorney's fees incurred by the defense," 434 U.S. at 422, the district court's assessment of the Commission's good faith is pertinent to the fee issue. II. The district court did not abuse its discretion in ruling that the Commission's claims were amply supported by evidence and as such were not clearly frivolous, unreasonable, or without foundation. The district court concluded that Stevens-Henager was not entitled to an award of attorney's fees because "a jury could have reasonably found for either party." Apx.472. Examination of the Commission's evidence and arguments under the proper legal standards applicable to its claims reveals the correctness of the district court's conclusion. Throughout the course of the litigation, the Commission had evidence which would have permitted a reasonable jury to find in its favor.<9> The Commission's litigation was therefore not frivolous, unreasonable, or without foundation. A. The Commission's salary discrimination claim was amply supported by evidence. In order to establish a salary discrimination claim under Title VII by use of circumstantial evidence the plaintiff must meet the three-step burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Mickelson v. New York Life Ins. Co., 460 F.3d 1304, 1311 (10th Cir. 2006). The plaintiff must first establish a prima facie case of pay discrimination by showing that the female employee "'occupies a job similar to that of higher paid males.'" Id. (quoting Miller v. Auto. Club of N.M., Inc., 420 F.3d 1098, 1114 (10th Cir. 2005), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, -- U.S. --, 126 S. Ct. 2405 (2006)). Once the plaintiff has met this burden, the defendant must articulate a legitimate, nondiscriminatory reason for the pay disparity. Id. (quoting Plotke v. White, 405 F.3d 1092, 1099 (10th Cir. 2005)). To prevail, the plaintiff must then establish that the defendant's stated reason is merely a pretext for discrimination. Id. (citation omitted). Discovery yielded ample evidence in support of the Commission's Title VII salary discrimination claims. In support of its prima facie case, the Commission presented evidence that DeHart, Miller, Morris, and Nelson all had jobs similar-if not functionally identical-to that of Young, the higher-paid male. The deposition testimony of all five of these individuals showed that regardless of whether Stevens-Henager categorized their respective positions as "Inside" or "Inside/Outside," they all had the same job duties, performing mostly "Inside" recruiting functions while also intermittently engaging in "Outside" recruiting. See supra at 3-7. DeHart and Miller both testified that Young performed the "same exact" duties as they did, and that he did not leave the campus to recruit more than they did. Apx.626-27, 675 (DeHart Dep. at 132-33; Miller Dep. at 54). Young testified that "to be honest" his job duties as an "Inside/Outside" AC "were primarily inbound," just like the "Inside" ACs. Apx.699 (Young Dep. at 25). Nelson-also hired as an "Inside/Outside" AC-testified that she spent her work days "[b]asically answering the phones, taking messages, and booking people who came through the door," just like the "Inside" ACs. Apx.87 (Nelson Dep. at 27). In addition, the uncontested evidence demonstrates that all four of these women were paid less than Young. See AtBr. at ix par. 2-4. Young's salary was $48,000, while DeHart's was $36,000-thus Young was paid 33% more than DeHart for performing substantially equal work. Id. Although the disparity between Young's salary and the other women was not as great, the fact remained that the women were paid less-Morris's salary was $38,000, Miller's was $41,000, and Nelson's was $45,000. Id. This evidence that these women "occupie[d] a job similar to that of [a] higher paid male[]" yet were paid less, is more than sufficient to establish a prima facie case of salary discrimination. Mickelson, 460 F.3d at 1311. The Commission also presented direct evidence that sex discrimination was the true reason behind the pay disparities at Stevens-Henager. Kennan Beckstrand, Stevens-Henager's former Director of Human Resources, testified that he witnessed both Dewsnup and Carl Barney, CEO and owner of Stevens-Henager, state that men were paid more than women because men "have to support their families." Apx.613-14 (Beckstrand Dep. at 36-37). The Commission's evidence also called into question the various reasons Stevens-Henager offered for the pay disparity, and which a reasonable jury could find were merely pretext for discrimination. Stevens-Henager argues it paid Young more than the women because Young held a "different position" than DeHart, Morris, and Miller; Young had an "impressive resume showing his superior education and background in sales"; and Young's "effective negotiation which convinced Stevens-Henager to pay him at least $8,000 per year more than it originally offered him." AtBr. at 9-10. Early on, however, the Commission discovered evidence that suggested these reasons were pretextual. As previously explained, the evidence casts serious doubt on Stevens- Henager's claim that the "Inside/Outside" AC and "Inside" AC positions were different, revealing, instead, that the women's job duties were indistinguishable from those of Young, a male. See supra at 28. As such, a trier of fact could easily conclude that the "different positions" justification Stevens-Henager asserts for the difference in pay was lacking in validity, and, instead, was merely pretext for unlawful gender discrimination. Stevens-Henager argues that its "different positions" excuse is "true" because four witnesses testified that Young and Nelson were hired for the "Inside/Outside" AC position. AtBr. at 10. In so arguing, Stevens-Henager misses the point. It is not necessary to determine which version is "true." All that is needed is that the evidence would support a finding that the reason offered is false and thus pretextual. See Mickelson, 460 F.3d at 1311. A jury could certainly so find based on the evidence presented by the Commission. Moreover, even taking as "true" Stevens-Henager's assertion that these two employees were hired as "Inside/Outside" ACs, this fact in no way diminishes the Commission's evidence that, regardless of the differing job titles, "Inside" and "Inside/Outside" ACs performed the same job duties. As for the company's "superior education" reason, it is similarly without merit. First, since Stevens-Henager utterly failed before or at trial to present any argument or evidence that Young's education justified his receiving a higher salary, the company has waived this argument for purposes of appeal. See DeWitt, 946 F.2d at 1499. Stevens-Henager never even mentioned Young's education as a reason for the salary discrepancy in its arguments on summary judgment. See Apx.70-72, 195-98 (Stevens-Henager's summary judgment memoranda). Nor did it present any evidence at trial that Dewsnup, Hurtado, or anyone else considered Young's education in their salary decision. See Supp.Apx.2-7 (Mar. 28, 2007 Tr. at 491-92) (Dewsnup's testimony that she makes salary decisions based on a "gut level" feeling, but making no reference to the person's education as factoring into that "feeling"), 8-13 (Mar. 28, 2007 Tr. at 514-18) (Dewsnup's testimony on what she liked about Young's resume and interview, making no mention of his education), 14 (Mar. 28, 2007 Tr. at 519) (Dewsnup's testimony that the difference between Young and Nelson was Young had more of a "take charge" attitude; again, no mention of education), 18-113 (Mar. 29, 2007 Tr. at 660-753) (Hurtado's testimony, making no mention of her considering Young's education in her salary decisionmaking). Even if this argument had been properly preserved for review on appeal, there is simply no evidence that supports the company's assertion. Stevens- Henager points to its "statement of relevant facts" numbers 12 and 31 as support for its "education" argument. See AtBr. at 10. However, Stevens-Henager's "relevant fact" number 12 makes no mention of Young's education as a reason for his higher salary. See AtBr. at xi, par. 12 (citing Apx.288-92). Likewise, "relevant fact" 31, which addresses the supposed differences in job duties between Young's job and that of the women, does not discuss Young's education at all. See AtBr. at xvi par. 31.<10> Turning to Stevens-Henager's "sales experience" reason, the Commission presented evidence that Stevens-Henager actually considered Nelson more qualified and experienced than Young which was sufficient to show this reason is pretext. Hurtado testified that she only gave Young "basic training" on the AC position, consisting of "telephone script" and "interview script" because Young was only with the company for four months. Apx.650 (Hurtado Dep. at 86-87). At no point did Hurtado state that Young did not need to go through training to be able to do his job, and her deposition testimony shows that she believed that he needed training. The evidence would support a finding that in Stevens-Henager's estimation, Young actually needed additional training but left the company before he could be trained. The opposite, however, was true for Nelson. Nelson's prior employer was the University of Phoenix, another for-profit college and a competitor with Stevens-Henager, where Nelson had worked in sales. Apx.650, 726, 728 (Hurtado Dep. at 85-88; Nelson Aff. Par. 6-7). Nelson stated that during her interviews with Hurtado and Dewsnup, they seemed very interested in her work at the University of Phoenix and told her that "having such similar prior experience was a valued asset." Apx.728 (Nelson Aff. Par. 7). Most importantly, Hurtado testified that Nelson did not need any training to begin her duties as "Inside/Outside" AC. Hurtado "assumed, with [Nelson's] prior history, she, you know, had training and knew how to do that job" and "knew how to get involved in promotions and different things like that"-because "she knew her job duties were to go out and do what she had been doing" at the University of Phoenix. Apx.650 (Hurtado Dep. at 87-88). From this, a reasonable jury could certainly conclude that Hurtado and Dewsnup actually believed that Nelson was more qualified and experienced for the "Inside/Outside" AC job than Young, and Stevens-Henager's assertion to the contrary is pretextual.<11> Stevens-Henager also claimed that the pay disparity between Young and the female employees was the result of Young's "effective negotiation" for a higher salary. AtBr. at 10. However, the Commission's evidence suggests that Stevens- Henager simply would not entertain salary negotiations by female employees. According to Young, after his initial exchange with Hurtado regarding his salary, wherein he rejected their opening offer and requested more, she stated that she "had to talk about it" with Dewsnup "and see what they could do." Apx.213-14 (Young Dep. at 48-49). Eventually, Young was hired at the salary of $48,000. AtBr. at ix par.4. In contrast, Nelson-who was hired just one week after Young-testified that in her interview Hurtado told her that the salary was "around $45,000." Apx.96 (Nelson Dep. at 24). When Nelson responded that she would "like them to match what she was making at [the] University of Phoenix," which was $49,500, Hurtado replied that "they were not able to go any higher," and that was the end of it. Id. This evidence is adequate to support the Commission's contention that Stevens-Henager simply would not negotiate salary with the woman, but the man's effort to negotiate was welcomed-and led to his being paid a higher salary than Nelson for the same work. Stevens-Henager insists that Young's testimony that he negotiated his salary made it unreasonable for the Commission to claim pretext. AtBr. at 11-12. Stevens-Henager's argument, however, ignores the fact that the Commission's argument here is not that Young did not negotiate his salary, but that women were not permitted to do so. To this latter point, Stevens-Henager argues that Nelson "failed to recognize" that Stevens-Henager's "rebuffing" her on her attempts to negotiate was "nothing more than negotiation itself" and she accepted Hurtado's offer prematurely. AtBr. at 12-13. Stevens-Henager's characterization of the evidence, however, draws an inference in its own favor and ignores the conclusion that a reasonable jury could draw from this evidence in favor of the Commission- that Hurtado's "rebuff" of Nelson was a clear rejection of any negotiation efforts.<12> In sum, the Commission marshaled more than sufficient evidence to support a verdict in its favor. As such, the district court properly evaluated the record evidence and cannot be deemed to have abused its discretion in finding that the Commission's litigation was undertaken in good faith, and was not frivolous, unreasonable, or without foundation. B. The Commission's discriminatory discharge claim was supported by sufficient evidence to support the district court's finding that it was not frivolous, unreasonable, or without foundation. Viewing the evidence under the proper legal standard for Title VII discriminatory termination cases, the Commission's claim that Stevens-Henager terminated Morris because of her sex was in no way frivolous, unreasonable, or without foundation. The same basic three-part analytical model described above for Title VII salary discrimination cases applies to Title VII claims of unlawful termination. See Plotke, 405 F.3d at 1099. The plaintiff must make the de minimis showing required to establish a prima facie case by presenting evidence that the plaintiff was qualified for the job yet terminated, and the termination "occurred under circumstances which give rise to an inference of discrimination," such as the employer's filling the position with someone not of the plaintiff's protected category; the employer must respond with a legitimate, nondiscriminatory reason for its action; and the plaintiff must show that the employer's proffered reason is pretextual. Id. at 1099-1101. In support of its claim, the Commission presented evidence that Morris was qualified for her AC job, yet terminated under circumstances which give rise to an inference of discrimination. In mid-November 2003, Hurtado met with Morris and reassured her that she was doing a good job and her job was not in jeopardy. Apx.682 (Morris Dep. at 78-79). Nevertheless, just a few days later, on November 24, 2003, Hurtado told Morris that she was being terminated "because of [Morris'] numbers." Id. Stevens-Henager then brought in Knecht, a male AC, to take Morris' place. Apx. 744-45. This is more than sufficient evidence to meet the Commission's de minimis burden to establish a prima facie case. See Plotke, 405 F.3d at 1099-1101. See also Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1226-29 & n.8 (10th Cir. 2000) (noting that a plaintiff may, but need not, establish a prima facie case by showing that she was qualified but fired, and then replaced by someone outside her protected class). The Commission also presented evidence that the reasons offered by Stevens-Henager for Morris' termination were pretextual. First, Stevens-Henager initially contended that Morris was terminated "because of [Morris'] numbers"- that is, her enrollment numbers were down-or, as Hurtado stated to an EEOC investigator, "not meeting standards on a regular basis." Apx.682, 736, 743 (Morris Dep. at 78-79; Hurtado interview transcript at 35). The Commission presented evidence, however, that for the six-month period preceding her termination, Morris' enrollment numbers were equal to, or better than, those of her coworkers who were not terminated. See Apx.152, 714-15, 717, 719-24. This evidence, in conjunction with the aforementioned evidence that just ten days before Morris' termination Hurtado reassured her that she was doing a good job, was sufficient to rebut Stevens-Henager's "numbers" claim. See AtBr. at 14-15. As the litigation progressed, Stevens-Henager began to offer shifting reasons for why it terminated Morris. In her deposition testimony, Hurtado changed her rationale for the termination from "not meeting standards on a regular basis" to Morris' supposed ongoing "negative" and "poor me" attitude at work. Apx.123 (Hurtado Dep. at 153). Hurtado offered that she had discussed these claimed attitude problems with Dewsnup, and that Dewsnup made the "bulk" of the decision to terminate Morris' employment. Id. Dewsnup offered a further different account, testifying that it was Hurtado's decision to fire Morris, and that the reasons for the termination were Morris' negative personality and Hurtado's belief that Morris "didn't believe in the product." Apx.639 (Dewsnup Dep. at 84). There was ample evidence from which a reasonable juror could conclude that one or more of these decisionmakers were not being truthful and that these reasons were pretextual. First, Stevens-Henager's reasons were shifting and inconsistent, both over time and depending on which company official was speaking. This fact alone is sufficient to give rise to an inference of pretext, as pretext may be shown "by revealing 'such weaknesses, implausibilities, inconsistencies, incoherence, or contradictions, in the employer's proffered legitimate reasons for its action that a reasonable factfinder could . . . infer that the employer did not act for the asserted non-discriminatory reasons.'" Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1225 (10th Cir. 2007) (quoting in part Jencks v. Modern Woodmen of Am., 479 F.3d 1261, 1267 (10th Cir. 2007)). Moreover, as the evidence put forth by Stevens-Henager in support of its reasons came only from two interested witnesses-Hurtado and Dewsnup, company officials at the time of their deposition testimony-a reasonable juror could disbelieve their inconsistent testimony and, in conjunction with the evidence establishing the Commission's prima facie case, find for the Commission. The Commission also had evidence that directly challenged Hurtado's initial assertion that Morris' low enrollment numbers were what led to her termination. There was ample evidence that Morris' numbers were comparable, if not better, than those of ACs who were not terminated. Additionally, the evidence that Morris was performing as well, if not better than, her coworkers strongly suggests that there was not a legitimate business reason for terminating her. The Commission also presented evidence which if credited, could support a reasonable jury finding that Stevens-Henager wished to purge women from the ranks of ACs, and that it in fact replaced Morris with a man. During a conversation with Nelson regarding the need to hire new ACs, Hurtado remarked, "[w]omen bring too much drama into the workplace." Apx.726, 728-29 (Nelson Aff. par. 10). Hurtado would disregard certain applications and/or resumes of applicants for the AC position, stating, "[t]hat isn't a good candidate, it's a woman. I don't want any more drama." Id. The Commission's evidence further showed that beginning in late October or early November 2003, Todd Knecht-then working as an AC at another Stevens-Henager location-contacted Dewsnup regarding transferring to the Ogden campus. Apx.667 (Knecht Dep. at 27). Within a few days of Morris' termination, Knecht was introduced to the Ogden ACs, and he began working in the Ogden location about a month later. Apx.667, 709 (Knecht Dep. at 28; DeHart Aff. at par. 6). Hurtado acknowledged that Knecht took Morris' place at the Ogden location. Apx.744-45 (Hurtado interview transcript at 40-41). From this evidence, a reasonable jury could conclude that Stevens-Henager's explanations for why it terminated Morris are nothing but pretext for unlawful gender discrimination. As such, the Commission's unlawful termination claim clearly was not frivolous, unreasonable, or without foundation. Stevens-Henager's only response in the face of this evidence is that because Morris testified in her deposition and at trial that "she did not feel that she was discriminated against by Stevens-Henager because of her gender," the Commission was "unreasonable" to proceed with its case. AtBr. at 14-15. Stevens-Henager's argument lacks merit. First, and most importantly, it is irrelevant whether or not in a lawsuit brought by the Commission, a layperson such as Morris-who was not even a party to the suit and is not aware of the legal standards governing the Commission's claim-"believes" that she was discriminated against, and the company has presented no authority to the contrary. Morris' testimony is simply her opinion as to a legal conclusion. As such, it does not constitute evidence that can contradict the substantial body of evidence advanced in support of the Commission's claim-and has no bearing on whether the Commission had a nonfrivolous claim. See, e.g., Cardoso v. Calbone, 490 F.3d 1194, 1197 (10th Cir. 2007) ("Evidence, including testimony, must be based on more than mere speculation, conjecture, or surmise. Unsubstantiated allegations carry no probative weight") (citation omitted). III. Stevens-Henager's remaining arguments do not show that the district court abused its discretion. Stevens-Henager offers a number of additional challenges to the propriety of the district court's ruling, but none are availing. Stevens-Henager contends, erroneously, that the district court's recognition that the case was "hotly disputed" by the parties is immaterial to whether it is entitled to a fees award.<14> AtBr. at 20. Stevens-Henager misapprehends the district court's finding. The district court's conclusion that "[t]his was a hotly contested case in which a jury could have reasonably found for either party" was an expression of its view that because the evidence was sufficient for a reasonable jury to have concluded in favor of either party, a fee award was not warranted-not that a fee award was inappropriate because the parties vigorously litigated the case. Apx.472. The company also argues that the district court erred in concluding that a reasonable jury could have found for either party, contending that the court should have granted it summary judgment. AtBr. at 20. As already discussed, the Commission's evidence has throughout the litigation been more than sufficient to support every element of its case on which the Commission bore the burden of proof. See supra at 26-41. Stevens-Henager claims that to rule in the Commission's favor, a jury would essentially have to disbelieve the testimony of just about every witness in the case-including that of the alleged victims. AtBr. at 21. This simply is not true. First, the company asserts that a jury would have to disbelieve Young's and Nelson's testimony that they were hired as "Inside/Outside" ACs, and Young's testimony that he negotiated a higher salary. AtBr. at 21. For the reasons discussed at length above, a reasonable jury could believe this evidence and still find in favor of the Commission. The title of the job was irrelevant because the Commission's evidence showed the duties were identical, and the evidence that Young was permitted to negotiate for a higher salary is consistent with the Commission's argument and evidence that the women were simply given a take-it- or-leave it salary offer. See supra at 28-30, 34-35. The company also asserts that a jury would have to disbelieve Miller's and Morris' testimony "that they had not been discriminated against based on their gender." AtBr. at 21. As discussed above, see supra at 40-41, these individuals' subjective feelings as to legal conclusions in no way undermined the Commission's case. A jury could find, for example, that they believed "mistakenly" that they had not been discriminated against and then find for the Commission. Stevens-Henager finally asserts that the district court erred in not considering "the evidence as a whole" since "discovery substantiated the facts in this case as contended by Stevens-Henager." AtBr. at 22-24. This argument is nothing more than a rehash of Stevens-Henager's claim that at the close of discovery its evidence was to be believed but not that of the Commission. See AtBr. at 24 ("As argued above, Plaintiffs' Title VII claims were unreasonably pursued."). The company argues that the court should have taken into account "issues of witness credibility" (issues Stevens-Henager fails to identify, see AtBr. at 24), "and the reasonableness of [the Commission's] litigation efforts in light of this information" after "discovery substantiated the facts of this case as contended by Stevens-Henager." AtBr. at 24. Of course, discovery did not "substantiate" Stevens-Henager's theory of the case, but rather produced evidence that both sides used to assert their respective positions-and, most importantly, it produced evidence that supported every element of the Commission's claims. Stevens- Henager's arguments boil down to an assertion that the Commission should have credited the company's explanation that it did not discriminate, and the Commission's failure to do so should subject it to fees. If that were true, fees would be appropriate in every case the Commission loses-a standard that has been explicitly rejected by the Supreme Court in Christiansburg. Conclusion For the foregoing reasons, the Commission respectfully requests that this Court affirm the district court's denial of Stevens-Henager's motion for attorney's fees. Oral Argument is Not Requested Respectfully submitted, RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate General Counsel ____________________ JAMES M. TUCKER Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L St. NW, Rm. 7024 Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov Certificate of Compliance I hereby certify that the foregoing brief complies with the type-volume limitations set forth in Federal Rules of Appellate Procedure Rule 28.1(e)(2)(B)(i). The foregoing brief contains 10,700 words, from the Statement of Related Cases through the Conclusion, as determined by the Microsoft Word 2003 word processing program, with 14-point proportionally spaced type for text and 14-point proportionally spaced type for footnotes. ____________________ James M. Tucker Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L St. NW, Rm. 7024 Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov Certificate of Service I hereby certify that the original and seven (7) copies of the foregoing brief, and the original and one (1) copy of the Supplemental Appendix, were sent this 20th day of December, 2007, by FedEx Next Day Air delivery, to Clerk of Court, United States Court of Appeals for the Tenth Circuit, Byron White U.S. Courthouse, 1823 Stout St., Denver, CO, 80257. I further certify that two (2) copies of the foregoing brief, and one (1) copy of the Supplemental Appendix, were sent this 20th day of December, 2007, by FedEx Next Day Air delivery, to counsel of record for Plaintiff-Appellee Rebecca Leigh DeHart and Defendant- Appellant Stevens-Henager College, Inc., respectively, at the following addresses: Erika Birch, Esq., and Jonathan M. Benson, Esq. Strindberg & Scholnick, LLC 426 N. 300 W. Salt Lake City, UT 84103 Robert H. Scott, Esq., and Robert E. Mansfield, Esq. Van Cott, Bagley, Cornwall, & McCarthy 50 S. Main St., Suite 1600 Salt Lake City, UT 84145 ____________________ James M. Tucker Attorney U.S. Equal Employment Opportunity Commission 1801 L St. NW, Rm. 7024 Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov Certificate of Digital Service I hereby certify that on December 20, 2007, this brief was submitted in digital form to the Tenth Circuit clerk's office at esubmission@ca10.uscourts.gov and to the counsel listed below at their electronic addresses: Erika Birch, Esq. Jonathan M. Benson, Esq. erikaecf@xmission.com jonnyecf@xmission.com Robert H. Scott, Esq. Robert E. Mansfield, Esq. rscott@vancott.com rmansfield@vancott.com I hereby further certify that all required privacy redactions (in this document, none) have been made to this brief; that this document, submitted in digital form, is an exact copy of the written document being filed with the Clerk; and that this digital submission has been scanned for viruses with the most recent version of a commercial virus scanning program, Symantec AntiVirus Corporate Edition, version 9.0.3.1000, updated December 19, 2007, and, according to that program, is free of viruses. __ s/ James M. Tucker___ JAMES M. TUCKER Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L St., NW, Room 7024 Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov *********************************************************************** <> <1> On June 7, 2007, the Commission filed a notice of appeal in the district court, docketed as appeal number 07-4140, but the Commission's appeal was voluntarily dismissed on July 10, 2007. <2> While Stevens-Henager asserted that these individuals were hired into the "Inside/Outside" AC position, and both Young and Nelson testified that they were hired into that position, the Commission presented evidence that even the title "Inside/Outside" was a sham. The Commission's evidence showed that at during their time at Stevens-Henager, neither Young nor Nelson were ever shown a job description for the "Inside/Outside" AC position, and Stevens-Henager admitted that no such job description was even in existence when they were hired. Apx.695-96, 703, 731-32 (Nelson Dep. at 84-85; Young Dep. at 45; Plaintiffs' Joint Memorandum in Opposition to Defendant's Motion for Summary Judgment ("SJ Opp."), Exh. 16, p.4 (response to request no. 12)). Stevens-Henager never told the ACs that it was creating the "Inside/Outside" position. Apx.708-09, 711- 12 (DeHart Aff. Par. 2-5; Morris Aff. Par. 2-4). Stevens-Henager's former Director of Human Resources testified that he had never even heard of the "Inside/Outside" AC position until DeHart discovered how much more money Young was being paid than she. Apx.607 (Beckstrand Dep. at 9-10). Additionally, as discussed more fully below, the evidence revealed the job duties, and duties performed, by Young and Nelson were identical to, and indistinguishable from, those of the non-"Inside/Outside" ACs. <3> The evidence also disputes that Young's "superior education" was a factor in his being paid more than the women. Stevens-Henager never even mentioned Young's education in its arguments on summary judgment. See Apx.70-72, 195- 98 (Stevens-Henager's opening, and reply, memoranda in support of summary judgment). And it never presented any evidence at trial that Dewsnup or Hurtado considered Young's "education" in their salary decision. See Appellee's Supplemental Appendix ("Supp.Apx.") 2-7 (Mar. 28, 2007 Trial Transcript ("Tr.") at 491-92) (Dewsnup's testimony that she and her staff make salary decisions based on a "gut level" feeling about the level at which they believe the person will perform, and making no reference to the person's education as factoring into that "feeling"), 8-13 (Mar. 28, 2007 Tr. at 514-18) (Dewsnup testifies to what she liked about Young's resume and interview, and makes no mention of his education), 14 (Mar. 28, 2007 Tr. at 519) (Dewsnup's testimony that the difference between Young and Nelson was Young had more of a "take charge" attitude; again, no mention of education), 18-113 (Mar. 29, 2007 Tr. at 660-753) (Hurtado's testimony makes no mention of considering Young's education in her salary decisionmaking)). At no time did Dewsnup state that Young received a higher salary because of his education as compared to his female coworkers. See Supp.Apx.16-17 (Mar. 28, 2007 Tr. at 600-01). <4> Throughout its brief, Stevens-Henager refers loosely to the claims brought against it as being the claims of both the plaintiffs. See, e.g., AtBr. at 7 (asserting that both "[p]laintiffs also pursued a claim under Title VII for retaliatory discharge of Ms. DeHart."). DeHart brought a separate action. The Commission only brought salary discrimination claims regarding DeHart, Morris, Miller, and Nelson, and an unlawful termination claim regarding Morris. Apx.28-35 (Commission's complaint). As such, the Commission responds in this brief to Stevens-Henager's arguments regarding the Commission's claims, and not those regarding DeHart's separate claims. <5> Stevens-Henager argues that it is entitled to attorney's fees because the jury ruled "unanimously in Stevens-Henager's favor on every Title VII question," and did so in "only a short period of time." AtBr. at 21. This argument is based on precisely the type of post-hoc reasoning rejected by the Supreme Court in Christiansburg, and the company offers no authority supporting its position. <6> While Mitchell involved claims brought under 42 U.S.C. § 1988, this Court has applied the Christiansburg standard to that statute. See, e.g., Jane L. v. Bangerter, 61 F.3d 1505, 1513 (10th Cir. 1995) (noting that the Christiansburg standard is "incorporated into section 1988 jurisprudence through footnote 2 of [Hensley v. Eckerhart, 461 U.S. 424 (1983)]"). <7> Stevens-Henager cites Greenberg v. Hilton Int'l Co., 870 F.2d 926 (2d Cir. 1989), as support for its proposition that a prevailing defendant may be awarded attorney's fees even in cases where the plaintiff survives summary judgment. AtBr. at 4-5. Stevens-Henager's reliance on Greenberg is misplaced. First, and contrary to the result suggested by Stevens-Henager, the court affirmed the district court's denial of the defendant's motion for attorney's fees-a fact Stevens- Henager conveniently fails to mention in its brief. See id. at 933, 939-41; see also Greenberg v. Hilton Int'l Co., 875 F.2d 39, 42 (2d Cir. 1989) (decision on rehearing). In any event, the court's discussion of fee awards in cases where plaintiffs survive summary judgment with "sketchy evidence" and without "credibility" being taken into account, is not remarkable. While the Commission agrees that there may be circumstances where a case could survive summary judgment, but later developments in the litigation could entitle the defendant to an award of fees under Christiansburg, see 434 U.S. at 422, this is not such a case. As is shown below in greater detail, throughout the litigation the Commission had sufficient evidence on every element on which it bore the burden of proof to support those claims, such that its litigation was in no way frivolous, unreasonable, or without foundation. <8>Stevens-Henager has abandoned on appeal any argument that the Commission litigated in bad faith. <9>As Stevens-Henager argues primarily on appeal that the Commission should have known upon the close of discovery that its claims were frivolous, the Commission argues in its brief to meet that contention. The Commission, nonetheless, maintains that its pursuit of these claims of discrimination has at no time been frivolous, and Stevens-Henager has acknowledged that "[n]o new or additional facts in favor of Stevens-Henager were brought forward at trial which had not previously been disclosed in discovery." AtBr. at xxiv par. 51. <10> At trial, defense counsel reminded Dewsnup that, in her deposition, she had testified that "[t]he educational level that a candidate may have" plays a role in setting the salary of an AC, but, other than agreeing that she had so testified, Dewsnup offered no further discussion on this point-and at no time offered that Young had received a higher salary because of his education as compared to that of his female coworkers. See Supp.Apx. 16-17 (Mar. 28, 2007 Tr. at 600-01). <11> Stevens-Henager further contends that "[i]n light of the fact that plaintiffs' counsel were impressed by Mr. Young's credentials, they should have reevaluated their claims" making continued litigation unreasonable. AtBr. at 13. Of course, the subjective opinion of counsel that Young had impressive credentials is irrelevant and in no way bears on the evidence presented in the case. <12> Stevens-Henager also asserts Young was paid more because he was "more self- motivated and gave a more favorable impression during his interview." AtBr. at 10. This, of course, is inconsistent with its earlier argument that it had just three reasons for the salary discrepancy, none of which included "motivation" and "interview performance." See id. at 9-10. In addition, Stevens-Henager fails to identify any evidence that demonstrates that any management official decided to pay Young more because of his interview performance or motivation. The only evidence Stevens-Henager cites is Young's own deposition testimony about his qualifications. See AtBr. at 10-14. This is hardly evidence that Dewsnup and/or Hurtado decided to pay Young more than the women because of his "self motivation" or favorable interview. <13> We note that Morris filed a charge with the Commission in which she alleged she had been subjected to "discrimination because of my gender, female, in violation of Title VII" by Stevens-Henager, Apx.568, and the company has presented no argument or evidence that she at any time sought to withdraw that charge. <14> Stevens-Henager's argument on this point is, as well, internally inconsistent. It first contends that whether the case was "hotly contested" is immaterial to whether fees should be awarded, but then makes a total about-face and asserts that the fact it "hotly" disputed the Commission's claims demonstrates that it deserves fees. AtBr. at 20.