______________________________________ No. 11-2247 ______________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT ______________________________________ Oral Argument Requested ______________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. TRICORE REFERENCE LABORATORIES, Defendant-Appellee. ____________________________________________________ On Appeal from the United States District Court for the District of New Mexico (1:09-cv-00956-JEC-DJS) The Honorable John E. Conway, Presiding ____________________________________________________ REPLY BRIEF OF PLAINTIFF-APPELLANT EQUAL EMPLOYMENT OPPORTUNITY COMMISSION REGARDING FEES ____________________________________________________ P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel CORBETT L. ANDERSON Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, D.C. 20507 (202) 663-4579 (phone) (202) 663-7090 (fax) corbett.anderson@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . iii INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 A. The EEOC adduced evidence demonstrating that its termination claim never became clearly frivolous. . . . . . . . . . 7 B. The EEOC adduced evidence demonstrating that its reasonable accommodation claim never became clearly frivolous. . . . . . . . . . . . . . . . . . . . . . . . . 11 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . C-1 ECF CERTIFICATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .C-2 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . C-3 TABLE OF AUTHORITIES Cases Adler v. Wal-Mart Stores, Inc., 144 F.3d 664 (10th Cir. 1998) . . . . . . 9 Butler v. City of Prairie Village, Kan., 172 F.3d 736 (10th Cir. 1999). . . 9 Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978). . . . . . . . passim Cleveland v. Policy Mgt. Sys. Corp., 526 U.S. 795, 798 (1999) . . . . . . 18 EEOC v. CRST Van Expedited, Inc., 670 F.3d 897 (8th Cir. 2012). . . . . . 19 EEOC v. Keco Indus., Inc., 748 F.2d 1097 (6th Cir. 1984). . . . . . . . . 21 EEOC v. Waffle House, Inc., 534 U.S. 279 (2002). . . . . . . . . . . . . . 19 Gen. Tel. Co. of the N.W. v. EEOC, 446 U.S. 318 (1980). . . . . . . . . 19 Johnson v. Lindon City Corp., 405 F.3d 1065 (10th Cir. 2005). . . . . . . .19 Kellogg v. Energy Safety Servs., Inc., 544 F.3d 1121 (10th Cir. 2008). . . 13 Mathews v. Denver Newspaper Agency LLP, 649 F.3d 1199 (10th Cir. 2011). . . . . . . . . . . . . . . . . . 19 Praseuth v. Rubbermaid, Inc., 406 F.3d 1245 (10th Cir. 2005). . . . . . 20 Skerski v. Time Warner Cable Co., 257 F.3d 273 (3d Cir. 2001). . . . . 13, 14 Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999). . . . . . 17 Twilley v. Integris Baptist Med. Ctr., Inc., 16 Fed. App’x 923, 2001 WL 901102 (10th Cir. 2001). . . . . . . . . . . . 1, 13, 17, 22 Statutes 42 U.S.C. § 12117(a). . . . . . . . . . . . . . . . . . . . . . . . . . 6, 22 42 U.S.C. § 12101. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 42 U.S.C. § 12111(9)(B). . . . . . . . . . . . . . . . . . . . . . . . . . 16 42 U.S.C. § 2000e-5(b). . . . . . . . . . . . . . . . . . . . . . . . . . .22 42 U.S.C. § 2000e-5(k). . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Other Authorities EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act. . . 16 Practitioner’s Guide to the U.S. Court of Appeals for the Tenth Circuit (8th ed. March 2012). . . . . . . . . . . . . . .10 Rules 10th Cir. R. 10.3(E). . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Fed. R. App. P. 10. . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Fed. R. Evid. 408. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 INTRODUCTION The U.S. Equal Employment Opportunity Commission’s (“EEOC” or “Commission”) opening brief demonstrated that the district court erred in holding that the EEOC’s termination and reasonable accommodation claims under the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq., became clearly frivolous during the litigation (AAIII-554 (R.113)) and thus erred in awarding TriCore Reference Laboratories (“TriCore”) attorney’s fees on that basis (AAIII-646 (R.133)). See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978) (“a plaintiff should not be assessed his opponent's attorney’s fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so”); Twilley v. Integris Baptist Med. Ctr., Inc., 16 Fed. App’x 923, 926, 2001 WL 901102 at *2 (10th Cir. 2001) (fees not appropriate unless plaintiff “utterly fail[ed] to produce any evidence in support of material issues necessary to withstand summary judgment,” or the claim was based on “mere speculation and conjecture”) (emphasis in original). The Commission’s opening brief emphasized that the interrelationship between the EEOC’s termination claim and accommodation claim, and TriCore’s defense of them, precludes TriCore’s recovery of attorney’s fees even if this Court believes only one claim was clearly frivolous. And because neither claim was clearly frivolous – and certainly not both – the district court’s fee award should be vacated. See EEOC Opening Br. at 34-39. Rhonda Wagoner-Alison was a well-performing Technical Lab Assistant and Clinical Lab Assistant for TriCore for a number of years, rising to the level of Clinical Lab Assistant-II (“CLA-II”) in 2005. The CLA-II job consists of phlebotomy, registering patients into TriCore’s computer system, processing specimens, and various other duties. Wagoner-Alison is undisputed to be disabled within the meaning of the ADA. In our opening brief, the EEOC offered evidence that although TriCore accommodated Wagoner-Alison’s limitations when she returned from surgery in 2006, when she attempted to return from surgery in 2007 with the same limitations, it refused to attempt to accommodate her. TriCore delayed Wagoner-Alison’s return to work in June 2007 and failed to engage in an interactive process with her, forcing her to remain on leave for months. It refused Wagoner- Alison’s request that it provide the same accommodation it provided in 2006 – letting her temporarily perform only part of the CLA-II job (patient registration) until she healed sufficiently to resume performing the rest. TriCore also failed to consider whether Wagoner- Alison could be reassigned in June 2007 to a sedentary position which could be performed with her physical limitations. This evidence supports a finding that TriCore simply no longer wanted to employ her because of her disability and certainly precludes a ruling that the Commission’s reasonable accommodation claim was clearly frivolous. See EEOC Opening Br. at 29-34. We pointed out in our opening brief that when TriCore finally let Wagoner-Alison return to work in August 2007 in a newly-created position called a Registration Specialist (consisting of the patient- registration aspect of the CLA-II job) on a trial basis, it quickly removed her from that position after only one month and shortly thereafter fired her for the stated reason of “health.” See EEOC Opening Brief at 26. TriCore contends that performance problems caused it to remove Wagoner-Alison from the Registration Specialist position. But the Commission adduced evidence genuinely disputing that explanation, including TriCore’s favorable assessments of Wagoner-Alison’s performance in previous years doing the very same tasks as a CLA-II, as well as other circumstantial evidence. See EEOC Opening Br. at 27-28. Given this evidence, there is no basis for concluding that the Commission’s termination claim is clearly frivolous. EEOC Opening Br. at 29. In its response brief, TriCore acknowledges that the Commission brought both a failure to accommodate claim and a disability-based wrongful termination claim (TriCore Br. at 14), but then proceeds to conflate the two in its arguments. In addition, and most importantly, rather than apply the legal standard governing this case on appeal from the district court’s fee award – whether the Commission continued to litigate after its claims clearly became frivolous, unreasonable, or groundless – TriCore instead argues at length about why summary judgment was properly granted. Accordingly, most of TriCore arguments in response simply do not bear adequately on matters this Court needs to address in deciding this appeal. For example, TriCore contends that the district court’s fee award as to both claims should be upheld because the record conclusively demonstrates that after Wagoner-Alison returned from surgery in June 2007 she at no time could perform the essential functions of the CLA-II job; that it did not have to grant Wagoner-Alison’s request in June 2007 to temporarily perform only patient-registration duties because it would have meant removing essential functions; and that after it did allow Wagoner-Alison to return to work in August 2007 to temporarily perform only patient-registration duties, she made an unacceptably high number of registration errors. TriCore does not demonstrate why, even if the district court was correct to grant summary judgment on these grounds, the Commission’s suit was also clearly frivolous, unreasonable or unfounded. For the reasons stated in the Commission’s opening brief and this reply, the Commission respectfully asks this Court to reverse the district court’s ruling that the EEOC’s claims became clearly frivolous during litigation and to vacate the court’s award of fees. ARGUMENT The district court committed legal error or otherwise abused its discretion in deeming this the rare and extreme case warranting attorney’s fees for a civil rights defendant. TriCore quotes Christiansburg out of context to suggest that the EEOC should be held to a higher standard than private plaintiffs in determining liability for attorney’s fees. TriCore Br. at 36. However, contrary to TriCore’s assertion, in context Christiansburg makes clear that the Supreme Court specifically rejected applying a higher standard to the EEOC: “[A]lthough a district court may consider distinctions between the Commission and private plaintiffs in determining the reasonableness of the Commission’s litigation efforts, we find no grounds for applying a different general standard whenever the Commission is the losing plaintiff.” Christiansburg, 434 U.S. at 422 n.20 (emphasis added); cf. 42 U.S.C. § 12117(a) (ADA provision incorporating, inter alia, 42 U.S.C. § 2000e-5(k) (providing that “the Commission and the United States shall be liable for costs the same as a private person”)). The Supreme Court’s preface that “a district court may consider distinctions between the Commission and private plaintiffs” is merely a recognition that, in making this determination, courts should consider context and that the Commission’s role can help inform a court’s application of the standard. But this should normally weigh against assessing fees. As the federal government’s primary enforcement agency in the employment discrimination area, the Commission litigates in the public interest and in that role is responsible not only for enforcing the law, but for developing it as well. This can mean litigating cases presenting novel issues or cases with difficult factual scenarios. A. The EEOC adduced evidence demonstrating that its termination claim never became clearly frivolous. Although TriCore acknowledges that this case involves two separate claims, one alleging a failure to reasonably accommodate and another alleging a disability-based termination (TriCore Br. at 14), its response brief conflates the analysis so as to focus the Court’s attention almost exclusively on the accommodation claim. And, tellingly, TriCore’s brief does not address key evidence demonstrating that the Commission’s termination claim is not clearly frivolous. As the Commission argued in its opening brief, TriCore stated in the exit paper accompanying Wagoner-Allison’s termination that her termination was due to her “health.” See EEOC Opening Brief at 26; Appeal No. 11-2096, EEOC Opening and Reply Brfs. This evidence alone is sufficient for this Court to reverse the district court’s fee award. Yet TriCore’s response brief fails to address this evidence or the Commission’s argument that it demonstrates that the district court committed legal error or otherwise abused its discretion in deeming the EEOC’s termination claim clearly frivolous. TriCore does assert that Wagoner-Alison performed poorly as a Registration Specialist when she returned to work in August 2007, TriCore Br. at 10, 28, and was removed for that reason. Again, however, TriCore fails to acknowledge the abundant evidence the Commission adduced undercutting the credibility of that assertion. See EEOC Opening Brief at 25-29; Appeal No. 11-2096, EEOC Opening and Reply Brfs. For example, Wagoner-Alison had undisputed good performance registering patients in the past – including the temporary period in 2006 when she registered patients exclusively. This contrary evidence casts serious doubt on the credibility of TriCore’s negative assessment of her performance of the same duties so suspiciously close to her request for accommodation in 2007. See EEOC Opening Brief at 27-28 (citing Butler v. City of Prairie Village, Kan., 172 F.3d 736, 749 (10th Cir. 1999) (“The temporal proximity of Plaintiff’s request for an accommodation to the decline in his work evaluations and his supervisors’ complaints about his work performance contributes to an inference that Plaintiff's position was eliminated because of his disability.”)). Simply put, TriCore’s allegation that Wagoner-Alison performed poorly as a Registration Specialist in August and September 2007 need not be believed by a jury and thus should not be assumed true by a court.<1> But most importantly for this appeal, whichever version is believed by the factfinder, this disputed evidence precludes a finding of frivolousness. Indeed, the evidence further suggests that, but for her disability, Wagoner-Alison would have remained employed by TriCore in some capacity. TriCore says Wagoner-Alison’s assignment in the Registration Specialist position “would have expired by its own terms after 30 days,” at which time she would have been required to resume the full scope of her CLA-II duties. TriCore Br. at 19. But that is not the case. TriCore gave Wagoner-Alison the Registration Specialist position for a thirty-day trial period that TriCore’s human resources department would have automatically extended if Tami McMahon had not alleged that she committed too many registration errors during the trial period. See AA107 (R.76-9 at 3, Hahn Dep. 44:7-16), AA111 (R.76-9 at 7, Hahn Dep. 85:7-16). TriCore’s human resources department accepted McMahon’s allegation based largely on “trust.” AA111 (R. 76-9 at 7, Hahn Dep. 88:23). But if, as the evidence suggests, TriCore’s assertion of poor performance is not true, but the decision was based on Wagoner-Alison’s disability, it becomes evident that had it not been for her disability, Wagoner-Alison likely would have continued working in the Registration Specialist position beyond her October 8, 2007, termination date, by virtue of, at the very least, the automatic extension TriCore’s human resources department planned to give her. But again, what is most significant for purposes of this appeal as to fees is that, irrespective of which version of these events is ultimately believed, the evidence does not permit the conclusion that the EEOC’s termination claim was clearly frivolous. In other words, it simply cannot be said that the record was so devoid of evidence to support the discriminatory termination claim as to render it utterly baseless. B. The EEOC adduced evidence demonstrating that its reasonable accommodation claim never became clearly frivolous. As a threshold matter, TriCore does not dispute that “if this Court reverses summary judgment on the EEOC’s termination claim, or affirms summary judgment on the EEOC’s termination claim but holds either that claim or the reasonable accommodation claim not frivolous, TriCore cannot recover fees.” EEOC Opening Br. at 37-38. This means that reversing summary judgment on the termination claim in Appeal No. 11-2096, or reversing attorney’s fees on the termination claim, would moot the issue whether the reasonable accommodation claim became clearly frivolous during litigation. Even if this Court were to reach the issue, however, it should reverse. The district court held that the Commission’s reasonable accommodation claim became clearly frivolous when it admitted that walking and standing are essential functions of CLA-II position. AA558 (R.113 at 5). The Commission, in its opening brief, pointed out that the admissions were made mistakenly and that it attempted to withdraw them with its brief in opposition to summary judgment. See EEOC Opening Br. at 31-32 & n.2. The Commission further argued that, regardless of the admissions, this is not a case in which the Commission failed to support its reasonable accommodation claim with any evidence such that it fairly can be said that the Commission’s claim was purely speculative and based on conjecture. Id. at 32. The EEOC adduced evidence that the functions TriCore alleges were essential and could not be temporarily waived in 2007 are the same functions it temporarily waived for Wagoner-Alison in 2006. This Court held in Kellogg v. Energy Safety Servs., Inc., 544 F.3d 1121, 1127-28 (10th Cir. 2008), that a showing that an employer has waived a function in the past can preclude a determination that the function is essential as a matter of law. See EEOC Opening Br. at 30-31 (also citing Skerski v. Time Warner Cable Co., 257 F.3d 273, 283 (3d Cir. 2001)). Accordingly, the Commission’s assertion that the functions Wagoner-Alison sought to have waived are not essential was reasonably premised on the facts and the law in this circuit and therefore cannot be deemed clearly frivolous. See Christiansburg, 434 U.S. at 420 (stating Congress wanted to protect defendants from suits having “no legal or factual basis”) (emphasis added); Twilley, 16 Fed. App’x at 926, 2001 WL 901102 at *2 (fees not appropriate unless plaintiff “utterly fail[ed] to produce any evidence in support of material issues necessary to withstand summary judgment,” or claim was based on “mere speculation and conjecture”) (emphasis in original). TriCore attempts to distinguish Kellogg on the ground that the plaintiff in that case, “a disabled safety supervisor[,] offered proof that other, non-disabled safety supervisors were not required to drive after they lost their licenses” but here there is no evidence in the record of any other CLA-II who did not perform phlebotomy. TriCore Br. at 22- 23. This distinction makes no difference and TriCore misses the point. The logic underlying Kellogg is that once it is demonstrated that an employer has waived the performance of a particular function, it would be incongruent to conclude that, as a matter of law, such a function is an essential one. And certainly, while it may still be established to be essential as a matter of fact (assuming the employer can adequately explain its previous waiver), the waiver of a function nonetheless provides a reasonable, non-frivolous basis for asserting the function is not essential. It makes no difference to this analysis for whom the function was waived. See Skerski v. Time Warner Cable Co., 257 F.3d 273, 283 (3d Cir. 2001) (“Skerski has put forth considerable evidence that contradicts Time Warner’s assertions [that climbing is an essential function of the job of installer technician], particularly the uncontradicted fact that following his 1993 diagnosis he worked for more than three years as an installer technician for Time Warner without ever having to perform over head work.”). TriCore argues that it should not be “penalized” for having gone beyond what the law requires of it by accommodating Wagoner-Alison in 2006. TriCore Br. at 24. But again TriCore misses the point. The issue here is not whether TriCore was required to accommodate Wagoner-Alison in 2007, but whether it was frivolous for the Commission to have asserted that it was. In an effort to divert attention from other evidence demonstrating that the Commission’s claims were not frivolous, TriCore argues that the CLA-II position is the only position at issue here. However, TriCore offers no response to the Commission’s argument that TriCore failed to engage Wagoner-Alison in an interactive process to determine whether some accommodation was feasible. See EEOC Opening Br. at 32-34. TriCore effectively stonewalled Wagoner-Alison when she sought to return to work in 2007 with multiple inquiries and requests for medical documentation. Given that Wagoner-Alison’s impairment and its implications for what she could do were obvious and known to TriCore – and were the same as the year before – it certainly was not frivolous to think that TriCore’s resistance to accommodating Wagoner-Alison in the same way it had before, and its improper insistence on unnecessary information, might constitute a failure to meet its duty to reasonably accommodate and indicate disability bias.<2> The evidence also demonstrates that TriCore did not explore the possibility of reassigning Wagoner-Alison when she sought to return to work in 2007. Given that Wagoner-Alison made clear to TriCore that she wished to remain employed and that TriCore failed to consider whether reassignment or any other accommodation was possible, the Commission’s assertion that TriCore failed to meet its obligation under the ADA to reasonably accommodate was not frivolous. See EEOC Opening Br. at 32-33 (citing 42 U.S.C. § 12111(9)(B) (listing reassignment to a vacant position as a reasonable accommodation) and Smith v. Midland Brake, Inc., 180 F.3d 1154, 1171-72 (10th Cir. 1999) (holding that an employee giving the employer notice of his or her disability and limitations and a desire to remain with the company triggers a mandatory interactive process, including considering possible reassignment)).<3> Thus, whatever the merits of the district court’s decision to grant summary judgment on the EEOC’s reasonable accommodation claim – an issue not on appeal, but which TriCore appears to re-argue – it is nevertheless plain that this “is not a case in which the EEOC ‘utterly fail[ed] to produce any evidence in support of material issues necessary to withstand summary judgment,’ or [one in which] the EEOC’s case was based on ‘mere speculation and conjecture.’” Id. at 29 (quoting Twilley, 16 Fed. App’x at 926, 2001 WL 901102 at *2 (emphasis in original)). TriCore attempts to confuse the issues by raising Wagoner- Alison’s “Social Security disability records” as a basis for this Court to conclude that the Commission’s reasonable accommodation claim was clearly frivolous. TriCore Br. at 30-32. Wagoner-Alison’s SSA proceeding has no bearing on the issues presented in this appeal. It is true that TriCore’s refusal to let Wagoner-Alison return to work in June 2007 led her to apply for Social Security benefits on June 18, 2007, as she was extremely worried about paying her bills and feeding her family. AA162 (R.76-24 at 1), AA216 ¶19 (R.85-1 at 2, Wagoner- Alison Decl. ¶19). TriCore is not correct, however, that the EEOC must “explain away” those records in order to avoid fees. TriCore Br. at 31 (citing Cleveland v. Policy Mgt. Sys. Corp., 526 U.S. 795, 798 (1999)). The premise for applying Cleveland is lacking in this case. The Supreme Court in Cleveland held that when an individual plaintiff in an ADA suit has made statements in a Social Security proceeding inconsistent with her ADA claim, she must explain the inconsistency – i.e., there must be inconsistent positions by the same party. Cleveland, 526 U.S. at 798 (stating “an ADA plaintiff cannot ignore her SSDI contention … [and] must explain why that SSDI contention is consistent with her ADA claim”) (emphasis added). See also Mathews v. Denver Newspaper Agency LLP, 649 F.3d 1199, 1209-10 (10th Cir. 2011) (applying estoppel principles to plaintiff’s own statements to the SSA); Johnson v. Lindon City Corp., 405 F.3d 1065, 1069 (10th Cir. 2005) (summarizing estoppel principles solely with reference to conflicting statements of “a party”). The EEOC obviously did not make any statements in Wagoner-Alison’s SSA proceeding, and she is not a party to the EEOC’s lawsuit. Nor did the EEOC serve as Wagoner-Alison’s representative or proxy. See EEOC v. Waffle House, Inc., 534 U.S. 279, 297 (2002) (holding EEOC not bound by private arbitration agreement, consistent with its previous recognition that “the EEOC does not stand in the employee’s shoes”); Gen. Tel. Co. of the N.W. v. EEOC, 446 U.S. 318, 326 (1980) (holding EEOC not bound by Rule 23 because it is not a proxy for the employees on whose behalf it seeks relief). The EEOC thus need not explain away Wagoner-Alison’s SSA statements. Cf. EEOC v. CRST Van Expedited, Inc., 670 F.3d 897, 921 (8th Cir. 2012) (holding EEOC not judicially estopped by charging parties’ bankruptcy representations). Indeed, it would be extraordinary for the EEOC, as a nonparty to the SSA proceeding, to face the rare sanction of fees based on SSA documents that this Court has held need not even be admitted. See Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1253-54 (10th Cir. 2005) (stating Cleveland mandated neither admission nor exclusion of plaintiff’s SSDI statements and disability insurance applications, and affirming trial court’s decision not to admit such documents at trial). The SSA proceeding is of no import here. Attempting to further confuse the issues, TriCore points to the EEOC’s pre-litigation charge investigation process and asserts that the Commission knew that its case was frivolous even then. TriCore Br. at 27-28. But the district court considered and rejected this argument, finding that the EEOC’s accommodation claim became clearly frivolous during litigation on April 8, 2010 (after it admitted walking and standing are essential functions) and its termination claim became clearly frivolous during litigation on June 4, 2010. AAIII-558-59. The district court thus implicitly held that nothing about the Commission’s pre-suit conduct rendered the suit frivolous and TriCore does not argue the district court erred. In any case, TriCore makes the same contention with respect to what the Commission knew before litigation as it does throughout – that the Commission knew Wagoner-Alison could not perform the essential functions of the CLA-II job and that Wagoner-Alison performed poorly as a Registration Specialist. This contention lacks merit for the same reasons discussed in the Commission’s opening brief and above. In addition, in determining whether the Commission’s claim meets the Christiansburg standard, a court should focus on the agency’s position in litigation. Cf. EEOC v. Keco Indus., Inc., 748 F.2d 1097, 1100 (6th Cir. 1984) (“It was error for the district court to inquire into the sufficiency of the Commission’s investigation.”). TriCore’s attempt to focus this Court’s attention on what the Commission did or did not know during its investigation is nothing more than an invitation to engage in just the sort of post-hoc reasoning the Supreme Court has rejected. See Christiansburg, 434 U.S. at 422 (“This kind of hindsight logic could discourage all but the most airtight claims . . . . . Even when the law or the facts appear questionable or unfavorable at the outset, a party may have an entirely reasonable ground for bringing suit.”). Finally, TriCore’s complaint that the EEOC made “increasingly absurd settlement demands,” focusing on the Commission’s prelitigation conciliation offer and its offer a year and a half later in litigation is simply more bluster. TriCore Br. at 34, 38-39. The parties’ conciliation and settlement positions have nothing to do with the Christiansburg standard, which focuses on whether the suit is wholly devoid of merit. See Christiansburg, 434 U.S. at 420 (stating Congress wanted to protect defendants from suits having “no legal or factual basis”) (emphasis added); Twilley, 16 Fed. App’x at 926, 2001 WL 901102 at *2 (fees not appropriate unless plaintiff “utterly fail[ed] to produce any evidence in support of material issues necessary to withstand summary judgment,” or claim was based on “mere speculation and conjecture”) (emphasis in original). This Court has never held or even implied that the parties’ conciliation or settlement efforts are relevant to the Christiansburg standard. Nor is there good reason for doing so. It is axiomatic that settlement positions may not be used by either party as evidence of the validity or invalidity of a claim. Fed. R. Evid. 408. Similarly, the statute contemplates that matters discussed during conciliation not be used as evidence in litigation. 42 U.S.C. § 12117(a) (ADA provision incorporating, inter alia, 42 U.S.C. § 2000e-5(b) (“Nothing said or done during and as a part of [conciliation] may be . . . used as evidence in a subsequent proceeding without the written consent of the persons involved.”)). CONCLUSION For the foregoing reasons, and those in its opening brief, the Commission respectfully asks this Court to reverse the district court’s ruling deeming the EEOC’s claims frivolous, unreasonable, or without foundation, R.113, and to vacate the court’s award of fees. R.133. Respectfully submitted, P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel /s/ Corbett L. Anderson CORBETT L. ANDERSON Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E. Washington, D.C. 20507 (202) 663-4579 (phone) (202) 663-7090 (fax) corbett.anderson@eeoc.gov CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 4,455 words excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). I certify that this brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2007 in Century Schoolbook 14 point. /s/ Corbett L. Anderson CORBETT L. ANDERSON Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E. Washington, D.C. 20507 (202) 663-4579 (phone) (202) 663-7090 (fax) ECF CERTIFICATE I certify that: A. All required privacy redactions have been made; B. The hard copies of this brief submitted to the Clerk’s office are exact copies of the ECF filing; and C. The ECF submission was scanned for viruses with Trend Micro. According to these programs, this submission is free of viruses. /s/ Corbett L. Anderson CORBETT L. ANDERSON Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E. Washington, D.C. 20507 (202) 663-4579 (phone) (202) 663-7090 (fax) CERTIFICATE OF SERVICE I certify that on April 9, 2012, I did the following: filed this Appellant’s Reply Brief via the ECF system and sent seven hard copies of this brief by UPS for next-day delivery to Elisabeth A. Shumaker, Clerk of Court, U.S. Court of Appeals for the Tenth Circuit; and served this Appellant’s Reply Brief via the ECF system on Appellee TriCore Reference Laboratories, and on Amici Curiae. I further certify that on April 9, 2012, I did the following: sent one hard copy of this Reply Brief by UPS for next-day delivery to Counsel for Appellee, Lisa Mann and Alex Walker, of Modrall Sperling, P.O. Box 2168, Albuquerque, NM 87103-2168; sent one hard copy of this Reply Brief to each of the following by U.S. Mail: Robin S. Conrad, National Chamber Litigation Center, Inc., 1615 H. Street, N.W., Washington, DC 20062, and Rae T. Vann, of Norris, Tysse, Lampley & Lakis, LLP, 1501 M. Street, N.W., Suite 400, Washington, DC 20005. /s/ Corbett L. Anderson Corbett L. Anderson Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E. Washington, D.C. 20507 (202)663-4579 ********************************************************************************** <> <1> As it did in the merits briefing, TriCore has submitted a supplemental appendix containing exhibits, and arguments based on them, related to its contention that Wagoner-Alison committed a high number of errors. TriCore accuses the EEOC of “attempting to manipulate the district court record” by not including these materials in its appellant’s appendix. TriCore Br. at 41. But the “record” is controlled by Fed. R. App. P. 10, not by what either party includes or does not include in its appendix. And, as the EEOC explained in its merits reply brief, the EEOC did not include the materials at issue because the district court expressly declined to consider them (as it held them to be new evidence that TriCore inappropriately attached to its summary judgment reply brief) and this Court has stated that appellate review is limited to the materials the district court considered. R.95; Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998). Moreover, this Court’s practitioner’s guide states that “items excluded from the record on appeal by 10th Cir. R. 10.3(E) should not be included in an appendix unless they are necessary to support an issue on appeal.” Practitioner’s Guide to the U.S. Court of Appeals for the Tenth Circuit, at 25 (8th ed. March 2012). The Commission believes TriCore’s supplemental appendix contains material not proper for consideration by the Court because the district court expressly declined to consider these materials and they are not necessary to this appeal. In any event, there is nothing talismanic about those exhibits and they do not render the Commission’s case clearly frivolous. <2> See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, Q&A #8 (“Are there situations in which an employer cannot ask for documentation in response to a request for reasonable accommodation? Yes. An employer cannot ask for documentation when: (1) both the disability and the need for reasonable accommodation are obvious, or (2) the individual has already provided the employer with sufficient information to substantiate that s/he has an ADA disability and needs the reasonable accommodation requested.”), available at http://www.eeoc.gov/policy/docs/accommodation.html. <3> As part of TriCore’s argument that the CLA-II position is the only position at issue here, it contends that it never reassigned Wagoner- Alison permanently to the Registration Specialist position because she never made such a request. TriCore Br. at 19-20. But in fact she expressed a strong interest in the Registration Specialist position. AA110 (R.76-9 at 6, Hahn Dep. 79:7-9 (“So [Wagoner-Alison] was very open to being [a] registration specialist. She said, you know, ‘I would like to do that.’”).