No

TABLE OF CONTENTS

page

Table of Authorities.......................................................................................... ii

INTRODUCTION............................................................................................. 1

ARGUMENT.................................................................................................... 2

The District Court Abused its Discretion because it Premised

the Imposition of Fees on Incorrect Legal Principles and Clearly

Erroneous Facts................................................................................................ 2

A. The district court contravened Christiansburg when it imposed

fees based on EEOC’s failure to prevail on laches, instead of

assessing whether EEOC had a reasonable basis for opposing

Propak’s laches defense......................................................................... 2

B. The district court abused its discretion because laches should

not form the basis for a fee award against the government.................. 15

C. The district court abused its discretion because it awarded fees

based on facts that are clearly erroneous, unsupported by the

record, or legally irrelevant................................................................... 18

CONCLUSION............................................................................................... 30

CERTIFICATE OF COMPLIANCE............................................................... 31

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

Cases Page

Am. Fed’n of State, Cnty. & Mun. Emps., AFL-CIO (AFSMCE)

v. Cnty. of Nassau, 96 F.3d 644 (2d Cir. 1996)............................................ 29

Arnold v. Burger King Corp., 719 F.2d 63 (4th Cir. 1983)........................... 5, 6

Brown v. Nucor Corp., 576 F.3d 149 (4th Cir. 2009)..................................... 29

Christiansburg Garment Company v. EEOC,

434 U.S. 412 (1978)...................................................................... 1, 9, 10, 18

EEOC v. Am. Nat’l Bank, 574 F.2d 1173 (4th Cir. 1978)............................... 16

EEOC v. Autozone, Inc., 258 F. Supp. 2d 822 (W.D. Tenn. 2003)................. 11

EEOC v. Chesapeake & Ohio Ry. Co., 577 F.2d 229 (4th Cir. 1978).............. 16

EEOC v. Christiansburg Garment Co.,

376 F. Supp. 1067 (W.D. Va. 1974).............................................................. 9

EEOC v. Christiansburg Garment Co., 1975 WL 317 (W.D. Va. 1975),

aff’d, 550 F.2d 949 (4th Cir. 1977)................................................................ 9

EEOC v. Great Atl. & Pac. Tea Co.,

735 F.2d 69 (3d Cir. 1984).............................................................. 12, 13, 24

EEOC v. Great Steaks, Inc., 667 F.3d 510 (4th Cir. 2012)................................ 5

EEOC v. Konica Minolta Bus. Solutions, 639 F.3d 366 (7th Cir. 2011).......... 28

EEOC v. Lockheed Martin Global Telecomms., Inc.,

514 F. Supp. 2d 797 (D. Md. 2007)............................................................ 12

EEOC v. Navy Fed. Credit Union, 424 F.3d 397 (4th Cir. 2005).................... 17

EEOC v. Philips Colls., Inc.,

984 F. Supp. 1464 (M.D. Fla. 1997)........................................................... 11

Cases (cont’d) Page

EEOC v. Rama Printing, 1991 WL 64060 (W.D.N.Y. April 17, 1991).......... 11

EEOC v. Randstad, 685 F.3d 433 (4th Cir. 2012).......................................... 23

EEOC v. Scrub, Inc., 2010 WL 3172855 (N.D. Ill. Aug. 10, 2010)................. 11

EEOC v. Waffle House, Inc., 534 U.S. 279 (2002).......................................... 17

Evans v. Eaton Corp. Long Term Disability Plan,

514 F.3d 315 (4th Cir. 2008)................................................................. 18, 19

Farmer v. Navy Federal Credit Union, 2012 WL 3236721 (E.D.Va. 2012),

aff’d o.b., 518 Fed.Appx. 145 (4th Cir. 2013)............................................... 7

Georator Corp. v. EEOC, 592 F.2d 765 (4th Cir. 1979)................................. 23

Glymph v. Spartanburg Gen. Hosp., 783 F.2d 476 (4th Cir. 1986)............. 7, 19

Hensley v. Eckerhart, 461 U.S. 424 (1983)...................................................... 29

Lowery v. Jefferson Cnty. Bd. of Educ.,

586 F.3d 427 (6th Cir. 2009)..................................................................... 4, 5

Nat’l RR Passenger Corp. v. Morgan, 536 U.S. 101 (2002)...................... 16, 17

Occidental Life Ins. v. EEOC, 432 U.S. 355 (1977)................................... 16, 27

Priestley v. Astrue, 651 F.3d 410 (4th Cir. 2011)....................................... 14, 29

Sensations, Inc. v. City of Grand Rapids,

526 F.3d 291 (6th Cir. 2008)....................................................................... 15

Smith v. Smythe-Cramer Co., 754 F.2d 180 (6th Cir. 1985)............................ 29

Unus v. Kane, 565 F.3d 103 (4th Cir. 2009)............................................. 15, 19

Westberry v. Gislaved Gummi AB, 178 F.3d 257 (4th Cir. 1999)............... 14, 29

Statutes

42 U.S.C. § 1985............................................................................................ 19

42 U.S.C. § 1988.............................................................................................. 4

42 U.S.C. § 2000e-5(k)..................................................................................... 1

Regulations

29 C.F.R. § 1602.14....................................................................................... 13

Miscellaneous

1 Steven Alan Childress & Martha S. Davis,

Federal Standards of Review (3d ed. 1999).................................................. 18

2006 WL 4672917, 4672920-21 (EEOC CM),

EEOC Compliance Manual, Vol. I, “Intake of Charges and Complaints,”

EEOC Order No. 915.001 (5/92)................................................................. 20

ARGUMENT

The District Court Abused Its Discretion because it Premised the Imposition of Fees on Incorrect Legal Principles and Clearly Erroneous Facts.

A. The district court contravened Christiansburg when it imposed fees based on EEOC’s failure to prevail on laches, instead of assessing whether EEOC had a reasonable basis for opposing Propak’s laches defense.

In its opening brief, the EEOC explained that the critical issue on appeal is “whether the EEOC had a reasonable basis for believing that laches did not bar this litigation.” EEOC Opening Brief (EEOC-Brf) at 19. In other words, once Propak raised a laches affirmative defense, did the EEOC have a reasonable basis for believing it could defeat the defense? The EEOC offered multiple grounds in its opening brief—any one of which would suffice to defeat an award of fees—for the EEOC’s reasonable belief that laches did not bar the EEOC’s initiation and continuation of its lawsuit against Propak for national origin hiring discrimination. EEOC-Brf at 15-17.

Propak’s response brief essentially confuses the issue on appeal. Propak argues, somewhat inconsistently, that the district court’s fee award either had nothing to do with its laches determination or was only “one factor” in the court’s fee award. Propak Answer Brief (Propak-Brf) at 15 (“district court did not award attorneys’ fees on the basis of laches”); 26-27 (court’s consideration of laches findings “merely one factor in its calculus of reasonableness”), 33-34 (fee decision not based on doctrine of laches). Propak contends that instead of being tied to the court’s summary judgment ruling, the court’s fee award was based on some amorphous, unrelated finding that the EEOC’s lawsuit was generally “unreasonable,” which Propak argues is “an entirely different question” from EEOC’s reasonableness in opposing Propak’s laches defense. Propak-Brf at 13-15, 17-18.

Propak is incorrect to separate the laches ruling from the fee ruling. A finding of “unreasonableness” that permits a district court to award attorneys’ fees to a prevailing defendant must be tied to the specific legal flaw or flaws the district court found in the plaintiff’s lawsuit. See generally Lowery v. Jefferson Cnty. Bd. of Educ., 586 F.3d 427, 437-39 (6th Cir. 2009) (applying Christiansburg to reverse fees awarded to prevailing defendant under 42 U.S.C. § 1988). As the Sixth Circuit stated in Lowery, a court weighing an application for attorneys’ fees under Christiansburg must consider the “merits of the claim” or the “legal basis for bringing suit—what facts and law the plaintiffs knew or should have known when they sued.” Id. at 438-39.

And the district court’s fee decision itself leaves no doubt that the laches determination comprises the entire basis on which the court imposed fees. Not only does the district court’s fee decision explicitly state that its prior laches decision is “the law of the case,” R.57 at 6 (JA.560), but also all of the additional factors the court considered in imposing fees (see Propak-Brf at 20-24) overlap with the factors the court identified as its basis for finding laches. Compare, e.g., R.41 at 8-9 (JA-419-420) (discussing, in summary judgment decision, the timing and sequence of specific EEOC investigative steps in analysis of Propak’s laches defense) with R.57 at 6-7 (JA-560-561) (identifying, in fee decision, the same EEOC investigative steps as basis for fees).

Indeed, Propak’s legal memorandum in support of its fee application relies entirely on its original laches defense. See R.46-2 at 5 (JA-521) (“Propak’s successful laches defense demonstrates that the EEOC’s lawsuit was unreasonable at the outset.”); id. at 1-9 (JA-517-525) (discussing, in support of fee application, same factors on which it argued its laches defense). The district court’s fee decision, in turn, closely tracks the arguments Propak made in support of fees. Compare R.46-2 (JA-517-525) with R.57 (JA-555-566). Thus, there is no merit to Propak’s contention that the district court awarded fees on some basis other than its prior ruling that Propak established a laches defense.

Propak’s brief confuses not only the basis for the district court’s fee ruling, but also the standard the court should have applied in assessing Propak’s fee petition. Because laches was the basis on which the district court dismissed the EEOC’s lawsuit, see R.41 (JA412-440), the court could impose fees under Title VII only if it determined separately that it was unreasonable for the EEOC to file and then continue to litigate this Title VII hiring claim once Propak raised its laches affirmative defense. See Lowery, 586 F.3d at 438-39; see also EEOC v. Great Steaks, Inc., 667 F.3d 510, 517 (4th Cir. 2012) (quoting Arnold v. Burger King Corp., 719 F.2d 63, 65 (4th Cir. 1983) (attorneys’ fees to prevailing defendant appropriate only “in those cases [in] which the plaintiff presses a claim which he knew or should have known was groundless, frivolous, or unreasonable.”)). The EEOC’s opening brief does not merely re-argue the laches issue, as Propak incorrectly claims. The EEOC’s opening brief explains why the EEOC had reasonable and non-frivolous grounds for opposing Propak’s laches defense. Propak’s answer brief overlooks the critical reason why the district court abused its discretion in imposing fees on the EEOC—the district court never separately considered whether the EEOC had a reasonable basis for opposing Propak’s laches defense.

Cases in which this Court upheld fee awards against losing Title VII plaintiffs demonstrate that the proper analysis is very different from the one conducted here. This Court’s decisions show that the critical consideration in imposing fees is not that a plaintiff’s case was legally or factually unavailing, but that it was wholly lacking in legal or factual support and that the plaintiff was aware or should have been aware of the wholesale absence of supporting evidence and legal precedent.

In Arnold v. Burger King Corp., 719 F.2d 63 (4th Cir. 1983), for example, this Court affirmed fees awarded against a plaintiff who presented no evidence to support his claim that he was fired because he is Black. His employer’s evidence, in contrast, demonstrated a nondiscriminatory reason for firing Arnold—he sexually harassed multiple female employees. See id. at 64-67. Importantly, this Court noted that Arnold was aware of the defendant’s evidence of non-discrimination and his own lack of any evidence to support his contention that his discharge was based on his race. Id. at 66-67. This Court accordingly found “the trial court’s finding of frivolousness . . . fully justified.” Id. at 67.

Similarly, in Farmer v. Navy Federal Credit Union, 2012 WL 3236721 (E.D.Va. 2012), aff’d o.b., 518 Fed.Appx. 145 (4th Cir. 2013), this Court affirmed the imposition of fees starting from the final pretrial conference because the record showed that, by that date, Farmer knew there was absolutely no evidence that her employer’s refusal to rehire her was motivated by race discrimination rather than by her workplace misconduct. See 2012 WL 3236721, at *2-3.

What makes this case different from Arnold and Farmer, and perhaps accounts for the district court’s and Propak’s confusion about the requisite “unreasonableness” showing, is that the term “unreasonable” appears in both the standard for awarding fees (lawsuit must be frivolous or unreasonable) and the standard for establishing laches (plaintiff unreasonably delayed filing suit). Despite the overlapping presence of this term, the finding of unreasonable delay in the context of a laches defense and subsequent dismissal of the EEOC’s lawsuit on that basis does not answer the question of whether fees should be awarded. Rather, a fee award requires a separate and distinct finding that the EEOC knew it had no reasonable basis for opposing the laches defense. See Glymph v. Spartanburg Gen. Hosp., 783 F.2d 476, 479-80 (4th Cir. 1986) (reversing district court’s imposition of fees “[a]fter evaluating the entire record” because “district court’s finding [that Glymph’s claim was frivolous, unreasonable, or without foundation] was not based upon the reasonableness of the claims as they existed at the time of trial”).

Consequently, contrary to Propak’s arguments in its Answer Brief, the reasonableness of the EEOC’s belief that its lawsuit was not barred by laches is the determinative factor against which the district court’s discretionary imposition of fees must be measured. Only in that light can this Court gauge whether, on this record, the premise for the district court’s imposition of fees—its conclusion that the EEOC acted unreasonably—falls so far outside the range of acceptable judicial reasoning that, as in Glymph, it amounts to an abuse of the district court’s discretion.

Propak disputes the EEOC’s contention that the district court abused its discretion by referring to, and relying on, its summary judgment findings as “the law of this case” in the court’s fee decision. Propak-Brf at 26-29. Propak argues that “a dismissal on the basis of laches is tantamount to a finding of unreasonable prosecution” and, therefore, by definition supports the imposition of fees on the losing plaintiff. Id. at 26. This line of reasoning is directly at odds with the distinction the Supreme Court emphasized in Christiansburg between whether, on the one hand, a plaintiff’s position is ultimately meritorious versus, on the other hand, the reasonableness of the plaintiff’s decision to assert a particular position given the known facts and existing legal precedent.

In Christiansburg, the company moved to dismiss the EEOC’s lawsuit claiming the company engaged in race discrimination against employee Rosa Helm and other Black employees, not on the basis that this claim lacked merit, but on the ground that the EEOC lacked statutory authority to sue the company because the underlying charge predated the Title VII amendment granting the EEOC litigation authority. See EEOC v. Christiansburg Garment Co., 376 F. Supp. 1067, 1068-69, 1073 (W.D. Va. 1974). The district court agreed. After ruling that the EEOC’s lawsuit was not barred by Virginia’s two-year statute of limitations and that laches did not apply to the federal government, the district court dismissed the EEOC’s lawsuit on the ground that the EEOC lacked statutory authority to sue the company because Helm’s charge was not still “pending” in 1972, when Congress expanded the EEOC’s powers to include the authority to litigate claims. Id. at 1071-74.

Despite having ruled against the EEOC on the question of statutory authority to sue, the district court denied Christiansburg’s application for fees, and this Court affirmed. EEOC v. Christiansburg Garment Co., 1975 WL 317 (W.D. Va. 1975), aff’d, 550 F.2d 949 (4th Cir. 1977). The Supreme Court, agreeing the district court properly denied fees, emphasized that fees should never be imposed on a losing Title VII plaintiff simply because the plaintiff’s suit was dismissed, but only where the plaintiff’s claim was “groundless” or “without foundation.” Christiansburg, 434 U.S. at 421. Noting that “hindsight logic” could improperly discourage “all but the most airtight claims” and that “the course of litigation is rarely predictable,” the Supreme Court stated that a plaintiff “may have an entirely reasonable ground for bringing suit” even “when the law or the facts appear questionable or unfavorable at the outset.” Id. at 422.

Applying that standard, the Supreme Court upheld the district court’s denial of fees because it had properly focused on whether the EEOC reasonably could have believed that its interpretation of Title VII was correct. The Court noted that the district court, despite having dismissed the EEOC’s lawsuit, concluded that the issue on which the defendant prevailed “was an issue of first impression requiring judicial resolution” and that the EEOC’s interpretation of the scope of its new litigation authority under Title VII, although incorrect, “was not frivolous.” 434 U.S. at 423-24. Thus, the Supreme Court upheld the district court’s discretionary denial of defendant Christiansburg’s fee application because the district court had considered the reasonableness of the EEOC’s legal position on the issue on which the EEOC ultimately lost and had concluded that the EEOC’s position, although wrong, was not unreasonable.

Although the basis for a laches defense in a Title VII lawsuit is not a matter of “first impression” as was the legal issue in Christiansburg, the EEOC was nevertheless entitled to oppose Propak’s affirmative defense because, like the statutory question in Christiansburg, assertion of laches requires judicial resolution. There are no clear, unequivocal circumstances under which a defendant asserting an affirmative defense of laches or a plaintiff opposing a laches defense can say, definitively, that laches applies or does not apply. Indeed, in the vast majority of cases in which defendants have raised a laches defense in EEOC lawsuits, district courts have rejected a laches defense, even under facts that the EEOC reasonably viewed as comparable to the facts in this case.[1]

Laches is an especially questionable basis for a fee award because no particular period of time constitutes “unreasonable delay” as a matter of law. See EEOC-Brf at 50-53. Likewise, courts differ widely as to what is sufficient to establish the prejudice prong of a laches defense. See EEOC-Brf at 28-33, 36-39. It is particularly significant that this Court’s laches decisions do not establish any bright-line rules that should have signaled to the EEOC that the circumstances here necessarily established either the “unexplained delay” or “prejudice” prongs of a laches defense.

For instance, in moving for summary judgment, Propak claimed it was prejudiced by the difficulty of locating key witnesses, including two former site managers and other employees of the Shelby facility between 2002 and 2004. See R.28 at 7, 11-13 (JA-300, 304-306). Propak had admitted in discovery, however, that it had made no efforts to locate such witnesses. See EEOC-Brf at 36. Relying on a Third Circuit decision and a district court decision from the District of Maryland, the EEOC opposed Propak’s assertion of prejudice on this basis, arguing a defendant cannot claim witnesses are unavailable unless the defendant attempts, unsuccessfully, to locate them. See R.29 at 22-24 (JA-337-339) (citing EEOC v. Great Atl. & Pac. Tea Co., 735 F.2d 69, 84 (3d Cir. 1984); EEOC v. Lockheed Martin Global Telecomms., Inc., 514 F. Supp. 2d 797, 804 (D. Md. 2007)). The district court rejected the EEOC’s position and ruled that Propak had established “prejudice” based on the theoretical hardship of trying to locate former employees, without any need for Propak to demonstrate that it attempted to locate them and its efforts were unsuccessful. R.41 at 22-23 (JA433-434).

We are aware of no ruling of this Court that establishes a governing legal principle on this point. Although the district court ruled that the EEOC’s position was incorrect, more is required under Christiansburg. The uncertain legal standards applicable in this circuit undermine the conclusion that the EEOC’s position, even if incorrect, was unreasonable.

Similarly, Propak claimed it was prejudiced by the unavailability of personnel records. R.28 at 13 (JA-306). Despite a legal duty to maintain records relating to an on-going EEOC investigation, Propak’s witnesses admitted that the company destroyed the records at some unknown time, for reasons Propak’s witness could not explain. See EEOC-Brf at 36-40. The EEOC argued below that Propak cannot establish “prejudice based on records it destroyed in violation of the EEOC’s regulations.” R.29 at 19-22 (JA-334-337) (citing 29 C.F.R. § 1602.14). The Third Circuit has held that “[a]ny records unavailable by virtue of [defendant’s] failure to comply with the record-preservation requirements of 29 C.F.R. § 1602.14 would not, of course, qualify as establishing prejudice.” Great Atl. & Pac. Tea Co., 735 F.2d at 84. Moreover, these records were not, in fact, “unavailable,” because Propak had provided copies of these records to the EEOC during the administrative investigation and, during discovery, the EEOC produced, or offered to produce, those same copies back to Propak. See R.29 at 20 n.8 (JA-335).

The district court rejected the EEOC’s argument that Propak could not demonstrate prejudice based on the loss of documents. Relying exclusively on out-of-circuit cases, and discounting the EEOC’s recordkeeping regulations, the court ruled that Propak was under no obligation to maintain its employee records until it received notice that the EEOC’s investigation was completed. See R.41 at 24-25 (JA-435-436). Again, we are aware of no ruling of this Court under comparable circumstances—where a defendant asserts prejudice due to the loss of records that it improperly destroyed while an EEOC investigation was still pending—such that the EEOC should have known its position could not possibly prevail. Although the district court rejected the EEOC’s legal position in its summary judgment decision, it was not unreasonable for the EEOC to have advanced this legally-supported argument in opposition to laches.

Given the absence of Fourth Circuit case law applying the elements of a laches defense in circumstances comparable to this case, the district court never explained in its fee decision why the EEOC was not entitled to rely on the precedent the EEOC cited below. Indeed, apart from citing to Christiansburg, the district court’s fee decision does not mention even one of the cases on which the EEOC relied in opposing summary judgment and, later, in opposing imposition of fees. Compare R.29 at 12-24 (JA-327-339) (EEOC’s opposition to summary judgment) and R.49 at 5-12 (JA-531-538) (EEOC’s opposition to fees) with R.57 at 6-12 (JA-560-566) (district court’s fee decision). Instead of addressing the reasonableness of the EEOC’s position in opposing laches, the district court simply restated its original laches decision and then imposed fees on that basis.

A district court abuses its discretion when it applies the wrong legal standard or misapplies the relevant legal standard. See Priestley v. Astrue, 651 F.3d 410, 415-16 (4th Cir. 2011); Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999). The court here abused its discretion because it failed even to acknowledge, let alone address, the EEOC’s well-supported arguments for opposing laches; the court imposed fees simply because the EEOC lost on Propak’s laches affirmative defense. By so doing, the district court ignored Christiansburg’s principle that fees may be imposed on a losing plaintiff only where the plaintiff’s position was not merely lacking in merit, but was actually groundless, frivolous, or without any legal or factual foundation.

Had the district court engaged in the proper analysis, it would have had to conclude that the EEOC had a well-grounded basis for opposing Propak’s laches defense. See EEOC-Brf at 28-57. This Court should, therefore, reverse the imposition of fees. See Unus v. Kane, 565 F.3d 103, 127 (4th Cir. 2009) (citing Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 303 (6th Cir. 2008) (reversing fee award to prevailing defendants under § 1988; noting fees should be reversed “when issues of law remained unresolved” or “plaintiff had an arguable basis for pursuing his or her claim”)).

This Court should reverse the district court’s imposition of fees because the underlying dismissal of the EEOC’s lawsuit was based on an erroneous legal principle: dismissal of the EEOC’s lawsuit based on laches. A laches defense generally does not apply to the federal government when the government sues to enforce the public interest, as the EEOC did here to enforce Title VII. Thus, laches cannot serve as grounds for dismissal of an EEOC lawsuit. This Court should, therefore, reject the notion that laches can form the basis for a fee award against the EEOC under Title VII’s fee-shifting provision. See EEOC-Brf at 22-26.

Propak misinterprets judicial precedent when it argues that the Supreme Court and this Court have concluded courts may apply laches to the EEOC. Propak-Brf at 30-31 (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 121-22 & n.14 (2002), and Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 373 (1977)). In Occidental Life, the Supreme Court stated only that a court could remedy “inordinate EEOC delay” by, for instance, “limiting backpay relief.” 432 U.S. at 373 (emphasis added). In EEOC v. American National Bank, 574 F.2d 1173, 1175-76 (4th Cir. 1978), and EEOC v. Chesapeake & Ohio Railway Co., 577 F.2d 229, 233-34 (4th Cir. 1978), this Court reiterated Occidental’s statement that courts may limit backpay relief to the EEOC. This Court did not, as Propak suggests (Propak-Brf at 31), “interpret Occidental Life” to permit a district court to dismiss an EEOC lawsuit based on laches. And in Morgan, the Supreme Court confirmed it had never decided whether a court could dismiss an EEOC lawsuit based on laches and was not doing so in that case. 536 U.S. at 122 n.14 (observing that “traditionally the doctrine [of laches] may not be applied against the sovereign” and noting it did not have “occasion to consider” whether a laches defense may nevertheless be asserted against EEOC).[2]

None of these cases authorize district courts to dismiss an EEOC lawsuit based on laches, as Propak incorrectly asserts. Propak-Brf at 30-31. Importantly, when the EEOC brings a lawsuit to enforce Title VII, it acts in the public interest, even when the EEOC seeks monetary relief for private individuals. See EEOC-Brf at 24 n.7 (citing EEOC v. Waffle House, Inc., 534 U.S. 279, 296-98 (2002)). Because of the public interest focus of an EEOC lawsuit, the rationale under which employers may raise a laches defense against a private Title VII plaintiff, see Morgan, 536 U.S. at 121-22, does not apply to EEOC litigation. The district court thus abused its discretion in imposing attorneys’ fees on the EEOC here because the award is premised on an erroneous legal principle—the court’s mistaken conclusion that it is authorized to dismiss an EEOC lawsuit based on laches.

C. The district court abused its discretion because it awarded fees based on facts that are clearly erroneous, unsupported by the record, or legally irrelevant.

Propak argues that the district court imposed fees based on facts that are supported by the record and that, in arguing for reversal, the EEOC pays only lip service to the abuse of discretion standard. Propak-Brf at 17, 19-25. Propak is mistaken. The EEOC recognizes that mere disagreement with the district court does not establish the requisite abuse of discretion that supports a reversal of fees. Nevertheless, a district court’s discretion to impose fees on a losing Title VII plaintiff is not unbounded, and this Court’s review of such fee awards is not simply pro forma.

Indeed, this Court has recognized that abuse of discretion “has different meanings in different legal contexts” and that the actual level of review depends on the circumstances. See Evans v. Eaton Corp. Long Term Disability Plan, 514 F.3d 315, 321-22 (4th Cir. 2008) (citing 1 Steven Alan Childress & Martha S. Davis, Federal Standards of Review §§ 1.02, 4.21, at 1-12, 4-131, 4-132 (3d ed. 1999)). In this instance, the Supreme Court established a very demanding standard for a district court’s award of fees to a prevailing Title VII defendant, as compared to the standard for awarding fees to a prevailing Title VII plaintiff. Christiansburg, 434 U.S. at 418-22. To ensure district courts give proper consideration to the differences in the Congressional purposes behind awards of fees in these two different circumstances, this Court utilizes an appropriately searching review of a district court’s imposition of fees on a losing Title VII plaintiff. See, e.g., Glymph, 783 F.2d at 479-80 (reversing imposition of fees on losing plaintiff after examining all of the evidence); cf. Unus, 565 F.3d at 126-28 (applying Christiansburg standard and reversing imposition of fees on losing plaintiff in an action under 42 U.S.C. § 1985 after examining all the facts; describing such a fee award as an “extreme sanction”).

Reversal by this Court is warranted here because the district court imposed fees based on numerous “facts” that are unsupported or contradicted by the record or are legally irrelevant. As a result, this fee decision falls outside the bounds of a district court’s permissible exercise of discretion. See Evans, 514 F.3d at 321-22 (“review for abuse of discretion” is “a posterior check on judgment which strays too far from the mark”).

For example, Propak summarizes the district court’s criticism of the length of time between various steps in the EEOC’s administrative investigation. Propak-Brf at 20. The district court pointed to various gaps in time as evidence of the unreasonableness of the EEOC’s lawsuit. R.57 at 6-8 (JA-560-562). Such evidence does not, however, establish the “unreasonableness” of the EEOC’s belief that Propak could not establish its laches defense on this record—the specific finding the court was required to make to justify imposition of fees here.

In opposition to summary judgment, the EEOC provided the district court with the declaration of EEOC Enforcement Supervisor Michael Whitlow (R.7-5, JA-85-87) and a chronological summary of EEOC investigative activity (R.21-2, JA-257-264). The two documents, read together, demonstrate relatively continuous activity from the filing of the charge until the issuance of the EEOC’s cause determination. See R.7-5, 21-2. This activity includes not only EEOC interviews of witnesses and meetings with Propak’s counsel, but also periods of time in which no entry is made because the EEOC was extracting and analyzing information from voluminous documentation on Propak’s hiring practices or evaluating the merits of possible litigation. Nothing about this summary of the EEOC’s investigation establishes that the EEOC should have known the district court would find the EEOC’s explanation for the length of the investigation insufficient as a matter of law.

Propak points specifically to the district court’s criticism of the EEOC for supposedly waiting more than six months after Quintois filed his charge before interviewing Quintois. Propak-Brf at 20 (citing JA.560). But the court (and Propak) are actually referring to the EEOC’s second interview of Quintois and EEOC’s third contact with him. The EEOC first interviewed Quintois the day he filed his charge, as that interview is how the EEOC obtained the information it put into the charge the EEOC drafted for Quintois. See 2006 WL 4672917, 4672920-21 (EEOC CM), EEOC Compliance Manual, Vol. I, “Intake of Charges and Complaints,” §§ 2.4, 2.5, EEOC Order No. 915.001 (5/92). The EEOC’s next contact with Quintois occurred on March 4, 2003, R.21-2 at 1 (JA-257), a contact the district court omits altogether. JA-560-561. The EEOC did not conduct another full interview then, however, because EEOC had not yet received Propak’s response to the charge.[3] The EEOC received Propak’s response on May 14, 2003, and then interviewed Quintois again in early August 2003. Id. The district court mistakenly assumed the August 2003 interview was EEOC’s first interview of Quintois, see Propak-Brf at 20 (citing R.560), but it was actually the third time EEOC had been in touch with Quintois concerning his charge.

Based on a cryptic entry in the EEOC’s chronological summary of the investigation, the district court also mistakenly assumed that May 2004 was the first time EEOC asked Quintois for his response to Propak’s position. See Propak-Brf at 20 (citing JA-560-561). When the EEOC provided this chronology to the district court, however, the EEOC did not believe it needed to detail every inquiry it made during each witness interview; EEOC believed it needed to produce evidence only of relatively consistent administrative activity throughout the duration of the investigation. The fact that EEOC stated that it asked Quintois about Propak’s position in May 2004 thus does not establish that EEOC did not also ask Quintois about Propak’s position when the EEOC interviewed Quintois in August 2003. By the time the EEOC interviewed Quintois in May 2004, the EEOC had gathered additional information from Propak and undoubtedly sought Quintois’s response to that additional information. See R.21-2 at 1-3 (JA-257-259). To the extent the district court relied on the gaps in time between the EEOC’s interviews of Quintois in January 2003 (when he filed his charge) and again in August 2003 and May 2004, the district court misread the administrative record and relied on improper assumptions.

Propak’s answer brief also notes that the district court criticized the EEOC for not interviewing a Propak witness “until more than six months after the Charge.” Propak-Brf at 20 (citing JA.560). EEOC did not receive Propak’s response to Quintois’s January 2003 charge until mid-May 2003, however, and it would have served no purpose to interview a Propak witness before receiving Propak’s position statement. The first round of interviews of Propak witnesses began in August 2003. R.7-5 at 1-2 (JA-85-86). Again, to the extent the district court relied on the timing of EEOC’s first round of interviews of Propak’s witnesses as a basis for finding the EEOC’s lawsuit was “unreasonable,” the court misread the administrative record and relied on improper assumptions.

The district court’s criticism of the manner in which the EEOC conducted this investigation, a criticism Propak reiterates in its brief, Propak-Brf at 20, underscores a separate problem with the court’s analysis. Under Title VII, Congress gave the EEOC exclusive authority, without judicial oversight, to determine the direction and focus of a charge investigation. See, e.g., EEOC v. Randstad, 685 F.3d 433, 442, 448 (4th Cir. 2012) (deferring to EEOC’s appraisal of what was relevant to the charge investigation); Georator Corp. v. EEOC, 592 F.2d 765, 767-69 (4th Cir. 1979) (neither Title VII nor Administrative Procedures Act provides for court to review basis for EEOC’s reasonable cause determination). That the district court might have interviewed witnesses in a different order than the EEOC, see Propak-Brf at 20, does not establish the unreasonableness of the EEOC’s opposition to Propak’s laches defense.

Finally, Propak recites the district court’s statement that “after interviewing Quintois in early September 2006, the EEOC did nothing until 2007.” Propak-Brf at 20 (citing JA-261, 561). The undisputed record plainly indicates otherwise, however. The EEOC’s uncontested summary judgment evidence indicates that, throughout the investigation, “EEOC conducted complex statistical analyses involving the data entry of applicant flow, and the development of relevant labor market analysis which included the review and compilation of census and EEO-1 data.” R.7-5 at 3 (JA-87). Between July 2006 and February 2007, the “EEOC continued performing statistical analyses, evaluated witness interviews, and reviewed over ten thousand (10,000) documents produced by [Propak].” Id.[4] Thus, the district court’s factual statement is clearly in error on this point.

Moreover, as a matter of law, the EEOC’s examination and analysis of the evidence it obtained in its investigation is not only a legitimate, but an essential, part of the EEOC’s investigative responsibilities. See Great Atl. & Pac. Tea Co., 735 F.2d at 83. We know of no Fourth Circuit case that holds to the contrary. The district court abused its discretion when it based its finding of unreasonable conduct by the EEOC on the factually and legally erroneous conclusion that EEOC was “inactive” during the time it was evaluating statistical data and other evidence uncovered in its investigation.

The remaining factors listed in Propak’s Answer Brief as supporting the district court’s determination that EEOC acted unreasonably (see Propak-Brf at 21-25) are unsupported by the record or are irrelevant to whether the EEOC reasonably pursued this litigation:

· Quintois amended his charge to allege discrimination based on citizenship in violation of the Immigration and Reform Control Act (IRCA) (see R.38, JA-409), which the EEOC then referred to the Department of Justice (DOJ) because the EEOC has no authority over such claims. In support of the district court’s statement in its fee decision that DOJ “conduct[ed] its own investigation” and found “no action was warranted,” see R.57 at 7 (JA-561), Propak cites to a statement in correspondence from Propak’s counsel to EEOC. Propak-Brf at 21 (citing R.37, JA-408). This hearsay statement is not competent evidence to establish what action DOJ took in response to EEOC’s referral. More importantly, whatever DOJ may have done in response to Quintois’s IRCA claim sheds no light on the reasonableness of the EEOC’s position opposing Propak’s laches defense.

· It is also irrelevant that the EEOC discontinued searching for two Propak witnesses. See R.21-2 at 6 (JA-262); R.40 (JA-411). The EEOC stopped looking because the EEOC no longer considered the witnesses necessary to EEOC’s investigation, but that does not demonstrate these witnesses could not be found. See EEOC-Brf at 42-43.

· Nothing in the record supports Propak’s characterization of Quintois’s response to the EEOC’s investigation. Propak-Brf at 21. That Quintois chose to sue Propak privately, and that Propak and Quintois thereafter filed a joint stipulation of dismissal, see EEOC-Brf at 7 & nn.2&3,[5] is irrelevant to any issue relating to fees.

· Propak incorrectly suggests it was unaware the EEOC was investigating class claims until September 2008, when the EEOC issued its administrative determination. Propak-Brf at 21. The EEOC submitted four requests for information (RFIs) to Propak between August 2003 and August 2004 asking for information about Propak’s hiring practices at multiple facilities. See R.7-5 at 2 (JA-86).[6] These RFIs put Propak on notice that the EEOC had expanded the investigation beyond whether Propak discriminatorily discharged Quintois to include an investigation into Quintois’s statement, in his charge, that he had “observed that the company . . . was hiring only Hispanic employees.” See R.4-2 (JA-17). The fact that, in early June 2005, Propak asked EEOC about its statistical analysis and the potential damages and that, later that month, Propak met with EEOC “to discuss the statistical analysis . . . and possible resolution of this case,” R.7-5 (JA-87), demonstrate that Propak understood the breadth of the EEOC’s investigation. Nothing in Title VII or the EEOC’s regulations require EEOC to provide formal notice that a charge has been designated a class case prior to issuing the cause determination. See, e.g., Occidental Life, 432 U.S. at 372 n.32 (employer cannot claim lack of notice when investigation uncovers evidence of additional discrimination; issuance of reasonable cause determination cures any notice deficiencies). The EEOC nevertheless provided Propak such notice here through EEOC’s requests for information and the dialogue between Propak’s counsel and EEOC’s investigator.

· Propak’s October 2008 letter refusing to engage in conciliation did not put the EEOC on notice of a possible laches defense, as Propak asserts and the district court concluded. See Propak-Brf at 21; R.57 at 8 (JA-562). The letter contained only a bald claim that Propak was prejudiced by the length of the investigation and provided no information of how Propak might have been prejudiced. See R.29-4 (JA-356-358); EEOC-Brf at 28-30.

· Propak’s closure of its Shelby operations did not make it unreasonable for the EEOC to seek to enforce Title VII here, as Propak incorrectly argues and the district court concluded. Propak-Brf at 21-22; R.57 at 9-11 (JHA-563-565). The EEOC was still entitled to pursue backpay for individuals who applied and were not hired or who were deterred from applying because of Propak’s discriminatory hiring practices. See EEOC-Brf at 30 (citing, among other cases, EEOC v. Konica Minolta Bus. Solutions, 639 F.3d 366 (7th Cir. 2011)).

· The district court’s statement that “[t]he EEOC knew by November 2007 that it could not locate purported victims,” see R.57 at 10 (JA-564); Propak-Brf at 21 (“uncertain” whether claimants could be identified), is contradicted by the record and clearly erroneous. The EEOC informed the court that EEOC was in touch with potential class members throughout the investigation, see EEOC-Brf at 41-44, and the court recognized this at various points in both decisions. See, e.g., R.57 at 7 (EEOC interviewed four potential class members in May and June 2006) (JA-561); R.41 at 10 (same).

Given the district court’s reliance on so many factors that are irrelevant or are unsupported or contradicted by the factual record, there is no basis for this Court to give the district court’s decision “great deference,” as Propak mistakenly urges. See Propak-Brf at 22-23.

As Propak notes repeatedly in its Answer Brief, this Court accords “proper deference” to a district court’s “factual conclusions [when they are] supported by the record.” See Brown v. Nucor Corp., 576 F.3d 149, 171 (4th Cir. 2009) (Agee, J., dissenting).[7] Such deference is unwarranted here, however, because the district court based its imposition of fees on facts that are clearly erroneous. See Priestley, 651 F.3d at 415-16 (district court abuses its discretion if it “made ‘clearly erroneous factual findings’”) (citations omitted); Westberry, 178 F.3d at 261 (court abuses its discretion “if its conclusion . . . rests upon a clearly erroneous factual finding.”).

The cases Propak cites in its Answer Brief illustrate that courts of appeals do not hesitate to reverse an award of fees where a review of all the evidence shows Christiansburg’s demanding standard was not met. See, e.g., Propak-Brf at 22 (citing Am. Fed’n of State, Cnty. & Mun. Emps., AFL-CIO (AFSMCE) v. Cnty. of Nassau, 96 F.3d 644, 652 (2d Cir. 1996); Smith v. Smythe-Cramer Co., 754 F.2d 180 (6th Cir. 1985)). This Court should likewise reverse here because the district court’s award of fees was based not only on legal errors, but also on facts that are legally irrelevant or are unsupported or contradicted by the record.

CONCLUSION

[1] See, e.g., EEOC v. Autozone, Inc., 258 F. Supp. 2d 822, 826-29 (W.D. Tenn. 2003) (unexplained twenty-three month delay between end of conciliation and filing of complaint was unreasonable, but defendant did not demonstrate prejudice); EEOC v. Phillips Colls., Inc., 984 F. Supp. 1464 (M.D. Fla. 1997) (no showing of prejudice where defendant did not attempt to locate former employees and did not demonstrate why their testimony was needed); see also EEOC v. Scrub, Inc., 2010 WL 3172855 (N.D. Ill. Aug. 10, 2010); EEOC v. Rama Printing, 1991 WL 64060 (W.D.N.Y. April 17, 1991).

[2] The only other precedent Propak cites on this point is a decision of this Court reversing laches on other grounds, EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 409-11 (4th Cir. 2008), and an out-of-circuit decision not binding on this Court. See Propak-Brf at 31 & n.16.

[3] Propak’s response was originally due February 6, 2003. The EEOC granted Propak’s request to extend that time to April 4, and Propak finally submitted it on May 14—more than three months after the original due date. See R.7-5 at 1 (JA-85); R.21-2 at 1 (JA-257).

[4] The undisputed record also indicates that the investigator’s February 19, 2007, memorandum analyzing this evidence and recommending further action was referred to the Legal Unit for review and advice, and was returned in May 2007 with a request that the investigator conduct further investigation. R.21-2 at 5 (JA-261). The EEOC attempted additional investigation between June 2007 and January 2008. R.21-2 at 5-6 (JA-261-262).

[5] Propak and Quintois filed their joint stipulation of dismissal on July 24, 2008, one week after the district court denied Propak’s motion for summary judgment on Quintois’s claims of discrimination and retaliation under Title VII. See JA-105-106; Quintois’s Complaint (JA-346-350). The EEOC therefore presumes the parties settled the case. The EEOC has filed a separate motion asking this Court to take judicial notice of the joint stipulation of dismissal.

[6] That the EEOC sent Propak four RFIs is established by the unrefuted Whitlow Declaration (JA-86); see also R.29-1 (JA-341-343) (Propak’s August 2004 response to EEOC’s third RFI). The content of those RFIs is established by the documents themselves, which were submitted to the district court for its inspection but never filed in the record below. Propak opposed the EEOC’s motion in district court to modify the record to include the RFIs, RR.61-64, and on November 7, 2013, the district court denied the EEOC’s motion. R.68. The EEOC is renewing the motion before this Court. If granted, the EEOC will supplement the Joint Appendix with these records.

[7] Propak cites Judge Agee’s dissent in Brown v. Nucor Corp., 576 F.3d 149, 171 (4th Cir. 2009) (Agee, J., dissenting), throughout its Answer Brief without noting it is a dissent and as if it is binding precedent on this Court. See, e.g., Propak-Brf at 16, 19, 22, 25, 27, 35. Brown, furthermore, involved a different issue. Applying an “abuse of discretion” standard of review, this Court reversed the district court’s denial of class certification because the court improperly discounted plaintiffs’ factual representations and applied incorrect reasoning to the issue before it. Brown, 576 F.3d at 152. Likewise, Hensley v. Eckerhart, 461 U.S. 424, 437 (1983), cited in Propak’s brief at 16-17 & 25, is also inapposite here, as there the Supreme Court was discussing the deference due a district court’s exercise of discretion in determining the amount of a fee award to the prevailing civil rights plaintiffs, not whether fees should be imposed on a losing Title VII plaintiff.