No. 16-15003-E

 

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

          Plaintiff/Appellant,

 

v.

 

WEST CUSTOMER MANAGEMENT GROUP, LLC,

          Defendant/Appellee.

 

On Appeal from the United States District Court

for the Northern District of Florida

Hon. M. Casey Rodgers, Chief Judge

Charles J. Kahn, Jr., Magistrate Judge

 

REPLY BRIEF OF THE EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

 

 

JAMES L. LEE

Deputy General Counsel

 

JENNIFER S. GOLDSTEIN

Associate General Counsel

 

LORRAINE C. DAVIS

Assistant General Counsel

 

JULIE L. GANTZ

Attorney

 

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St., N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4718

julie.gantz@eeoc.gov

TABLE OF CONTENTS

TABLE OF CONTENTS. i

TABLE OF AUTHORITIES. ii

INTRODUCTION.. 1

ARGUMENT. 3

I.       The standard for awarding fees to a prevailing civil rights defendant is stringent and rarely met. 3

II.     Fees are particularly inappropriate, and virtually never awarded, in circumstances such as this where a jury decided the case. 7

III.        The EEOC offered enough evidence in support of its claim to preclude a finding that the case was groundless, frivolous, or without foundation, and West’s arguments regarding the type of evidence presented are unavailing. 13

IV.        None of West’s other arguments have merit. 26

CONCLUSION.. 29

CERTIFICATE OF COMPLIANCE. 30

CERTIFICATE OF SERVICE. 31

 

 

 

TABLE OF AUTHORITIES

Cases

 

Akouri v. State of Fla. Dep’t of Transp., 408 F.3d 1338 (11th Cir. 2005)....... 16

 

Bonner v. Mobile Energy Servs., 246 F.3d 1303 (11th Cir. 2001)....... 5, 26, 27

 

Brown v. Ala. Dep’t of Transp., 597 F.3d 1160 (11th Cir. 2014)................... 23

 

Bruce v. City of Gainesville, Ga., 177 F.3d 949 (11th Cir. 1999)..................... 5

 

Busby v. City of Orlando, 931 F.2d 764 (11th Cir. 1991)................................ 3

 

Chaney v. City of Orlando, 483 F.3d 1221 (11th Cir. 2007)............................ 8

 

Chapter 7 Trustee v. Gate Gourmet, 683 F.3d 1249 (11th Cir. 2012)............. 25

 

Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978).................... 1, 4, 6

 

Cordoba v. Dillard’s, 419 F.3d 1169 (11th Cir. 2005)...................... 3, 5, 14, 25

 

EEOC v. Great Steaks, 667 F.3d 510 (4th Cir. 2012)....................................... 7

 

EEOC v. Joe’s Stone Crabs, 296 F.3d 1265 (11th Cir. 2000)................... 21, 23

 

EEOC v. Pet, Inc., 719 F.2d 383 (11th Cir. 1983)........................................ 15

 

EEOC v. Reichold Chems., 988 F.2d 1564 (11th Cir. 1993).......................... 18

 

Flowers v. Jefferson Hosp. Ass’n, 49 F.3d 391 (8th Cir. 1995).................. 11-12

 

Fong v. Sch. Bd. of Palm Beach Cty., 590 F. App’x 930 (11th Cir. 2014)..... 16

 

Hamilton v. Southland Christian Sch., 680 F.3d 1316 (11th Cir. 2012)........ 24

 

Hughes v. Rowe, 449 U.S. 5 (1980).................................................................. 6

 

Johnson v. Florida, 348 F.3d 1334 (11th Cir. 2003)...................................... 14

 

Jones v. Texas Tech. Univ., 656 F.2d 1137, 1145 (5th Cir. 1981).................... 6

 

Lane v. Broward County, Fla., 411 F. App’x 272 (11th Cir. 2011)................ 23

 

Lawver v. Hillcrest, 300 F. App’x 768 (11th Cir. 2008).................................. 5

 

Maniccia v. Brown, 171 F.3d 1364 (11th Cir. 1999)..................................... 23

 

Patterson v. McLean Credit Union, 491 U.S. 164 (1989)................................ 24

 

Quintana v. Jenne, 414 F.3d 1306 (11th Cir. 2005)...................................... 27

 

Richardson v. Bay Dist. Schs., 560 F. App’x 928 (11th Cir. 2014).............. 5, 6

 

Sayers v. Stewart Sleep Ctr., 140 F.3d 1351 (11th Cir. 1998).................. 13, 15

 

Scelta v. Delicatessen Support Servs., 146 F. Supp. 2d 1255 (M.D. Fla. 2001)

.............................................................................................................. 9, 10, 11

 

Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1326 (11th Cir. 2011)....... 24

 

Sullivan v. Sch. Bd. of Pinellas Cnty., 773 F.2d 1182 (11th Cir. 1985).............

3, 5, 6, 20, 21, 27

 

Trask v. Sec'y, Dep't of Veterans Affairs, 822 F.3d 1179 (11th Cir. 2016)..... 23

 

Tseng v. Fla. A&M Univ., 380 F. App’x 908 (11th Cir. 2010)..................... 16

 

Turner v. Sungard Bus. Sys., 91 F.3d 1418 (11th Cir. 1996)...................... 3-4

 

United States Postal Serv. Bd. v. Aikens, 460 U.S. 711 (1983)........... 21, 22, 25

 

Vessels v. Atlanta Ind. Sch. Sys., 408 F.3d 763 (11th Cir. 2005)................... 22

 

Walker v. Mortham, 158 F.3d 1177 (11th Cir. 1998)..................................... 23

 

Wigfall v. Saint Leo Univ., Inc., No. 8:10-CV-2232-T-24, 2012 WL 3854551 (M.D. Fla. Sept. 5, 2012)........................................................................................................... 27

 

Yalowizer v. Town of Ranchester, Wy., 18 F. App’x 745 (10th Cir. 2001)..... 12

 

Rules

 

Fed. R. Civ. P.50(a)......................................................................................... 8

 

INTRODUCTION

This is an appeal from the district court’s award of attorney’s fees in this Title VII enforcement action alleging accent and national origin discrimination. The EEOC argued in its opening brief that the district court’s award of fees to West constituted an abuse of discretion because the case does not meet the “frivolous, unreasonable, or groundless” standard set forth in Christiansburg Garment Company v. EEOC, 434 U.S. 412, 422 (1978), for awarding fees to a prevailing defendant in an employment discrimination action.

At trial, the EEOC offered charging party Derrick Roberts’s testimony detailing his education, work history, customer service skills, and computer skills, which met the basic qualifications for the customer service representative (“CSR”) job. EEOC-Br.-5-8 (citing transcript). The evidence showed that during his interview, Roberts was told by decisionmaker Steven Henry that his “thick accent would make things worse for angry customers.” Id. at 11. Henry wrote “heavy accent” on Roberts’s interview form prior to rejecting him for the job. Id. Roberts testified neither Henry nor interviewer Adriana Fowler gave any indication he was difficult to understand, nor was he invited to reapply at a later date despite his eligibility to do so. Id. at 11, 19, 45.  Roberts testified he passed West’s pre-interview screening tests. Id. at 8, 45, 46. He stated that he had not been told he was difficult to understand in the past. Id. at 6, 45. Two of Roberts’s teachers and one classmate from his vocational school testified that his accent did not interfere with his ability to communicate clearly. Id. at 6-7, 45. The Commission emphasized that this evidence was sufficient to withstand West’s motion for summary judgment, two motions for judgment as a matter of law, and to reach a jury. Id. at 42-48.

In its response, West argues essentially that the EEOC’s case was frivolous because the Commission’s “improper” comparator evidence was excluded from trial, the Commission failed to establish a prima facie case, and a jury returned a verdict for West. In so arguing, West wrongly asserts that using comparator evidence is the only way to establish a prima facie case and misrepresents the evidence the Commission offered in support of its claim. The company disregards precedent of the Supreme Court and of this Court holding that fees are properly awarded to a prevailing civil rights defendant only rarely, when the plaintiff offered no evidence in support of its case. West also raises issues that do not bear on the question to be decided in this appeal.

ARGUMENT

I.            The standard for awarding fees to a prevailing civil rights defendant is stringent and rarely met.

 As the Commission pointed out in its opening brief, attorney fees are rarely awarded to prevailing defendants in civil rights cases. EEOC-Br.-36, 40-41. The Christiansburg standard “is so stringent that the plaintiff’s action must be meritless in the sense that it is groundless or without foundation in order for an award of fees to be justified.” Busby v. City of Orlando, 931 F.2d 764, 787 (11th Cir. 1991). This Court has awarded fees only where the case was truly groundless and the plaintiff failed to introduce any evidence to support its claims. See EEOC-Br.-41 (citing Cordoba v. Dillard’s, 419 F.3d 1169, 1176 (11th Cir. 2005)). The plaintiff’s case must be “so patently devoid of merit as to be frivolous.” Sullivan v. Sch. Bd. of Pinellas Cnty., 773 F.2d 1182, 1189 (11th Cir. 1985) (reversing fee award to prevailing defendant). In Turner v. Sungard Business Systems, for example, this Court affirmed an attorney’s fee award. But in that case, the plaintiff alleged discriminatory failure to promote to a position that was still vacant, the plaintiff’s counsel failed to respond to the defendant’s motion for summary judgment or appear for oral argument, and the district court had sanctioned counsel under Rule 11 for prosecuting a frivolous claim. 91 F.3d 1418, 1420-21 (11th Cir. 1996). West does not argue, nor could it, that this case is comparable.

West asserts that the Commission should be held to a higher standard than private civil rights plaintiffs, West-Br.-27,61-63, but the Supreme Court has squarely rejected this argument, holding that the EEOC is liable for attorney’s fees the same as any private party. Christiansburg, 434 U.S. at 422-23 n.20 (“[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.” (emphasis added)).[1]

 A plaintiff must do more than lose to be liable for fees. Even where a case was “weak” (Lawver v. Hillcrest Hospice, 300 F. App’x 768, 774 (11th Cir. 2008); “markedly weak” (Bonner v. Mobile Energy Servs., 246 F.3d 1303, 1305 (11th Cir. 2001)), or “exceedingly weak” (Cordoba, 419 F.3d at 1181), this Court has reversed a district court’s award of fees. This Court even reversed a district court’s fee award in a hostile work environment case dismissed on summary judgment where there was no evidence that a supervisor’s comments were because of the plaintiff’s gender. Richardson v. Bay Dist. Schs., 560 F. App’x 928, 929-30 (11th Cir. 2014) (reversing award of attorney’s fees because plaintiff presented evidence in support of his claim, and holding that the district court’s analysis improperly conflated the result of the case with the determination of whether a fee award was justified); see also Bruce v. City of Gainesville, Ga., 177 F.3d 949, 953-54 (11th Cir. 1999) (despite dissent’s argument that the plaintiff failed to offer evidence in support of elements of his four ADA claims, panel majority held case was not so factually and legally groundless as to constitute a frivolous lawsuit).

Throughout its brief, West suggests that it was entitled to fees because the Commission lost. See, e.g., West-Br.-22, 28-29, 32, 35, 41-42, 58-59. But the Commission did not need to prevail to avoid a fee award. The Christiansburg Court cautioned courts that they must resist the 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. 434 U.S. at 422; see also Hughes v. Rowe, 449 U.S. 5, 14 (1980) (“The fact that a plaintiff may ultimately lose his case is not in itself a sufficient justification for the assessment of fees.”); Sullivan, 773 F.2d at 1189 (“In determining whether a suit is frivolous, ‘a district court must focus on the question whether the case is so lacking in arguable merit as to be groundless or without foundation rather than whether the claim was ultimately successful.’”) (quoting Jones v. Texas Tech. Univ., 656 F.2d 1137, 1145 (5th Cir. 1981)); Richardson, 560 F. App'x at 930 (district court's “findings appear[ed] to be no more than reiteration of its ultimate conclusions on the merits of [the plaintiff's] claim”). Ignoring these rigorous governing standards, West simply reiterates the same arguments it has made during the course of the litigation.

II.         Fees are particularly inappropriate, and virtually never awarded, in circumstances such as this where a jury decided the case.

In its opening brief, the EEOC emphasized that fees are very seldom awarded by a district court or affirmed on appeal when a case is decided by a jury. EEOC-Br.-36, 42-44 (discussing third Sullivan factor). The Commission pointed out that the district court denied West’s motion for summary judgment and declined to grant either of its Rule 50 motions, stating, “I’m going to send the case to the jury.” EEOC-Br.-20 (citing R.356-3).[2] The district court’s decision meant that after hearing the evidence offered at trial, “a reasonable jury would [] have a legally sufficient evidentiary basis to find for” the EEOC. EEOC-Br.-43 (quoting Rule 50(a)); see also Chaney v. City of Orlando, 483 F.3d 1221, 1227 (11th Cir. 2007) (Rule 50 motion can be granted at the close of evidence as long as there is no legally sufficient evidentiary basis for a reasonable jury to find for the nonmoving party). Additionally, the EEOC argued, after hearing all the evidence at trial, the district court stated to both parties while the jury deliberated, “I have no idea what the verdict is. We never do.” EEOC-Br.-23, 47, 48 (citing R.356-108-09). That the court believed the jury could go either way, the Commission argued, establishes that the EEOC’s case cannot be frivolous. EEOC-Br.-36-37, 47, 48. [3] It was thus an abuse of discretion for the court to award fees against the Commission.

West presents several cases where fees were awarded in spite of the case going to trial, but none of them bear any resemblance to this case. West-Br.-50-51. In Scelta v. Delicatessen Support Services, 146 F. Supp. 2d 1255, 1259 (M.D. Fla. 2001), the plaintiff alleged hostile work environment and disparate application of an anti-affair policy. Among other inadequacies, the plaintiff’s hostile work environment claim was time-barred and she offered no evidence that an anti-affair policy even existed. Id. at 1259-60. After a six-day trial, the plaintiff “was told [by the court] that the ‘case is going nowhere fast’ and, in all likelihood, the sexual discrimination claims would be ‘thrown out’ in the event of a plaintiff’s verdict.” Id. at 1260. “The plaintiff was then cautioned about the potential for an award of attorneys’ fees against her, and the parties were advised to discuss settlement.” Id. After the jury returned a verdict for the defendant, the court awarded fees because the plaintiff acted unreasonably in rejecting a $30,000 settlement offer (which the defendant said it would have increased to $75,000) and the defendant’s offer to waive any fee requests if she dismissed her case. Id. at 1269. Because the plaintiff instead demanded $175,000, the district court ruled that her refusal to settle what the court saw as a worthless case weighed “strongly against her,” and the court sanctioned her attorney under 28 U.S.C. § 1927. Id.

In stark contrast to Scelta, the district court never suggested the EEOC’s case was weak or counseled the parties to settle. Instead, the court remarked that the case would turn on credibility determinations, R.356-27, and the subjective assessment of Roberts’s ability to communicate in light of his accent. R.355-174 (“the crux of this case is Roberts’ ability or inability to communicate clearly”). The court also recognized that Henry’s disparaging remark about Roberts’s accent meant that “the evidence is in a unique posture in this case” because “they admit that they didn’t hire him because of his accent, which of course, relates to national origin.” R.352-45. The court also understood the probative value of the EEOC’s witnesses, who testified that Roberts was easily understood despite his accent, to counter West’s claim that Roberts was not qualified for the CSR position because he could not communicate clearly.[4] R.355-174; R.352-56-58. And the court here never suggested, like the court in Scelta, that she would “throw out” any verdict in the Commission’s favor.

In Flowers v. Jefferson Hospital Association, 49 F.3d 391, 392 (8th Cir. 1995), the plaintiff’s section 1981 claim was adjudicated in a bench trial where he offered only “his own opinion that race was a motivating factor in denying him staff privileges; the unsupported testimony of another Hospital doctor . . . who concluded that Flowers ‘may have fared better if he were white,’ even though that doctor voted to deny Flowers’s application; and some statistical evidence which Flowers erroneously interpreted as supporting his claim.” Id. The Eighth Circuit agreed that his claim was “based upon nothing more than suspicion and conjecture.” Id. at 392, 393. Here, in contrast, by allowing the case to reach the jury, the district court recognized that the evidence collectively was sufficient to support a discrimination claim and, more specifically, that a critical factual finding assessing Roberts’s communication skills turned on the witnesses’ credibility. EEOC-Br.-32, 46, 47. Unlike the doctor who testified in Flowers about a decision as to which he had no first-hand knowledge, witnesses John Jerralds, Annie Gilmore, and Lewis Brown testified about something they did have a basis to know—whether Roberts could communicate clearly. EEOC-Br.-6-7, 45.

And in Yalowizer v. Town of Ranchester, 18 F. App’x 745, 754 (10th Cir. 2001), a free speech and retaliation claim arising out of a zoning decision, the district court awarded attorney’s fees under 42 U.S.C. § 1988 despite denying summary judgment on the plaintiff’s retaliation claim. The Tenth Circuit was skeptical of the summary judgment ruling, suggesting that “[p]erhaps the court should have granted summary judgment on the retaliation claim.” Id. The court of appeals affirmed the fee award in what it deemed a “closer question” because the plaintiff offered only his own speculation that the defendants retaliated against him, and offered no evidence to overcome the defendants’ affirmative defense that they would have taken the same action regardless of the plaintiff’s protected speech. Id. Again, the EEOC’s case is not comparable. Henry’s disparaging comment regarding Roberts’s accent, the notation “heavy accent” on his disposition form, testimony from three witnesses that he could in fact communicate clearly, and testimony that he had adequate computer and customer service skills—as well as his explanation of his allegedly “rude” answer on his questionnaire that West said was disqualifying and the fact that he was not invited to reapply for the CSR position—collectively raised the EEOC’s case significantly above the unreasonably speculative level. See Sayers v. Stewart Sleep Ctr., 140 F.3d 1351, 1353-54 (11th Cir. 1998) (where the plaintiff presented evidence at trial that the district court acknowledged “could have led to a favorable finding on some or all of her allegations,” court improperly ruled that the jury's verdict demonstrated that the plaintiff was “utterly without credibility” because such a ruling was “precisely the type of post hoc reasoning that the Court in Christiansburg cautioned against”).

III.     The EEOC offered enough evidence in support of its claim to preclude a finding that the case was groundless, frivolous, or without foundation, and West’s arguments regarding the type of evidence presented are unavailing.

The EEOC’s opening brief specified the collective evidence offered in support of its accent and national origin claim seeking relief for Roberts. See supra at 1-2; EEOC-Br.-5-8, 19, 44-45, 55-56.  Nonetheless, West complains the EEOC is being “evasive,” avoiding a discussion of the “law governing the merits of a discrimination claim,” argues that Henry’s statement about Roberts’s “thick accent making it worse for angry customers” was not direct evidence, criticizes the Commission for “glossing over” the elements of the prima facie case as well as misstating the fourth element, and insists the EEOC never established a prima facie case. West also argues that the EEOC failed to offer an appropriate comparator. West-Br.-31-41. West argues to no avail, seeking to distract the Court’s attention from the fact that this case does not meet Christiansburg’s and this Court’s demanding standards for awarding fees.

As the Commission noted in its opening brief, when determining whether a case was frivolous, a court “‘views the evidence in the light most favorable to the non-prevailing plaintiff.’” EEOC-Br.-40 (quoting Cordoba, 419 F.3d at 1179); see also Johnson v. Florida, 348 F.3d 1334, 1354 (11th Cir. 2003) (citing EEOC v. Pet, Inc., 719 F.2d 383, 384 (11th Cir. 1983)). This Court has noted that determinations of whether a civil rights claim is “patently devoid of merit” should be made on a case-by-case basis, with a bias against awarding fees to the defendant. See Sayers, 140 F.3d at 1353 (“Policy concerns militate against awarding attorney's fees to defendants in civil rights cases because such practice may discourage plaintiffs from bringing civil rights lawsuits.”).

This is not a case where the EEOC failed to offer any evidence in support of its claim of accent and national origin discrimination. Interviewer and decisionmaker Henry’s explanation to Roberts that he would not be hired because his “thick accent would make things worse for angry customers,” although not accepted by the district court as direct evidence, is circumstantial evidence that supports the Commission’s claim of accent and national origin discrimination. Because one’s national origin includes the linguistic characteristics of that national origin, an individual’s accent is often associated with his national origin. Consequently, “[d]iscrimination based on accent can be national origin discrimination.” Fong v. Sch. Bd. of Palm Beach Cty., 590 F. App’x 930, 933 (11th Cir. 2014); Tseng v. Fla. A&M Univ., 380 F. App’x 908, 909 (11th Cir. 2010) (same); Akouri v. State of Fla. Dep’t of Transp., 408 F.3d 1338, 1347 (11th Cir. 2005) (statement to Lebanese-born plaintiff that he did not receive a promotion because subordinates “are all white and they are not going to take orders from you, especially if you have an accent” was direct evidence of national origin discrimination).

Henry knew Roberts was Jamaican. He did not tell Roberts that he was having trouble understanding him. Instead, he told him that his accent would make it worse for angry customers, which is denigrating and evidence of animus toward Roberts’s accent and Jamaican national origin. Roberts testified that Henry’s remark deeply affected him. EEOC-Br.-11 (citing transcript) (stating he felt “overwhelmed,” “really lost,” “no good,” and as if he had been “sucker-punched in my gut”). The EEOC also pointed out that Fowler testified she would have counseled an employee for writing “heavy accent” on the disposition form. EEOC-Br.-13 (citing R.355-69; see also R.355-70).

Henry’s comment, direct evidence or not, was probative of discrimination, particularly when combined with the Commission’s other evidence. In the district court’s words, “most often you don’t have that kind of evidence of a decision-making involving the protected characteristic of the individual.” EEOC-Br.-16 (citing R.352-45). “Here,” the court said, “they admit that they didn’t hire him because of his accent, which of course, relates to national origin.” Id.

Both the magistrate judge and West rely mistakenly on the EEOC’s Compliance Manual in contending that a fee award is appropriate in this case. West-Br.-12-13, 33-34, 54, 61; R.307-7-8. The Compliance Manual states unremarkably that “an employment decision based on a foreign accent does not violate Title VII if an individual’s accent materially interferes with the ability to perform job duties.” Section 13-V: National Origin Discrimination Language Issues. R.278-40.  

West attempts to create the impression that there was overwhelming evidence Roberts was difficult to understand. West-Br.-9-10, 13-15, 26, 41-42.  The transcript of the trial, which West largely ignores, does not support this contention. As already noted, the Commission offered evidence that Roberts was able to communicate effectively in English, his native language, and that his accent did not materially affect his ability to perform the CSR job. This evidence included Roberts’s testimony detailing his work and education history, testimony that he had never had trouble communicating or been told he was difficult to understand, and the testimony of three witnesses familiar with his oral communication skills, all of whom testified that he was easily understood. EEOC-Br.-6, 7, 36, 54 (citing transcript). Hence, the Commission offered a credible claim of discrimination which precludes an award of fees in this case, even though the Commission lost. EEOC v. Reichold Chems., 988 F.2d 1564, 1571 (11th Cir. 1993) (reversing fee award against EEOC on grounds that “plaintiff merely must establish a credible claim, not a successful one”).[5]

West argues at length that because the EEOC did not offer “appropriate” comparators, either at summary judgment or at trial, this case was meritless. West-Br.-16-17, 19, 20-22, 55, 60. Although comparator evidence is not required, as the district court pointed out and as emphasized in the Commission’s opening brief, the EEOC did offer comparator evidence to invalidate each of West’s proffered reasons for rejecting Roberts—communication issues, weak customer service skills, and weak computer skills. EEOC-Br.14-15, 18-19, 22. West convinced the district court that to be a proper comparator, the individual must have been rejected by the same decisionmaker for the same “trifecta” of reasons. EEOC-Br.-15 (citing R.257-7). The Commission was not permitted to isolate West’s reasons to show pretext, although one comparator’s questionnaire contained an answer that could be characterized as rude yet the comparator was hired, which is directly related to an independent reason for Roberts’s rejection. EEOC-Br.-9, 19, 22; R.352-49. The district court voiced uneasiness about this decision and questioned whether to revisit it. EEOC-Br-20-21 (citing transcript).[6]

That West now admits that Roberts’s alleged poor communication abilities and rude customer service answer were independent reasons for rejecting him, West-Br.-38-39, only shows that West was successful in persuading the court to exclude this evidence, not that it is entitled to fees. It was reasonable for the EEOC to argue that, even after the court excluded the EEOC’s proposed comparators, a jury could find that West rejected Roberts because of his Jamaican accent and national origin given the other evidence offered.

Because one of the factors this Court articulated in Sullivan, 773 F.2d at 1189, to inform a determination of whether a case is frivolous, is whether the plaintiff established a prima facie case, the EEOC explained that the Commission did in fact establish a prima facie case and argued this factor weighed against a fee award. EEOC-Br.-51-56. The EEOC also pointed out that whether the Commission established a prima facie case is significantly less important when the district court not only denied summary judgment, but declined to grant both of West’s Rule 50 motions after hearing the evidence presented at trial and allowed the EEOC’s case to be decided by a jury. EEOC-Br.-48-49. Nearly all cases where attorney’s fees have been awarded to prevailing civil rights defendants ended at summary judgment or earlier. See 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 . . . motion for involuntary dismissal” where “the plaintiffs did not introduce any evidence to support their claims.”).

But once a case reaches a jury to decide the ultimate question of whether the defendant’s proffered legitimate reasons for an adverse employment decision were a pretext for discrimination, “the presumption of discrimination established under the McDonnell Douglas framework ‘drops from the case.’” EEOC v. Joe’s Stone Crabs, 296 F.3d 1265, 1273 (11th Cir. 2000) (citing United States Postal Serv. Bd. v. Aikens, 460 U.S. 711, 715 (1983)). Moreover, “[w]here the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant.” Id.

Evidence can be in the form of the prima facie case, or other sufficient evidence—direct or circumstantial—of discriminatory intent. “The ‘factual inquiry’ in a Title VII case is ‘whether the defendant intentionally discriminated against the plaintiff.’” Aikens, 460 U.S. at 715 (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); see also id. at 714 n.3 (“The trier of fact should consider all the evidence, giving it whatever weight and credence it deserves.”).

West also argues that the Commission stated the fourth prong of the prima facie case incorrectly and contends that the fourth prong requires comparator evidence. West-Br.-36-40.[7] Again, West is incorrect. As the EEOC noted in its opening brief, the fourth prong of the prima facie case in an action alleging discriminatory failure to hire requires the plaintiff to show that “the position remained open or was filled by another person outside of her protected class.” EEOC-Br-51 (citing cases); see also Schoenfeld, 168 F.3d at 1267 (fourth prong stated as “the position remained open or was filled by another person outside of her protected class”); Trask v. Sec'y, Dep't of Veterans Affairs, 822 F.3d 1179, 1191 (11th Cir. 2016) (same); Lane v. Broward County, Fla., 411 F. App’x 272, 273 (11th Cir. 2011) (same); Joe's Stone Crabs, 296 F.3d at 1273 (same).[8]

West is incorrect to assert that comparator evidence is required to establish discrimination under Title VII. West-Br.-36-40. The Supreme Court held in Patterson v. McLean Credit Union that comparator evidence is appropriate, but not required to establish pretext. 491 U.S. 164, 187-88 (1989) (district court erred in instructing jury that the plaintiff could carry her burden only by showing she was better qualified than the person who got the job, in case alleging discriminatory failure to promote because she was “not limited to presenting evidence of a certain type”); see also Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1326-28 (11th Cir. 2011) (reversing summary judgment in case alleging racially discriminatory discharge where plaintiff lacked a comparator, and stating “the plaintiff will always survive summary judgment if he presents circumstantial evidence that creates a triable issue concerning the employer’s discriminatory intent”); Hamilton v. Southland Christian Sch., 680 F.3d 1316, 1320 (11th Cir. 2012) (reversing summary judgment where plaintiff alleging discriminatory discharge because of pregnancy offered “enough circumstantial evidence to raise a reasonable inference of intentional discrimination,” and rejecting defendant’s argument that the plaintiff had failed to offer sufficient circumstantial evidence of discrimination because she could not show a non-pregnant comparator was treated differently); Chapter 7 Trustee v. Gate Gourmet, 683 F.3d 1249, 1255-56 (11th Cir. 2012) (reversing summary judgment where plaintiff alleged she was terminated because she was pregnant, and holding that plaintiff may use “non-comparison circumstantial evidence to raise a reasonable inference of intentional discrimination”).

Thus West’s fixation on the lack of comparator evidence and the prima facie case is misplaced. The focus on whether a plaintiff has established a prima facie case is less important than whether the plaintiff has produced “some” evidence of discrimination. See Aikens, 460 U.S. at 717 (district court erroneously focused on the question of prima facie case rather than directly on the question of discrimination”); see also Cordoba, 419 F.3d at 1182, and Bonner, 246 F.3d at 1305 (fees are inappropriate in cases where plaintiffs failed to establish a prima facie case of discrimination after discovery yet raised claims which “though weak, were not entirely without foundation”).

IV.     None of West’s other arguments have merit.

West argues that the district court should have awarded fees from the onset of this case and criticizes the EEOC’s pre-suit investigation and conciliation. West-Br.-10-11, 17, 26. Because West did not cross-appeal the district court’s decision to limit fees to the pretrial conference through trial, this issue is not before the Court. Similarly, the Commission’s administrative process was never made an issue in this case and thus is irrelevant and not before the Court.

West argues that the fact it offered to settle for a nominal amount without a consent decree shows it believed the Commission’s lawsuit was frivolous. West-Br.-44-46. Because employers do not typically embrace a public consent decree regardless of the merits, it is illogical to attribute anything to West’s failure to offer more than a nominal settlement. This Court in Bonner noted that the defendant’s $125,000 settlement offer suggested the case was not frivolous, 246 F.3d at 1305, but the case law does not suggest the opposite is true. More typical of the application of this Sullivan factor is a court stating that it could not determine from the offer whether it was sufficient to weigh for or against fees, see Quintana v. Jenne, 414 F.3d 1306, 1310 (11th Cir. 2005), or disregarding any settlement offer made at mediation because it was made as part of a good faith effort to participate in mediation, Wigfall v. Saint Leo Univ., Inc., No. 8:10-CV-2232-T-24, 2012 WL 3854551, at *4 (M.D. Fla. Sept. 5, 2012), aff'd in part, vacated in part, rev'd in part sub nom. Wigfall v. Sodexo, Inc., 539 F. App'x 942 (11th Cir. 2013). As the Commission pointed out in its opening brief, attorney’s fees are not awarded under Christiansburg based on what a defendant thinks about the case. EEOC-Br.-59. If they were, awards would be made in every case where the plaintiff lost. Just the opposite is true—fee awards to prevailing civil rights defendants are rare.

 Nor is there any support for the magistrate judge’s and district court’s determination that the Commission litigated this case in an unusually “contentious” manner, or of West’s protest that it was a victim of the EEOC’s “inexcusable litigation conduct.” EEOC-Br.-67; West-Br.-62, 64, 69. The transcript of the trial reveals that just the opposite was true. The court commended both parties on their representation of their clients, and stated it was her “pleasure to have you here. I appreciate the professionalism that you showed one another and also the professionalism you showed the Court and the jury. You are welcome in my courtroom anytime.” R.356-108-09.

West also contends that the EEOC is responsible for the high cost of the company’s supplemental fee petition because the agency opposed West’s original fee petition. This is nonsensical. The Commission, a public enforcement agency funded by taxpayers, rightfully opposed West’s fee petition because the EEOC’s case reached a jury and did not meet the demanding standards for awarding fees to prevailing civil rights defendants. The time line was drawn out over two years, but not because of “contentiousness” on the Commission’s part. The district court assigned the fee issues to the magistrate judge and liability and amount of fees were bifurcated for both fee petitions, resulting in six different decisions between the two jurists.

CONCLUSION

For the foregoing reasons and the reasons stated in the EEOC’s opening brief, the district court’s fee awards should be reversed.

Respectfully submitted,

 

JAMES L. LEE

Deputy General Counsel

 

JENNIFER S. GOLDSTEIN

Associate General Counsel

 

LORRAINE C. DAVIS

Assistant General Counsel

 

s/  Julie L. Gantz

JULIE L. GANTZ

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4718

julie.gantz@eeoc.gov

 

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P.  32(a)(7)(B) because it contains 5,534 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

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 2010 in Palatino Linotype 14 point.

 

s/Julie L. Gantz

JULIE L. GANTZ

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4718

julie.gantz@eeoc.gov

 

 

Dated: December 21, 2016

CERTIFICATE OF SERVICE

I, Julie L. Gantz, hereby certify that I filed the foregoing brief electronically in PDF format with the Court via the ECF system on this 21st day of December 2016.  I further certify that I served the foregoing brief electronically in PDF format through the ECF system this 21st day of December, 2016, to all counsel of record.

 

s/Julie L. Gantz

JULIE L. GANTZ

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4718

julie.gantz@eeoc.gov