Nos. 07-16190, 07-16263 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ____________________________________________ U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Plaintiff/Appellee/Cross-Appellant, v. GO DADDY SOFTWARE, INC., Defendant/Appellant/Cross-Appellee. ____________________________________________________________ On Appeal from the United States District Court for the District of Arizona, Hon. David G. Campbell ____________________________________________________________ PRINCIPAL AND RESPONSE BRIEF OF PLAINTIFF/APPELLEE/CROSS-APPELLANT THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ____________________________________________________________ RONALD S. COOPER U.S. EQUAL EMPLOYMENT General Counsel OPPORTUNITY COMMISSION 1801 L. St. NW, Rm. 7024 LORRAINE C. DAVIS Washington, D.C. 20507 Acting Associate General Counsel (202) 663-4870 James.Tucker@EEOC.gov JAMES M. TUCKER Attorney Table of Contents Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii Jurisdictional Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of the Issues Presented for Review on Appeal. . . . . . . . . . . . . . 1 Statement of the Issue Presented for Review on Cross-Appeal. . . . . . . . . . . .2 Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 District Court Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . 12 I. Pre- and post-verdict motions. . . . . . . . . . . . . . . . . . . . . 12 II. District court decision. . . . . . . . . . . . . . . . . . . . . . . . 14 Summary of the Argument as Appellee. . . . . . . . . . . . . . . . . . . . . . . 16 Summary of the Argument as Cross-Appellant. . . . . . . . . . . . . . . . . . 17 Argument as Appellee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 I. Standard of review. . . . . . . . . . . . . . . . . . . . . . . . . . . 18 II. The district court correctly concluded that Go Daddy waived the bulk of its arguments challenging the sufficiency of the evidence. . . . . . . . . . . . . . . . . . . . . . . . . . 20 III. The district court correctly concluded that the evidence at trial was sufficient to support a reasonable jury's conclusion that Franklin was aware of Bouamama's complaint at the time he and Slezak terminated Bouamama's employment. . . . . . . . . . . . 28 IV. In any case, the evidence was more than sufficient to support the jury's verdict in favor of the Commission. . . . . . . . . . . . . . . . . . 32 A. The evidence that Bouamama engaged in protected activity was sufficient to support the jury's verdict. . . . . . . . . . . 32 B. The evidence that Bouamama was terminated because he engaged in protected activity was sufficient to support the jury's verdict. . . . . . . . . . . . . . . . . . . . . . . . . . . 42 V. The district court did not abuse its discretion in denying Go Daddy's Rule 59(a) motion for a new trial. . . . . . . . . . . . . . . 47 Argument as Cross-Appellant. . . . . . . . . . . . . . . . . . . . . . . . . . . 49 I. Standard of review. . . . . . . . . . . . . . . . . . . . . 49 II. The district court abused its discretion in declining to order Bouamama reinstated to the Sales Representative position. . . . . . 49 A. The district court applied an improper legal standard in concluding that reinstatement was inappropriate. . . . . . . . . 50 B. The district court's factual findings in support of its decision to deny reinstatement are clearly erroneous. . . . . . . . . 54 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 Statement of Related Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Addendum Federal Rules of Civil Procedure, Rule 50 Certificate of Compliance Certificate of Service Table of Authorities Cases page(s) Aguinaga v. United Food & Commercial Workers Int'l Union, 993 F.2d 1463 (10th Cir. 1993). . . . . . . . . . . . . . . . . . . . . 25 Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . .14 Allen v. Autauga County Bd. of Educ., 685 F.2d 1302 (11th Cir. 1982). . . . . . . . . . . . . . . . . . . . . 51 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . .19 Anderson v. United Tel. Co. of Kan., 933 F.2d 1500 (10th Cir. 1991). . . . . . . . . . . . . . . . . . . . . 24 Burlington N. & Santa Fe R.R. Co. v. White, -- U.S. --, 126 S. Ct. 2405 (2006). . . . . . . . . . . . . . . . . . 33 Cassino v. Reichhold Chem., Inc., 817 F.2d 1338 (9th Cir. 1987). . . . . . . . . . . . . . . . . . . . 51-54 Chancellier v. Federated Dep't Stores, 672 F.2d 1312 (9th Cir. 1982). . . . . . . . . . . . . . . . . . . . . 53 Clark County Sch. Dist. v. Breeden, 532 U.S. 268 (2001). . . . . . . . . . . . . . . . . . . . . 33, 37, 38 EEOC v. Crown Zellerbach Corp., 720 F.3d 1008 (9th Cir. 1983). . . . . . . . . . . . . . . . . . . .33, 34 Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322 (11th Cir. 1999). . . . . . . . . . . . . . . . . 50-52, 59 Farley Transp. Co. v. Santa Fe Trail Transp. Co., 786 F.2d 1342 (9th Cir. 1985). . . . . . . . . . . . . . . . . . . . . 47 Fed. Sav. & Loan Ins. Corp. v. Reeves, 816 F.2d 130 (4th Cir. 1987). . . . . . . . . . . . . . . . . . . . . 24 Freitag v. Ayers, 468 F.3d 528 (9th Cir. 2006). . . . . . . . . . . . . . . . . . . . . 34 Freund v. Nycomed Amersham, 347 F.3d 752 (9th Cir. 2003). . . . . . . . . . . . . . . 14, 18, 21, 22 Gotthardt v. Nat'l R.R. Passenger Corp., 191 F.3d 1148 (9th Cir. 1999). . . . . . . . . . . . . . . . . . 49, 54 Hale v. U.S. Trustee, No. 06-35349, 2007 WL 4293312 (9th Cir. Dec. 10, 2007). . . . . . . . . 43 Josephs v. Pac. Bell, 443 F.3d 1050 (9th Cir. 2006). . . . . . . . . . . . . . . . . . . . . 18 Kusens v. Pascal Co., 448 F.3d 349 (6th Cir. 2006). . . . . . . . . . . . . . . . . . . . . 24 Learned v. City of Bellevue, 860 F.2d 928 (9th Cir. 1988). . . . . . . . . . . . . . . . . . . . . 34 Lifshitz v. Walter Drake & Sons, Inc., 806 F.2d 1426 (9th Cir. 1986). . . . . . . . . . . . . . . . . . . . 20-22 Molski v. M.J. Cable, Inc., 481 F.3d 724 (9th Cir. 2007). . . . . . . . . . . . . . . . . . . . 20, 47 Moyo v. Gomez, 40 F.3d 982 (9th Cir. 1994). . . . . . . . . . . . . . . . . . . . .33, 37 Murphy v. City of Long Beach, 914 F.2d 183 (9th Cir. 1990). . . . . . . . . . . . . . . . . . . . . 21 Pavao v. Pagay, 307 F.3d 915 (9th Cir. 2002). . . . . . . . . . . . . . . . . . . . . 18 Raad v. Fairbanks North Star Borough Sch. Dist., 323 F.3d 1185 (9th Cir. 2003). . . . . . . . . . . . . . . . . . . . . 42 Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000). . . . . . . . . . . . . . . . . . . . . 42 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000). . . . . . . . . . . . . . . . . . . . . . . . 18, 19 Sellers v. Mineta, 358 F.3d 1058 (8th Cir. 2004). . . . . . . . . . . . . . . . . . . . . 51 Smith v. Marsh, 194 F.3d 1045 (9th Cir. 1999). . . . . . . . . . . . . . . . . . . 43, 46 Thorne v. City of El Segundo, 802 F.2d 1131 (9th Cir. 1986). . . . . . . . . . . . . . . . . . 51, 52 Trent v. Valley Elec. Ass'n Inc., 41 F.3d 524 (9th Cir. 1994). . . . . . . . . . . . . . . . . . . . 33, 38 United States v. Esparza-Gonzales, 422 F.3d 897 (9th Cir. 2005). . . . . . . . . . . . . . . . . . . . . 49 United States v. Fenix & Scisson, Inc., 360 F.2d 260 (10th Cir. 1966). . . . . . . . . . . . . . . . . . 24, 25 U.S. EEOC v. Century Broad. Co., 957 F.2d 1446 (7th Cir. 1992). . . . . . . . . . . . . . . . . . . . . 51 Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101 (9th Cir. 2001). . . . . . . . . . . . . . . . . . . . . 19 Statutes 28 U.S.C. § 451. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1337. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1343. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1345. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 2000e-3(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 42 U.S.C. § 2000e-5(f)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 2000e-5(g)(1). . . . . . . . . . . . . . . . . . . . . . . . . . 50, 59 Rules Fed. R. Civ. P. 50(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Fed. R. Civ. P. 50(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Fed. R. Civ. P. 50(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Other Authority Advisory Committee Notes to the 1991 Amendments, Fed. R. Civ. P. 50. . . . . . . . . . . . . . . . . . . . . . . . 21, 22 Jurisdictional Statement This action was brought in the United States District Court for the District of Arizona by the U.S. Equal Employment Opportunity Commission ("Commission") under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. As such, the district court had jurisdiction over this case pursuant to 42 U.S.C. § 2000e-5(f)(3), which confers upon the federal district courts jurisdiction over actions brought under Title VII. The district court also had jurisdiction over this case pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343, and 1345. After the case was tried to a jury, the district court, on April 25, 2007, entered final judgment. Appellant's Excerpts of Record ("ER") 3-4. On June 21, 2007, defendant Go Daddy Software, Inc. ("Go Daddy") filed a notice of appeal in the district court, and on July 3, 2007, the Commission filed its notice of appeal. This Court has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, which provides the Circuit Courts of Appeals with jurisdiction over appeals from the final decisions of United States District Courts. Statement of the Issues Presented for Appeal I. Whether the district court properly determined that Go Daddy's post-verdict Rule 50(b) motion was limited to the sole argument it raised in its pre-verdict Rule 50(a) motion-whether there was sufficient evidence that Franklin was aware of Bouamama's complaint to Slezak, to support the jury's verdict. II. Whether the district court properly determined that there was sufficient evidence that Franklin was aware of Bouamama's complaint to Slezak, to support the jury's verdict. III. Whether, in any event, there was sufficient evidence of protected activity and causation to support the jury's finding of retaliation. IV. Whether the district court properly denied Go Daddy's Rule 59(a) motion for a new trial because the jury's verdict was not contrary to the clear weight of the evidence. Statement of the Issue Presented for Cross-Appeal I. Whether the district court abused its discretion in declining to award reinstatement. Statement of the Case In this case, the Commission alleged that charging party Youssef Bouamama was subjected to unlawful discrimination in violation of Title VII, on the basis of his national origin (Moroccan), religion (Muslim), and having engaged in activity protected from retaliation under the statute, when Go Daddy did not select him for the newly-created position of Sales Supervisor and thereafter terminated his employment. Appellee/Cross-Appellant's Supplemental Excerpts of Record ("Supp.ER.") 1-2. The Commission further alleged that Go Daddy violated federal recordkeeping regulations when it failed to preserve certain documents relating to Bouamama's nonselection. Supp.ER.2. The discrimination claims were tried to a jury, which returned a verdict in favor of the Commission on its retaliatory termination claim, but for Go Daddy on all other claims.<1> Supp.ER.8-12. The jury awarded Bouamama $5,000 in compensatory damages and $250,000 in punitive damages, but on Go Daddy's post-trial motion the court reduced the punitive damages award to $195,000 in order to bring the total award for compensatory and punitive damages to $200,000-Title VII's damages cap for employers of Go Daddy's size. Id.; ER.9-10. The jury also rendered an advisory verdict of $135,000 in back pay, which the court reduced to $41,708, including prejudgment interest. Supp.ER.11; ER.11-14. The court denied the Commission's request for an award of reinstatement, finding that reinstatement was not warranted. ER.14- 15. The Court also awarded injunctive relief. ER.16-18. Statement of Facts Go Daddy is a company which registers internet domain names for websites. Supp.ER.103. Youssef Bouamama, who is Muslim and of Moroccan national origin, first began working for Go Daddy in September 2001 as a temporary Customer Service/Tech Support/Web Board employee in its call center. Supp.ER.49. Three months later, Go Daddy converted Bouamama to a permanent full time employee, in the position of Sales Representative. Supp.ER.18-19, 50, 89. In this position, Bouamama provided customer service via telephone and email to Go Daddy's clients, and also trained new hires in the Sales Representative position. Supp.ER.51. Brett Villeneuve, Go Daddy's Operations Manager and the person responsible for the call center, assessed Bouamama's performance as a Sales Representative during his tenure in that position, observing that while handling customer calls "wasn't his strongest point," Bouamama "was a good rep," and generally as an employee "all in all, he's okay. He's got good technical knowledge." Supp.ER.86-87, 89, 96-97. On February 25, 2002, Villeneuve promoted Bouamama to the Team Lead position. Supp.ER.53, 115-16. In this position, Bouamama supervised and provided training and support to a team of five or six Sales Representatives. Supp.ER.54, 91, 114. Villeneuve noted that, as compared to the other Team Leads at Go Daddy, Bouamama's customer service skills were "right in there in the middle of them." Supp.ER.92. Bouamama was again promoted by Villeneuve in early July 2002, to the position of Inbound Sales Manager. Supp.ER.94-95. In this position, Bouamama provided support to the Sales Representatives, prepared sales reports and goals, and organized sales contests. Supp.ER.55. Bouamama displayed a strong work ethic, working almost every weekend but never requesting to be paid for any overtime. Supp.ER.56-57. Villeneuve offered to hire an assistant to help Bouamama complete the Inbound Sales Manager duties, but Bouamama refused and continued to put in uncompensated overtime to make sure everything at Go Daddy was ready to go the next work day. Supp.ER.56-57. Shortly after making Bouamama a permanent employee, Villeneuve heard Bouamama speaking to a customer in French (Bouamama is multilingual) and asked where Bouamama was from, what language he was speaking, what other languages he spoke, and what religion he practiced. Supp.ER.51-52. Bouamama told Villeneuve that he was from Morocco, confirmed that he had been speaking French, that he also spoke Arabic, and that he was Muslim. Supp.ER.52, 90. After Villeneuve promoted him to the Inbound Sales Manager position, Bouamama complained to Heather Slezak, Go Daddy's Director of Personnel, about Villeneuve's questioning. Supp.ER.28-29, 33, 78-79. Slezak stated either that she would talk to Villeneuve, or that "[Villeneuve] is the way how [sic] it is, don't worry about him, he don't really mean stuff, something like that." Supp.ER.79. Slezak stated that when she receives complaints of discrimination, she speaks to the alleged discriminator, conducts a full investigation of the allegation, and takes any necessary corrective action. Supp.ER.36-37. Bouamama expected Slezak to "take [his] complaint into consideration," but she never followed up with him. Supp.ER.79. At another time, Villeneuve made a comment in Bouamama's presence, while speaking to other employees, that "the Muslims need to die" or "the bastard Muslims need to die." Supp.ER.58. Bouamama felt hurt by this comment, but did not say anything to Villeneuve because Bouamama understood that at that time "[w]e were at war. . . . After September 11 things changed, people are hurt, you know, I was hurt and, you know, it was devastating for everybody, it was horrible, and, you know, you try to be compassionate. I understand the anger that some people are expressing, and that's why I don't [sic] say nothing." Supp.ER.59. Bouamama added that he did not want to "make an issue in the company" or to be looked at as a "troublemaker," and he hoped that "maybe some day they'll see me as Youssef, you know, maybe they'll be more knowledgeable about, you know, my work ethic, my performance and they [will] look at me as Youssef, not as, you know, where he's from, what religion he practice or something like that." Supp.ER.59-60. Bouamama also added that he did not complain about the comment because "[t]here's a culture in Go Daddy. You complain you get fired." Supp.ER.60. Bouamama had witnessed this culture in action at Go Daddy-seeing others complain and get fired-and he wanted to keep his job. Id. In early April 2003, Go Daddy hired Craig Franklin as the Director of the call center. Supp.ER.29. Villeneuve stayed on, reporting to Franklin. Supp.ER.42. On April 2, 2003, Franklin held a meeting with the supervisors and managers at Go Daddy, including Bouamama, and informed them that he had been brought on board "to bring the company to another level" but he would not be making any changes to the company. Supp.ER.61. As Franklin was new to the company, Bouamama invited Franklin to an upcoming training session he was conducting in the sales department, in order to help bring Franklin up to speed on the functioning of that department. Supp.ER.25, 61-62. Bouamama-who speaks with a "very strong accent" recognized by at least one of Bouamama's coworkers as "middle eastern"-subsequently met with Franklin in his office. Supp.ER.43- 44, 61. After Franklin met Bouamama face-to-face for the first time, he cancelled this and two other meetings with Bouamama. Supp.ER.62. Despite his telling Go Daddy's employees that he would not be making any changes at the company, Franklin decided to reorganize the call center. As part of his reorganization plan, Franklin chose to eliminate the thirteen Team Lead positions, the weekend Operations Manager position, and Bouamama's Inbound Sales Manager position, and replace them with four, newly created, Sales Supervisor positions. Supp.ER.20-22. Go Daddy encouraged the employees in these eliminated positions to apply for the new Sales Supervisor positions. Supp.ER.26. An employee whose position was being eliminated but chose not to apply or was not selected for the Sales Supervisor position had the option of taking a Sales Representative position, or taking a severance package and leaving the company.<2> Supp.ER.99. Bouamama testified, however, that he was only told of the severance package, and was not informed that he could return to the Sales Representative position. Supp.ER.76-77, 80-81. In fact, on April 4, 2003, Slezak, Villeneuve and Franklin all met together with Bouamama to inform him that his job had been eliminated, and told him that he could either apply for the Sales Supervisor position or just "walk away" from Go Daddy. Supp.ER.62-63. Franklin stated that he did not care about Bouamama's "background or history with the company, something like that." Supp.ER.62.5. Slezak repeated the "walk away" part of that message to Bouamama five times, such that he understood Slezak to be saying that he should quit. Supp.ER.62. Bouamama testified that the day after this meeting, Franklin stopped by his cubicle, looked at Bouamama's pictures, and asked where they were taken.<3> Supp.ER.63. Bouamama replied Morocco, and Franklin asked if Bouamama was from Morocco and if he was Muslim. Id. Bouamama answered yes to both questions, and Franklin replied "you know, you're lucky that I like you," and then walked away. Id. Later that day Bouamama reported Franklin's comments to Slezak, telling her: [T]his is the second time that people are concerned and taking interest about, you know, where I'm from, my religion. You know, I can understand that it was happening with [Villeneuve] but this guy here [Franklin], I don't know him and two days ago he came and telling [sic] me that he doesn't care about my history and he wanted to eliminate my position. The next day he's taking interest for [sic] who I am and where I'm from. Supp.ER.64. Slezak said she would look into the matter. Id. Almost all the employees affected by Franklin's plan, including Bouamama, opted to apply for one of the Sales Supervisor positions. On April 9 and 10, 2003, a panel of Go Daddy management personnel-Franklin, Villeneuve, and Slezak- interviewed the Sales Supervisor candidates. Bouamama was interviewed first. Supp.ER.30-31, 113. On April 14, 2003, Bob Parsons, the company's CEO, informed Bouamama that he did not get a Sales Supervisor position. Supp.ER.65. However, unlike all the other unsuccessful candidates for the Sales Supervisor position, Bouamama was not offered the opportunity to return to a Sales Representative position. Supp.ER.62. In his meeting with Parsons, Parsons told Bouamama that instead of the Sales Supervisor position, he would be "doing sales statistics" for the company, and he did not want Bouamama to "worry about what is going on in the sales department." Supp.ER.65. Bouamama left this meeting with the impression that he would "be moving to another department doing statistics, sales or statistics analysis" (Parsons described the position but did not indicate its title). Supp.ER.67. As Bouamama passed Franklin's office on his way back to his cubicle, Franklin saw Bouamama and said "come here," and called Bouamama "the F word." Id. Bouamama responded by "look[ing] at him like, 'What?'" and then Franklin again said "come here." Supp.ER.67-68. Bouamama replied that he had just spoken to Parsons, and went home. Supp.ER.68. That evening, Bouamama received an email from Barb Rechterman, Go Daddy's Executive Vice President, stating that Bouamama was to meet with Franklin and her. Supp.ER.70, 104. The next day, at that meeting, Rechterman asked Bouamama to prepare a report for her "related to sales product and cost." Supp.ER.70. The request was made at around ten o'clock in the morning, and Rechterman told Bouamama to get it to her by noon. Id. Bouamama provided Rechterman a preliminary report at 11:30 that morning, and asked her if his report was what she was expecting, but Rechterman did not respond. Supp.ER.71. Bouamama turned in the completed report at 2:30 that afternoon, and a short time later went to Rechterman's office and asked her again if his report met her expectations. Id. Rechterman responded that she did not know why Bouamama was sent to her department, and directed him to speak with Franklin about why he did not get a Sales Supervisor position. Id. Bouamama went to Franklin's office as directed, where Franklin told him "oh, I thought I took care of you." Supp.ER.72. Bouamama asked why he did not get the Sales Supervisor position, and Franklin told him that he needed to go speak to Rechterman. Supp.ER.73. Bouamama responded that he was "tired of all this," and, as his shift had ended, he went home. Id. The next day, Bouamama did not report to work, instead calling in sick. Supp.ER.73-74. Slezak called Bouamama, stating that "there was something urgent that we needed to talk about," and that Bouamama needed to come in to work to have this conversation. Supp.ER.74. Bouamama agreed to come to work in the afternoon, and when he arrived, he met with Slezak and Franklin. Supp.ER.75. Slezak told him "you did not get the Sales Supervisor position and you're not going to go back to the [sales] floor," and offered him the severance package. Id. Bouamama asked if he was being terminated, and they responded that "effective today immediately. You [are] no longer with the company." Supp.ER.76. District Court Proceedings I. Pre- and post-verdict motions. At trial, after the parties had each rested their cases and after the Commission had made its initial closing argument and Go Daddy had made more than half of its closing argument, the court asked Go Daddy if it wanted to move for judgment as a matter of law under Rule 50(a). Supp.ER.109 ("Did you want to raise a Rule 50 motion?"). The court permitted Go Daddy to make its motion in the midst of its closing argument, by simply responding "[w]e would" to the court's inquiry, but directed Go Daddy to argue the motion after closing arguments were completed and the court had given instructions to the jury. Id. After instructing the jury and excusing it to deliberate the case, the court permitted Go Daddy to argue its Rule 50(a) motion. Supp.ER.110-11 ("Mr. Ogden, you made a Rule 50 motion and I said I would hear it after we sent the jury out. Is there anything you wish to say on it?"). Go Daddy made the following Rule 50(a) argument regarding the retaliation claim: With regard to the Commission's retaliation claim, there hasn't been any evidence that Miss Slezak told any other panel members regarding the alleged reports made to her by Mr. Bouamama. Mr. Franklin and Mr. Villeneuve both testified that, in fact, Miss Slezak had not reported any protected activity to them, and without this knowledge, knowledge by one of three panel members is insufficient for the jury to return a verdict on retaliation. Supp.ER.112. This was the entirety of Go Daddy's argument in support of its Rule 50(a) motion on the Commission's retaliation claim. See id. The court said it would take "the motion under advisement but submit the case to the jury." Id. The jury returned a verdict in favor of the Commission as to the claim that Bouamama's termination was the result of unlawful retaliation, but for Go Daddy on the remaining claims. Supp.ER.8-12. Go Daddy then moved for judgment as a matter of law under Rule 50(b), and/or for a new trial under Rule 59(a). ER.20. In its Rule 50(b) motion, Go Daddy argued, as it had in support of its Rule 50(a) motion, that the evidence was insufficient to show that Franklin was aware of Bouamama's complaint to Slezak. ER.26-27. In addition, however, it presented for the first time several other arguments why judgment as a matter of law was appropriate. Specifically, Go Daddy added arguments that the evidence was insufficient to demonstrate that Bouamama engaged in activity protected under Title VII, that the evidence did not demonstrate a causal nexus between the protected activity and the termination because Go Daddy made the decision to eliminate Bouamama's position before he engaged in protected activity, and that there was otherwise insufficient evidence to suggest a causal connection between Bouamama's protected activity and his termination. ER.21-26. In its motion for a new trial, Go Daddy repeated its Rule 50(b) arguments. ER.27-28. The Commission filed a motion for, in relevant part, equitable relief in the form of reinstatement. Supp.ER.13. Relying on Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975), the Commission argued that reinstatement should be awarded under the general rule that the plaintiff is to be placed "as near as may be" in the situation he would have occupied absent the violation. Supp.ER.14-15. II. District court decision. In ruling on the parties' post-trial motions, the court first denied Go Daddy's motion for judgment as a matter of law under Rule 50(b). The court ruled that the bulk of Go Daddy's 50(b) arguments were not properly before the court, as it had failed to make them in its Rule 50(a) motion. ER.5-7 (citing Freund v. Nycomed Amersham, 347 F.3d 752, 761 (9th Cir. 2003)). As for the one argument in Go Daddy's Rule 50(b) motion that had been raised in its pre-verdict Rule 50(a) motion-that the evidence did not show that Franklin was aware of Bouamama's complaint to Slezak-the court noted Bouamama's testimony that Franklin and Slezak had terminated him, and that he had "complained to Ms. Slezak about discriminatory conduct by Mr. Franklin only days before his termination." ER.7. The court concluded that "[v]iewing the evidence in the light most favorable to plaintiff and drawing all reasonable inferences in its favor, . . . the jury reasonably could have found that both Mr. Franklin and Ms. Slezak were aware of the protected activity and that their termination of Mr. Bouamama was in response to that activity." ER.7. The court also denied Go Daddy's motion for a new trial. The court denied the Commission's request for reinstatement. After noting that reinstatement is a discretionary remedy, the court stated that reinstatement was inappropriate because the evidence, and jury verdict, showed that even if Bouamama had not been subjected to retaliation, his Inbound Sales Manager position would have been eliminated, he would not have received one of the Sales Supervisor positions, and he would have been offered a Sales Representative position. ER.14. However, the court continued (without citation to any evidence), the Sales Representative position is not the position Bouamama sought with Go Daddy, his prior performance in that position had been "less than fully satisfactory for him and his supervisors," and no evidence had been presented showing that his prospects at his current employment were any less than those he would have at Go Daddy. ER.14-15. The court also referred to Bouamama's allegations of discrimination having been leveled at persons still employed in management at Go Daddy, as well as the sizeable damages award, as reasons counseling against reinstatement. ER.15. From all this, the court concluded that "reinstatement is neither warranted nor wise." ER.15 (citations omitted). Summary of the Argument as Appellee The district court properly concluded that there was no merit to Go Daddy's Rule 50(b) motion for judgment as a matter of law or its Rule 59(a) motion for a new trial, and thus this Court should affirm the court's denial of those motions. First, as for Go Daddy's Rule 50(b) motion, the district court correctly determined that because Go Daddy had only challenged one narrow issue in its pre-verdict Rule 50(a) motion-whether the evidence was sufficient to show that Slezak informed Franklin that Bouamama had complained-it had waived the arguments that the evidence was insufficient to show that Bouamama had engaged in protected activity or that there was a causal connection between Bouamama's complaint and his termination. The district court also correctly determined that there was no merit to the one argument Go Daddy had raised in its Rule 50(a) motion, as there was ample evidence to support a reasonable jury's conclusion that Slezak did in fact tell Franklin about Bouamama's complaint. Furthermore, even if Go Daddy's remaining Rule 50(b) arguments regarding the sufficiency of the evidence had not been waived, those arguments also lacked merit. The evidence was more than adequate to support a finding that Bouamama's complaint to Slezak about Franklin's elimination of his job and questioning him about his national origin and religion constituted protected activity. The record also supports the Commission's claim that Bouamama was terminated after he engaged in this protected activity, when Go Daddy terminated him instead of letting him return to a Sales Representative position-and not, as Go Daddy claims, when Franklin decided to eliminate his management position. As such, the evidence was more than sufficient to support a reasonable jury's conclusion that Bouamama engaged in protected activity before he was terminated, and that there existed the requisite causal link between that protected activity and his termination. The district court also properly denied Go Daddy's Rule 59(a) motion for a new trial, and did not abuse its discretion in determining that the jury's verdict was not contrary to the clear weight of the evidence. As the court correctly recognized, there was evidence supporting the Commission's position on every element on which it bore the burden of proof. Summary of the Argument as Cross-Appellant The district court did, however, abuse its discretion when, despite the jury's returning a verdict finding that Go Daddy unlawfully retaliated against Bouamama when it terminated his employment, it refused to award reinstatement as a remedy for this unlawful termination. First, the district court erred as a matter of law in determining that simply because Bouamama had leveled allegations of discrimination against individuals still employed at Go Daddy, and had recovered substantial damages, reinstatement was not warranted. This ruling-in effect a conclusion that reinstatement is inappropriate simply because the parties had litigated a Title VII case and the plaintiff had prevailed-effectively eviscerates Title VII's provision for reinstatement as a remedy for prevailing plaintiffs, and runs counter to the jurisprudence of this and other Courts. In addition, the factual bases relied on by the district court are without support in the record, and in fact run contrary to the evidence as a whole-and as such, amount to clear error. Argument as Appellee I. Standard of review. This court reviews a district court's denial of a Rule 50(b) motion de novo, applying the same standard to the motion as that applied by the district court. Josephs v. Pac. Bell, 443 F.3d 1050, 1062 (9th Cir. 2006); Freund v. Nycomed Amersham, 347 F.3d 752, 760 n.8 (9th Cir. 2003). In order to prevail on a Rule 50(b) motion, the movant must establish that "the evidence permits only one reasonable conclusion, and that conclusion is contrary to the jury's verdict." Josephs, 443 F.3d at 1062 (citing Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002)). In determining whether the evidence meets that test, this Court "view[s] the evidence in the light most favorable to the nonmoving party . . . and draw[s] all reasonable inferences in that party's favor." Id. (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149-50 (2000)). Moreover, "although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe. That is, the court should give credence to the evidence favoring the nonmovant as well as that 'evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that the evidence comes from disinterested witnesses." Reeves, 530 U.S. at 150-51. "Credibility determinations, the weighing of the evidence, and the drawing of drawing of legitimate inferences from the facts are jury functions, not those of a judge." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). When an argument challenging the sufficiency of the evidence is not properly made in the trial court pursuant to Rule 50(a), as the district court found here as to the majority of Go Daddy's post-trial Rule 50(b) arguments, this Court will reverse the trial court only "if there is 'plain error apparent on the face of the record' that, if unnoticed, would result in a 'manifest miscarriage of justice.'" Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1109 (9th Cir. 2001) (citation omitted). "'This exception . . . permits only extraordinarily deferential review that is limited to whether there was any evidence to support the jury's verdict, irrespective of its sufficiency.'" Id. (citation omitted; emphasis in original). This Court reviews a district court's denial of a Rule 59(a) motion for a new trial for abuse of discretion, and will reverse such a ruling only if there is no evidence in support of the verdict, or if the court made an error of law. Molski v. M.J. Cable, Inc., 481 F.3d 724, 728-29 (9th Cir. 2007). II. The district court correctly concluded that Go Daddy has waived the bulk of its arguments challenging the sufficiency of the evidence. As the district court held, Go Daddy is precluded from challenging the jury verdict as based on insufficient evidence on any issue other than whether Slezak told Franklin about Bouamama's complaint. Having failed to properly preserve its other arguments in its Rule 50(a) motion, Go Daddy has waived any argument that there was insufficient evidence that Bouamama engaged in protected activity or that a causal link existed between his protected activity and his termination. Go Daddy's arguments to the contrary are simply untenable. Under Rule 50, a party may move for judgment as a matter of law, after the opposing party has been fully heard on the relevant issue, on the ground that there is no legally sufficient evidentiary basis for awarding judgment to the opposing party. Fed. R. Civ. P. 50(a) (attached at Addendum p.1). The party seeking judgment as a matter of law must make its Rule 50 motion before the case is submitted to the jury. Id. at (a)(2). Such motion "must specify the judgment sought and the law and the facts that entitle the movant to the judgment." Id. (emphasis added); see also Lifshitz v. Walter Drake & Sons, Inc., 806 F.2d 1426, 1429 (9th Cir. 1986) ("A motion for a directed verdict, however characterized, must 'state . . . specific grounds.'") (omission in original). If the court does not rule on the motion before the case is submitted to the jury, "the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion." Fed. R. Civ. P. 50(b) (emphasis added) (attached at Addendum p.1). This Court has long recognized that, in a renewed motion under Rule 50(b), "[a] party cannot raise arguments . . . that it did not raise in its pre-verdict Rule 50(a) motion." Freund, 347 F.3d at 761 (citing Advisory Comm. Notes to the 1991 Amendments, Fed. R. Civ. P. 50). "A party may secure a j.n.o.v. only 'in accordance with his motion for a directed verdict.' A directed verdict motion can therefore serve as the prerequisite to a j.n.o.v. only if it includes the specific grounds asserted in the [Rule 50(a)] j.n.o.v. motion." Lifshitz, 806 F.2d at 1429 (emphases added). A grant of judgment as a matter of law under Rule 50(b) "is improper if based upon grounds not alleged in a directed verdict because, among other reasons, the moving party has not called the 'claimed deficiency in the evidence to the attention of the court and to opposing counsel at a time when the opposing party is still in a position to correct the deficit.'" Murphy v. City of Long Beach, 914 F.2d 183, 186 (9th Cir. 1990). As this Court further recognized in Lifshitz, "[i]f this were not so, the directed verdict motion would not serve its purpose of providing clear notice of claimed evidentiary insufficiencies and of preserving the issue of the sufficiency of the evidence on a particular matter as a question of law." 806 F.2d at 1429; see also Freund, 347 F.3d at 761 (same). In addition, this Court's well-established rule is completely consistent with Rule 50's drafters' intent, as approved by Congress, that "[b]ecause the Rule 50 motion is only a renewal of the preverdict motion, it can be granted only on grounds advanced in the preverdict motion." Fed. R. Civ. P. 50, Advisory Comm. Notes, 2006 amendment (emphasis added) (attached at Addendum p.7). Examining Go Daddy's Rule 50(a) and (b) motions in light of this rule shows that the district court committed no reversible error in concluding that the only sufficiency of the evidence argument Go Daddy presented, and thus preserved, in its Rule 50(a) motion was in regard to Franklin's awareness of Bouamama's complaint to Slezak. Go Daddy's entire Rule 50(a) motion on the Commission's retaliation claim was as follows: With regard to the Commission's retaliation claim, there hasn't been any evidence that Miss Slezak told any other panel members regarding the alleged reports made to her by Mr. Bouamama. Mr. Franklin and Mr. Villeneuve both testified that, in fact, Miss Slezak had not reported any protected activity to them, and without this knowledge, knowledge by one of three panel members is insufficient for the jury to return a verdict on retaliation. Supp.ER.112. It is absolutely beyond question from the plain language of Go Daddy's motion that its argument was explicitly limited to the question of whether there was evidence that Franklin knew of Bouamama's complaint to Slezak. The only "specific" "facts" that Go Daddy identified were related to whether "Miss Slezak told any other panel members" about Bouamama's alleged complaints, and that Franklin and Villeneuve claimed she had not reported anything to them. The only "specific" "law" the motion identifies is the aforementioned notice requirement, because the motion asserts "without this knowledge, knowledge by one of three panel members is insufficient" to support a verdict in the Commission's favor. Id. The district court correctly ruled that Go Daddy's Rule 50(b) motion was limited to the specific argument made in its Rule 50(a) motion and that its other arguments had thus been waived. Go Daddy attempts to undermine the district court's decision by arguing that the district court's interpretation of Rule 50 is "overly strict" and that courts "liberally construe" Rule 50 motions. AtBr.36-37. This Court should reject Go Daddy's argument. Go Daddy cites no case or authority which would support the conclusion that the district court here misapplied Rule 50 standards. In fact, the district court's application of this Court's precedent governing Rule 50 motions abided by that precedent. In addition, none of the authority relied on by Go Daddy would support the result Go Daddy seeks here. Specifically, Go Daddy fails to identify any authority holding that a party, after making a narrow, specific, factual and legal Rule 50(a) argument on a precise, discrete element of a claim-as the company did here-should nevertheless be permitted to argue in its Rule 50(b) motion on other, different, discrete elements that were not identified in the Rule 50(a) motion. See AtBr.37 (citing cases). In one of the cases cited by Go Daddy, the pre-verdict motion challenged "each issue in the case," not a single, discrete element. United States v. Fenix & Scisson, Inc., 360 F.2d 260, 265 (10th Cir. 1966). In another of Go Daddy's cited cases, the court recognized that the pre-verdict Rule 50(a) motion and post-trial Rule 50(b) motion contained the same "specific grounds" for a directed verdict. Anderson v. United Tel. Co. of Kan., 933 F.2d 1500, 1503-04 (10th Cir. 1991). Go Daddy also cited as support Kusens v. Pascal Co., 448 F.3d 349, 362-63 (6th Cir. 2006), but in that case the court recognized that the movant argued "generally" in its Rule 50(a) motion regarding the entirety of the plaintiff's claim, and then in its Rule 50(b) motion the movant presented the same claim "with specificity." This is exactly the opposite of what Go Daddy did here, where it identified a discrete, narrow issue in its Rule 50(a) motion and then tried to challenge more broadly the entirety of the Commission's case in its post-trial "renewal" of that motion. Go Daddy similarly errs in relying on Federal Savings and Loan Insurance Corp. v. Reeves, 816 F.2d 130, 137-38 (4th Cir. 1987), as the pre- and post-verdict motions in that case involved a pure question of law, and not a challenge to the sufficiency of the evidence. Indeed, another case cited by Go Daddy, Aguinaga v. United Food and Commercial Workers International Union, 993 F.2d 1463, 1470 (10th Cir. 1993), confirms that the district court properly applied the rule. The appellate court in that case noted that while "technical precision" is not required in a Rule 50(a) motion, this is so only "as long as the trial court is aware of the movant's position" at the time of the Rule 50(a) motion. 993 F.2d at 1470; see also Fenix, 360 F.2d at 265-66 ("Technical precision is not necessary in stating grounds so long as the trial court is aware of the movant's position."). The court added that "[h]ad the court deemed the [movant's] claims to be new issues not previously raised on directed verdict, the learned judge would not have addressed them." Aguinaga, 993 F.2d at 1470. This is precisely what the district court did here-it identified the bulk of Go Daddy's Rule 50(b) arguments as not having been previously raised, and thus deemed them waived.<4> Go Daddy further argues that it can meet the requirements of Rule 50 by presenting an "inartful" or "ambiguous" motion as long as the nonmovant is "aware of the grounds upon which the motion is made." AtBr.38. This argument is flawed. First, Go Daddy's motion, while admittedly inadequate to support the arguments it now seeks to make, was neither inartful nor ambiguous. It clearly conveyed that Go Daddy believed the Commission's case failed due to a lack of evidence that Slezak told Franklin that Bouamama complained. The motion made no other arguments and thus did not put the Commission-or the trial court-on notice that Go Daddy was challenging the sufficiency of the evidence on any other issues. Go Daddy then does an about-face and argues that the plain terms of its Rule 50(a) motion presented the issues of whether there was sufficient evidence that Bouamama had engaged in protected activity and that there was no causal connection between the protected activity and his termination. See AtBr.38-39. This argument similarly lacks merit. Go Daddy asserts it met the requirements of the rule by sporadically and disconnectedly inserting the words "hasn't been any evidence," "alleged reports," and "any protected activity" into its motion. See AtBr.38-39. What Go Daddy fails to recognize is that it has to do more than simply toss words around to comply with the rule. It has to actually make an argument-which it neglected to do. Go Daddy, in its oral motion to the district court, simply made no argument, specific or general, regarding whether the evidence was sufficient to show that Bouamama engaged in protected activity and whether there was evidence showing the existence of a causal connection between that protected activity and Bouamama's termination. Rather, Go Daddy merely argued there was a lack of evidence regarding whether Slezak told Franklin about Bouamama's complaint, not about "causation" or "protected activity." Supp.ER.112. This is exactly what a plain reading of the motion reveals, and exactly how the district court properly understood Go Daddy's motion. Go Daddy's assertion to the contrary is simply untenable. Go Daddy next argues that it nevertheless satisfied the requirements of Rule 50 because its Rule 50(a) motion, "when combined with its evidence at trial, 'squarely placed'" its protected activity and causal connection arguments before the court, and as such was sufficient to support their renewal in its post-trial Rule 50(b) motion. AtBr.39-43. Go Daddy is incorrect. The company presented absolutely no authority in support of its novel proposition that simply presenting evidence at trial on discrete issues not addressed in its Rule 50(a) motion is sufficient to permit inclusion of those unargued issues in a post-trial Rule 50(b) motion. Of course, the lack of supporting authority for this proposition is understandable, given that such a standard would obviate the rule. If a party could pursue a Rule 50(b) motion simply by virtue of having made arguments and presented evidence during the course of a trial, there would be no need for Rule 50(a). Accordingly, Go Daddy's presentation at trial of evidence on these other issues simply does not meet its burden under Rule 50(a), and therefore cannot serve as the basis for a "renewed" motion under Rule 50(b).<5> III. The district court correctly concluded that the evidence at trial was sufficient to support a reasonable jury's conclusion that Franklin was aware of Bouamama's complaint at the time he and Slezak terminated Bouamama's employment. As described above, the only argument Go Daddy properly presented in its Rule 50(b) motion was whether there was sufficient evidence that Slezak told Franklin about Bouamama's complaint. In addressing this argument, the district court ruled against Go Daddy because based on the evidence, "a jury reasonably could have found that both Mr. Franklin and Ms. Slezak were aware of the protected activity and that their termination of Mr. Bouamama was in response to that activity." ER.7. In order to prevail on appeal, Go Daddy must demonstrate that the jury erred in reaching a verdict for the Commission because the evidence compels but one reasonable conclusion-a conclusion in favor of Go Daddy. Go Daddy, however, has failed to make this showing. As the district court concluded, the jury's verdict was amply supported by the evidence, and comports with the applicable substantive legal standards governing the establishment of a retaliation claim. As such, there is no error in the court's decision on this issue. Go Daddy's protestations to the contrary notwithstanding, the evidence was more than sufficient to support a reasonable jury's conclusion that Slezak told Franklin about Bouamama's complaint before they terminated him. Bouamama testified that the day after he was told by Franklin, Slezak, and Villeneuve that his position was being eliminated, Franklin stopped by Bouamama's cubicle, looked at Bouamama's pictures in the cubicle, and asked where they were taken. Supp.ER.63. Bouamama replied Morocco, and Franklin asked if Bouamama was from Morocco and if he was Muslim. Id. Bouamama answered yes to both questions, and Franklin replied "you know, you're lucky that I like you," and then walked away. Id. Later that day Bouamama reported Franklin's comments to Slezak, telling her: [T]his is the second time that people are concerned and taking interest about, you know, where I'm from, my religion. You know, I can understand that it was happening with [Villeneuve] but this guy here [Franklin], I don't know him and two days ago he came and telling [sic] me that he doesn't care about my history and he wanted to eliminate my position. The next day he's taking interest for [sic] who I am and where I'm from. Supp.ER.64. Slezak said she would look into the matter. Id. Slezak testified that she had received complaints of discrimination from others in the past, and described in detail what she typically did in response to complaints about discrimination. See Supp.ER.36-37. Slezak testified that she would speak to the alleged discriminator, conduct a full investigation of the allegation, and take any necessary corrective action. Supp.ER.36-37. Based on the aforementioned evidence, particularly when viewed in the light most favorable to the Commission and taking all reasonable inferences in the Commission's favor, a reasonable jury could easily conclude that Bouamama complained to Slezak about Franklin's conduct, and that Slezak did precisely what she said she does in response to complaints of discrimination-she went to the alleged discriminator about the complaint, here, Franklin, and discussed it with him. Go Daddy's argument that there is no evidence on this point, see AtBr.33, is simply incorrect. The jury verdict is further buttressed by the evidence that, in contrast to his behavior prior to Bouamama's complaint, Franklin began to show open hostility toward Bouamama after Bouamama complained to Slezak. On April 14, 2003, after meeting with Parsons, Bouamama passed Franklin's office on his way back to his cubicle. Supp.ER.65, 67. Franklin saw Bouamama and said "come here," and called Bouamama "the F word." Supp.ER.67. The following day, Bouamama went to Franklin's office when directed to do so by Rechterman, where Franklin told him "oh, I thought I took care of you." Supp.ER.72. Go Daddy understandably ignores this evidence, as a reasonable juror could infer from Franklin's altered disposition and behavior toward Bouamama that Franklin learned that Bouamama complained about him to Slezak, and that Franklin was not happy about the complaint. Go Daddy contends that there was no evidence showing that Slezak told Franklin about Bouamama's complaint because Bouamama stated he did not know what Slezak did with his complaint. AtBr.33-34. Go Daddy's argument is meritless. Of course, it is irrelevant whether Bouamama actually knew if Slezak reported his complaint to Franklin or not, as the relevant question is what does the evidence suggest Franklin knew. As such, Bouamama's lack of knowledge as to what Slezak actually did or did not do in no way diminishes the evidence suggesting that Slezak did in fact tell Franklin about Bouamama's complaint. Go Daddy also asserts that the evidence of notice on the part of Franklin is lacking because he, Slezak, and other Go Daddy officials testified that Bouamama never complained to them about discrimination or retaliation. AtBr.33-34. This argument fails for two reasons. First, it was not presented in the company's Rule 50(a) motion, and is therefore not properly before this Court on appeal. See supra at 20-28. Second, Go Daddy's argument completely ignores the fact that Bouamama testified that he did complain to Slezak, and the jury was free to discredit the testimony of Go Daddy's officials, which it apparently did. From all the aforementioned record evidence, viewed in the light most favorable to the Commission and making all reasonable inferences in the Commission's favor, a reasonable finder of fact could easily conclude that Slezak not only received Bouamama's complaint about Franklin's conduct, but that she communicated the complaint to Franklin. The jury therefore had ample evidence from which to conclude that both Slezak and Franklin were aware of Bouamama's protected activity when they terminated his employment, and the district court therefore correctly denied Go Daddy's Rule 50(b) motion on this basis. IV. In any case, the evidence was more than sufficient to support the jury's verdict in the Commission's favor. As noted previously, the district court correctly concluded that Go Daddy had waived the majority of its Rule 50(b) arguments-its claims that the evidence was insufficient to show that Bouamama engaged in protected activity or to establish a causal nexus between the protected activity and the adverse action. See supra at 20-28; ER.5-7 & n.1. Go Daddy's arguments on these points, however, lack merit in any event because the evidence adduced at trial amply supports the jury's verdict on each of these points. A. The evidence that Bouamama engaged in protected activity was sufficient to support the jury's verdict. Go Daddy contends that the evidence was insufficient to support a reasonable jury's conclusion that Bouamama engaged in protected activity because he never complained, and even if he did the conduct about which he complained could not reasonably be viewed as a violation of Title VII. See AtBr.20-27. The company is incorrect. Title VII's antiretaliation provision makes it "an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter." 42 U.S.C. § 2000e-3(a); Burlington N. & Santa Fe R.R. Co. v. White, -- U.S. --, --, 126 S. Ct. 2405, 2411 (2006); see also Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 269 (2001) (same). When an employee protests the actions of a supervisor as a violation of Title VII, the employee's complaint is a "protected activity" under the statute. Trent v. Valley Elec. Ass'n Inc., 41 F.3d 524, 526 (9th Cir. 1994) (citing EEOC v. Crown Zellerbach Corp., 720 F.3d 1008, 1014 (9th Cir. 1983)). "It is not necessary, however, that the [complained-of] employment practice actually be unlawful; opposition clause protection will be accorded 'whenever the opposition is based on a 'reasonable belief' that the employer has engaged in an unlawful employment practice.'"<6> Moyo v. Gomez, 40 F.3d 982, 984 (9th Cir. 1994) (emphasis in original) (quoting in part Crown Zellerbach, 720 F.2d at 1013); see also Freitag v. Ayers, 468 F.3d 528, 541 (9th Cir. 2006) (same). Moreover, in determining whether an individual has engaged in opposition conduct, "courts liberally construe the provisions of [the antiretaliation portion of the statute] to effectuate the remedial purposes of the act." Learned v. City of Bellevue, 860 F.2d 928, 932 (9th Cir. 1988). "Courts have not imposed a rigorous requirement of specificity in determining whether an act constitutes 'opposition' for purposes of [the antiretaliation statute]." Crown Zellerbach, 720 F.2d at 1013. An employee's complaint rises to the level of opposition conduct so long as "it refers to some practice by the employer that is allegedly unlawful," coupled with "a 'reasonable belief' that the employer has engaged in an unlawful employment practice." Id. at 1012-13 (emphasis in original) (citations omitted). Under this standard, there is a sufficient evidentiary basis for a reasonable jury to have concluded, as the jury did in this case, that Bouamama's complaint to Slezak was based on a reasonable belief that he was being subjected to an employment practice made unlawful under Title VII-that his job was being eliminated because of discrimination based on his national origin and/or religion. Bouamama testified that when Franklin was brought on board at Go Daddy, Franklin announced to Bouamama and other managers that there would be no changes at Go Daddy. Supp.ER.61. After this meeting, Bouamama-who speaks with a "very strong accent" recognized by at least one of Bouamama's coworkers as "middle eastern"- met with Franklin in his office. Supp.ER.43-44, 61. Bouamama invited Franklin to an upcoming training session he was conducting in the sales department, in order to help bring Franklin up to speed on the functioning of that department. Supp.ER.25, 61-62. After Franklin met Bouamama face-to- face for the first time, he cancelled this and two other meetings with Bouamama. Supp.ER.62. The next time Franklin spoke to Bouamama was a few days later, when Franklin, Slezak, and Villeneuve met with Bouamama, and Slezak informed Bouamama that his Inbound Sales Manager position was being eliminated. Supp.ER.62. Franklin commented that "he didn't care about [Bouamama's] background or history with the company, something like that." Id. Bouamama was not told that other positions at Go Daddy would also be eliminated-only that his position was being eliminated. Supp.ER.62 ("Slezak told me that they're going to eliminate my position and there's going to be a new position as a Sales Supervisor"). Bouamama's next interaction with Franklin was before the Sales Supervisor interviews, where Franklin came up to Bouamama's cubicle and, upon noticing pictures of Morocco in the cubicle, asked Bouamama first where the pictures were taken, and upon hearing that they were of Morocco, then asked if Bouamama was from Morocco and if he was Muslim. Supp.ER.63. Franklin then told Bouamama "you know, you're lucky I like you" and walked away. Id. Bouamama subsequently complained to Slezak, stating that "two days ago [Franklin] came telling me that he doesn't care about my history and he wanted to eliminate my position. The next day he's taking interest for [sic] who I am and where I'm from." Supp.ER.64. Based on this evidence, and making all inferences in the Commission's favor, a reasonable jury could certainly conclude that Franklin's conduct toward Bouamama gave rise to Bouamama's entirely reasonable belief that his job may have been eliminated because of his national origin and/or religion. As such, there was more than sufficient evidence to support the jury's conclusion that Bouamama's complaint to Slezak was protected activity under Title VII. Go Daddy spends considerable time arguing that even if Bouamama complained to Slezak, that complaint fails to meet the Breeden standard for protected activity. This, Go Daddy contends, is because Bouamama's complaint to Slezak concerned "harassment" by Franklin or a "hostile work environment," and since Bouamama's belief that he had suffered unlawful "harassment" was not objectively reasonable, his complaint is not protected by Title VII. Go Daddy's argument here is factually incorrect and displays a profound misunderstanding of the relevance of Breeden to this case. In Breeden, the Supreme Court addressed an employee's claim that her employer retaliated against her after she lodged a sexual harassment complaint against her supervisor regarding a single incident of alleged harassment. 532 U.S. at 269-70. The Court concluded that the employee had not engaged in protected activity under Title VII because "[n]o reasonable person could have believed that the single incident . . . violated Title VII's standard." Id. at 271; see also Moyo, 40 F.3d at 984 (protection from retaliation is accorded when the complaint "'is based on a 'reasonable belief' that the employer has engaged in an unlawful employment practice'") (citation omitted). The record evidence amply demonstrates that Bouamama's complaint satisfied the requirements of Breeden, as, unlike the employee in Breeden, Bouamama complained to Slezak of conduct by Franklin that would plainly be a violation of Title VII-the elimination of his job-if done for discriminatory reasons, i.e., based on his national origin or religion. At trial, Bouamama recounted his complaint of discrimination to Slezak as follows: [T]his is the second time that people are concerned and taking interest about, you know, where I'm from, my religion. You know, I can understand that it was happening with [Villeneuve] but this guy here [Franklin], I don't know him and two days ago he came and telling [sic] me that he doesn't care about my history and he wanted to eliminate my position. The next day he's taking interest for [sic] who I am and where I'm from. Supp.ER.64. As described above, the circumstances giving rise to this complaint were Franklin's elimination of Bouamama's position, followed by questioning about Bouamama's national origin and religion, and Franklin's comment "you know, you're lucky I like you." This evidence is more than adequate to support a reasonable jury's conclusion that Bouamama was complaining that his job may have been eliminated by Franklin because of Bouamama's national origin or religion. And a finding of protected activity based on this evidence comports with the standard enunciated in Breeden and this Court's precedent. See 532 U.S. at 271; Trent 41 F.3d at 526. Go Daddy further argues that the evidence does not show that Bouamama ever complained of discrimination at Go Daddy. See AtBr.20-27. Its assertion, however, lacks merit. Bouamama testified that he complained to Slezak just before his termination about Franklin's elimination of his position and concurrent questioning about his national origin and religion. Supp.ER.64. This, obviously, was evidence that Bouamama complained to Slezak about what he reasonably suspected to be discrimination. In arguing that Bouamama admitted at trial that he never complained, Go Daddy takes the evidence out of context. At trial, Bouamama was asked by counsel for Go Daddy whether he had told the EEOC Investigator who handled his charge of discrimination that he did not complain about discrimination while he was at Go Daddy. ER.54. Bouamama replied "yes." Id. What Go Daddy fails to acknowledge in its brief, however, is that the transcript of the conversation Bouamama had with the EEOC Investigator-the relevant portions of which were admitted into evidence at trial-make clear that what Bouamama told the investigator was that he never complained about Villeneuve's making disparaging remarks about Muslims, not that he never made any complaints at all. Bouamama discussed with the EEOC Investigator the unusual circumstances surrounding his February 2002 promotion to the Team Lead position, and stated that "discrimination started in the beginning. The problem is, I will say that I'm guilty for the fact that a [sic] felt it in the beginning and I didn't say anything about it." ER.95 (emphasis added). Bouamama then explained that he did not complain about this early perceived discrimination because "after September 11th with the Arabs, the media, all what's [sic] going on, I said to myself, hey, keep it quiet . . . . So I said you know, I'm going to keep my mouth shut. But I knew in the beginning that I was wrong." ER.95 (emphasis added). Bouamama's statement to the EEOC Investigator is consistent with Bouamama's trial testimony that while Bouamama was in the Team Lead position, Villeneuve made a comment in Bouamama's presence, while speaking to other employees, that "the Muslims need to die" or "the bastard Muslims need to die," but that Bouamama never complained to anyone at Go Daddy about that comment. Supp.ER.58, 84-85. Bouamama testified that he felt hurt by this comment, but did not complain because he understood that at that time "[w]e were at war. . . . After September 11 things changed, people are hurt, you know, I was hurt and, you know, it was devastating for everybody, it was horrible, and, you know, you try to be compassionate. I understand the anger that some people are expressing, and that's why I don't [sic] say nothing." Supp.ER.59. The transcript of Bouamama's conversation with the EEOC Investigator further demonstrates that Bouamama's references therein to not complaining about discrimination apply only to the early comment made by Villeneuve. Bouamama stated that he had "been discriminated before [sic] from Brett [Villeneuve], but I didn't say anything, you know, because of what was going on in the economy." ER.99. Furthermore, on cross-examination, Go Daddy's counsel asked Bouamama about Villeneuve's anti-Muslim comment, and Bouamama agreed that he never complained about this comment-but, contrary to Go Daddy's assertion otherwise, Bouamama did not testify that he never complained of any discrimination at Go Daddy. Supp.ER.84-85. From all this evidence, a reasonable jury could certainly conclude that in Bouamama's conversation with the EEOC Investigator, he only referred to his not complaining about Villeneuve's "Muslims need to die" comment, and not that he never complained to anyone at Go Daddy about perceived discrimination. At no time did Bouamama testify that he never made any complaints of discrimination while at Go Daddy. To the contrary, Bouamama explicitly testified that he complained to Slezak about Franklin, Supp.ER.64, and as such provided the jury with ample evidence to support its conclusion that he did in fact complain to Go Daddy about Franklin's conduct toward him and Franklin's elimination of his position. Go Daddy notes that its management personnel all testified that they never received any complaints from Bouamama about discrimination, and that Bouamama did not make complaints on particular dates. AtBr.20-21. Of course, the jury was free to disregard the testimony of Slezak and instead credit Bouamama's testimony that he did in fact complain to her. This, again, leaves the jury with ample evidence from which to conclude that Bouamama did in fact complain of discrimination, sufficient to support its verdict on this element of the retaliation claim. Go Daddy also asserts that Bouamama's failure to check the box marked "retaliation" on the EEOC intake questionnaire and his charge of discrimination, and that he did not tell the EEOC Investigator that Go Daddy had retaliated against him, supports its claim that he never complained about Franklin to Slezak. AtBr.21-22. Go Daddy's argument is baseless. Whether a charging party, such as Bouamama, checked a box marked retaliation or told the Commission he believed he was retaliated against is irrelevant. Neither establishes that Bouamama did not complain. Simply put, the fact that Bouamama-a lay person-did not check the "retaliation" box on a form in no way contradicts his sworn testimony at trial that he did complain of discrimination, and neither does the fact that he did not discuss retaliation with the EEOC Investigator. These facts simply do not make it unreasonable for the jury to have credited Bouamama's testimony that he did complain of discrimination at Go Daddy. B. The evidence that Bouamama was terminated because he engaged in protected activity was sufficient to support the jury's verdict. In order to establish a prima facie case of retaliatory disparate treatment, a plaintiff must show, in relevant part, that "a causal link exists between the protected activity and the adverse action." Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000). "[T]he plaintiff must make some showing sufficient for a reasonable trier of fact to infer that the defendant was aware that the plaintiff had engaged in protected activity." Raad v. Fairbanks North Star Borough Sch. Dist., 323 F.3d 1185, 1197 (9th Cir. 2003) (citation omitted). Go Daddy argues that the evidence was insufficient to establish a causal nexus between Bouamama's protected activity and his termination because Franklin decided to eliminate Bouamama's position before he complained to Slezak.<7> See AtBr.29. We reiterate that, as the district court properly concluded, Go Daddy has waived this argument. The district court also properly concluded that the argument, in any case, lacks any merit. ER.6-7 & n.1. As the district court recognized, Go Daddy's argument is fundamentally flawed because it completely misperceives the nature of the Commission's claim. The Commission's claim was not that Go Daddy eliminated Bouamama's Inbound Sales Manager position because he complained about Franklin to Slezak. Rather, the Commission claimed, and the jury found, based on ample evidence, that Go Daddy retaliated against Bouamama when it refused to place him in the Sales Representative position, and instead terminated him, after he complained to Slezak about Franklin. Accordingly, the fact that Franklin decided to eliminate Bouamama's position before he complained to Slezak is irrelevant to the Commission's claim, and concomitantly irrelevant to the question of whether there is a causal connection between Bouamama's complaint and his termination. Bouamama testified that when Franklin, Slezak, and Villeneuve met with him to inform him that his job was being eliminated, they told him he could either apply for the Sales Supervisor position or he could leave the company. Supp.ER.62, 63. The next day, Franklin made inquiries of Bouamama about his national origin and religion, and commented that Bouamama was "lucky" that Franklin "liked" him. Supp.ER.63-64. Bouamama then complained to Slezak about Franklin's eliminating his position and questioning him about "who I am and where I'm from," and then, a few days after interviewing and not being selected for the Sales Supervisor position, he was terminated while all the other unsuccessful candidates were permitted to stay on with the company as Sales Representatives. Supp.ER.99. Bouamama testified that on his last day of employment-which was after he had complained to Slezak-Slezak told him "you did not get the Sales Supervisor position and you're not going to go back to the [sales] floor," and when Bouamama asked if he was being terminated, she and Franklin responded that "effective today immediately. You [are] no longer with the company." Supp.ER.75-76. A reasonable jury could certainly conclude from this that the decision to terminate Bouamama was not made until after he complained to Slezak. As such, there is ample evidence that the protected activity preceded the adverse employment action. Go Daddy's contention that there is no causal link because Franklin decided to terminate Bouamama at the time he eliminated Bouamama's position, AtBr.29- 33, is flawed for several reasons. First, it is contrary to Go Daddy's own position at trial that all the unsuccessful candidates for the Sales Supervisor position- including Bouamama-had the option of staying on as a Sales Representative. See, e.g., Supp.ER.98-99 (Villeneuve's testimony). Moreover, Go Daddy's assertion was by necessary implication rejected by the jury, which found, based on ample evidence, that Bouamama's termination from Go Daddy was the result of his not being permitted to stay on as a Sales Representative, and not because Go Daddy had earlier decided to eliminate Bouamama's management position. As such, the jury agreed with the position advocated by the Commission, and Go Daddy cannot challenge the sufficiency of the evidence by mischaracterizing the Commission's claim. This is exactly what the district court correctly recognized: [A]s plaintiff correctly notes, the jury found that Defendant's retaliation resulted in Mr. Bouamama's termination, not the elimination of his position as Inbound Sales Manager. Defendant presented no evidence that the decision to terminate Mr. Bouamama was made before he engaged in protected activity. Indeed, defendant claimed that Mr. Bouamama was not terminated at all. ER.7 n.1. Go Daddy's argument is further undermined by the fact that it has flip- flopped in this litigation on the question of whether or not Bouamama was entitled to a Sales Representative position, arguing in the district court that he was not, and then arguing to the contrary on appeal. At trial, Go Daddy argued that once Bouamama's position was eliminated, and he was unsuccessful in securing one of the Sales Supervisor positions, he-like all the other unsuccessful candidates- could either take a severance package or return to a Sales Representative position. See, e.g., Supp.ER.107-08 (Go Daddy's closing argument); Supp.ER.99-100 (Villeneuve's testimony). On appeal, however, Go Daddy asserts, contrary to its position at trial, that once Bouamama's job was eliminated and he failed to secure the Sales Supervisor position his only option was to take a severance package and leave the company. See, e.g., AtBr.30 ("Bouamama could stay in his Inbound Sales Manager position (already slated for elimination) and apply for the Sales Supervisor position, or resign immediately from his Inbound Sales Manager position and accept a severance package."). Since Go Daddy did not present this argument in the district court-and in fact argued the opposite, that Bouamama did in fact have an opportunity to stay on as a Sales Representative but simply failed to exercise that option-this argument is waived for purposes of appeal. See Smith, 194 F.3d at 1052 ("The difficulty for [the appellants], however, is that they failed to present this contention to the district court; it first appears in their opening brief on appeal. As a general rule, we will not consider arguments that are raised for the first time on appeal."). V. The district court did not abuse its discretion in denying Go Daddy's Rule 59(a) motion for a new trial. In arguing on appeal that the district court erred in denying Go Daddy's Rule 59(a) motion for a new trial, Go Daddy relies on the same flawed arguments it presented in its post-verdict Rule 50(b) motion, contending that for those same reasons, there is no record evidence in support of the jury's verdict. AtBr.45-46. Go Daddy, again, is incorrect, and its cursory presentation on appeal fails to establish that the district court abused its discretion in denying the company's motion. This Court reviews a district court's denial of a Rule 59(a) motion for abuse of discretion. Molski, 481 F.3d at 728. This Court will not disturb a district court's ruling denying a motion for a new trial unless "the record contains no evidence in support of the verdict." Id. at 729 (citing Farley Transp. Co. v. Santa Fe Trail Transp. Co., 786 F.2d 1342, 1347 (9th Cir. 1985)) That is, so long as the verdict is not "contrary to the clear weight of the evidence," the district court's denial of the motion will be affirmed on appeal. Id. "Because determining 'the clear weight of the evidence' is a fact-specific endeavor, appeals courts are reluctant to second-guess district courts' conclusions. An appellate court generally will not reverse the denial of a new trial motion if there was some 'reasonable basis' for the jury's verdict." Id. (citations omitted). As the district court properly found, the jury's verdict was not contrary to the clear weight of the evidence; rather, it was amply supported by the evidence of record. As described in greater detail above, see supra at 28-46, the Commission presented ample evidence to support the jury's verdict in its favor on every element of its claim that Go Daddy challenged in its post-trial motions. There was evidence that Bouamama engaged in protected activity by complaining to Slezak about Franklin's eliminating his job and inquiring about his national origin and religion, that Slezak communicated this complaint to Franklin, and that Franklin thereafter terminated Bouamama by not offering him the opportunity to remain employed at Go Daddy in the Sales Representative position. This is exactly what the district court concluded, see ER.7-8, and Go Daddy has failed to show that in light of this and other evidence supporting the jury's verdict in favor of the Commission, the district court's denial of its motion for a new trial amounted to an abuse of discretion. Simply, far from being contrary to the clear weight of the evidence, the jury's verdict was amply supported by the evidence.<8> Argument as Cross-Appellant I. Standard of review. This Court reviews for abuse of discretion a district court's refusal to award reinstatement as a remedy for an unlawful termination. Gotthardt v. Nat'l R.R. Passenger Corp., 191 F.3d 1148, 1156 (9th Cir. 1999) (citations omitted). A district court's findings of fact in support of its decision to refuse to award reinstatement, however, are reviewed for clear error. Id. at 1155. Under the clear error standard of review, this Court will reverse the district court's ruling if it has a "definite and firm conviction that a mistake has been committed," United States v. Esparza-Gonzales, 422 F.3d 897, 901 (9th Cir. 2005), such as when the district court's factual findings are not "plausible in light of the record viewed in its entirety," Gotthardt, 191 F.3d at 1155. II. The district court abused its discretion in declining to order Bouamama reinstated to the Sales Representative position. The jury returned a verdict finding that Go Daddy unlawfully retaliated against Bouamama when it terminated his employment. Supp.ER.8-9. Nevertheless, the district court refused to order Go Daddy to reinstate Bouamama's employment in the Sales Representative position-the position to which he was entitled as a result of not being selected to fill one of the Sales Supervisor positions. ER.14. The court's decision rested on its conclusion that because of the fact that Bouamama had raised discrimination claims against managers still at Go Daddy and would be recovering damages from Go Daddy as a result of this litigation, as well as several other factual premises, reinstatement was "neither warranted nor wise." ER.15. The court's ruling, however, is contrary to well- settled legal standards establishing that merely being involved in litigation cannot preclude reinstatement as an appropriate remedy, and otherwise relies on factual findings that are patently inconsistent with the evidence of record. A. The district court applied an improper legal standard in concluding that reinstatement was inappropriate. The district court erred as a matter of law in concluding that reinstatement was not appropriate because the parties have been involved in litigation. This standard is wrong as a matter of law and would effectively make reinstatement- the "preferred remedy" in discriminatory termination cases-unavailable in virtually every unlawful termination suit. As such, the district court's finding to the contrary, and denial of the Commission's requested relief on the basis of that finding, was an abuse of discretion. Title VII specifically provides reinstatement as a remedy for practices made unlawful by the statute. 42 U.S.C. § 2000e-5(g)(1). See also Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1338 (11th Cir. 1999) (noting that victorious plaintiffs in wrongful discharge cases are entitled to "presumptive reinstatement"). Reinstatement is the preferred remedy for future harms caused by the unlawful discharge, as opposed to front pay, as "'when a person loses [][her] job, it is at best disingenuous to say that money damages can suffice to make that person whole. The psychological benefits of work are intangible, yet they are real and cannot be ignored.'" Farley, 197 F.3d at 1338 (alterations in original) (quoting Allen v. Autauga County Bd. of Educ., 685 F.2d 1302, 1306 (11th Cir. 1982)). Denying reinstatement, and instead awarding front pay, is only appropriate if it is "impossible to reinstate the plaintiff" or there exists "excessive hostility between the parties." Thorne v. City of El Segundo, 802 F.2d 1131, 1137 (9th Cir. 1986). The mere fact that the parties have been adversaries in litigation does not make reinstatement inappropriate. "'[H]ostility engendered from litigation' is not extraordinary and does not bar this preferred remedy. Therefore, only '[s]ubstantial hostility, above that normally incident to litigation, is a sound basis for denying reinstatement.'" Sellers v. Mineta, 358 F.3d 1058, 1067-68 (8th Cir. 2004) (citations omitted). "If 'hostility common to litigation' would justify a denial of reinstatement, reinstatement would cease to be a remedy except in cases where the defendant felt like reinstating the plaintiff." U.S. EEOC v. Century Broad. Co., 957 F.2d 1446, 1462 (7th Cir. 1992). Rather than the simple fact of litigation being sufficient, in and of itself, to preclude an award of reinstatement, there must be evidence of excessive hostility between the parties which makes reinstatement impossible. Sellers, 358 F.3d at 1068; Century Broad., 957 F.2d at 1462. See also Cassino v. Reichhold Chem., Inc., 817 F.2d 1338, 1346 (9th Cir. 1987) (holding that the district court did not abuse its discretion in denying reinstatement, as "the record indicates that some hostility developed between Reichhold and Cassino during the litigation") (citation omitted) (emphasis added); Thorne, 802 F.2d at 1137 (remanding for findings on whether excessive hostility existed between the parties, and noting that "the district court's finding does not take into account possible animosity generated during the protracted litigation"). This is not to say that an award of reinstatement automatically follows a verdict in favor of a plaintiff. "In discriminatory discharge cases, the decision whether to award reinstatement is within the discretion of the trial court." Cassino, 817 F.2d at 1346. However, courts have tempered that discretion in termination cases with the recognition that "presumptive reinstatement" is the rule. Farley, 197 F.3d at 1338. In the case at bar, a primary consideration in the district court's decision to deny reinstatement runs directly contrary to this authority-the fact that Go Daddy was sued and the plaintiff prevailed. Specifically, the court stated the fact that Bouamama had accused Go Daddy managers of discrimination, had been involved in litigation against Go Daddy for several years, and "will recover substantial actual and punitive damages in this case," counseled against reinstatement. ER.15. The court then concluded that reinstatement was "neither warranted nor wise," citing cases in which reinstatement had been denied because of hostility between the parties. Id. (citing Cassino, 817 F.2d at 1347; Chancellier v. Federated Dep't Stores, 672 F.2d 1312, 1319-20 (9th Cir. 1982)). It is clear from the factors the court points to as justification for its denial of reinstatement that the court failed to apply the heightened standard of "excessive hostility" this Court requires to deny reinstatement. Denying reinstatement simply because a party successfully litigates a Title VII discrimination case is wrong as a matter of law. Moreover, the court pointed to no evidence whatsoever that the parties actually had developed a hostile or acrimonious relationship because of, or during, the litigation in this case. ER.14-15. The court simply presumed that because the parties had been involved in litigation, there existed a level of hostility between them that made reinstatement inappropriate. This is simply incorrect. To the contrary, the actual evidence of record strongly supports the conclusion that the relationship between the parties is not hostile or acrimonious. First, Franklin is no longer at Go Daddy, making his relationship with Bouamama irrelevant for purposes of reinstatement. Parsons, the CEO of the company, testified that he liked Bouamama while he worked at Go Daddy, he thought he was a good employee, and he still likes Bouamama. Supp.ER.47-48. Villeneuve testified that Bouamama "is a very intelligent man," he and Bouamama "got along okay" at Go Daddy, it was "cool" that Bouamama brought him Christmas gifts in 2002, and Villeneuve still had one of the gifts given to him by Bouamama. Supp.ER.40, 101- 02. No evidence was offered that suggested that Villeneuve's feelings toward Bouamama had soured, as a result of the litigation or otherwise, to make reinstatement inappropriate. Nor is there any evidence which indicates that Slezak, the last of the Go Daddy officials accused of retaliation, harbored any animus toward Bouamama-as a result of the litigation or otherwise. Accordingly, even if the court had applied the correct legal standard, there is no evidence in this case which could possibly support a finding that excessive hostility existed between Bouamama and Go Daddy sufficient to preclude reinstatement. Thus, the district court's decision on this point is both legally and factually erroneous. B. The district court's factual findings in support of its decision to deny reinstatement are clearly erroneous. The district court also abused its discretion in denying reinstatement because its factual findings are contrary to the evidence of record. As noted previously, "[i]n discriminatory discharge cases, the decision whether to award reinstatement is within the discretion of the trial court." Cassino, 817 F.2d at 1346. However, the court's findings of fact that inform its decision whether to award such damages must be free of "clear error"-that is, this Court will not reverse those findings, and thereby conclude the district court's decision amounted to an abuse of discretion, so long as the district court's findings "'are plausible in light of the record viewed in its entirety.'" Gotthard, 191 F.3d at 1155 (citation omitted). Examining the record evidence and the court's ruling under this standard shows that the court's findings regarding reinstatement are not "plausible in light of the record viewed in its entirety" and, accordingly, the court's decision based on those findings amounts to an abuse of discretion. The court noted that the evidence, and jury verdict, showed that if Bouamama had not been subjected to retaliation, he would have been offered a Sales Representative position. ER.14. The court went on to note (without citation to any evidence) that the Sales Representative position is not the position Bouamama sought, his prior performance in that position had been "less than fully satisfactory for him and his supervisors," and no evidence had been presented showing that his prospects at his current employment were any less than those he would have at Go Daddy. ER.14- 15. From all this, the court concluded that "reinstatement is neither warranted nor wise." ER.15 (citations omitted). While the court was correct in recognizing that "Sales Representative is not truly the position Mr. Bouamama seeks" in the lawsuit, ER.14, it is uncontested that Bouamama was entitled to an opportunity to assume the Sales Representative position upon his unsuccessful bid for the Sales Supervisor position. Supp.ER.99. The court noted that Bouamama "had been promoted beyond the position of Sales Representative some time before the events at issue in this case," ER.15, but this fact does not suggest that reinstatement was inappropriate. It is unclear why the court deemed this a relevant consideration. It is uncontested that this is a position unsuccessful candidates for the Sales Supervisor position were entitled to, and which the jury found was unlawfully denied Bouamama. He was, therefore, entitled to the job. It appears the court was concerned that reinstating Bouamama to the Sales Representative position would in effect be a demotion. While this may factor into whether a victim of discrimination would desire reinstatement-and the evidence is that Bouamama wanted to be reinstated, see Supp.ER.76-it is not relevant to whether he is entitled to reinstatement. The court found that "[t]he evidence further suggested that Mr. Bouamama's previous work as a Sales Representative had been less than fully satisfactory for him and his supervisors." ER.15. Villeneuve, who assessed Bouamama's performance as a Sales Representative during his tenure in that position, testified directly to the contrary-that while handling customer calls "wasn't his strongest point," Bouamama "was a good rep," and generally as an employee "all in all, he's okay. He's got good technical knowledge. He's-you know, he's okay." Supp.ER.86-87, 89, 96-97. Villeneuve added that as compared to the other Team Leads at Go Daddy, Bouamama's customer service skills were "right in there in the middle of them." Supp.ER.92. The district court did not cite any evidence supporting its assertion that Bouamama's prior experience in the Sales Representative position was "less than fully satisfactory for him and his supervisors," but it might have based this conclusion on Villeneuve's testimony that he had received complaints about Bouamama's customer service skills, and Villeneuve's belief that Bouamama's telephone skill "wasn't his strongest point." Supp.ER.87-88. Examining this evidence in the context of Villeneuve's complete testimony on these subjects, however, reveals that the record in no way suggests that Villeneuve-or Go Daddy-considered Bouamama's level of skill in providing telephonic customer service unsatisfactory. Villeneuve testified that he had reservations about putting Bouamama on "the phone side" (presumably taking customer service requests by telephone) prior to Bouamama's being converted to a regular Go Daddy employee from his initial status as a temporary employee, because he believed Bouamama was "a little more aggressive than [he] prefer[red] on the phones." Supp.ER.86. Villeneuve also testified that he had received complaints about Bouamama from "a couple people" who felt that he was being rude to them" and that he had not taken care of their problems. Supp.ER.88. It is noteworthy, however, that although Villeneuve had the option of not converting Bouamama to a Go Daddy employee and returning him to the temporary agency, he elected to keep Bouamama and brought him on board as a permanent customer service employee. Supp.ER.89. Villeneuve made Bouamama a permanent employee despite the reservations he had and the complaints he had received because "[h]e was a good rep. I mean, he's technically solid. He's a good guy. There's just no reason not to [keep him]." Id. Despite the court's vague characterization of Bouamama's prior experience as "less than fully satisfactory," there is no evidence in the record to suggest that Go Daddy did not want him in the Sales Representative position because he was "less than fully satisfactory." Furthermore, even Go Daddy argued that all the employees whose jobs were eliminated to make way for the Sales Supervisor positions, and who were not selected for those new positions-including Bouamama-were entitled to choose between going back to a Sales Representative position or taking a severance package. See Supp.ER.27, 32, 97-99. Go Daddy presented no evidence and made no argument that it considered Bouamama ineligible for returning to that position. Rather, Go Daddy argued that Bouamama was entitled to the same retention opportunity as the other unsuccessful candidates. Supp.ER.99. Additionally, Bouamama testified that he would have returned to the Sales Representative position, if only he had been given the opportunity to do so, stating "I am not a quitter. I will go back to the floor and I will pro[ve] them wrong." Supp.ER.76. Thus, the evidence presented by both sides showed that Bouamama was ready, willing, and able to assume the Sales Representative position, and Go Daddy had no lawful reason for not placing him in that position. The district court also noted that, as to Bouamama's post-Go Daddy employer, there was no evidence that Bouamama "has a less promising future" than he would have had at Go Daddy had he been reinstated. This "finding" is irrelevant to determining whether reinstatement should be awarded. There is no authority for the proposition that in addition to proving that the termination was unlawful, a prevailing plaintiff must demonstrate that he is currently in a less- desirable job in order to secure an award of reinstatement. See 42 U.S.C. § 2000e- 5(g)(1) ("If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice . . . the court may . . . order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement."); Farley, 197 F.3d at 1338 (upon prevailing in discriminatory discharge case, the plaintiff is entitled to "presumptive reinstatement"). Conclusion For the aforementioned reasons, the Commission respectfully requests that this Court affirm the district court's denial of Go Daddy's motions for judgment as a matter of law and for a new trial, and reverse the district court's denial of reinstatement. Statement of related cases The Commission is unaware of any related cases pending in this Court. Respectfully submitted, RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate General Counsel ____________________ JAMES M. TUCKER Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 l St. NW, Rm. 7024 Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov Addendum Certificate of Compliance I hereby certify that the foregoing brief complies with the type-volume limitations set forth in Federal Rules of Appellate Procedure Rule 28.1(e)(2)(B)(i). The foregoing brief contains 14,204 words, from the Jurisdictional Statement through the Statement of Related Cases, as determined by the Microsoft Word 2003 word processing program, with 14-point proportionally spaced type for text and 14-point proportionally spaced type for footnotes. ____________________ James M. Tucker Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L. St. NW, Rm. 7024 Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.go Certificate of Service I hereby certify that the original and fifteen (15) copies of the foregoing brief, and five (5) copies of the Plaintiff/Appellee/Cross-Appellant's Supplemental Excerpts of Record, were sent this 14th day of January, 2008, by FedEx Next Day Air delivery, to Cathy Catterson, Clerk of Court, United States Court of Appeals for the Ninth Circuit, 95 Seventh Street, San Francisco, CA, 94103-1518. I further certify that two (2) copies of the foregoing brief and one (1) copy of the Plaintiff/Appellee/Cross-Appellant's Supplemental Excerpts of Record, were sent this 14th day of January, 2008, by FedEx Next Day Air delivery, to counsel of record for Defendant/Appellant/Cross-Appellee Go Daddy Software, Inc., at the following address: Fred W. Alvarez, Esq. Michael J. Nader, Esq. Wilson Sonsini Goodrich & Rosati, P.C. 650 Page Mill Rd. Palo Alto, CA 94304-1050 ____________________ James M. Tucker Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L. St. NW, Rm. 7024 Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov *********************************************************************** <> <1> The parties agreed to try the Commission's recordkeeping claim to the court, which found in favor of the Commission and awarded the limited injunctive relief of ordering Go Daddy to comply with federal recordkeeping requirements. ER.10- 11, 17-18. Go Daddy has not challenged on appeal the district court's ruling on the Commission's recordkeeping claim. See generally Opening Brief of Appellant Go Daddy Software, Inc. ("AtBr."). <2> Go Daddy omits from its statement of facts any mention of this trial testimony- by Villeneuve, its own official-that individuals whose jobs were being eliminated by Franklin's reorganization were entitled to stay with the company as Sales Representatives, and were not, contrary to the company's repeated assertions throughout its brief on appeal, limited to either securing one of the new Sales Supervisor positions, or resigning with a severance package. See, e.g., AtBr.10-11. <3> Go Daddy asserts that this exchange took place on April 7, 2003, based on Bouamama's statement in his charge of discrimination. See, e.g. AtBr.11 n.3. Any discrepancy as to whether this exchange took place on April 5, as Bouamama's trial testimony suggests, or April 7, as his charge states, is irrelevant for purposes of this appeal, as both dates fall between the April 4 meeting regarding the elimination of Bouamama's position and his April 17 termination. See ER.86-87 (charge of discrimination) <4> The fact that the district court nevertheless, and in the alternative, addressed in a footnote the merits of some of Go Daddy's waived arguments in its decision on the Rule 50(b) motion does not, of course, diminish the court's prior ruling that these arguments had been waived and were not before the court. See ER.7 n.1. <5> Go Daddy further asserts that the Commission cannot argue that Go Daddy waived its arguments because the Commission did not argue waiver to the district court. AtBr.43-44. This argument is frivolous, and none of the cases cited by Go Daddy support its position. It goes without saying that a party may defend on appeal a judgment on grounds relied upon by the district court. If Go Daddy's contention were correct, a party could never defend on appeal a ruling reached by a district court sua sponte. <6> As such, the fact that the jury did not find that Bouamama had actually been subjected to national origin or religious discrimination is irrelevant to the question of whether Bouamama had a reasonable belief that Franklin's actions may have been unlawfully discriminatory. See Moyo v. Gomez, 40 F.3d 982, 984 (9th Cir. 1994). <7> Go Daddy also argued in its Rule 50(b) motion that "Defendant's favorable treatment of Bouamama was an intervening event, negating any causal connection between Bouamama's protected activity and his departure from Go Daddy." ER.25. The district court rejected this argument as waived, and also on the merits. ER.6-7 & n.1. Go Daddy has not, however, presented this argument in its opening brief, and therefore has abandoned this argument on appeal. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) ("[O]n appeal, arguments not raised by a party in its opening brief are deemed waived."); see also Hale v. U.S. Trustee, No. 06- 35349, 2007 WL 4293312, at *6 (9th Cir. Dec. 10, 2007) (same). <8> Go Daddy also asserts that the district court's denial of its Rule 50(b) motion represents "a manifest miscarriage of justice," warranting reversal of the court's ruling, because there was "no evidence" that Bouamama engaged in protected activity or that Franklin was aware of such activity. See AtBr.44-45. Again, there is no merit to these assertions. There was ample record evidence on each of these points, as well as the other elements of the Commission's retaliation claim, to support the jury's verdict.