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 ____________________________________________________________ REPLY 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 CAROLYN L. WHEELER Washington, D.C. 20507 Acting Associate General Counsel (202) 663-4870 James.Tucker@EEOC.gov LORRAINE C. DAVIS Assistant General Counsel JAMES M. TUCKER Attorney Table of Contents Table of Authorities . . . . . . . . . . . iii Argument . . . . . . . . . . . . . . . . . . 1 Conclusion . . . . . . . . . . . . . . . . 28 Certificate of Compliance Certificate of Service Table of Authorities Cases page(s) Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) . . . . . . . . . . . . . .9, 12, 15 Brito, et al. v. Zia Corp., 478 F.2d 1200 (10th Cir. 1973) . . . . . . . . . . . .14 Cassino v. Reichhold Chem., Inc., 817 F.2d 1338 (9th Cir. 1987) . . . . . . . . . . . 1, 9 Caudle v. Bristol Optical Co., 224 F.3d 1014 (9th Cir. 2000) . . . . . . . . . . . . 12 EEOC v. Kallir, Philips, Ross Inc., 420 F. Supp. 919 (S.D.N.Y. Oct. 8, 1976) . . . . 26, 27 Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322 (11th Cir. 1999) . . . . . . . . . . . . 6 Fine v. Ryan Int'l Airlines, 305 F.3d 746 (7th Cir. 2002) . . . . . . . . . 15, 16 Gotthardt v. Nat'l R.R. Passenger Corp., 191 F.3d 1148 (9th Cir. 1999) . . . . . . . . 1, 2, 6, 9 Henry v. Lennox Indus., Inc., 768 F.2d 746 (6th Cir. 1985) . . . . . . . . . . . . 14 Louisiana v. United States, 380 U.S. 145 (1965) . . . . . . . . . . . . . . . . . .9 McIntosh v. Jones Truck Lines, Inc., 767 F.2d 433 (8th Cir. 1985) . . . . . . . . . . . . 12 McKnight v. General Motors Corp., 973 F.2d 1366 (7th Cir. 1992) . . . . . . . . . . . . 15 Robinson v. Shell Oil Co., 519 U.S. 337 (1997) . . . . . . . . . . . . . . . . . 13 Rousch v. KFC Nat'l Mgmt. Co., 10 F.3d 392 (6th Cir. 1993) . . . . . . . . . . . . 14 Selgas v. American Airlines, Inc., 104 F.3d 9 (1st Cir. 1997) . . . . . . . . . . . . . 10 Sellers v. Mineta, 358 F.3d 1058 (8th Cir. 2004) . . . . . . . . . . . . 2 Smith v. Marsh, 194 F.3d 1045 (9th Cir. 1999) . . . . . . . . . . . . 26 Thorne v. City of El Segundo, 802 F.2d 1131 (9th Cir. 1986) . . . . . . . . . 2, 3, 20 U.S. EEOC v. Century Broad. Co., 957 F.2d 1446 (7th Cir. 1992) . . . . . . . . . 2, 20 Wicker v. Hoppock, 73 U.S. (6 Wall.) 94 (1867) . . . . . . . . . . . . . 9 Statutes 42 U.S.C. § 1981a . . . . . . . . . . . . . . . . . . . . . . . 12 42 U.S.C. § 2000e-5(g)(1) . . . . . . . . . . . . . . . . . .6, 12 ARGUMENT At the close of trial in this case, the jury returned a verdict finding that Go Daddy had illegally terminated Bouamama's employment in retaliation for having complained of discrimination. Supp.ER.8-9. Nevertheless, the district court refused to award reinstatement-the "preferred remedy" in discriminatory discharge cases, Gotthardt v. Nat'l R.R. Passenger Corp., 191 F.3d 1148, 1156 (9th Cir. 1999) (citing Cassino v. Reichhold Chem., Inc., 817 F.2d 1338, 1346 (9th Cir. 1987)-as a remedy for the illegal, discriminatory discharge. As argued in the Commission's opening brief, the district court committed fundamental errors in refusing to award reinstatement. First, the court erred as a matter of law in concluding that the fact that Bouamama had leveled allegations of discrimination against individuals still employed at Go Daddy, and had recovered substantial damages, weighed against reinstatement. This standard essentially amounts to a rule that reinstatement is inappropriate simply because the parties have litigated a Title VII case and the plaintiff prevailed, effectively eviscerates Title VII's explicit provision for reinstatement as a remedy for prevailing plaintiffs, and would make reinstatement unavailable in nearly all unlawful termination suits. See Commission's opening brief ("Comm'n Br.") 50-54. Such a rule is contrary to the statute and to the settled law of this Court. Reinstatement is the preferred remedy in a discrimination suit, Gotthard, 191 F.3d at 1156, absent evidence showing that "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). It makes no sense to deny reinstatement, as the district court did, because the plaintiff prevailed on a claim of discrimination since it is only when a plaintiff prevails that reinstatement would be available. This, of course, is not to say that a prevailing plaintiff is automatically entitled to reinstatement. Reinstatement may not be available where there is evidence of excessive hostility between the parties that would make reinstatement inappropriate. See Comm'n Br.51-52 (citing cases). The simple fact of litigation, however, is not sufficient, in and of itself, to establish the requisite hostility needed to preclude an award of reinstatement. Sellers v. Mineta, 358 F.3d 1058, 1068 (8th Cir. 2004); U.S. EEOC v. Century Broad. Co., 957 F.2d 1446, 1462 (7th Cir. 1992). Here, the district court did not identify any evidence in support of its determination that reinstatement was not warranted, other than noting that the parties had been in litigation over Bouamama's termination. ER.14-15. Moreover, the district court never made the requisite finding of excessive hostility necessary to justify denial of reinstatement. The district court's failure to identify any supporting evidence or to make the requisite finding is understandable, as the record does not even suggest the existence of the type of "excessive hostility between the parties" that would make it "impossible" to reinstate Bouamama. Thorne, 802 F.2d at 1137. It is uncontested that Franklin, who Go Daddy identifies as the "sole decision-maker" regarding the discrimination against Bouamama, see Go Daddy's opening brief at 33, is no longer employed at Go Daddy. Parsons, Go Daddy's CEO, testified that he liked Bouamama while he worked at Go Daddy, he thought Bouamama was a good employee, and he still likes Bouamama. Supp.ER.47-48. Villeneuve testified that he and Bouamama "got along okay" at Go Daddy, and that he still had one of the Christmas gifts Bouamama gave him-hardly the behavior of one who harbors so much animosity against the gift-giver that he could not work with that person. Supp.ER.40, 101-02. There is no evidence that Villeneuve's feelings toward Bouamama had soured, as a result of the litigation or otherwise. Nor is there any evidence which indicates that Slezak harbored any hostility toward Bouamama. Simply, there is no evidence of the type of "excessive hostility" that would make reinstatement inappropriate. In addition, the factual findings the district court did make in support of its decision wholly lack support in the evidentiary record, or are otherwise irrelevant to a determination of whether reinstatement should have been awarded. See Comm'n Br.54-59. The court stated that the Sales Representative position is not the position Bouamama sought. That Bouamama was seeking a different position before he was fired is irrelevant to whether he was entitled to be reinstated to the Sales Representative position. The question is what position would he have assumed had Go Daddy not retaliated against him by terminating his employment. It is uncontested that all the unsuccessful applicants who bid for the Sales Supervisor position-including Bouamama-were entitled to assume the Sales Representative position. Supp.ER.99. Accordingly, since Bouamama would have been entitled to return to the Sales Representative position had he not been discriminatorily terminated, that is the position to which he is entitled to be reinstated. The fact that Bouamama "had been promoted beyond the position of Sales Representative some time before the events at issue in this case," a point heavily relied upon by the district court, ER.15, is similarly inconsequential. Again, the point is not what position he sought or previously held, but what position he would have held had he not been terminated, and that is the Sales Representative position. Furthermore, reinstatement to the Sales Representative position would have been in keeping with Go Daddy's overall operational restructuring. Go Daddy eliminated several management positions, and employees who unsuccessfully bid for the Sales Supervisor position and whose management positions had been eliminated by this restructuring also took Sales Representative positions in order to stay with the company. Reinstating Bouamama as a Sales Representative would be totally consistent with Go Daddy's new corporate structure. The court also found that Bouamama's prior performance as a Sales Representative had been "less than fully satisfactory for him and his supervisors." ER.15. This finding is contrary to the testimony of Go Daddy's own officials. 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 further offered that he decided to convert Bouamama to a permanent employee, despite some reservations he had and some complaints he had received about Bouamama, 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]." Supp.ER.89. Accordingly, by Go Daddy's own evidence Bouamama was a satisfactory employee. Moreover, although the district court surmised that Bouamama's performance as a Sales Representative had been less than fully satisfactory, the evidence is undisputed that Go Daddy would not have and did not terminate his employment for that reason. Indeed, as the district court acknowledged, Go Daddy promoted Bouamama to management from the Sales Representative position. The law clearly does not protect only stellar employees, and whatever deficiencies Bouamama might have had, Go Daddy demonstrated that, had Bouamama not complained about discrimination, he would have been worth keeping. The court also noted that there was no evidence showing that Bouamama's prospects with his current employer were any less than those he would have had at Go Daddy. ER.14-15. This factor, however, is irrelevant to determining whether reinstatement should be awarded, as there is no requirement-under the statute or otherwise-that a prevailing plaintiff demonstrate that he is currently in a less- desirable job as a result of the unlawful termination 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 v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1338 (11th Cir. 1999) (upon prevailing in discriminatory discharge case, the plaintiff is entitled to "presumptive reinstatement"). Under these circumstances, the district court's denial of reinstatement based on factual findings that both lack support in the record and are contradicted by the record, and are thus not "plausible in light of the record viewed in its entirety," Gotthardt, 191 F.3d at 1155, constitutes an abuse of discretion. Go Daddy's arguments in its response brief in support of the district court's decision are similarly unavailing, as they are based on irrelevant factual assertions and/or incorrect legal suppositions. First, Go Daddy contends that because the Commission sought reinstatement "to a position comparable in pay and responsibility to the Inbound Sales Manager position or to any other position deemed appropriate by the Court," it waived any argument that Bouamama should be reinstated to the Sales Representative position. Go Daddy's Response Brief ("R.Br.") at 30, 44-45. There is no merit to this waiver argument. The Commission's reinstatement request clearly and unambiguously asked the court to award reinstatement either to a position of comparable pay and responsibility to Bouamama's previous Inbound Sales Manager position, or to "any other position deemed appropriate by the Court." Supp.ER.14. It cannot be argued seriously that this broad request-for reinstatement to whatever position the court deemed appropriate under the circumstances of this litigation-does not include the position of Sales Representative. Moreover, the court recognized that "the evidence and jury verdict confirm that if no retaliation had occurred, Mr. Bouamama[] . . . would have been offered a position as a Sales Representative." ER.14. Plainly both the district court and Go Daddy were aware that the Commission was requesting reinstatement to whatever position the court deemed appropriate, including the Sales Representative position-the very position to which Go Daddy claimed unsuccessful candidates such as Bouamama were entitled. See Comm'n Br.58 (citing Supp.ER.27, 32, 97- 99). Go Daddy's assertion that the district court did not have a "full opportunity to address the specific issue," R.Br.45, is quite puzzling, given that the court made specific findings with respect to whether the Sales Representative job was the position to which Bouamama would be entitled if he was reinstated, and concluded that reinstatement to it was not appropriate. And Go Daddy makes no argument that the district court should not have entertained the issue. Even if there were some merit to Go Daddy's assertion that the Commission did not adequately request reinstatement to the Sales Representative position-and there is none- there is no legal basis for prohibiting the Commission from appealing this issue where the district court specifically addressed reinstatement to the Sales Representative job and Go Daddy makes no argument that it erred in doing so. The Commission properly presented its reinstatement request to the court, and Go Daddy's argument to the contrary is meritless. Go Daddy next contends that reinstatement is inappropriate because Bouamama found other work after the company illegally terminated him. Go Daddy's argument is contrary to Title VII's remedial scheme and this Court's precedent. As noted above, Title VII expressly provides for reinstatement as a remedy for an unlawful termination, and this Court has long recognized reinstatement as the "preferred remedy" for Title VII violations of that nature. Gotthard, 191 F.3d at 1156 (citing Cassino, 817 F.2d at 1346). This precedent is in perfect harmony with the Supreme Court's longstanding recognition that it is "the purpose of Title VII to make persons whole for injuries suffered on account of unlawful employment discrimination." Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975). Pursuant to this purpose, Congress endowed the courts with "not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future." Id. (quoting Louisiana v. United States, 380 U.S. 145, 154 (1965)). In order to properly exercise this power and discharge this duty, courts must place the victim of illegal discrimination in the position he would have occupied but for the unlawful act. As the Supreme Court further explained in Albemarle, [T]he general rule is, that when a wrong has been done, and the law gives a remedy, the compensation shall be equal to the injury. The latter is the standard by which the former is to be measured. The injured party is to be placed, as near as may be, in the situation he would have occupied if the wrong had not been committed. Id. at 418-19 (quoting Wicker v. Hoppock, 73 U.S. (6 Wall.) 94, 99 (1867)). Simply put, reinstatement is the preferred remedy-the "first choice"-in discriminatory discharge cases because this remedy "accomplishes the dual goals of providing full coverage for the plaintiff and of deterring such conduct by employers in the future." Selgas v. American Airlines, Inc., 104 F.3d 9, 12 (1st Cir. 1997) (citation omitted). Here, reinstating Bouamama to the position of Sales Representative-the position that, the court correctly concluded, he would have occupied had he not been unlawfully terminated-fosters the Supreme Court's requirement to provide make-whole relief and return the victim of discrimination, as best as possible, to the situation he would have occupied absent the employer's unlawful conduct. Such a result also fully comports with this Court's recognition that an order of reinstatement is appropriate absent evidence of impossibility of reinstatement or excessive hostility between the parties. Go Daddy's assertion that Bouamama should be denied the opportunity to be reinstated because he found another job is wrongheaded and understandably finds no support in Title VII or the law of this Court or the Supreme Court, for such an approach would undermine Congress' clear intent to provide make-whole relief to victims of discrimination. First, precluding an award of reinstatement to victims of discrimination who find other work, rather than sitting idly by throughout the course of the litigation, would effectively eliminate reinstatement as a remedy in the vast majority of cases. There are few, if any, individuals who would, should, or could afford to endure voluntary unemployment for years, while their claim of unlawful termination winds its way (very possibly unsuccessfully) through administrative and judicial fora. In addition to having the obviously undesirable effect of promoting unemployment, Go Daddy's approach would effectively transform reinstatement from the "preferred remedy" to the rarest of remedies for an illegal termination. This is clearly contrary to Congress' intent, as reflected in Title VII's express provision for reinstatement as a remedy, and sound public policy. Moreover, the result urged by Go Daddy would essentially corrupt Title VII's remedial scheme by converting reinstatement and back pay from measures that are both available to a victim, to remedies that are mutually exclusive if the victim, like Bouamama, finds a job during the pendency of his litigation. As these remedies address different harms caused by the illegal acts of the employer-back pay looking backward, to compensate the plaintiff for the harm already suffered from the termination, and reinstatement looking forward, to return the person to his rightful place in the workforce after prevailing-these remedies exist, and should be available, independently of each other, because they play different roles in satisfying Congress's intent to provide make whole relief. Go Daddy's approach would eliminate one or the other of these remedies in almost every case, plainly frustrating Congress' intent.<1> For the same reasons, this approach would also place a victim of discriminatory termination in a "catch-22," as it would create a system whereby the victim would be forced to choose between reinstatement or back pay, but not both. Victims of discrimination bear a duty to mitigate their damages "by seeking alternative employment with 'reasonable diligence.'" Caudle v. Bristol Optical Co., 224 F.3d 1014, 1020 (9th Cir. 2000) (citation omitted). Accordingly, a victim of discrimination who fails to mitigate his damages risks forfeiting back pay. Under Go Daddy's approach, a victim of discrimination who would seek reinstatement must fail to mitigate his damages through other employment, and thereby forego any entitlement to back pay. This result is plainly at odds with the statute's remedial scheme, would serve to limit the make-whole remedies available, and, needless to say, would place individuals who invoke their statutory rights and protections in an untenable position. Go Daddy's approach would also undermine the "primary purpose" of Title VII's antiretaliation provision-"[m]aintaining unfettered access to statutory remedial mechanisms." Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997). Go Daddy's position would create a clear disincentive to employees' accessing the remedial mechanisms of Title VII, as to do so would put them at risk of suffering retaliatory termination with no real possibility of reinstatement, unless they happen to possess the independent wealth necessary to wait out the litigation without securing other employment, as well as to forego back pay. Not only would this potential disruption to one's life and livelihood create a strong disincentive to complaining of discrimination or participating in the Commission's investigation of such complaints, it would have the practical effect of permitting the purging from every employer's ranks those employees who oppose its practices as unlawful under Title VII or participate in Commission investigations of such practices. This result exemplifies yet another critical flaw in Go Daddy's approach, as it is plainly at odds with the statute and Supreme Court precedent, and would frustrate the Commission's enforcement efforts. In support of its extremely problematic position, Go Daddy points to no authority whatsoever from this Court, instead relying on a select few decisions from other circuits. That extra-circuit authority is neither binding on this Court, nor consistent with this Court's controlling precedent regarding the conditions under which an award of reinstatement may properly be denied. See supra, at 1-3; Comm'n Br.50-52 (citing cases). Nor does any of that precedent address or otherwise take into account the aforementioned conflicts with congressional intent, Supreme Court precedent, or the other public policy problems inherent in Go Daddy's position. For example, Go Daddy cites to a line of cases from the Sixth Circuit, but those decisions all stem from a cursory, unsupported statement in Brito, et al. v. Zia Co., 478 F.2d 1200, 1204 (10th Cir. 1973), that denying reinstatement where the plaintiffs either had, or could have, found other work was not reversible error.<2> See R.46 (citing cases); see also Rousch v. KFC Nat'l Mgmt. Co., 10 F.3d 392, 398 (6th Cir. 1993) (citing Henry v. Lennox Indus., Inc., 768 F.2d 746, 753 (6th Cir. 1985) (citing Brito, 478 F.2d at 1204)). None of these decisions offer any explanation whatsoever as to why a victim who finds post-discrimination employment should be precluded from an award of reinstatement to the job he would have occupied but for the employer's unlawful actions. Nor do any of these decisions address the substantial problems discussed above caused by limiting reinstatement to those exceedingly rare situations where the victim did not secure other employment during the course of the litigation. Go Daddy also cites two decisions from the Seventh Circuit, McKnight v. General Motors Corp., 973 F.2d 1366, 1372 (7th Cir. 1992), and Fine v. Ryan International Airlines, 305 F.3d 746, 756 (2002), but these decisions similarly fail to provide any meaningful support for Go Daddy's position. First, McKnight is distinguishable from the instant case. McKnight was denied reinstatement because he had changed careers after his termination, and sought reinstatement to a "completely new job [other than that from which he was terminated] and to be relocated to a different city." McKnight, 973 F.2d at 1370. The district court concluded that there was no evidence that McKnight was qualified to perform the new job he now sought, and, in light of his express new career interests, putting him back in the position he would have occupied "but for" the discrimination would not have served Title VII's remedial purposes. Id. at 1370-71. However, in the case at bar, the job which Bouamama was entitled to occupy-the Sales Representative position-was not some new position he would not have occupied if Go Daddy had not illegally terminated him, and he was qualified to perform it as he had already done so. See Albemarle, 422 U.S. at 418-19 ("The injured party is to be placed, as near as may be, in the situation he would have occupied if the wrong had not been committed.") (citation omitted). Nor does Fine support Go Daddy's position, or the district court's decision. In Fine, the plaintiff took a new job after her discriminatory discharge, but left that employer before her discrimination case went to trial. 305 F.3d at 756. In order to prevent any inquiry by the defendant into her departure from that subsequent job, Fine stipulated that her claim for damages had ceased at a date before trial. Id. The Seventh Circuit concluded that reinstatement was not warranted based on that stipulation, and the court's assertion that "Fine herself created the endpoint for Ryan's responsibility when she took the new job." Id. Expressing clear concern over Fine's attempt to come back to the defendant after she had stipulated that she had no ongoing damages and had left another job under perhaps suspicious circumstances, the court noted that "[i]t makes no sense to make [the defendant] her employer of last resort for life, if it bears no responsibility for the actions of later employers." Id. Nothing in Fine, even if applied to this case, would warrant denying Bouamama reinstatement. There has not, of course, been any stipulation or other concession that Bouamama's damages terminated at some earlier date, such that any claim for reinstatement has been effectively abandoned. Furthermore, just as with the Sixth and Tenth Circuit decisions cited by Go Daddy, the Seventh Circuit's decision to deny reinstatement simply because the victim of discrimination had the gumption to find other work is offered without any analysis or supporting authority, and creates all the practical problems for the effective enforcement of Title VII described above-without analyzing any of those issues. As with McKnight, Fine provides no support for Go Daddy's position, and provides no answer to the aforementioned strong policy reasons for not adopting Go Daddy's position. Go Daddy next contends that because Bouamama had been promoted at Go Daddy, and applied for one of the Sales Supervisor positions, he did not truly want the Sales Representative job and therefore reinstatement was properly denied. R.Br.47-48. Go Daddy is again incorrect. As discussed in the Commission's opening brief, it is uncontested that Bouamama was, just like all the other unsuccessful candidates for the Sales Supervisor position, entitled to return to an entry-level Sales Representative position in lieu of leaving the company. See Comm'n Br.55 (citing Supp.ER.99). Go Daddy completely ignores the fact that Bouamama specifically testified that he would have taken the Sales Representative position had it been offered to him as it should have been, stating "I'm not a quitter. I will go back to the floor and I will prove myself again and I will [prove] them wrong." Supp.ER.76. This simple fact is enough to show that the district court was incorrect in asserting that Bouamama did not really want the Sales representative position. Go Daddy attempts to obscure the issue by discussing Bouamama's promotions throughout his history with the company, and company officials' testimony regarding his interview for the Sales Supervisor position. R.Br.47-48. Bouamama's history of promotions or interview performances, however, have no bearing on whether he was entitled to the Sales Representative position. Again, the evidence showed that he and others whose management positions Franklin eliminated were all entitled to take Sales Representative positions if they did not get a Sales Supervisor position. See Comm'n Br.55-56. In addition, while Go Daddy asserts that Bouamama "sought the Analyst position," the Commission disputed this contention at trial and the district court properly recognized the jury "could reasonably have chosen to disbelieve" Go Daddy's assertion that it "genuinely" offered Bouamama a chance to remain in the undefined "Analyst" position, given the fact that the jury rejected Go Daddy's assertion that it did not even terminate Bouamama. ER.7 n.1. Nor did Go Daddy present any evidence showing that Bouamama was not entitled to reinstatement to a Sales Representative position based on the highly contested claim that it actually, and not disingenuously, "offered" him an "Analyst" position. In support of its argument that Bouamama did not seek the Sales Representative job, Go Daddy also mentions Slezak's and Franklin's testimony that Bouamama rejected their offer to return him to the Sales Representative position. R.Br.48. As the jury plainly rejected this testimony in concluding that Bouamama was terminated by Go Daddy when it failed to permit him to stay in the Sales Representative position, see ER.8, and Go Daddy makes no argument that the jury finding is wholly lacking in evidentiary support, Go Daddy cannot rely upon this rejected testimony to support its position. In addition, the district court did not rely on this evidence to deny reinstatement, and there is abundant evidence that Bouamama wanted the Sales Representative job. See Supp.ER.76 (Bouamama's trial testimony that he was ready, willing, and able to return to the Sales Representative job). Go Daddy attempts to make much of Bouamama's reaction after Franklin called him the "F" word, saying that at the time Franklin called him that name, he felt relief not having to work with "these people" anymore. Supp.ER.68. Such a contemporaneous reaction to being verbally assaulted, demeaned, and disparaged by one's manager (who is himself no longer with the company) is completely understandable and perfectly normal, and does not suggest the continued existence of excessive hostility between Bouamama and managers still working at Go Daddy. Nor does such a response mandate the conclusion that Bouamama later decided he did not want the Sales Representative position he was discriminatorily denied. Moreover, Bouamama's testimony does not alter the fact that he testified that he nevertheless was ready, willing, and able to take the Sales Representative position. Supp.ER.76. Go Daddy next contends that the district court correctly concluded that reinstatement was inappropriate because Bouamama had leveled accusations of discrimination at managers still employed by Go Daddy, had been in litigation against Go Daddy for several years, and would recover substantial actual and punitive damages. R.Br.49. This, Go Daddy contends, is because the court applied the proper legal standard in its "hostility" analysis-that mere litigation itself is sufficient to preclude reinstatement. Id. Go Daddy further argues that even if the court applied an incorrect standard, the evidence still supports its decision. Id. at 49, 52. Go Daddy is wrong on both counts. As described in the Commission's opening brief, the district court applied an incorrect legal standard when it suggested that the mere fact that Bouamama leveled charges of discrimination at Go Daddy, and the Commission litigated the complaint and secured for Bouamama a substantial damages award, warranted denial of reinstatement. See Comm'n Br.50-54. If the mere fact of litigation can preclude reinstatement, reinstatement would effectively be unavailable in every discrimination suit, a result plainly at odds with the statute. See, e.g., Century Broad. Co., 957 F.2d at 1462 ("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."). There must be, as this Court has recognized, "excessive hostility" in order for "hostility between the parties" to serve as a reason to preclude reinstatement. Thorne, 802 F.2d at 1137. Moreover, there must be evidence of such hostility, and not just the suggestion or supposition that it exists. See Comm'n Br.51-52 (citing cases). The district court made no distinction between hostility common to litigation, such as the bad feelings that may arise when a plaintiff successfully litigates a discrimination claim and secures an award of damages, and the sort of "excessive hostility" that this Court has recognized is needed to preclude reinstatement as a remedy. ER.15. Instead, the court simply identified and relied on basic, general characteristics of this litigation that are no doubt common to unlawful termination cases in which the plaintiff wins. Id. This was error, and Go Daddy's arguments to the contrary are flawed.<3> Tellingly, Go Daddy makes no attempt on appeal to directly challenge the broad array of evidence identified by the Commission in its opening brief that amply shows there was no "excessive" hostility between the parties. See R.Br.52- 55; see also Comm'n Br.53-54 (identifying evidence). Every Go Daddy official who expressed an opinion about Bouamama said either neutral or positive things about him. Parsons, CEO of the company, stated that he liked Bouamama before, and still liked him. Supp.ER.47-48. Villeneuve testified that he and Bouamama "got along okay" at Go Daddy, that it was "cool" that Bouamama bought him a Christmas gift in 2002, and that he still had the gift. Supp.ER.40, 1010-02. There was no evidence offered that Villeneuve's feelings had soured, or any evidence whatsoever regarding Slezak's feelings toward Bouamama. On this record, where the allegations of discrimination and retaliation were not unique or out of the ordinary, and there was no evidence offered indicating that there was any excessive, unusual hostility between the parties, there simply is no evidentiary basis for the denial of reinstatement. Go Daddy is clearly reaching when it argues that "[j]ust looking at the litigation brought by the Commission" provides all the evidence needed to support the denial of reinstatement, and then presents a skewed and incorrect recitation of the evidence-lacking any citation to the record. R.Br.50. Go Daddy's assertions are without merit. For example, Bouamama never testified that "management at Go Daddy were racists to the core" as Go Daddy asserts, see R.Br.50, and there is no evidentiary support for this assertion. Go Daddy further contends, in essence, that because the Commission asserted that its version of the facts was correct, it was alleging that Go Daddy officials "lie[d] in federal court" and that this supports denying reinstatement.<4> Of course, challenges to credibility and differing versions of events are all characteristics common to litigation, and do not themselves indicate that excessive hostility-hostility beyond that commonly engendered in litigation-exists between Bouamama and Go Daddy.<5> Go Daddy further argues that, should this Court agree with the Commission that there must be a showing of excessive hostility between the parties, and not merely that level of hostility common to litigation, the record supports such a finding. R.Br.52. Again, Go Daddy is simply incorrect. Go Daddy erroneously contends that during this litigation the Commission referred to Go Daddy's management staff as "racists, religious bigots, retaliators, and liars," and speculates that such a situation "would result in 'excessive hostility.'" R.Br.52. Of course, the Commission never made any such comments at trial or otherwise, and Go Daddy cites to no evidence supporting its misleading statement. While the Commission appropriately asserted, pursuant to its theory of the case, that Go Daddy officials violated Title VII's prohibitions on national origin and religious discrimination, and retaliation, and argued that its version of the contested facts should be believed rather than Go Daddy's, such an approach is not only entirely common and appropriate in discrimination cases, it is the standard litigation model under our adversary system. This Court should disregard Go Daddy's baseless attempt to make this litigation more hostile than the typical case by resorting to highly volatile terms such as "racists," "bigots," and "liars"-terms the Commission did not use in its litigation. Go Daddy's spin efforts notwithstanding, if anything, far from establishing excessive hostility, the record suggests the opposite is true-that managers still at Go Daddy (i.e. not Franklin) maintained a favorable opinion of Bouamama despite the litigation. Go Daddy further asserts that Bouamama's testimony about certain experiences he had at Go Daddy and how he felt about those experiences at the time they occurred, the testimony of Go Daddy officials about the weaknesses in his performance of the Team Lead position in 2002, and those officials' "endur[ing]" Bouamama's suspicions of discrimination, is evidence of excessive hostility between the parties. R.Br.53. This is simply incorrect. Again, this evidence is largely the type of evidence that one would expect to encounter in a typical retaliatory discharge case-that the employee reasonably believed that he had been subjected to unlawful discrimination by the employer, and the employer reacted to the employee's voicing those suspicions by firing him-and none of it suggests the existence of excessive hostility sufficient to preclude reinstatement. Any hostility caused by these circumstances is therefore simply the type of hostility common to litigation of such cases, and not unusual, excessive hostility that would warrant denying reinstatement. Even if Franklin's particularly hostile treatment of Bouamama in this case, calling him the "F" word in front of other managers, suggests that an increased level of hostility was present at the time of Franklin's comment, Franklin is no longer with the company and any residual hostility relating to that event apparently left the company with him because no current Go Daddy manager admitted to feeling any ill will toward Bouamama.<6> Go Daddy also introduces a new argument on appeal in support of the district court's decision, based on a factor the court did not even consider-that because Bouamama would be placed in a position of customer contact, reinstatement was inappropriate because he was "seething with suspicions of discrimination and unfair treatment." R.Br.53 (citing EEOC v. Kallir, Philips, Ross Inc., 420 F. Supp. 919, 926 (S.D.N.Y. Oct. 8, 1976)). Go Daddy never argued this to the district court. Accordingly, as this is the first time Go Daddy has advanced this argument, it is waived for purposes of appeal. Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). Moreover, the company's assertion is without any legal or factual support. In Kallir the plaintiff held a position requiring "a close working relationship between plaintiff and top executives of defendant," and the court justified denying reinstatement based on that fact and the several years of "bitter litigation" that had led to the plaintiff's victory. 420 F. Supp. at 926-27. As such, the court essentially concluded that there existed sufficient excessive hostility between the parties to make reinstatement inappropriate under the circumstances. Kallir is completely distinguishable from the case at bar. Go Daddy's Sales Representative position is an entry-level position that does not involve the close contact with management that was required of the position at issue in Kallir. In addition, there is no evidence whatsoever-and Go Daddy cites to none-of the kind of "lack of complete trust and confidence" by Go Daddy officials in Bouamama that would, under Go Daddy's analysis, justify not reinstating him to the Sales Representative position. See R.Br.53. Moreover, in Kallir the court expressly recognized the unusual circumstance presented in that case as "quite unlike that presented when reinstatement is sought for an assembly line job or clerical worker, or even for an executive whose job is not as sensitive for his employer's interests as is plaintiff's job here." 420 F. Supp. at 927. In so doing, the court made perfectly clear that the reasoning behind its decision to deny reinstatement would not be applicable to entry-level, nonsensitive jobs such as Go Daddy's Sales Representative position. Go Daddy further contends that Bouamama's displeasure with Franklin's calling him the "F" word, his relief in believing at the time that he would not have to work with Franklin and Slezak again, and his testimony that he suffered harm because of Go Daddy's unlawful conduct, amounted to evidence of excessive hostility precluding reinstatement. R.Br.53-54. Yet again, Go Daddy misunderstands the difference between hostility common to ordinary litigation in discrimination cases, and excessive hostility-and the evidence here only indicates the former, not the latter. Go Daddy also alleges that reinstating Bouamama would be inappropriate given the fact that he complained about the conduct of Go Daddy officials as discriminatory. R.Br.53. Again, however, to preclude Bouamama's reinstatement on the grounds that he lawfully and appropriately complained previously about what he perceived to be unlawful discrimination is to frustrate both the enforcement and remedial goals of the statute. If this were the rule, reinstatement would never be available as a remedy in retaliation cases. Conclusion For the aforementioned reasons, the Commission respectfully requests that this Court reverse the district court's denial of reinstatement. Respectfully submitted, RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ____________________ JAMES M. TUCKER Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L St. NW, Rm. 7024 Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing reply brief complies with the type- volume limitations set forth in Federal Rules of Appellate Procedure Rule 28.1(e)(2)(C). The foregoing reply brief contains 6,611 words, from the Argument through the Conclusion, as determined by the Microsoft Word 2003 word processing program, with 14-point proportionally spaced type for text and 14-point proportionally spaced type for footnotes. ____________________ James M. Tucker Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L St. NW, Rm. 7024 Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov CERTIFICATE OF SERVICE I hereby certify that the original and fifteen (15) copies of the foregoing reply brief were sent this 4th day of March, 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 reply brief were sent this 4th day of March, 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> Similarly, Go Daddy argues that the district court properly recognized that the money damages awarded to Bouamama should factor against reinstatement. See R.Br.55-56. Go Daddy is again in error. For the same reasons that a victim of discrimination who prevails at trial need not choose between an award of reinstatement or back pay, he should not be concerned that an award of damages, expressly permitted under the statute, would also serve to make reinstatement unavailable. Just as with back pay, a money damages award does not preclude an award of reinstatement under the statute, see 42 U.S.C. § 2000e-5(g)(1), and providing both remedies is completely consistent with the statute's goal of awarding make-whole relief, see Albemarle, 422 U.S. at 418-19. Awards of compensatory and punitive damages address the nonmonetary impact of the unlawful conduct on the employee and punish the employer for its behavior and discourage similar behavior, respectively, while reinstatement returns the individual to the workforce in the position he would have occupied but for the employer's unlawful conduct. Go Daddy cites a single nonprecedential decision as support for its proposition, but that decision provides no explanation whatsoever as to why a damages award may have a bearing on whether reinstatement is available. See R.Br.56 (citing McIntosh v. Jones Truck Lines, Inc., 767 F.2d 433 (8th Cir. 1985)). In fact, McIntosh did not even involve an award of damages because at the time that case was decided, a Title VII plaintiff could not recover compensatory or punitive damages, as Congress did not amend the statute to provide for recovery of such damages until 1991. See 42 U.S.C. § 1981a. McIntosh is flatly inconsistent with the statute and Albemarle, and accordingly provides no proper support for Go Daddy's position. <2> Go Daddy also cites Brito as support for its proposition. R.46. <3> In its opening brief, the Commission cites authorities which establish that only evidence of excessive hostility, and not simply hostility common to litigation, can justify denying reinstatement. See Comm'n Br.50-52 (citing cases). Unable to rebut the clear legal import of these decisions, Go Daddy argues that these cases are factually distinguishable from the matter at bar. R.Br.54-55. We concede the point. The cases are significant not because they are on all fours factually with the present case, but because despite varying factual scenarios, they clearly establish the legal standard to be applied by courts in deciding whether sufficient hostility exists to warrant denying reinstatement. <4> Again without any citation to the record, Go Daddy asserts that the Commission brazenly and virulently called Go Daddy officials "all a bunch of liars." R.Br. 51. Of course, the Commission made no such coarse accusation. The Commission did, obviously (and appropriately, we might add), question during closing argument the credibility of Go Daddy's witnesses as compared to the Commission's witnesses. <5> Go Daddy further displays its misunderstanding of the difference between actual evidence of excessive hostility and mere supposition when it states that under the circumstances of this litigation, Go Daddy CEO Parson's "hostility would be completely justified." R.Br.51 (emphasis added). In fact, Parsons never testified to feeling hostility toward Bouamama. To the contrary, he stated that he still likes Bouamama. Supp.ER.47-48. <6> Apparently in an attempt to imply that some hostile feelings lingered between Bouamama, on the one hand, and Villeneuve and Slezak, after Franklin left, Go Daddy asserts, without explanation or citation to any evidence, that Bouamama testified that Villeneuve and Slezak were "silent accomplices" to Franklin's namecalling. R.Br.53. Go Daddy misrepresents the record. There is no evidence to support this assertion and Bouamama did not so testify.