_____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________________________________ No. 07-60447 ____________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff/Appellant, v. AGRO DISTRIBUTION, LLC, Defendant/Appellee. _______________________________________________________ On Appeal from the United States District Court for the Southern District of Mississippi _______________________________________________________ REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT _______________________________________________________ RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ELIZABETH E. THERAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4720 elizabeth.theran@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . 28 CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . 29 TABLE OF AUTHORITIES CASES Albertson's, Inc. v. Kirkingburg, 527 U.S. 555 (1999). . . . . . . . . . . . 10 Barber v. Nabors Drilling USA, Inc., 130 F.3d 702 (5th Cir. 1997). . . 12, 14, 15 Bragdon v. Abbott, 524 U.S. 624 (1998). . . . . . . . . . . . . . . . . . . . . 8 Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978). . . . . . . . . . . . 1 Decorte v. Jordan, 497 F.3d 433 (5th Cir. 2007). . . . . . . . . . . . . . . 24-25 Dutcher v. Ingalls Shipbuilding, 53 F.3d 723 (5th Cir. 1995). . . . . . . . . 8 EEOC v. Pet, Inc., Funsten Nut Division, 612 F.2d 1001 (5th Cir. 1980). . . . . 23 Fernandes v. Limmer, 663 F.2d 619 (5th Cir. 1981). . . . . . . . . . . . 25, 26 Forsyth v. City of Dallas, 91 F.3d 769 (5th Cir. 1996). . . . . . . . . . . . . 25 Gonzales v. City of New Braunfels, 176 F.3d 834 (5th Cir. 1999). . . . . . . . . 12 Hensley v. Eckerhardt, 461 U.S. 424 (1983). . . . . . . . . . . . . . . . . . 26 In re EEOC, 207 Fed. Appx. 426 (5th Cir. 2006). . . . . . . . . . . . 20-21 n.12 Ivy v. Jones, 192 F.3d 514 (5th Cir. 1999). . . . . . . . . . . . . . . . . . 10 Jenkins v. Cleco Power, LLC, 487 F.3d 309 (5th Cir. 2007). . . . . . . . . 16-17 Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974). . . . . . 26 Mason v. United Air Lines, 274 F.3d 314 (5th Cir. 2001). . . . . . . . . . . . 12 McInnis v. Alamo Community College District, 207 F.3d 276 (5th Cir. 2000). . . . . . . . . . . . . . . . . . . . . 8 Migis v. Pearle Vision, Inc., 135 F.3d 1041 (5th Cir. 1998). . . . . . . . . 25 Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999). . . . . . . . . 9-10 Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999). . . . . . . . . 16 Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999). . . . . . . . . 7, 8, 9 &n.5 Taylor v. Phoenixville School District, 184 F.3d 296 (3d Cir. 1999). . . 16, 17 Toyota Motor Manufacturing of Kentucky, Inc. v. Williams, 534 U.S. 184 (2002). . . . . . . . . . . . . . . . . . . . . 3-4 n.2, 10 Turco v. Hoechst Celanese Corp., 101 F.3d 1090 (5th Cir. 1996). . . . . . 17, 18 STATUTES 42 U.S.C. § 1988. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 42 U.S.C. § 12111(9)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . 18 REGULATIONS 29 C.F.R. Pt. 1630 App., § 1630.2(n). . . . . . . . . . . . . . . . . . . . . . 12 RULES Fed. R. App. P. 32(a)(5). . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Fed. R. App. P. 32(a)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Fed. R. App. P. 32(a)(7)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . 28 OTHER AUTHORITIES EEOC Regional Attorneys' Manual, § III(A)(1), available at http://www.eeoc.gov/litigation/manual/1-3-a_intro.html 19 n.10 Arthur C. Guyton, M.D., & John E. Hall, Ph.D., Textbook of Medical Physiology (11th ed. 2006) 5, 7 Fitzpatrick's Dermatology in Internal Medicine (Klaus Wolff, M.D., et al. eds., 7th ed. 2008) 5, 6, 7 Dr. Kara N. Shah, Ectodermal Dysplasia, EMedicine from WebMD, Nov. 8, 2006, http://www.emedicine.com/derm/topic114.htm 4 n.3, 10-11 National Foundation for Ectodermal Dysplasias, FAQs/General Description, at http://www.nfed.org/FAQ.htm (last visited Dec. 4, 2007) 6 n.4, 10 Robert Mills, Common Ear, Notes and Throat Problems in Ectodermal Dysplasia, Ectodermal Dysplasia Society, Apr. 2005, http://www.ectodermaldysplasia.org/frame.htm 11 n.7 INTRODUCTION The Commission alleges that Agro Distribution violated Title I of the Americans with Disabilities Act ("ADA") when it fired Henry Velez rather than grant him a reasonable accommodation for his disability, anhidrotic ectodermal dysplasia ("ED"), a condition that substantially limits his body's ability to sweat and, thereby, to regulate its temperature. The district court granted summary judgment for Agro, holding that the Commission had failed to show that Velez was substantially limited in working. The court subsequently granted Agro's request for attorney's fees in the amount of $197,859 on the ground that this action was "unreasonable and frivolous" under Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978). In our opening brief ("EEOC-Br."), we argued that there was ample evidence to support a finding that Velez was a qualified individual with a disability that substantially limits him in the major life activity of regulating his body temperature through perspiration. We argued that the district court erred in analyzing the case as if the Commission were alleging that Velez is substantially limited in working, a contention the Commission has never made at any time during this litigation. We also pointed to evidence that Velez requested an accommodation with respect to the barrel-loading task, and that Agro refused to engage in any dialogue with him, but instead simply told him to "show up or suffer the consequences," and then fired him when he did not report for the task. We anticipated that Agro would challenge the adequacy of conciliation as alternative grounds for affirmance, and noted, as we did below, that the Commission invited Agro's counsel to participate in settlement negotiations on at least four different occasions, but he flatly refused to do anything more than offer a nuisance sum on one occasion and insist that the Commission accept it. We argued that the Commission cannot be held liable for Agro's own inflexibility and refusal to negotiate throughout the conciliation process. Finally, we argued that this action was neither frivolous nor unreasonable, and that attorney's fees against the Commission were thus unwarranted. In its brief as Appellee ("Agro-Br."), Agro spends little time addressing the arguments on the merits, and instead, once again attempts to deflect attention away from the question of whether it violated the ADA by detailing at great length every negative (and irrelevant) fact it could find about Velez's personal life and work history, and by attempting to put the Commission's internal procedures on trial. We submit this reply brief to refocus the appeal on the legal issues relevant to the Commission's ADA claim and to respond to Agro's arguments on those issues. We also respond to Agro's arguments that this case was not conciliated in good faith and that it is entitled to recover its attorney's fees. ARGUMENT 1. We argued in our opening brief, as we have argued throughout this litigation,<1> that there is sufficient evidence to support a finding that Velez has a disability because his ED substantially limits his ability to sweat, which, concomitantly, substantially limits his ability to regulate his body temperature relative to the average person in the general population. We noted that the district court never addressed this allegation; the court never considered whether sweating is a major life activity or whether Velez is substantially limited in sweating. EEOC-Br.-25, 39. In response, Agro argues that the district court was justified in ignoring the Commission's allegation that Velez was substantially limited in sweating because, "[i]n his deposition, Velez clearly denied that this 'condition' has affected any recognized major life activity other than working."<2> Agro-Br.-20. If Agro means by this statement that Velez denied that his ED substantially limited him in sweating, it is flatly wrong. As we explained in our opening brief, Velez testified extensively at his deposition about the limitations that ED imposes on his ability to sweat and thereby regulate his body temperature. EEOC-Br.-5-7, 35. In the passage cited by Agro, Velez merely stated that his limitation in sweating affected him primarily in the context of performing certain manual labor tasks in higher temperatures at work. This clearly does not constitute a denial that he is substantially limited in sweating. Agro may mean only that sweating is not a "recognized" major life activity. We acknowledged in our opening brief that sweating is not among the non- exhaustive list of major life activities mentioned in the Commission's guidance, and that no court has yet decided that it is a major life activity. However, given the fact that the inability to sweat is a very rare condition,<3> the fact that courts have not previously had occasion to decide whether it is a major life activity is not surprising. We explained in our opening brief that, under the standards set out by the courts and the Commission, regulating body temperature through perspiration is a major life activity within the meaning of the ADA. EEOC-Br.-39-43. Agro offers no coherent or logical response to this argument. Agro concedes, as it must, that the touchstone for what constitutes a major life activity is "central importance to most people's everyday lives." Agro-Br.-31. The company then argues that the fact that many Americans exercise less than they should, or not at all, compels the conclusion that the biological process of regulating body temperature through perspiration is not centrally important. Id. at 31-32. Agro apparently assumes that people sweat only, or mainly, when they exercise, but nothing could be further from the truth; sweating occurs in normal individuals in most circumstances where the environment is warmer than the body or in response to cutaneous or other stimuli (e.g., when the skin touches something warm, or in response to nervousness or anxiety). See, e.g., Arthur C. Guyton, M.D., & John E. Hall, Ph.D., Textbook of Medical Physiology 292 (11th ed. 2006) (hereinafter "Guyton & Hall") ("[t]he volume of sweat normally is about 100 ml/day," but increases with very hot weather or exercise); 1 Fitzpatrick's Dermatology in Internal Medicine 714-15 (Klaus Wolff, M.D., et al. eds., 7th ed. 2008) (hereinafter "Fitzpatrick's Dermatology") ("Cutaneous temperature influences the rate of sweating."); id. at 716 (describing emotional sweating). The web site of the National Foundation for Ectodermal Dysplasias points out that "[w]ithout normal sweat production, the body cannot regulate temperature properly. Therefore, overheating is a common problem, especially during hot weather."<4> Even Agro's own expert acknowledged that sweat glands "allow you to release heat from the body so that one doesn't burn up, so to speak." R.157-Exh.F- 16 (ROA-1949); see also EEOC-Br.-40-41. Agro also argues that sweating is not central to controlling body temperature because the hypothalamus regulates the body's ability to control temperature and because there are other physiological mechanisms by which the body releases heat. Agro-Br.-33&n.14. This argument reflects an incomplete and, ultimately, incorrect understanding of the body's thermoregulatory process. While the hypothalamus does regulate the overall process, the various physiological mechanisms for heat control Agro names in its brief - conduction, convection, radiation, and evaporation (i.e., sweating) - are not equally effective thermoregulators in all circumstances. See, e.g., Fitzpatrick's Dermatology 713 ("Generalized eccrine sweating is the physiologic response to an increased body temperature during physical exercise or thermal stress and, by enabling evaporative heat loss, is the most effective means by which humans regulate the body temperature.") (emphasis added); Guyton & Hall 892 (observing that "when the temperature of the surroundings becomes greater than that of the skin, instead of losing heat, the body gains heat by both radiation and conduction," and that "[u]nder these conditions, the only means by which the body can rid itself of heat is by evaporation") (emphasis in original). Indeed, Guyton & Hall specifically observe that "human beings who are born with congenital absence of sweat glands . . . can stand cold temperatures as well as normal people can, but they are likely to die of heatstroke in tropical zones because without the evaporative refrigeration system, they cannot prevent a rise in body temperature when the air temperature is above that of the body." Id. If all methods of dissipating heat were equally effective, individuals without sweat glands would be at no particular risk relative to the general population in hot temperatures because the "other methods" would be able to compensate, but the clear medical evidence is to the contrary. Equally erroneous is Agro's position that regulating body temperature should not be considered an ADA major life activity because of the availability of external mitigating measures such as air conditioning or different clothing. Agro- Br.-32. While mitigating measures are relevant to whether an individual is substantially limited in a major life activity under the Supreme Court's decision in Sutton v. United Air Lines, Inc., 527 U.S. 471, 482 (1999), they are not relevant to whether a given task or action constitutes a major life activity in the first place, which turns on whether the activity is of central importance to daily life and can be performed by the average person with little or no difficulty. See EEOC-Br.-40. Indeed, if Agro's argument were correct, walking would not be a major life activity as long as one had access to a wheelchair or scooter, and, as long as one could be put on a respirator, neither would breathing. Tellingly, Agro cites no legal or other authority for its novel proposition that the availability of mitigating measures is relevant to whether a given activity or process constitutes a major life activity. Agro-Br.-32-33. As we argued in our opening brief, there is sufficient evidence in the record to support a finding that Velez's ED substantially limits him in regulating his body temperature even in light of the mitigating measures he has learned to take over the years. EEOC-Br.-36-38. This Court has repeatedly recognized that the issue of whether an individual's impairment is substantially limiting is a question of fact. See, e.g., McInnis v. Alamo Cmty. Coll. Dist., 207 F.3d 276, 281-82 (5th Cir. 2000); Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 (5th Cir. 1995). As the Supreme Court has held, the ADA "addresses substantial limitations on major life activities, not utter inabilities"; "[w]hen significant limitations result from the impairment, the definition is met even if the difficulties are not insurmountable." Bragdon v. Abbott, 524 U.S. 624, 641 (1998). Furthermore, as Agro acknowledges (Agro-Br.-33), the Supreme Court held in Sutton that both positive and negative effects of mitigating measures are to be considered in assessing whether an individual is disabled. As we described in our opening brief, there is no simple medication or device that a person with ED can use to remediate the heat- and body-temperature- related symptoms of the condition, and there is no cure. EEOC-Br.-35, 37. Depending on the ambient temperature, Velez can begin to overheat in as little as fifteen to thirty minutes when performing manual labor; when this occurs, he has to wet himself down and remain near a source of blowing air for fifteen to thirty minutes in order to cool down sufficiently to return to work. EEOC-Br.-6. Velez testified that, when the weather is hot, he often requires such cooling breaks several times in a single work day. EEOC-Br.-37. Although Velez's mitigating measures may be somewhat less cumbersome than the dialysis undergone by the plaintiffs in Fiscus and Heiko, they are a far cry from the corrective lenses worn by the petitioners in Sutton, who conceded that, with them, they "function[ed] identically to individuals without a similar impairment," 527 U.S. at 488, or from other measures that do not require a total cessation of activity at frequent intervals. <5> See, e.g., Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 519 (1999) (taking medication for hypertension); Ivy v. Jones, 192 F.3d 514, 516 (5th Cir. 1999) (wearing hearing aid(s)). Agro's argument that there is insufficient evidence of the degree of Velez's impairment to support a jury finding that he is disabled fares no better. In its brief, Agro relies on a raft of generalities about how "not every individual with ED is affected the same way," Agro-Br.-27, and how some individuals with ED are champion athletes, id. at 28 n.10, to emphasize the supposed importance of "diagnosis" of ED in the individual. How other individuals are affected by ED, however, is entirely irrelevant to this case; the question before this Court, as the Supreme Court has emphasized, is the extent of Velez's limitation "in terms of [his] own experience." Toyota Motor Manuf. Ky., Inc. v. Williams, 534 U.S. 184, 197 (2002) (quoting Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 567 (1999)). Between Velez's own testimony and the testimony of Agro's medical experts, there is more than enough evidence in the record from which a reasonable jury could find that Velez suffers from a form of ED that substantially limits him in regulating his body temperature because he cannot sweat at all. EEOC-Br.-4-7. According to Agro's own cited Internet sources, the medical consensus at this time appears to be that there is no reliable laboratory diagnostic test for ED. See NFED FAQ ("There are no diagnostic laboratory tests currently available to test for ED."); Shah, WebMD ("In general, laboratory studies are not useful in the diagnosis or management of the EDs."). Indeed, Dr. Shapiro's medical report states that the testing techniques Agro now holds up as a diagnostic sine qua non in fact simply "can [] assist[]" diagnosis. D-RE-T.1 (ROA-1418).<6> In the case of an individual like Velez - who cannot sweat at all, who presents nearly every clinical feature of the disease, and who has multiple family members affected by this genetic condition- the argument that a jury could not find him disabled without the results of a starch-iodine test is disingenuous.<7> In the alternative, Agro argues, even if Velez's ED constitutes a disability, that disability renders him unqualified for his job as a truck driver because "manual labor, including moving barrels, is an essential function of Velez' position." Agro- Br.-36. Once again, Agro's argument reflects a fundamental misunderstanding of how the ADA operates. Agro derides as "frivolous" the Commission's argument that the proper way to assess whether an individual is qualified for his job is by comparing his abilities and qualifications to the actual job tasks, rather than general classes of tasks like "manual labor." Agro-Br.-35. However, this is how the courts consistently analyze this issue. See, e.g., Mason v. United Air Lines, 274 F.3d 314, 371 (5th Cir. 2001) (in assessing whether individual with lower back injury was qualified for position, court noted that the job "required that he be able to perform certain tasks, including lifting, pushing, and pulling weight above his physical limitations"); Gonzales v. City of New Braunfels, 176 F.3d 834, 838 (5th Cir. 1999) (plaintiff officer with diabetic neuropathy not qualified for position due to inability "to handle a firearm safely or to drive a vehicle to police specifications"); Barber v. Nabors Drilling USA, Inc., 130 F.3d 702, 707 (5th Cir. 1997) (evaluating plaintiff's qualification in light of his ability to perform specific duties including "filling in for other crewmembers, namely the driller, especially on a horizontal or directional well," "retrieving equipment and replacement parts," "responding to a fire on the rig, because of the weight of the fire extinguishers," and "strapping on and wearing an oxygen tank, gas mask and breathing apparatus"); see also 29 C.F.R. Pt. 1630 App., § 1630.2(n) (giving as examples of essential functions: a cashier "operating [a] cash register," a firefighter "carry[ing] an unconscious adult out of a burning building," a typist "accurately typ[ing] 75 words per minute," and a hotel service worker "thoroughly clean[ing] 16 rooms per day"). Not surprisingly, Agro cites no authority to support its view that an individual who is unable to perform a specific task due to a disability must be considered unable to do the entire category of activity to which that task belongs, including tasks that he clearly can perform. Instead Agro suggests that, unless its approach is adopted, an individual who is unable to do manual labor could be deemed qualified for a position that involves multiple manual labor tasks because each of them could be considered "nonessential." Agro-Br.-35. We are confident that the courts would have little difficulty finding Agro's hypothetical employee, who is unable to perform all or most of the functions of a job, unqualified for that job without adopting a rule that would render unqualified an individual like Velez who can perform all of the functions of the job in question except a single task that arises at most a few times a year. Focusing, properly, on whether the task of loading barrels onto trailers in summer temperatures<8> is an essential function of Velez's job as a truck driver at Agro, it is clear, as we argued in our opening brief, that it is not. EEOC-Br.-45-47. As Agro acknowledges, this Court has recognized that an employee who can perform the essential functions of his job, but cannot perform a non-essential function due to a disability, is "qualified" under the ADA. Barber, 130 F.3d at 710 (observing that, if the job functions the plaintiff allegedly cannot perform "are not essential, then [he] is otherwise qualified whether he performed those functions or not"). The fact that "moving barrels" is mentioned once in Velez's written job description among a list of examples of "various physical duties" in which the employee is expected to "assist" does not establish that it was an essential function of Velez's job as a truck driver. P-RE-T.8 (ROA-1407). Moreover, we note, again, there is no evidence that Velez could not perform manual labor generally, or even that he could not perform the barrel-loading task under any and all sets of conditions. Rather, Velez's consistent testimony is that, while he is capable of loading barrels into a trailer in colder temperatures, doing so in the summer months makes him ill due to the limitations on his body's ability to perspire and regulate temperature posed by his ED. This narrow limitation is manifestly insufficient to render him unqualified for his truck driving position with Agro. 2. Agro also makes various arguments that, even if Velez was a qualified individual with a disability, its refusal to consider his request to be excused from barrel-loading did not violate the ADA. The company acknowledges, as it must, that an employer may be obligated under the ADA to modify the job of an employee with a disability to remove nonessential tasks as a reasonable accommodation. Agro-Br.-39-40 (citing Barber, 130 F.3d at 709). Agro argues, however, that, even if barrel-loading was not an essential function of Velez's job, the company was not obligated to respond to his request to be excused from it for a variety of reasons. As best we can understand Agro's rambling argument, the company contends: that Velez's conversations with Payne and Griffin were not a request for an "accommodation," but simply a "refusal" to work; that this refusal "was not due to any concerns regarding his ability to do the work"; that it should have been obvious to Velez that his disability would pose no problem because he would be permitted to take breaks; and that, under the ADA, Agro had no obligation to reassign Velez's work to other employees. Agro-Br.-37-40. These arguments have no support in the record or in the law. As we pointed out in our opening brief, in ruling on Agro's motion for summary judgment, the district court was required to credit Velez's testimony that he told Payne and Griffin that, in light of his medical condition, it would be too hot for him to participate. EEOC-Br.-43. Accordingly, Agro's argument that Velez's request to be excused was not based on the physical limitations imposed by his ED must be rejected. Insofar as Agro suggests that Velez was required to ask for an "accommodation" by name, Agro cites no authority for this proposition, and, in fact, the existing authority is to the contrary. See EEOC-Br.-44; see also, e.g., Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 313 (3d Cir. 1999) ("What matters under the ADA are not formalisms about the manner of the request, but whether the employee . . . provides the employer with enough information that, under the circumstances, the employer can be fairly said to know of both the disability and desire for an accommodation."); Smith v. Midland Brake, Inc., 180 F.3d 1154, 1172 (10th Cir. 1999) (in requesting accommodation, "an employee need not use magic words"). Similarly, Agro's argument that it should have been obvious to Velez that the barrel-loading would pose no problems with the cooling breaks he had always been allowed cannot succeed; Velez testified that he knew what the barrel-loading task entailed because he had done it before and, when he had done it in warmer temperatures, it had made him sick, even with cooling breaks available to him on the usual basis. R.157-Exh.A-270 (ROA-1875). In raising this issue with Griffin on July 15, Velez was informing him that the measures taken in the past had not been adequate to prevent him from becoming ill, and that he needed a further accommodation with respect to the barrel-loading scheduled for July 16. Griffin, however, rebuffed Velez's attempts to address these concerns. A jury could find that this constituted a violation of Agro's duty under the ADA to engage in an interactive process to find a reasonable accommodation. See Jenkins v. Cleco Power, LLC, 487 F.3d 309, 316 (5th Cir. 2007) ("employer has duty to seek specific information to enable it to make accommodations") (citing Taylor, 184 F.3d at 317-18). Accordingly, a reasonable jury could find that Velez had no reason to assume, in light of his conversation with Griffin on July 15, 2002, and his history with him in the past, that, if he showed up at 6:00am on July 16, Griffin would be any more willing to accommodate him than he was the evening before. This is the same individual who referred to Velez as a product of "inbreeding" and living in the "land of [nine] hairs," and whom Velez had seen lose his temper and get physical in the workplace before. EEOC-Br.-9-10; D-RE-T.2 (ROA-1571). Griffin's response to Velez the evening before had made it clear that he was unsympathetic to Velez's request and that Velez would "suffer the consequences" if he did not do as he was told. Based on that conversation, a jury could find that Velez had no reason to think that Griffin believed him or had any intention of providing a meaningful accommodation the next day.<9> Finally, Agro argues that this Court's decision in Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1094 (5th Cir. 1996), holds that any accommodation that involves requiring other employees to work harder and longer at a given task than they would have done otherwise is per se unreasonable. Agro-Br.-40. The company misreads the Turco decision. The ADA defines "reasonable accommodation" to include, inter alia, both "job restructuring" and "part-time or modified work schedules." 42 U.S.C. § 12111(9)(B). Agro's reading of Turco would logically preclude both of these options, as well as other options regularly available to accommodate disabled employees, in all cases because the reassignment of any task, no matter how marginal, will always have the effect of reallocating the responsibility for that task to someone else. It is clear from the context of this Court's opinion in Turco that this is not what the Court meant. In Turco, the plaintiff sought the accommodation of being permitted to work a straight day-shift in a facility where the defendant had no such positions; all of the positions he was seeking were on rotating shifts. 101 F.3d at 1094. This Court held that the defendant was not required to move the plaintiff to a straight shift because doing so "would place a heavier burden on the rest of the operators in the plant," and held that this was not required under the ADA. Id. The accommodation sought by the plaintiff in Turco, which would have affected all of his job tasks and the work schedules of multiple individuals, is a far cry from Velez's request to be excused from a single nonessential task that occurred at most a few times a year. 3. The district court criticized the Commission's administrative handling of Velez's charge, but the court expressly declined to dismiss this action based on inadequate conciliation. Nonetheless, Agro argues that this Court should affirm the district court's judgment on the ground that the Commission failed to satisfy its duty to conciliate in good faith before bringing suit. According to Agro, the Commission prejudged Velez's charge when it "classified [it] as 'A2' within days of receiving the complaint," and thereafter ignored evidence inconsistent with what Agro characterizes as a presumption of guilt and deprived the company of any meaningful opportunity to conciliate the charge before bringing suit. Agro-Br.-41. This argument is based on a false premise. There is absolutely no basis in the record, or anywhere else, for Agro's assertion in its brief that an "A2" designation means that "a finding against the employer is likely."<10> Agro-Br.-15. Area Director Bradley testified at his deposition that the A2 designation used here signified "possible cause," meaning that the Commission "[doesn't] know exactly what the final results will be, but they seem to be leaning towards a cause determination." R.145-Exh.Q-5, 10-11 (ROA-1514, 1516-17). Indeed, consistent with Bradley's testimony, the Commission's statistics show that, during the fiscal year in which Velez filed his charge, only about 25% of charges categorized as A2 actually resulted in a determination of probable cause.<11> There is nothing about the fact that this case received an A2 designation, or the manner in which it received an A2 designation, that deviates from standard EEOC procedure or implies that it was substantively prejudged in the way Agro hypothesizes. Once this mischaracterization is corrected, Agro's argument as Appellee is simply a rehashing of the argument it advanced below: the EEOC's actions are unreasonable because the agency did not accept Agro's representation that the case was meritless. Nowhere is this clearer than in Agro's argument regarding the Commission's conciliation efforts.<13> We argued in our opening brief that we gave Agro at least three opportunities to make a counterproposal to the agency's opening request for full relief for Velez based on the finding that there was reasonable cause to believe Agro violated the ADA. Agro labels this argument "disingenuous." Agro-Br.-47. However as we noted in our opening brief (EEOC- Br.-50-51), despite repeated invitations, the company declined to engage in negotiation beyond a single belated offer of a nuisance settlement of $3500. Agro's only response is that the Commission's requests for counterproposals were meaningless because the agency repeated its request that a settlement be consistent with principles of "full relief." Agro-Br.-47-48. This argument fails for two reasons. First, it was not unreasonable for the Commission to decline to significantly reduce its demands when Agro made no meaningful counteroffer to the agency's opening offer. In any event, the Commission's assertion that it would seek "full relief" does not, in any way, indicate that there is no room for compromise. The Commission's opening settlement offer contained a dollar figure representing full relief. If Agro had counteroffered or otherwise indicated an interest in engaging in meaningful negotiations, the Commission may have accepted a lower figure as full relief. Since much of the monetary relief in this case would take the form of non-pecuniary compensatory damages, the amount of "full relief" is by no means fixed. Indeed, although Agro argues that it was the Commission that insisted on an "all or nothing" approach, the uncontroverted evidence reflects that the Commission adjusted its conciliation and settlement demands downward in accordance with the evidence that emerged through discovery, while Agro never increased its offer by a cent. The company's intransigence is in no way attributable to the Commission, and in no way supports Agro's argument that the Commission failed to make good faith efforts to conciliate this case. 4. In awarding attorney's fees to Agro the district court, noting that fees may be awarded to a Title VII defendant without finding bad faith, based its decision instead on a finding that the Commission's claims were frivolous. P-RE- T.6-4 (ROA-3042). We argued in our opening brief that the district erred in finding our ADA claims frivolous. EEOC-Br.-53-55. In response, Agro simply asserts that the court correctly ruled that the claims were frivolous, without any argument. It devotes the rest of its argument in support of attorney's fees to arguing that fees were justified because the case was brought in bad faith, notwithstanding the district court's failure to make a finding of bad faith. This is yet another example of Agro's determination to avoid as much as possible discussing the merits of the serious allegations concerning the company's actions, and instead to indulge in yet another attack on the behavior of Commission employees. Much of Agro's argument in support of its premise that this case was litigated in bad faith is a repackaging of the argument that the Commission did not conciliate in good faith. However, the legal concepts of failure to conciliate a case in good faith and of bad faith in the attorney's fees context are not one and the same; if the EEOC should fail to make a good-faith attempt to engage in conciliation, the legal remedy is dismissal of the litigation, not an award of attorney's fees to the defendant. See EEOC v. Pet, Inc., Funsten Nut Div., 612 F.2d 1001, 1002 (5th Cir. 1980). Contrary to Agro's argument, a defendant is not entitled to attorney's fees merely because a court disagrees with the Commission's nonfrivolous argument that it satisfied the statutory requirement to conciliate in good faith. Beyond this argument based on a play on words, Agro provides no evidence whatsoever of bad faith. The best it can offer is a story based on its version of disputed facts in the record, two remarks by the former Birmingham Regional Attorney (one pertaining to the temperature on the day in question, and another pertaining to the possible relevance of Ehrhardt's testimony), its own unfounded theory as to the reasons why another EEOC attorney was removed from the case, and the fact that the Commission sought damages for the charging party after his deposition. Agro-Br.-50-52. We have responded to Agro's mischaracterization of the Commission's conduct of the administrative proceedings in our opening brief and in this brief, supra at 19-22. We briefly respond to Agro's new argument regarding the request for damages for Velez. The fact that the Commission continued to seek relief for Velez when Agro believed he was not entitled to it does not support a finding of bad faith. First, Agro's argument is based on a mischaracterization of Velez's deposition testimony with respect to emotional damages. Velez testified that he suffered "probably a pretty good bit" of emotional disturbance as a result of his termination. He stated that his termination came at a time when it was "going to be hard to get another job right off the bat," and it forced his family to cancel needed medical work that would have been covered by his insurance. He was "[a]t first ticked off. I couldn't understand, you know, why I was . . . fired for . . . not being able to do a task that, you know, everyone was familiar that I couldn't do, and then hurt, you know." R.211-Exh.3-402-03 (ROA-2651-52). If this testimony is credited, as it must be at this stage of the proceedings, the Commission's continued request for compensatory damages was not unreasonable, and certainly not evidence of bad faith. See, e.g., Decorte v. Jordan, 497 F.3d 433, 442 (5th Cir. 2007) (upholding award of emotional damages to Title VII plaintiffs based on their trial testimony with respect to various "personal difficulties experienced after being terminated," including "stress, sleeplessness, strained relationships with family members," and various other physical and mental problems); Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1046 (5th Cir. 1998) (upholding award of emotional damages to Title VII plaintiff who testified that her termination was "a major inconvenience," that it caused her self-esteem to suffer, and that it caused her financial hardships with a new baby, along with anxiety attacks, marital hardship, and "lot[s] of crying [and] sleeplessness"); Forsyth v. City of Dallas, 91 F.3d 769, 774 (5th Cir. 1996) (upholding $75,000 award of emotional damages to § 1983 plaintiff based on his testimony "that he suffered depression, sleeplessness, and marital problems").<13> 5. We argued in our opening brief that the amount of attorney's fees awarded by the district court was excessive, in part because the court awarded Agro fees for its unsuccessful opposition to the Commission's petition for a writ of mandamus prohibiting Agro from deposing one of the Commission's attorneys about her views on the merits of this litigation. In response, Agro argues that this Court's decision in Fernandes v. Limmer, 663 F.2d 619, 637 (5th Cir. 1981), supports an award of attorney's fees for the defense of the mandamus petition in this case. This argument is based on a distortion of the holding in Fernandes. In that case, this Court was addressing whether the plaintiff could be considered a "prevailing party" for purposes of receiving an award of attorney's fees under 42 U.S.C. § 1988. This Court rejected the defendant's argument that the plaintiff was not a "prevailing party" because he had not succeeded on all of his claims, observing that "interim setbacks on interlocutory motions or in settlement negotiations are immaterial to the ultimate issue" - i.e., whether a party is a "prevailing party." 663 F.2d at 637. We do not dispute that, unless this Court reverses the district court's grant of summary judgment, Agro will be the prevailing party in this action notwithstanding its loss in the mandamus proceeding. The issue here is the amount of fees Agro can recover if the case is found to be frivolous. Fernandes in no way altered this Court's standard in Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974), or the Supreme Court's decision in Hensley v. Eckerhardt, 461 U.S. 424 (1983), or a myriad of other cases holding that a party is not entitled to collect attorney's fees on a claim that is distinct in all respects from its successful claims and as to which it lost. The mandamus action in this case is precisely such a claim: Agro lost, and is not entitled to recover its attorney's fees. CONCLUSION For the foregoing reasons and the reasons stated in the EEOC's opening brief, the judgment of the district court should be reversed and the case remanded for further proceedings. Respectfully submitted, RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ______________________________ ELIZABETH E. THERAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4720 elizabeth.theran@eeoc.gov CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 6,719 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. Elizabeth E. Theran Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4720 elizabeth.theran@eeoc.gov Dated: January 4, 2008 CERTIFICATE OF SERVICE I, Elizabeth E. Theran, hereby certify that I filed one original and six hard copies of the foregoing brief, plus one electronic copy in PDF format on a 3.5-inch diskette, with this Court this 4th day of January, 2008, by overnight delivery, postage pre-paid. I also certify that I served two hard copies of the foregoing brief, plus one electronic copy in PDF format on a 3.5-inch diskette, this 4th day of January, 2008, by overnight delivery, postage pre-paid, to the following counsel of record: Counsel for Defendant: Herbert C. Ehrhardt, Esq. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 100 Concourse, Suite 204 1052 Highland Colony Parkway Ridgeland, MS 39157 (601) 360-8444 Elizabeth E. Theran Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4720 elizabeth.theran@eeoc.gov *********************************************************************** <> <1> Although Agro insinuates that this is a new argument on appeal (Agro-Br.-24), it has been the Commission's consistent position since the outset of this litigation. See, e.g., R.157-9 (ROA-1838) (in opposition to Agro's motion for summary judgment, arguing that "Velez meets the second prong of the ADA inquiry because he was substantially limited in the major life activities of perspiring and breathing"). <2> Agro also argues that the Supreme Court's decision in Toyota Motor Manufacturing of Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), somehow supports the district court's decision to analyze this case as a "working" case. Agro-Br.-30. It does nothing of the sort. Insofar as Agro argues that Toyota stands for the proposition that the ADA requires an individualized assessment of the effect of an impairment on the individual in determining whether that individual is disabled, and that it is appropriate to consider that individual's lay testimony both as to what he can do and what he cannot do as a result of his impairment, we are in total agreement. See 534 U.S. at 198-99. But there is no language whatsoever in Toyota in support of the proposition that the district court was free to substitute its own theory of the case for the Commission's, or to rely on a lay person's deposition testimony in so doing. <3> The prevalence in the United States of hypohidrotic ectodermal dysplasia, which is the most common type of ectodermal dysplasia, is estimated at 1 case per 100,000 births. See Dr. Kara N. Shah, Ectodermal Dysplasia, EMedicine from WebMD, Nov. 8, 2006, http://www.emedicine.com/derm/topic114.htm (hereinafter "Shah, WebMD"). <4> National Foundation for Ectodermal Dysplasias, FAQs/General Description, at http://www.nfed.org/FAQ.htm (last visited Dec. 4, 2007) (hereinafter " NFED FAQ"). <5> Contrary to Agro's suggestion (Agro-Br.-33-n.15), our reliance on Sutton for this point is not weakened by the fact that the petitioners conceded that they functioned in the manner described. The Sutton Court specifically noted the petitioners' statements that they "function[ed] identically to individuals without a similar impairment," 527 U.S. at 488, and rested its holding, in part, on that observation. <6> In this brief, "P-RE-T.[#]" refers to the EEOC's Record Excerpts, and "D-RE- T.[#]" to Agro's Record Excerpts. <7> Equally meritless is Agro's argument that, because Velez's nosebleeds may not be caused directly by his inability to sweat, they are not related to his ED. Agro- Br.-28-29. The very article Agro cites for this point explains that the developmental problems ED causes in the ectoderm, including "abnormal functions of the linings of the nose, sinuses, Eustachian tubes and throat," can result in recurrent nosebleeds and sinusitis. In other words, the inability to sweat and the nosebleeds have the same root cause: ED. Robert Mills, Common Ear, Notes and Throat Problems in Ectodermal Dysplasia, Ectodermal Dysplasia Society, Apr. 2005, http://www.ectodermaldysplasia.org/frame.htm. <8> Agro points to the Commission's observation that the trailer in question was "unventilated" as an example of the frivolousness of the claim at issue here because, in order for the barrels to be loaded onto the trailer, the trailer doors would have to be open. Agro-Br.-20. This totally misses the point. As we pointed out in our opening brief, the trailer was made entirely of metal, was unventilated when it was closed, and had been sitting outside, closed up, in the Mississippi summer heat for approximately two days prior to July 16, 2002, when the barrel- loading task was to be performed. EEOC-Br.-11, 13. Because the trailers tended to retain heat in the summer, EEOC-Br.-11, simply opening the doors for the loading task would not have cooled off the trailer to the ambient temperature. <9> Agro now suggests that Velez should have shown up to work because, inter alia, he "likely would have been put on the forklift if he had come." Agro-Br.-10. This suggestion is disingenuous in light of Griffin's testimony that Agro only began using forklifts to load barrels onto trailers after Velez was fired. EEOC-Br.-14. At the time in question, according to Griffin, the barrels were loaded manually. <10> The Commission's Priority Charge Handling Procedures ("PCHP"), which include the A-B-C system of charge designations, were adopted in 1995 as a means of promoting efficient charge processing. More information on the PCHP is published in the Commission's Regional Attorneys' Manual, available to the public on the EEOC's web site. EEOC Regional Attorneys' Manual, § III(A)(1), available at http://www.eeoc.gov/litigation/manual/1-3-a_intro.html. <11> We recognize that this information is not in the district court record, and we refer to it only because Agro's brief makes unfounded and serious accusations that the Commission routinely prejudges charges by classifying them as A2. We would be happy to supplement the record with the data from our computer system if the Court wishes. <12> Agro relies on the statement in this Court's opinion in In re EEOC, 207 Fed. Appx. 426, 428 (5th Cir. 2006), that "[t]here is little evidence that the EEOC attempted meaningful conciliation of the case prior to and during the litigation," in support of its attack on the Commission's conciliation efforts. We note that the Commission's arguments and record submissions in In re EEOC were confined to the issue presented in the Commission's mandamus petition - whether the materials at issue were protected by privilege - which did not involve the adequacy of conciliation. Because there was no reason for the Commission to present evidence or arguments on this irrelevant issue in In re EEOC, the court's dicta regarding the scope of conciliation should not control the Court's resolution of this appeal. <13> In its brief, Agro suggests that because Velez obtained a new job where he was treated better than he was at Agro, he is not entitled to compensatory damages for emotional harm. Agro-Br.-13-14, 45. However, the fact that Velez eventually found himself in a better position does not mean that he did not suffer emotional damage at the time of, and as a result of, the adverse action taken by the defendant.