Equal Employment Opportunity Commission v. complete Dewatering, Inc 00-12967-E IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 00-12967-E EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. COMPLETE DEWATERING, INC.; COMPLETE DEWATERING PUMPS AND WELLPOINTS, INC., Defendants-Appellees. On Appeal from the United States District Court for the Southern District of Florida BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS PLAINTIFF-APPELLANT C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ROBERT J. GREGORY Senior Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4059 STATEMENT OF JURISDICTION This is a public enforcement action brought by the Equal Employment Opportunity Commission ("Commission") pursuant to Section 7(b) of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. ("ADEA"). The district court had jurisdiction of the case under 28 U.S.C. §§ 1331 and 1345. The district court entered an order on April 5, 2000, awarding approximately $215,000 in attorney's fees to the defendants, Complete Dewatering, Inc. and Complete Dewatering Pumps & Wellpoints, Inc. (referred to collectively as "Complete Dewatering"). Doc.152. This order disposed of all claims with respect to Complete Dewatering's request for attorney's fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 ("EAJA"). The Commission filed a timely notice of appeal on June 2, 2000. Doc.154; see F.R.A.P. 4(a)(1). This Court has jurisdiction of the district court's final order on attorney's fees under 28 U.S.C. § 1291. See Fort v. Roadway Express, Inc., 746 F.2d 744, 747 (11th Cir. 1984) (award of attorney's fees is an appealable order that becomes final once the district court sets the amount of fees). STATEMENT OF THE ISSUES 1. Whether the EAJA's "substantially justified" standard supersedes the specific fee-shifting standard adopted in the ADEA, which authorizes the award of attorney's fees to prevailing defendants under a restrictive "bad faith" standard, where the "substantially justified" standard, by its plain terms, does not apply to statutes that have their own fee-shifting provisions, where the ADEA's fee-shifting provision reflects a congressional intent to restrict severely the award of attorney's fees to prevailing defendants, and where Congress, in enacting the EAJA, intended to except civil rights statutes from the reach of the "substantially justified" standard. 2. Whether the Commission had a reasonable basis in law and fact for maintaining its ADEA action such that attorney's fees could not be properly awarded under the EAJA's "substantially justified" standard. 3. Whether the "special circumstances" exception to the award of attorney's fees under the EAJA's "substantially justified" standard applies in this case, where Complete Dewatering, at the merits stage, misled both the district court and the court of appeals on issues critical to the disposition of the case. STATEMENT OF THE CASE 1. Nature of the Case This is a case of age discrimination brought by the Commission against Complete Dewatering. The Commission alleges that Complete Dewatering violated the ADEA by discharging the charging party, Al Winnemore, the branch manager of Complete Dewatering's Davie facility. Complete Dewatering successfully defended this action at the merits stage. The Commission appeals from an order of the district court awarding attorney's fees to Complete Dewatering under the EAJA. 2. Course of Proceedings The Commission commenced this action in May 1992. Doc.1. Complete Dewatering moved for summary judgment in February 1997. Doc.64; Doc.67. By order dated May 23, 1997, the district court granted Complete Dewatering's motion. Doc.109. This Court affirmed the district court's grant of summary judgment in an unpublished opinion dated July 19, 1999.<1> By order dated January 13, 2000, this Court denied the Commission's petition for panel rehearing. Complete Dewatering filed a petition for attorney's fees in the district court in June 1997. Doc.111. The petition was referred to a magistrate judge. The magistrate issued a report and recommendation on March 9, 1998, recommending that Complete Dewatering's petition for attorney's fees be denied. Doc.131. On April 23, 1998, the district court judge issued an order reversing the magistrate's report and recommendation and remanding the case to the magistrate judge for further proceedings on the fees issue. Doc.135. The magistrate judge issued a report and recommendation on March 16, 2000, recommending that attorney's fees be awarded in the amount of $167,333.74 to Complete Dewatering, Inc. and $48,168.85 to Complete Dewatering Pumps & Wellpoints, Inc. Doc.150. By order dated April 5, 2000, the district court judge affirmed the magistrate's report and recommendation. Doc.152. 3. Statement of Facts Al Winnemore worked for Complete Dewatering as the branch manager of its Davie facility. Doc.71-Pgs.21-23. In August 1991, Winnemore filed a charge of age discrimination with the Commission. Doc.117-Exh.1. Winnemore alleged that he been discharged from his job with Complete Dewatering "with no real reason given" and "replaced by a much younger individual with no experience in the business." Doc.117-Exh.1. The Commission sent the charge to Complete Dewatering, which provided a formal position statement to the Commission. Doc.117-Exh.4. In that position statement, Complete Dewatering denied that Winnemore had been discharged because of his age. Doc.117-Exh.4. Complete Dewatering asserted that Winnemore left Complete Dewatering's employ after Complete Dewatering eliminated Winnemore's salary and began paying him on a commission-only basis. Doc.117-Exh.4. Complete Dewatering stated that the company officials involved in the decision to alter Winnemore's employment status were Fred Share and Steve Mogle. According to Complete Dewatering: A decision was made by Mr. Fred Share (date of birth 9/23/54), a shareholder of the company, and Mr. Steve Mogle (date of birth: 3/30/47), the then president of the company, to attempt to salvage the branch. . . . Mr. Share and Mr. Mogle visited Mr. Winnemore and advised him basically that in order to save the branch, he would have to go on a commission basis . . . in the same manner as the other managers, and that if he did so he could continue his job after certain other personnel cuts were made. He said he would think about it, and contacted Mr. Mogle later on with a counterproposal that would have required the company to pay him more than the existing plan. The counterproposal was understandably rejected . . . Mr. Mogle began operating the branch as an additional duty until much later, when a replacement [for Winnemore] was found. The replacement [was] Robert Freeze (date of birth: 3/4/42). Doc.117-Exh.4. The Commission investigated Winnemore's charge. The Commission found cause to believe that Winnemore had been terminated because of his age. The Commission determined that the evidence did not support Complete Dewatering's contention that Winnemore left the employ of Complete Dewatering when the company "decided to change his method of compensation as it had done for other employees at his level." Doc.117-Exh.5. The Commission stressed that the "evidence shows that [Winnemore's] younger successor was not treated in this manner." Doc.117-Exh.5. The Commission's subsequent attempts to conciliate the charge failed. The Commission brought suit under the ADEA in May 1992. Doc.1. The Commission conducted extensive discovery in the district court. That discovery revealed substantial evidence of age discrimination. First, the Commission uncovered direct evidence of discrimination in the form of age-biased comments made by Steve Mogle. At one point, Mogle was asked by another company official, Jerome Golden, why Winnemore had been terminated. This official expressed the view that Winnemore "was a good man and did a great job." Doc.77-Pg.17. Mogle responded that he had "let [Winnemore] go" because Winnemore "was over the hill." Doc.77-Pgs.16-18. Mogle also explained to this official, in another conversation, that the company needed to make changes in personnel in order to build a "young organization." Doc.77-Pgs.18-19. Mogle suggested to Winnemore himself that the termination was justified because Winnemore "should be about ready to retire anyway."<2> Doc.71-Pg.49. Although Complete Dewatering had previously identified Mogle as a decision-maker (in its position statement), the Commission took care to uncover independent, corroborating evidence of Mogle's role in the decision to terminate Winnemore's employment. This evidence was critical because Mogle's discriminatory statements would have diminished probative value if Mogle played no role in the termination decision. The evidence linking Mogle to the decisional process was as follows. Complete Dewatering first retained Mogle's services in February 1990. Doc.72-Pgs.14,36-37; Doc.73-Pgs.16,24. At that time, Fred Share was CEO of the company. Doc.72-Pg.12. Mogle was brought in to "make a lot of decisions" for Share and the board of directors concerning changes in the workforce. Doc.77-Pgs.14-16. Mogle played a central role in employment decision-making during the months of February and March 1990. Mogle, in particular, made recommendations to Share concerning which employees should be let go. Doc.73-Pg.16. At least 40 employees were terminated during the months of February and March on Mogle's recommendation. Doc.73-Pg.16; see also Doc.77-Pgs.14-16 [Deposition of General Manager Jerome Golden] (stressing that Mogle was active in employment decision-making as soon as he came on board); Doc.117-Exh.4 [position statement of Complete Dewatering](acknowledging that Mogle had the title of company "president" as early as March 1990). Winnemore was one of the individuals targeted by Share and Mogle. Share met with Winnemore in March 1990 to discuss the company's idea of placing Winnemore on a commission-only payment system. Doc.71-Pgs.45-46; Doc.72-Pgs.24,37. Share brought Mogle to the meeting with Winnemore. Doc.73-Pg.27. Share motioned toward Mogle, telling Winnemore that Mogle's "going to be in charge" and there "are going to be a lot of cuts coming." Doc.72-Pg.36. Mogle sat outside the office door while Share met with Winnemore. Doc.73-Pg.27. During the meeting, Share informed Winnemore that the idea for the shift to the commission-only payment structure had been Mogle's. Specifically, "Mogle had made the decision that they could phase this out and go into an independent contractor deal and everything would be fine." Doc.71-Pg.61. The meeting ended with Winnemore's employment status still up in the air. Doc.72-Pg.36 [Deposition of Fred Share] (stating that when he met with Winnemore in March 1990, he did not believe that Winnemore had to be "cut"). On April 1, Mogle officially assumed the position of CEO. Doc.65-Pg.8; Doc.72-Pg.18. At that point, Winnemore was still performing the same kinds of jobs that he had always performed for Complete Dewatering, visiting contractors, "renting and selling equipment every day," and "supervising installations." Doc.71-Pg.48. At some point in April, Winnemore tendered a counter-proposal to Mogle's commission-only payment scheme. Doc.71-Pgs.47-48. Mogle "looked through [the proposal] and said, well, you know, we will have to go over it. I will go over it with Fred [Share] and get right back with you." Doc.71-Pg.48. Mogle met with Winnemore in early May 1990. Mogle informed Winnemore that he had been terminated from his job because "[w]e just don't need you any longer." Doc.71-Pgs.32,49. Mogle explained that there was "nothing to work out" and that Winnemore should "go back and clean out [his] desk." Doc.71-Pg.49. In addition to uncovering direct evidence of discrimination -- in the form of age-discriminatory statements made by a key decision-maker -- the Commission also uncovered evidence that Winnemore was replaced by a succession of younger managers. When Mogle instructed Winnemore to "clean out [his] desk" because "[w]e just don't need you any longer," he also informed Winnemore that the company had "just replaced [him]" with "a man in your office down there now that Frank Hornbrook took down to introduce him to Dominic [Cipully]." Doc.71-Pg.49. That same day, Hornbrook showed up at Winnemore's facility with Timothy Fruits. Hornbrook introduced Fruits to Cipully by saying that Fruits "was taking [Winnemore's] job." Doc.76-Pgs.15,16,61-62. Fruits moved into Winnemore's office and assumed a number of Winnemore's duties as branch manager. Doc.76-Pgs.15-17,61. Fruits was 26 years old. Doc.78-Pg.4. As it turned out, Fruits lasted only a few weeks on the job. The company then installed Cipully in the branch manager position. Doc.76-Pgs.26,29-30. Cipully, age 53 (Doc.76-Pg.4), performed the duties of branch manager for several months. Doc.76-Pgs.29-30,64. In January 1991, the company hired Robert Freeze, age 48, to assume the branch manager position on a permanent basis. Doc.75-Pgs.5,7. Fruits, Cipully, and Freeze were each paid on a salary basis. Doc.72-Pg.45; Doc.75-Pgs.10-11; Doc.76-Pgs.26,29-31; Doc.78-Pgs.15-16. Freeze's annual salary, as branch manager, was almost twice the salary paid to Winnemore when he occupied the branch manager position. Doc.75-Pgs.10,11-13 (showing that Freeze was paid a base salary plus a "commission based on revenue," amounting to $64,000 in annual compensation); Doc.71-Pgs.39-40 (showing that Winnemore was paid a weekly salary of $650 plus bonuses that totaled approximately $3,250 annually). Despite these proofs, Complete Dewatering moved for summary judgment. The linchpin of Complete Dewatering's motion was that the evidence of discriminatory bias uncovered by the Commission was irrelevant because Mogle played no role in the decision to terminate Winnemore.<3> Doc.66-Pgs.10-11. Complete Dewatering took this position despite its earlier representation to the contrary in its formal position statement provided to the Commission. Complete Dewatering took this position despite the clear record evidence that Mogle was intimately involved in Winnemore's termination at every step of the decisional process.<4> Complete Dewatering also argued that the Commission's claim failed because the Commission could not satisfy the replacement element of the McDonnell Douglas prima facie case. Complete Dewatering asserted that Timothy Fruits was not in fact Winnemore's replacement, characterizing the Commission's evidence on this point as "conclusory," "speculative," and the product of "double hearsay." Doc.66-Pgs.11-12. Although contesting Fruits' status as a replacement for Winnemore, Complete Dewatering conceded that Dominic Cipully replaced Winnemore in the branch manager position. See Doc.65-Pgs.6,10-11 [Complete Dewatering's Statement of Undisputed Material Facts] (stating that "just days" after Winnemore's termination, Cipully was advised that he "would be assuming the branch manager duties of the Davie [Winnemore's] facility"; stating that the "uncontroverted testimony" showed that "it was Cipully who assumed the branch manager duties while maintaining his prior yard duties after Winnemore's termination;" stating that Cipully was "acting branch manager" until Robert Freeze was hired in January 1991); Doc.66-Pg.2 [Complete Dewatering's Memorandum in Support of Motion for Summary Judgment] (stating that, following Winnemore's termination, Cipully "assumed the branch manager duties of the Davie facility"). Cipully's status as Winnemore's replacement was explicitly confirmed by both Share and Mogle. Share testified in his deposition that when Winnemore was let go, "the person that we left in charge of the branch at that time became the, quote, branch manager." Doc.72-Pg.42. That person was Cipully. Doc.72-Pg.42. Mogle testified that Cipully "was the person that really was the branch manager after [Winnemore] left the company." Doc.73-Pg.43. When asked point blank, "[a]re you saying then that [Cipully] was the one who replaced Al Winnemore?", Mogle replied, "[w]ell, if you really -- yeah. Dominic was given the title as branch manager. He was the person that was in charge of making the day-to-day decisions in that office after Al Winnemore left." Doc.73-Pgs.43-44. Complete Dewatering also conceded that Robert Freeze assumed the position of branch manager, on a permanent basis, in January 1991. See Doc.65-Pg.11 [Complete Dewatering's Statement of Undisputed Material Facts] (stating that Freeze was hired "in or around January, 1991" as "branch manager at the Davie facility"). This admission was consistent with Complete Dewatering's prior statement -- in its formal response to Winnemore's ADEA charge -- that Freeze was Winnemore's "replacement." Doc.117-Exh.4. There is no dispute that Freeze performed the same duties as branch manager as those performed by Winnemore when Winnemore occupied the very same branch manager position. Notwithstanding these concessions, Complete Dewatering urged that it was entitled to summary judgment on the replacement issue. Complete Dewatering advanced no argument of any kind, in its memorandum in support of summary judgment, bearing on the replacement status of Cipully and Freeze. In its statement of undisputed material facts, however, Complete Dewatering suggested that Cipully and Freeze could not be used to satisfy the replacement element of the prima facie case because both individuals, although substantially younger than Winnemore, were themselves over the age of 40 and, thus, members of the protected class. See Doc.65-Pgs.6-7,11 (stressing that "Cipully was born on July 6, 1936 and was nearly 54 years old at the time [he assumed the branch manager position];" stressing that Freeze was "age forty-nine" when he was hired as Winnemore's replacement). Finally, Complete Dewatering argued that the Commission's case failed, even assuming that the Commission could make out a prima facie case, because Complete Dewatering had legitimate, non-pretextual reasons for terminating Winnemore. Complete Dewatering asserted that Winnemore had been let go because the company needed to eliminate his position in order to "cut fixed costs in the form of payroll expenditures." Doc.66-Pg.13. Complete Dewatering urged that it needed to put somebody in the branch manager position who was willing to be paid on a commission-only basis. Doc.66-Pg.19. Complete Dewatering advanced its job-cutting explanation in the face of undisputed evidence that Winnemore's branch manager position was not eliminated. Complete Dewatering advanced its commission-only explanation in the face of undisputed evidence that each of the individuals who succeeded Winnemore in the branch manager position was paid on a salary basis. See supra p. 10. The district court granted Complete Dewatering's motion for summary judgment. The court first ruled that the age-discriminatory statements attributed to Mogle lacked probative value because Mogle "was not the decision maker" with respect to Winnemore's termination. Doc.109-Pg.6. In reaching this conclusion, the court found that Mogle "was not employed by Complete until August of 1990," well after Winnemore left the company. Doc.109-Pgs.6-7. The court referenced the August 1990 date despite the undisputed evidence that Mogle was employed by Complete Dewatering as early as February 1990 and became Complete Dewatering's CEO in April 1990. The district court also rejected the Commission's case under a McDonnell Douglas or pretext theory. The court ruled that the Commission could not make out a prima facie case of discrimination because there was no evidence that Winnemore was replaced by a younger individual. The court dismissed the evidence that "Timothy Fruits replaced Winnemore," stating that it was based on "speculation and hearsay." Doc.109-Pgs.7-8. The court did not address the other replacement evidence adduced by the Commission (e.g., the branch manager position was initially filled by Cipully, on an interim basis, and then by Freeze). The court also assessed whether the Commission had met its burden of "proving pretext." Doc.109-Pgs.10-11. The court ruled, without explanation, that "no reasonable fact finder could find Defendant discriminated against Winnemore on the basis of age." Doc.109-Pg.11. The Commission appealed to this Court. In its brief, the Commission pointed out the district court's factual error with respect to the date of Mogle's employment with Complete Dewatering. The Commission cited the substantial body of evidence linking Mogle, at every stage of the decisional process, to Winnemore's termination. The Commission also addressed the replacement issue. The Commission argued that the evidence supporting Fruits' status as Winnemore's replacement was not hearsay.<5> The Commission referenced the undisputed evidence that Cipully and Freeze, in succession, assumed Winnemore's duties as branch manager. The Commission stressed that these individuals were properly treated as replacements, for purposes of the prima facie case, even though they were both within the protected class. See EEOC Brief at 31-32 (citing, e.g., O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996); Turlington v. Atlanta Gas Light Co., 135 F.3d 1428 (11th Cir.), cert. denied, 525 U.S. 962 (1998)). Finally, the Commission argued that its evidence was sufficient to raise a question of fact on the issue of pretext. The Commission asserted that the company's job- and cost-cutting explanations for the termination were belied by the fact that the company hired a succession of younger individuals to work in the branch manager position, each of whom was paid on a salary basis. Complete Dewatering defended the district court judgment, although on different grounds than those adopted by the district court. Complete Dewatering did not endorse the district court's finding that Mogle was not employed by Complete Dewatering until August 1990. Complete Dewatering argued, nonetheless, that the age-discriminatory statements attributed to Mogle should be disregarded because Mogle had "no involvement" in the decision to terminate Winnemore. Complete Dewatering Brief at 26. Complete Dewatering did not disclose its prior admission, in its formal position statement provided to the Commission, that Mogle was one of the decision-makers with respect to Winnemore's termination. Complete Dewatering also offered a revisionist view of the replacement issue. Confronted with the obvious fact that Cipully and Freeze could be used to satisfy the replacement element of the prima facie case, notwithstanding their protected group status, Complete Dewatering invented new theories for defeating the replacement evidence. Complete Dewatering urged that Cipully could not be viewed as Winnemore's replacement because Cipully "was only temporarily designated as the person in charge of the facility" and "the sales aspect of Winnemore's branch manager duties was assigned to [Frank] Hornbrook who was in his sixties at the time." Complete Dewatering Brief at 37-38. That position conflicted with Complete Dewatering's repeated admissions in the district court that Cipully assumed Winnemore's job duties and was, in fact, his initial replacement. With respect to Freeze, Complete Dewatering contended that Freeze was not Winnemore's replacement because Freeze "was hired by Mogle some ten months after Winnemore's termination by Share." Id. at 38. That position conflicted with Complete Dewatering's admission, in its formal position statement, that Freeze was Winnemore's replacement. In advancing these new replacement theories, Complete Dewatering did not disclose its prior inconsistent admissions with respect to the replacement status of Cipully and Freeze. Although affirming the grant of summary judgment, a three-judge panel of this Court digressed from the district court's rationale in several respects.<6> The panel did not perpetuate the district court's factual error with respect to the date of Mogle's employment with Complete Dewatering. Instead, the panel simply assumed that Mogle played no role in the decision to terminate Winnemore's employment, based on the panel's finding that the date of termination was March 1990, as argued by Complete Dewatering, rather than May 1990. Slip op. at 3-5 & 6 n.1. The panel did not address the substantial evidence adduced by the Commission establishing Mogle's role in the decision to terminate Winnemore's employment, even assuming a termination date of March 1990. The panel also ruled that the Commission could not satisfy the replacement element of the McDonnell Douglas prima facie case. The panel did not treat the replacement evidence concerning Timothy Fruits as hearsay. The panel, instead, found that the explicit evidence that Mogle hired Fruits as Winnemore's replacement was "neutralized" by evidence that Fruits, during his short tenure with Complete Dewatering, did not perform the same duties as Winnemore. Id. at 6. With respect to Cipully, the panel accepted Complete Dewatering's newly-hatched argument that Cipully could not be viewed as Winnemore's replacement because the "sales aspects" of Winnemore's job were assigned to Frank Hornbrook, with Cipully merely assuming Winnemore's "managerial duties."<7> Id. at 7-8. Similarly, the panel accepted Complete Dewatering's argument that Freeze could not be viewed as Winnemore's replacement because Freeze "was hired ten months after Winnemore was terminated . . . by a different decision maker, Mogle, than the man who terminated Winnemore in March of 1990." Id. at 9-10. Finally, the panel ruled that "the EEOC has not shown that the district court erred in granting summary judgment in the alternative on the EEOC's failure to show pretext." Id. at 11. The panel opined, without further elaboration, that "Complete Dewatering offered undisputed evidence that it was having financial troubles in March of 1990 and decided to shift Winnemore to a commission-only position in order to generate sales while saving money." Id. The Commission filed a petition for panel rehearing. The Commission advanced three arguments in its petition. First, the Commission argued that the panel ignored a critical piece of evidence supporting the Commission's contention that Mogle played a role in Winnemore's termination. The Commission referred to Share's admission, when he met with Winnemore in March 1990, that "Mogle had made the decision that they could phase this out and go into an independent contractor deal." Petition for Rehearing at 3-7. Second, the Commission argued that the panel committed a fundamental error in its treatment of the replacement issue. The Commission stressed that the panel overlooked the undisputed evidence in the district court that Cipully replaced Winnemore as branch manager. Id, at 7-12.<8> Finally, the Commission argued that the panel's ruling on the issue of pretext was "factually flawed and unresponsive to the Commission's evidence." Id. at 12. The Commission noted that the panel's one-sentence statement in support of its ruling on pretext -- that "Complete Dewatering offered undisputed evidence that it was having financial troubles in March of 1990 and decided to shift Winnemore to a commission-only position in order to generate sales while saving money" (slip op. at 11) -- ignored the critical point that Winnemore's position was not eliminated and that none of his successors in the branch manager position was paid on a commission-only basis. The Commission's petition for rehearing remained pending with the panel for nearly six months. The panel denied the petition without explanation. 4. The District Court's Fee Decisions In its petition for attorney's fees, Complete Dewatering argued that it was entitled to its fees under the EAJA's "substantially justified" standard. In rebuttal, the Commission advanced the legal argument that the EAJA's "substantially justified" standard does not apply to the Commission's ADEA actions. Alternatively, the Commission argued that fees were not proper in this case even assuming that the "substantially justified" standard applied. Complete Dewatering's petition for attorney's fees was referred to Magistrate Judge Turnoff. The parties briefed the fees issue extensively. On February 13, 1998, Judge Turnoff held a hearing on the fees petition. During the hearing, Complete Dewatering argued that the Commission' position was not substantially justified because Winnemore "was fired by Fred Share in March and not by Steve Mogle a month or two later as they would contend. And that's critical, because the only evidence whatsoever to any discriminatory animus anywhere in the record of this case is one comment made by Mogle." Doc.157-Pg.9. The Commission rejoined that it was "confusing" for Complete Dewatering to focus on the "date of termination and the [identity of the] decision maker" given the fact that "when the defendant itself provided a position statement to the EEOC [it] admit[ted] that Steve Mogle made that decision as well. Steve Mogle made the March 30th decision to change [to the commission-only] pay plan, and Steve Mogle made the termination decision in May." Doc.157-Pg.19. The Commission also referred to the extensive evidence linking Mogle to the decisional process, as well as the evidence supporting the Commission's case under a circumstantial evidence theory. On the latter point, the Commission stressed that it had substantial evidence of Winnemore's replacement by younger individuals. The Commission urged that both Timothy Fruits and Robert Freeze could be considered Winnemore's replacements and added that "even if that were not true, defendant admits that Dominic [Cipully], who was there under Al Winnemore, took over Al Winnemore's job after he left. And Dominic [Cipully] again is substantially younger than Al Winnemore."<9> Doc.157-Pg.21. Judge Turnoff issued a report, recommending that Complete Dewatering's petition for attorney's fees be denied. Judge Turnoff first noted that the Commission made "a very persuasive argument" that the EAJA's "substantially justified" standard does not apply to the Commission's ADEA actions insomuch as "the ADEA contains its own fee shifting provision which only allows for a reasonable fee award to be paid to prevailing plaintiffs," meaning that "[f]ees can only be awarded to prevailing defendants . . . under the bad faith exception to the American Rule." Doc.131-Pg.4. Judge Turnoff determined, however, that it was unnecessary to reach this issue, concluding that Complete Dewatering was "not entitled to fees under the EAJA, even if the Statute applies, because the government's position was substantially justified." Doc.131-Pg.5. In finding that the Commission's position was "substantially justified," Judge Turnoff cited the direct evidence of discrimination advanced by the Commission. Judge Turnoff noted that the "Defendants' primary argument in support of their position that the government pursued this case absent substantial justification is that Mr. Mogle was not the actual 'decision maker' who terminated Mr. Winnemore." Doc.131-Pg.7. Although finding some "evidence in the record" to support Complete Dewatering's argument "that Mr. Winnemore was terminated by an individual named Fred Share on March 30, 1990," Judge Turnoff determined that "the record, when evaluated as a whole, [was] not completely lucid." Doc.131-Pg.7. Judge Turnoff cited Winnemore's testimony "that although he had been placed on commission and his salary had been terminated as of March 30, 1990, he wasn't actually terminated from employment until May, 1990, by Mr. Mogle." Doc.131-Pgs.7-8. Judge Turnoff also pointed to the Commission's evidence that "Mr. Mogle was intimately involved in the decision made by Mr. Share in March to change Mr. Winnemore's compensation package." Doc.131-Pg.8. Alternatively, Judge Turnoff found that the Commission was substantially justified in pursuing its claim "through circumstantial evidence of discriminatory intent." Doc.131-Pg.8. In Judge Turnoff's view, the Commission "proffered colorable evidence that [Complete Dewatering] hired replacements for Mr. Winnemore's position and, thus, payroll expenses were not cut" as a result of Winnemore's termination. Doc.131-Pg.8. Complete Dewatering filed objections to Judge Turnoff's report. These objections were filed with the same district court judge, Judge King, who had entered the order granting summary judgment in favor of Complete Dewatering. Judge King overturned Judge Turnoff's recommendation. Judge King agreed with Complete Dewatering that the EAJA's "substantially justified" standard "governs this case," rejecting the Commission's argument that the "substantially justified" standard does not apply to the Commission's ADEA actions. Doc.135-Pg.13. Judge King ruled that the Commission was not substantially justified in believing that Mogle played a role in the decision to terminate Winnemore because the Commission was "keenly aware that Winnemore had been terminated by Share on March 30, 1990." Doc.135-Pg.7. Judge King noted Judge Turnoff's finding that the Commission "presented competent evidence that Mogle was 'intimately involved' in Share's decision to change Winnemore's compensation package [in March 1990]" but stated that "the only evidence presented by the EEOC was Winnemore's speculation that Mogle may have been involved in that decision." Doc.135-Pg.6. In reaching this conclusion, Judge King did not make reference to Winnemore's testimony that Share informed him, point blank, that "Mogle had made the decision that they could phase this out and go into an independent contractor deal." Doc.71-Pg.61. With respect to the Commission's circumstantial evidence, Judge King reiterated his conclusion, from the merits stage, that the Commission's evidence of Winnemore's replacement by Timothy Fruits was based on "speculation and hearsay." Doc.135-Pg.8. Judge King made no reference to the evidence of Winnemore being replaced by Cipully, on an interim basis, and Freeze on a permanent basis. 5. Standard Of Review This case involves an award of attorney's fees under the EAJA. The central issue in this appeal -- whether the EAJA's "substantially justified" standard applies to ADEA actions brought by the Commission -- is legal in nature, involving the proper interpretation of the EAJA and the ADEA. This Court reviews such a legal issue de novo. See Bishop v. Reno, 210 F.3d 1295, 1298 (11th Cir. 2000). The district court's determination that the Commission did not satisfy the "substantially justified" standard in this case is reviewed under an abuse of discretion standard. See United States v. Jones, 125 F.3d 1418, 1424-25 (11th Cir. 1997). A court abuses its discretion, in awarding attorney's fees to a prevailing defendant in a civil rights case, when "the record does not support the decision to grant fees." EEOC v. Reichhold Chems., Inc., 988 F.2d 1564, 1572 (11th Cir. 1993) (reversing the award of attorney's fees to a prevailing defendant). SUMMARY OF ARGUMENT The EAJA's "substantially justified" standard does not apply to the Commission's ADEA actions. By its plain terms, the "substantially justified" standard does not apply where the underlying statute has its own fee-shifting provision. The ADEA contains a specific fee-shifting provision that severely restricts the award of attorney's fees to prevailing defendants. In enacting the EAJA, Congress made clear that it intended to except civil rights statutes from the reach of the EAJA's "substantially justified" standard, since those statutes contain special fee-shifting rules designed to encourage the vigorous enforcement of federal law. Based on this evidence of congressional intent, courts have uniformly concluded that the EAJA's "substantially justified" standard does not apply to the Commission's actions under Title VII of the Civil Rights Act of 1964. Subjecting the Commission's ADEA actions, but not its Title VII actions, to the reach of the EAJA's "substantially justified" standard would lead to anomalous results that could not have been intended by Congress. Even assuming that the "substantially justified" standard applies to the Commission's ADEA actions, an award of fees is not proper in this case. First, the Commission's position in this case was "substantially justified." Despite its defeat on the merits, the Commission had a reasonable basis in law and fact for maintaining its ADEA action. In addition, the EAJA contains a "special circumstances" exception to the award of attorney's fees. That exception applies in this case, given the evidence of Complete Dewatering's bad faith. Complete Dewatering misled the court by failing to acknowledge its prior admission that Mogle was involved in the decision to terminate Winnemore's employment and by failing to acknowledge its prior admissions that Cipully and Freeze were replacements for Winnemore. ARGUMENT THE DISTRICT COURT ERRED IN AWARDING ATTORNEY'S FEES TO COMPLETE DEWATERING UNDER THE EAJA'S "SUBSTANTIALLY JUSTIFIED" STANDARD. A. The Commission's ADEA Actions Are Not Subject To The EAJA's "Substantially Justified" Standard The threshold legal issue raised by this appeal concerns the applicability of the EAJA to ADEA actions brought by the Commission. The EAJA has two provisions that regulate the award of attorney's fees in judicial actions. Subsection (b) of the EAJA, 28 U.S.C. §2412(b), provides that "[u]nless expressly prohibited by statute," the "United States shall be liable for [attorney's] fees and expenses to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award." Subsection (d) of the EAJA, 28 U.S.C. § 2412(d), provides that "[e]xcept as otherwise specifically provided by statute," a court "shall award to a prevailing party other than the United States [attorney's] fees and other expenses" incurred in any civil action "brought by or against the United States . . . unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." Subsection (d) authorizes fees on behalf of a business "the net worth of which did not exceed $7,000,000 at the time the civil action was filed, and which had not more than 500 employees at the time the civil action was filed." 28 U.S.C. § 2412(d)(2)(B)(ii). Businesses with a net worth in excess of $7,000,000 or with more than 500 employees do not qualify for fees under the "substantially justified" standard. There is no dispute that, by virtue of subsection (b) of the EAJA, the Commission is liable for attorney's fees under the same standard applicable to cases in which an ADEA defendant prevails in private litigation. See EEOC v. Hendrix College, 53 F.3d 209, 210-11 (8th Cir. 1995). As discussed below, that standard is the "bad faith" standard. Id. In this case, Complete Dewatering has not invoked the "bad faith" standard. Instead, Complete Dewatering seeks its fees under the "substantially justified" standard of subsection (d) of the EAJA. The Commission concedes that Complete Dewatering meets the qualifying threshold for the award of fees under the "substantially justified" standard, i.e., has less than 500 employees and a net worth that does not exceed $7,000,000. The question is whether the "substantially justified" standard, ab initio, applies to the Commission's ADEA actions. i. The ADEA Contains A Specific Fee-Shifting Provision That Severely Restricts The Award Of Attorney's Fees To Prevailing Defendants The ADEA was passed in 1967, three years after Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). As in the case of Title VII, the ADEA contains an elaborate pre-suit procedure designed to facilitate the consensual resolution of an individual's complaint of discrimination. An ADEA claimant must first file a charge of discrimination with the Commission. See 29 U.S.C. § 626(d). The Commission may not bring suit on that charge until it first attempts "to eliminate the discriminatory practice or practices alleged, and to effect voluntary compliance with the requirements of [the Act] through informal methods of conciliation, conference, and persuasion." 29 U.S.C. § 626(b). Since 1978, the ADEA has been enforced by the Commission under the same basic procedures that apply to the Commission's enforcement of Title VII. See Rebecca Hanner White, The EEOC, The Courts, and Employment Discrimination Policy: Recognizing the Agency's Leading Role in Statutory Interpretation, 1995 UTAH L. REV. 51, 66-68 (1995) (noting that the 1978 Reorganization Plan "transferred ADEA enforcement authority to the EEOC, 'granting to a single agency broad authority and responsibility for Federal fair employment policy and enforcement'"). Like most civil rights statutes, the ADEA contains its own fee-shifting provision. That provision, borrowed from the Fair Labor Standards Act, states that a court "shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant." 29 U.S.C. § 626(b) (incorporating 29 U.S.C. § 216(b)). The ADEA's fee-shifting provision mandates an award of attorney's fees to a prevailing plaintiff; it does not expressly provide for an award of attorney's fees to a prevailing defendant. Nevertheless, courts have held that the ADEA permits an award of attorney's fees to a prevailing defendant under the "bad faith" exception to the "American Rule" on fees. See, e.g., Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1437 (11th Cir. 1998). Thus, in litigation under the ADEA, a prevailing defendant is entitled to its attorney's fees "upon a finding that the plaintiff litigated in bad faith." Id. There are two important features of the ADEA's fee-shifting provision. First, the ADEA evinces a clear bias against the award of attorney's fees to prevailing defendants. The ADEA expressly directs district courts to award attorney's fees to prevailing plaintiffs. The ADEA could have provided the same direction with respect to the award of attorney's fees to prevailing defendants. Instead, the ADEA draws a sharp distinction between prevailing plaintiffs and defendants, authorizing fee awards to prevailing defendants only under the "bad faith" standard. The ADEA, in this regard, adopts an even more stringent standard for the award of attorney's fees to prevailing defendants than the standard of "frivolous, unreasonable, or without foundation," applicable to actions under Title VII. See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 418-23 (1978) (contrasting the "bad faith" standard and the somewhat more lenient standard applicable under Title VII); Turlington, 135 F.3d at 1437 n.19 (stressing that the ADEA's "bad faith" standard is a more difficult standard for defendants to meet than the Christiansburg standard). On the other hand, while the ADEA differs from Title VII in the degree to which it limits the award of attorney's fees to prevailing defendants, the ADEA's fee-shifting provision reflects the same enforcement objectives that underlie Title VII's fee-shifting provision. In Christiansburg Garment, the Supreme Court adopted a dual standard for the award of attorney's fees to prevailing parties in Title VII cases. The Court ruled that a prevailing Title VII plaintiff "is to be awarded attorney's fees in all but special circumstances." 434 U.S. at 417. In contrast, a prevailing Title VII defendant is to be awarded attorney's fees only "upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation." Id. at 421. The Court stressed that this dual standard was necessary "to promote the vigorous enforcement of the provisions of Title VII."<10> Id. at 422. The ADEA codifies just such a dual standard. See Monroe v. Children's Home Ass'n of Illinois, 128 F.3d 591, 594 (7th Cir. 1997) (noting that the ADEA adopts the same "asymmetric" approach to fee shifting as other civil rights laws; "[p]revailing plaintiffs recover their fees routinely, while defendants recover only [in limited circumstances]"). The only difference is that the ADEA takes the matter one step further by relegating prevailing defendants to the highly restrictive "bad faith" standard. As one court has put the matter, Congress "chose its words carefully" in the ADEA, authorizing the award of attorney's fees to prevailing plaintiffs while curtailing substantially "the recovery of attorney's fees by an employer who has successfully defended himself against an accusation of age discrimination." Richardson v. Alaska Airlines, Inc., 750 F.2d 763, 767 (9th Cir. 1984). ii. By Its Plain Terms, The EAJA's "Substantially Justified" Standard Does Not Apply To Statutes, Such As The ADEA, That Have Specific Fee-Shifting Provisions Since the ADEA contains its own fee-shifting provision, the Commission's ADEA actions are subject to the EAJA's "substantially justified" standard only if that standard overrides the ADEA's specific fee-shifting provision. There is no evidence that Congress intended such a statutory override. To the contrary, by its plain terms, the EAJA's "substantially justified" standard does not apply to statutes, such as the ADEA, that have specific fee-shifting provisions. Subsection (d) of the EAJA, 28 U.S.C. § 2412(d), provides for the award of attorney's fees in certain cases in which the position of the United States is not "substantially justified." Subsection (d), however, contains a critical caveat. The subsection applies "[e]xcept as otherwise specifically provided by statute." This language makes clear that not all statutes are subject to the "substantially justified" standard. In particular, the "substantially justified" standard does not apply to those statutes that "otherwise specifically provide[]" for fee-shifting, i.e., those with their own fee-shifting provisions. It is instructive to contrast the language of subsection (d) with the parallel language of subsection (b). Subsection (b) waives the immunity of the United States. The subsection makes the United States liable for attorney's fees "to the same extent that any other party would be liable." 28 U.S.C. § 2412(b). Subsection (b) has its own caveat but one that differs from the subsection (d) caveat. Specifically, subsection (b) applies "[u]nless expressly prohibited by statute." Id. Subsection (b) broadly subjects the United States to an award of attorney's fees -- under the same standard applicable to a similarly-situated private litigant -- except in the rare case in which a statute specifically states that fees are not to be awarded against the United States. Subsection (d) does not have the expansive reach of subsection (b). Subsection (d) excepts from its reach any statute that contains its own fee-shifting provision. Subsection (d) applies when there is no other fee-shifting statute in play. It does not supersede existing fee-shifting statutes. This view of the scope of subsection (d) is further supported by the EAJA's "savings" provision. That provision, originally enacted as Section 206 of Public Law 96-481, provides as follows: Nothing in section 2412(d) of title 28, United States Code, as added by section 204(a) of this title, alters, modifies, repeals, invalidates, or supersedes any other provision of Federal law which authorizes an award of such fees and other expenses to any party other than the United States that prevails in any civil action brought by or against the United States. Pub. L. No. 96-481, § 206, 94 Stat. 2325, 2330 (1980) (lapsed), as reenacted by Pub. L. No. 99-80, § 3, 99 Stat. 184, 186 (1985). Together with the language of subsection (d) itself, this provision makes clear that subsection (d) prohibits the "substantially justified" standard "from either narrowing or broadening the award of fees allowed by other provisions of federal law." Huey v. Sullivan, 971 F.2d 1362, 1367 (8th Cir. 1992). Finally, well-established canons of statutory construction confirm that the general standard of subsection (d) does not trump the specific fee-shifting provisions of other federal statutes. "Where one statute deals with a subject in general terms, and another deals with a part of the same subject in a more [specific] way, the two should be harmonized if possible." 2B N. SINGER, SUTHERLAND'S STATUTORY CONSTRUCTION § 51.05 at 174 (5th ed. 1992). Where, however, there is a conflict, the more specific statute will prevail, "regardless of whether it was passed prior to the general statute, unless it appears that the legislature intended to make the general act controlling." Id. (noting that a general statute does not supersede a prior specific statute unless the more specific statute "'is repealed in general words or by necessary implication'"). In this case, the EAJA is a general fee-shifting statute. That statute must give way to specific fee-shifting statutes pre-dating its enactment unless it appears that Congress "intended to make the [EAJA] controlling" vis a vis those statutes. Id. No such intent is apparent on the face of the EAJA. To the contrary, the EAJA makes manifestly clear that more specific fee-shifting statutes are not to be affected by the EAJA's "substantially justified" standard. The ADEA is precisely the type of statute that lies outside the reach of the EAJA's "substantially justified" standard. The ADEA has its own fee-shifting provision. That provision reflects an intent to encourage the vigorous enforcement of the ADEA by mandating an award of attorney's fees to prevailing plaintiffs, while severely restricting the award of attorney's fees to prevailing defendants. Applying the EAJA's "substantially justified" standard to the ADEA would thwart the pro-enforcement objectives of the ADEA's fee-shifting provision. Plainly, the ADEA "otherwise specifically provide[s]" for fee-shifting and, thus, is not affected by the EAJA's "substantially justified" provision. iii. The EAJA's Legislative History Confirms That Congress Intended To Except Statutes With Specific Fee-Shifting Provisions, Particularly Civil Rights Statutes Such As The ADEA, From The Reach Of The EAJA's "Substantially Justified" Standard Although the text of the EAJA is clear enough in placing the ADEA beyond the reach of the EAJA's "substantially justified" standard, the EAJA's legislative history removes any doubt on the point. The EAJA was enacted into law in 1980. The EAJA's enactment followed several years of legislative debate on the issue. Much of this debate focused on the proper reach of the EAJA and its relationship to other fee-shifting statutes. The EAJA's legislative record is replete with statements to the effect that civil rights statutes, such as the ADEA, were not to be affected by the EAJA's "substantially justified" standard. From the earliest stages of the legislative process, concerns were expressed that the EAJA might have the effect of deterring the vigorous enforcement of civil rights statutes. In a hearing held on one of the EAJA's legislative antecedents, witnesses focused on language that would have made the United States liable for attorney's fees in actions brought under the Age Discrimination Act of 1975, which authorizes government suits against recipients of federal funds who discriminate on the basis of age. See Awarding of Attorneys' Fees in Federal Courts: Hearings Before the Subcommittee on Courts, Civil Liberties, and the Administration of House Committee on the Judiciary, 95th Cong. 126 (1977-78). These witnesses expressed the concern that subjecting the United States to attorney's fees in these cases would "almost certainly hinder effective enforcement of the anti-age discrimination provisions of the Age Discrimination Act of 1975" by "deter[ring] federal agencies from becoming involved in litigation aimed at enforcing [that Act]." Id. at 125. In subsequent hearings, the focus shifted to the "substantially justified" standard itself. Representatives of public interest groups complained that broad application of that standard could have a "chilling effect" on "vigorous" prosecution of "civil rights violations." Award of Attorneys' Fees Against the Federal Government: Hearings Before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the House Committee on the Judiciary, 96th Cong. 92 (1980). Repeatedly, the EAJA's sponsors assured objectors that the "substantially justified" standard would not supersede the well-established fee-shifting rules for civil rights cases. In hearings held before the Senate Judiciary Committee, a witness opined that the proposed legislation could have an impact on "civil rights matters." Equal Access to Justice Act of 1979, S. 265: Hearings Before the Subcomm. on Improvements in Judicial Machinery of the Senate Committee on the Judiciary, 96th Cong. 56 (1979). Senator DeConcini, the EAJA's chief sponsor, commented that fee-shifting was already "provided in the law" for those cases. Id. The witness concurred in Senator DeConcini's understanding that "employment discrimination" cases would be excepted from the "substantially justified" standard. Id. In a similar vein, Senator Kennedy expressed concerns "in committee" about "the bill's potential impact on vigorous regulation." 125 Cong. Rec. 21444 (July 31, 1979). These concerns were assuaged by "the distinguished Senator from Arizona [DeConcini]," who agreed to the "understandings reflected in the committee report," understandings that, in Senator Kennedy's view, "adequately preserve[d] the integrity of the enforcement process." Id. One of these "understandings" was that "statutes, such as the Freedom of Information Act and civil rights laws, which contain special fee-shifting provisions remain unaffected by this measure, even if the standard for awarding fees under the statute has evolved through case law and is not set out in the statute itself." Id. at 21445. Senator DeConcini confirmed Senator Kennedy's understanding of the EAJA's scope in subsequent testimony before a House committee. According to Senator DeConcini: In the federal courts, the bill[] appl[ies] to most civil actions. Again, however, there are exceptions. Tort actions are excluded because the economic deterrents to litigate are not as great an obstacle in these cases. Moreover, the bill will not replace or supersede any existing fee-shifting statute such as the Freedom of Information Act, the Civil Rights Act, and the Voting Rights Act, or alter the case law governing those Acts. Award of Attorneys' Fees Against the Federal Government: Hearings Before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the House Committee on the Judiciary, at 24. The relevant committee reports reflect this view of the EAJA's scope. The House Committee Report clarifies that subsection (d) does not apply to civil actions "already covered by existing fee-shifting statutes." H.R. Rep. No. 96-1418, 96th Cong., 2d Sess. 18 (1980), reprinted in 1980 U.S.C.C.A.N. 4984, 4997. In a critical passage, the Report states that subsection (d) "is not intended to replace or supersede any existing fee-shifting statutes such as the Freedom of Information Act, the Civil Rights Acts, and the Voting Rights Act in which Congress has indicated a specific intent to encourage vigorous enforcement, or to alter the standards or the case law governing those Acts." Id. (emphasis added). The Senate Committee Report contains identical language. See S. Rep. No. 96-253, 96th Cong., 1st Sess. 20 (1979); see also H.R. Rep. No. 96-1005, 96th Cong., 2d Sess. 18 (1980) (noting that subsection (d) "applies to all civil actions except tort actions and those already covered by existing fee-shifting statutes"). Of course, Congress passes statutes, not legislative histories, and one must be wary of allowing legislative history to substitute for text. See Blanchard v. Bergeron, 489 U.S. 87, 97-100 (1989) (Scalia, J., concurring) (discussing the ways in which committee reports and floor statements can be manipulated by those unable to obtain consensus for their position). In this case, however, the statements in the legislative record are not divorced from the relevant text. They relate directly to the meaning of the caveat in subsection (d) and the "savings" clause of Section 206, thus elucidating, rather than trumping, the text. It could not be more clear that Congress intended to place civil rights statutes such as the ADEA, with fee-shifting provisions designed to promote the vigorous enforcement of the statute, outside the reach of the EAJA's substantially justified standard. iv. Subjecting The Commission's ADEA Actions To The "Substantially Justified" Standard Would Lead to Anomalous Results That Could Not Have Been Intended By Congress The text and history aside, there is an additional reason for construing the "substantially justified" standard as not applying to the Commission's ADEA actions. The Commission enforces a number of anti-discrimination statutes, including both the ADEA and Title VII. Several courts have addressed the legal issue raised by this appeal in the Title VII context. These courts have uniformly held that the EAJA's "substantially justified" standard does not apply to the Commission's Title VII actions. See EEOC v. Consolidated Serv. Sys., 30 F.3d 58, 59 (7th Cir. 1994); EEOC v. Kimbrough Inv. Co., 703 F.2d 98, 103 (5th Cir. 1983); EEOC v. Northwest Structural Components, Inc., 897 F. Supp. 249, 250-51 (M.D.N.C. 1995); cf. Huey, 971 F.2d at 1366-67 (refusing to apply subsection (d) of the EAJA to the claim of a prevailing Title VII plaintiff in an action against a government agency). This established precedent provides strong support for the view that Congress intended the Commission to litigate its ADEA cases unencumbered by the EAJA's "substantially justified" standard. The ADEA was enacted in 1967 "as part of an ongoing congressional effort to eradicate discrimination in the workplace" and is "but part of a wider statutory scheme to protect employees in the workplace nationwide," a scheme that includes both the ADEA and Title VII. McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 357 (1995). "The ADEA and Title VII share common substantive features and also a common purpose: 'the elimination of discrimination in the workplace.'" Id. at 358. The Commission's "enforcement responsibilities under the ADEA [are] virtually identical to its responsibilities under Title VII." Rebecca Hanner White, supra, p.68. In deciding whether to litigate an ADEA case, the Commission is guided by the same considerations that guide its litigation decisions under Title VII. If Congress intended to except the Commission's Title VII actions from the reach of the EAJA's "substantially justified" standard, it surely intended to except the Commission's ADEA actions from the reach of that standard. In the district court, Complete Dewatering argued that the EAJA's "substantially justified" standard can be tailored to fit within the ADEA's fee-shifting framework, even if it does not apply to the Commission's Title VII actions, because Title VII's fee-shifting provision expressly allows for fees to any "prevailing party" (plaintiff or defendant) while the ADEA's "is silent as to the provision of attorney's fees to prevailing defendants." Doc.135-Pgs.10-11. It is true that, in contrast to Title VII, the ADEA expressly authorizes the award of attorney's fees to prevailing plaintiffs only. This does not change the fact, however, that the ADEA has its own fee-shifting provision. That provision reflects the same dual standard that the Supreme Court read into Title VII in Christiansburg Garment, albeit with even less protection for the prevailing defendant than that afforded under the Christiansburg standard (the ADEA defendant being limited to the "bad faith" standard). See Monroe, 128 F.3d at 594 (linking the policies of the ADEA's dual standard on fee-shifting with those of the Christiansburg standard); Hoover v. Armco, Inc., 915 F.2d 355, 358 (8th Cir. 1990) (McMillan, J., concurring in part, dissenting in part) (noting that the ADEA's "bad faith" standard serves the same purpose as the Christiansburg standard; it ensures that putative plaintiffs are not "chilled" from bringing suit); Freeman v. Package Mach. Co., 865 F.2d 1331, 1347 (1st Cir. 1988) (stating that "[i]nsofar as cost-shifting is concerned," the ADEA is a "sister[] under the skin" with other civil rights statutes; Congress viewed the ADEA as a "'civil rights' type" of statute "similar to earlier, more traditional [civil rights] enactments"). There is no reason to think that, in enacting the EAJA's "substantially justified" standard, Congress intended to treat the ADEA and Title VII differently merely because the ADEA's fee-shifting provision does not expressly reference an award of fees to prevailing defendants. Indeed, if anything, the distinction cited by Complete Dewatering supports a contrary argument, i.e., application of the "substantially justified" standard is even less appropriate under the ADEA's fee-shifting provision. The ADEA was passed three years after Title VII. In crafting the ADEA's fee-shifting provision, Congress could have employed the "prevailing party" terminology used in Title VII. Congress chose not to do so. Instead, Congress chose, quite deliberately, to limit the award of attorney's fees to prevailing plaintiffs, reflecting "an intention to impose the additional burden of paying attorney's fees only on employers who violate the statute," Richardson, 750 F.2d at 767, except in cases where the ADEA action is maintained in bad faith. The EAJA must be read against the backdrop of the "carefully" chosen words in the ADEA's fee-shifting provision, distinguishing between prevailing plaintiffs and defendants. Id. Given the pro-plaintiff bias apparent on the face of the ADEA's fee-shifting provision, it would be a perverse result to subject the Commission's ADEA actions, but not its Title VII actions, to the reach of the EAJA's "substantially justified" standard. The principal objective of statutory interpretation is to produce a statutory scheme that is "'coherent and consistent.'" Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). If at all possible, statutes on the same subject matter "are construed to be in harmony." 2B N. SINGER, SUTHERLAND'S STATUTORY CONSTRUCTION § 51.02, at 122. The ADEA and Title VII share "a common purpose" (McKennon, 513 U.S. at 358) and have similar fee-shifting provisions, designed to ensure the vigorous enforcement of the statute. The EAJA should be interpreted in a manner that preserves (and harmonizes) the pro-enforcement objectives of the fee-shifting provisions under both the ADEA and Title VII. v. The Circuit Court Authority Applying The EAJA's "Substantially Justified" Standard To The Commission's ADEA Actions Is Unpersuasive Despite the above arguments, two circuit courts have held that the EAJA's "substantially justified" standard applies to the Commission's ADEA actions. See EEOC v. O & G Spring and Wire Forms Specialty Co., 38 F.3d 872 (7th Cir. 1994); EEOC v. Clay Printing Co., 13 F.3d 813 (4th Cir. 1994). These decisions are not persuasive and should not be followed by this Court. Neither decision offers a coherent interpretation of the phrase "[e]xcept as otherwise specifically provided by statute," as used in subsection (d). Neither decision addresses the meaning of the EAJA's "savings" provision. Neither decision offers a persuasive rationale for permitting the "substantially justified" standard to override the ADEA's fee-shifting provision. In the O & G Spring case, the court stressed that the Commission had conceded (as it does here) that "EAJA sec. 2412(b) (the bad faith standard) applies to the ADEA," while maintaining that "the ADEA preempts application of sec. 2412(d) (the substantial justification standard)." 38 F.3d at 883. The court found this distinction "untenable" because "[t]he ADEA either preempts application of EAJA sec. 2412 or it does not." Id. The court's analysis ignores the critical distinction in the language of the two subsections. Subsection (b) applies "[u]nless expressly prohibited by statute," language that qualifies the application of the subsection only to the extent that another federal statute expressly prohibits an award of fees against the United States. Subsection (d), in contrast, applies "[e]xcept as otherwise specifically provided by statute," language that excepts any statute with its own fee-shifting standard. A primary objective of the EAJA is to hold the United States "to the same standards in litigating as private parties." S. Rep. No. 96-253, 96th Cong., 1st Sess. at 4. Applying subsection (b) of the EAJA, thereby subjecting the Commission's ADEA actions to the same "bad faith" standard that applies in private litigation under the ADEA, achieves that objective. Applying subsection (d) of the EAJA, in opposition to the ADEA's own fee-shifting standard, does not. B. The Commission Satisfied The "Substantially Justified" Standard In This Case For the foregoing reasons, the EAJA's "substantially justified" standard does not apply to the Commission's ADEA actions. Accordingly, that standard does not provide a basis for awarding attorney's fees in this case. Even assuming, however, that the "substantially justified" standard may be applied to the Commission's ADEA actions, the Commission satisfied that standard on the facts of this case. Under the EAJA, the "government bears the burden of showing that its position was substantially justified." City of Brunswick, Ga. v. United States, 849 F.2d 501, 504 (11th Cir. 1988). To be "substantially justified," the government's position must be "'justified in substance or in the main' -- that is, justified to a degree that could satisfy a reasonable person." Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantially justified "does not mean a large or considerable amount of evidence, but rather 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. A "position can be justified even though it is not correct, and . . . can be substantially (i.e., for the most part) justified if a reasonable person could think it correct, that is, if it has a reasonable basis in law and fact." Id. at 566 n.2. Although the government bears the burden of proving that its case is "substantially justified," the "fact that the government lost its case does not raise a presumption that the government's position was not substantially justified." White v. United States, 740 F.2d 836, 839 (11th Cir. 1984). "It would be a war with life's realities to reason that the position of every loser in a lawsuit upon final conclusion was unjustified." Evans v. Sullivan, 928 F.2d 109, 110 (4th Cir. 1991). Even a finding that the government's underlying action was "arbitrary and capricious" does "not necessarily mean that the government acted without substantial justification." Griffon v. United States Dep't of Health and Human Servs., 832 F.2d 51, 52 (5th Cir. 1987). At the EAJA stage, "the court is not wedded to the underlying judgment on the merits in assessing either the Government's litigation position or its underlying conduct." Federal Election Comm'n v. Rose, 806 F.2d 1081, 1087 (D.C. Cir. 1986). To the contrary, "Congress' inclusion of the discrete legal standard makes clear that an independent evaluation through an EAJA perspective is required." Id. "Only through a fresh look occasioned by application of the 'substantially justified' standard can the court honor Congress' intent, manifest in the inclusion of this standard, not to permit a prevailing party automatically to recover fees." Id.; accord Broussard v. Bowen, 828 F.2d 310, 312 (5th Cir. 1987); Thigpen v. Chater, 1996 WL 197477, *1 (N.D. Ill. 1996); see also Christiansburg Garment Co., 434 U.S. at 421-22 (urging courts to "resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable"). In this case, the Commission proceeded under alternative theories of direct and circumstantial evidence. The Commission's direct evidence case was based on statements made by Steve Mogle. Among other things, the Commission had evidence that Mogle was asked by another company official why Winnemore, a "good man," had been terminated. Doc.77-Pg.17. Mogle responded that he had "let [Winnemore] go" because Winnemore was "over the hill." Doc.77-Pgs.16-18. The term "over the hill" has an obvious connection to protected group status under the ADEA. See NEW DICTIONARY OF AMERICAN SLANG 311 (1986) (defining "over the hill" as meaning "[m]iddle-aged or past middle age: I turned forty yesterday, so I guess I'm over the hill"). The district court ruled that the Commission's position in this case was not "substantially justified," despite this proof, because the Commission was "keenly aware" that Winnemore had been terminated by Fred Share, not Mogle, "on March 30, 1990." Doc.135-Pg.7. The Commission was aware of nothing of the sort. First, there is a good faith dispute in this case whether Winnemore was terminated in March 1990, when Complete Dewatering began paying him on a commission-only basis,<11> or May 1990, when Mogle formally rejected Winnemore's counterproposal, instructed him to "clean out [his] desk" because "[w]e just don't need you any longer," and informed him that the company had "just replaced [him]" with "a man in your office down there now that Frank Hornbrook took down to introduce him to Dominic [Cipully]." Doc.71-Pg.49. See Thomas v. Dillard Dep't Stores, Inc., 116 F.3d 1432, 1434 & n.4 (11th Cir. 1997) (ruling that a termination occurs when an employer "manifest[s] a clear intention to dispense with an employee's services"). Even assuming, moreover, that the termination took place in March 1990, there is compelling evidence that Mogle played a role in the events of that month. Mogle was hired in February 1990. Doc.72-Pgs.14,36-37; Doc.73-Pgs.16,24. Mogle played an active role in employment decision-making during the months of February and March, making recommendations that resulted in the termination of some 40 employees. Doc.73-Pg.16. When Share met with Winnemore in March 1990, Mogle was with Share. Doc.73-Pg.27. Share specifically told Winnemore, during their meeting, that Mogle was the man behind the commission-only payment idea. Doc.71-Pg.61. Given this evidence, directly linking Mogle to the events of March 1990, the Commission had a reasonable basis in fact for proceeding under a direct evidence theory. The Commission also had a reasonable basis for proceeding under a circumstantial evidence theory. Complete Dewatering claimed that it let Winnemore go because it needed to eliminate his position in order to "cut fixed costs in the form of payroll expenditures." Doc.66-Pg.13. Yet, the undisputed evidence shows that Winnemore's branch manager position was not eliminated. Initially, the company placed Timothy Fruits in the branch manager position. When Fruits left the scene, the company assigned Dominic Cipully to the position. Finally, the company hired Robert Freeze to fill the branch manager position on a permanent basis. See supra pp. 9-10 (describing the replacement history for Winnemore's position). Each of these individuals was substantially younger than Winnemore. Although Complete Dewatering claimed that it needed to put somebody in the branch manager position who was willing to be paid on a commission-only basis, Doc.66-Pg.19, none of these individuals was paid on a commission-only basis. See supra p. 10. Robert Freeze, in fact, was compensated at a level twice that of Winnemore. Id. Taken together, this evidence supports a textbook case of discrimination under a McDonnell Douglas or circumstantial evidence theory. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). At the merits stage, this Court ruled that the Commission's evidence was insufficient to either make out a prima facie case of discrimination or raise a question of fact on the issue of pretext. The Commission, however, had reasonable grounds for believing otherwise. This Court held, for example, that Fruits could not be viewed as Winnemore's replacement because, in this Court's view, the "duties of the two men were completely different."<12> Slip op. at 6. In fact, there is evidence that Fruits assumed many of Winnemore's duties as branch manager. Doc.76-Pgs.15-17,61. Further, whatever Fruits may have done in the few weeks that he worked at the job, there is evidence, straight from the mouths of Complete Dewatering's officials, that Fruits was hired as Winnemore's replacement. See supra p. 9. The Commission was justified in believing that this evidence would suffice to satisfy the replacement element of its prima facie case. This Court also held that Cipully could not be viewed as Winnemore's replacement because the "management aspects [of Winnemore's job] became part of Cipully's job and the sales aspects became part of [Frank] Hornbrook's duties." Slip op. at 8. There is evidence that Cipully assumed both the sales and management aspects of Winnemore's job, with Hornbrook being assigned additional sales duties. See supra n.8. The Commission was justified in relying upon that evidence. The Commission was also justified in relying upon prior Eleventh Circuit case law, holding that the replacement element of the prima facie case is satisfied when an existing employee assumes some of the displaced employee's duties. See Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir. 1987); see also Tinker v. Sears, Roebuck & Co., 127 F.3d 519, 522 (6th Cir. 1997) (evidence that an existing employee was shifted into a vacant position satisfies the "replacement" element where the employee was required "to perform duties for which he had not been responsible in his prior position"). In a similar vein, this Court held that Freeze could not be viewed as Winnemore's replacement because, even though "he was hired as a salaried employee and performed both the managerial and sales responsibilities of the branch manager job," he "was hired ten months after Winnemore was terminated" by "a different decision maker, Mogle, than the man who terminated Winnemore in March of 1990." Slip op. at 9-10. There is evidence that Mogle was in fact the individual behind the decision to terminate Winnemore's employment. There is also Eleventh Circuit authority holding that a gap of some eight months, between termination and replacement, does not deprive the replacement evidence of its probative value. See Benson v. Tocco, Inc., 113 F.3d 1203, 1211-12 (11th Cir. 1997). Other courts have recognized, moreover, that employment decision-making often takes the form of a "'chain-reaction' replacement," where an employee is "phased out in favor of one or more much younger men," precisely what occurred in this case. E.g., Garrett v. Firestone Tire & Rubber Co., 50 FEP Cases 233, 235, vacated in part on other grounds, 50 FEP Cases 238 (D.N.J. 1989). Again, the Commission was justified in believing that it could rely upon this authority in pressing its circumstantial evidence theory. No doubt, the Commission did not fare well at the merits stage of the case. At the EAJA stage, however, this Court is not wed "to the underlying judgment on the merits." Rose, 806 F.2d at 1087. This Court is required to take a "fresh look" at the evidence "through an EAJA perspective." Id. The Commission respectfully submits that the evidence on which it relied in this case clears the substantially justified hurdle. C. The EAJA's "Special Circumstances" Exception Applies In This Case Finally, even assuming that the "substantially justified" standard applies in this case and would otherwise support an award of attorney's fees to Complete Dewatering, fees should be denied under the EAJA's "special circumstances" exception. Subsection (d) of the EAJA provides for the award of attorney's fees in appropriate cases "unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A) (emphasis added). The "special circumstances" exception authorizes courts to deny fees where "equitable considerations dictate an award should not be made." H.R. Rep. No. 96-1418, 96th Cong., 2d Sess., 11, reprinted in 1980 U.S.C.C.A.N. at 4990. One such "equitable consideration" is whether the party seeking a fee award has clean hands. See Air Transport Ass'n of Canada v. FAA, 156 F.3d 1329, 1333 (D.C. Cir. 1998) (stressing that "the theme of 'unclean hands' pervades the jurisprudence of 'special circumstances' under EAJA"). Complete Dewatering does not have clean hands in this case. In its initial position statement, Complete Dewatering expressly identified both Share and Mogle as the relevant decision-makers. Complete Dewatering stated that "[a] decision was made by Mr. Fred Share . . . , a shareholder of the company, and Mr. Steve Mogle . . . , the then president of the company, to attempt to salvage the branch. . . . Mr. Share and Mr. Mogle visited Mr. Winnemore and advised him basically that in order to save the branch, he would have to go on a commission basis." Doc.117-Exh.4. Taking Complete Dewatering at its word, the Commission engaged in extensive discovery in the district court, focused on Mogle's role in the decisional process. The Commission uncovered age-discriminatory comments attributable to Mogle, supporting the Commission's claim under a direct evidence theory. Confronted with these damning proofs, Complete Dewatering did an about face. Suddenly, it was Complete Dewatering's position that Mogle had nothing to do with the decision to terminate Winnemore's employment. This, in fact, became the linchpin of Complete Dewatering's defense and the driving force behind its motion for summary judgment. In pressing this argument, Complete Dewatering never disclosed to the district court its prior admission that Mogle was one of the decision-makers with respect to Winnemore's termination. On appeal, Complete Dewatering perpetuated (and added to) its dissembling. First, Complete Dewatering reiterated its self-contradictory claim that Mogle had nothing to do with Winnemore's termination. In addition, it added a new argument to its arsenal. Specifically, it maintained that Cipully could not be viewed as Winnemore's replacement because "the sales aspect of Winnemore's branch manager duties was assigned to Hornbrook who was in his sixties at the time."<13> Complete Dewatering Brief at 38. This argument flatly contradicted Complete Dewatering's repeated admissions in the district court that Cipully "was the one who replaced Al Winnemore." Doc.73-Pgs.43-44; see supra pp. 12-13 (discussing the evidence on this point). Similarly, Complete Dewatering argued that Freeze could not be viewed as Winnemore's replacement even though the company had identified Freeze as Winnemore's "replacement," in its position statement (Doc.117-Exh.4), and acknowledged in its district court filings that Freeze was hired as "branch manager at the Davie facility." Doc.65-Pg.11. At no point did Complete Dewatering disclose to this Court its prior on-the-record admissions with respect to Cipully's and Freeze's replacement status. The EAJA "explicitly directs a court to apply traditional equitable principles in ruling upon an application for counsel fees." Oguachuba v. INS, 706 F.2d 93, 98 (2d Cir. 1983). Under traditional equitable principles, the clean hands defense bars a claim for relief where the claimant "is seeking to secure a benefit 'from the very conduct' which is inequitable." D. DOBBS, LAW OF REMEDIES § 2.4(2), at 95 (2d ed. 1993). In this case, Complete Dewatering is seeking attorney's fees in its capacity as a prevailing party. Yet, Complete Dewatering acquired its prevailing party status, in large part, through a deceit, contradicting its own on-the-record admissions with respect to factual issues critical to the outcome of the case. This is the paradigmatic case in which a party seeking an equitable remedy has dirtied its hands "'in acquiring the right he now asserts.'" Id. Principles of equity demand that Complete Dewatering be denied its attorney's fees.CONCLUSION The EAJA's "substantially justified" standard does not apply to the Commission's ADEA actions. Even assuming that the standard applies, a fee award is not justified in this case. The district court's award of attorney's fees to Complete Dewatering should be reversed. Respectfully Submitted, C. GREGORY STEWART, General Counsel PHILIP B. SKLOVER, Associate General Counsel LORRAINE C. DAVIS, Assistant General Counsel ROBERT J. GREGORY, Senior Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 September 6, 2000 CERTIFICATE OF COMPLIANCE I, Robert J. Gregory, hereby certify that this brief complies with the type-volume limitations imposed under F.R.A.P. 32(a)(7)(B)(i). The brief contains 13,470 words. Robert J. Gregory CERTIFICATE OF SERVICE I, Robert J. Gregory, hereby certify that on this 6th day of September, 2000, two copies of the attached brief were sent by first-class mail, postage prepaid, to each of the following counsel of record: Mark J. Neuberger Jeffrey M. Goodz Buchanan Ingersoll Professional Corporation Suite 606, One Turnberry Place 19495 Biscayne Boulevard Aventura, Florida 33180 Bruce D. Cohen Smith, Gambrell & Russell, LLP Suite 3100, Promenade II 1230 Peachtree Street, N.E. Atlanta, Georgia 30309-3592 Robert J. Gregory ADDENDUM 1 This opinion is attached as an addendum to this brief. 2 Winnemore was 67 at the time of his termination. Doc.71-Pg.7. 3 In its initial position statement, Complete Dewatering asserted that Winnemore had quit his position as branch manager. Doc.117-Exh.4. In its motion for summary judgment, Complete Dewatering admitted that Winnemore had in fact been terminated from his job. Doc.66-Pg.10. 4 Complete Dewatering's evidentiary theory was that Mogle was not involved in the decision to terminate Winnemore's employment because Winnemore was actually terminated in March 1990, when, as a result of his meeting with Share, Winnemore began receiving compensation on a commission-only basis. Doc.66-Pg.10. Although the Commission disputed the March 1990 termination date (claiming that the actual date of termination was May 1990, when Mogle instructed Winnemore to "clean out" his desk because we "just don't need you any longer"), the precise date of termination is largely beside the point. Even assuming a March 1990 termination date, there is compelling evidence that Mogle was instrumental in the events leading up to (and including) the March 1990 meeting with Winnemore. 5 The evidence shows that Mogle informed Winnemore, the day he told Winnemore to "clean out [his] desk," that the company had "just replaced [him]" with "a man in your office down there now that Frank Hornbrook took down to introduce him to . . . [Cipully]." Doc.71-Pg.49. Hornbrook did indeed show up at the Davie facility, with Timothy Fruits in tow, explaining to Cipully that Fruits was there to take Winnemore's job. Doc.76-Pgs.15-17,61-62. Mogle's statement to Winnemore qualifies as an "admission" for hearsay purposes. See Fed.R.Evid. 801(d)(2)(D). So too does Hornbrook's statement to Cipully, since the evidence supports a finding that Hornbrook was acting within "the scope of his agency" (as Mogle's messenger) in communicating the news about Fruits. Id. See generally Wilkinson v. Carnival Cruise Lines, Inc., 920 F.2d 1560, 1564-66 (11th Cir. 1991) (stressing that out-of-court statements of even "low-level employees" are admissible under Rule 801(d)(2)(D) so long as there is evidence "that the content of the declarant's statement concerned a matter within the scope of his agency"). 6 This case was argued in May 1999, before Judge Cox, Judge Hull, and Judge Cohill (sitting by designation). An oral argument was originally scheduled for January 14, 1999, before a different panel of judges (Judge Tjoflat, Judge Carnes, and Judge Black). That argument was postponed, at the request of Complete Dewatering, because its lead attorney was involved in an accident the weekend before the scheduled oral argument. 7 The panel did not accept Complete Dewatering's argument that Cipully could not be viewed as Winnemore's replacement because Cipully "was only temporarily designated as the person in charge of the facility." Complete Dewatering Brief at 37. 8 The Commission also pointed out that the panel's theory for rejecting the Cipully replacement evidence was not supported by the record evidence. While the panel cited to a snippet of Share's deposition testimony in support of its assertion that Hornbrook assumed the "sales aspects" of Winnemore's job, slip op. at 7-8, there was nothing in this testimony about Hornbrook assuming Winnemore's job responsibilities as branch manager. To the contrary, Share implied that the sales duties in the region were to be split between Hornbrook, who had already been brought in to provide additional sales support, and Cipully, who was taking over for Winnemore. Doc.72-Pg.42. In its statement of undisputed material facts, Complete Dewatering stated that, after Winnemore's departure, Hornbrook "continued to try and develop sales in South Florida . . . [a]long with Cipully as acting branch manager." Doc.65-Pg.11 (emphasis added). 9 Judge Turnoff seemed puzzled that this evidence had escaped the attention of Judge King, who had ruled on Complete Dewatering's motion for summary judgment. Judge Turnoff pointedly asked, "[w]as all of this presented to Judge King on summary judgment?" Doc.157-Pg.21. The Commission assured Judge Turnoff that the evidence had in fact been presented to Judge King. Doc.157-Pg.22. 10 The Court adopted this dual standard despite the fact that Title VII's fee-shifting provision draws no explicit distinction between prevailing plaintiffs and prevailing defendants. See 42 U.S.C. § 2000e-5(k). 11 The fact that an individual receives payment on a commission-only basis does not, as a matter of law, deprive the individual of his status as an "employee." See National Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-34 (1992) (listing the "'method of payment'" as merely one factor bearing on whether an individual qualifies as an employee; "'all of the incidents of the relationship must be assessed and weighed with no one factor being decisive'"). 12 This Court did not agree with the district court's erroneous ruling that the replacement evidence was the product of speculative "hearsay." See supra n.5 (discussing the hearsay issue). Notably, the district court reiterated the mistaken hearsay theory at the fees stage of the case. Doc.135-Pg.8 (citing this as one of the grounds for overturing the magistrate's recommendation). 13 Complete Dewatering turned to this new argument when it became clear that its litigating position in the district court -- Cipully could not be used to satisfy the replacement element of the prima facie case because he was also a member of the protected class -- was foreclosed by Supreme Court precedent. See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996).