IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 02-13571-EE ________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. ASPLUNDH TREE EXPERT COMPANY, Defendant-Appellee. _______________________________________________________ On Appeal from the United States District Court for the Northern District of Florida, Gainesville Division District Court No. 1:99cv121 MMP _______________________________________________________ REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT _______________________________________________________ NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel SUSAN R. OXFORD Attorney EQUAL EMPLOYMENT OPPORTUNITY COMM. 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4791 TABLE OF CONTENTS page TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . i TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . iii ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . 4 THE COURT BELOW ERRED IN AWARDING ATTORNEY'S FEES TO THE DEFENDANT BECAUSE EEOC'S CONCILIATION EFFORTS WERE CONDUCTED IN GOOD FAITH, THE DISTRICT COURT MADE NO EXPRESS FINDING THAT EEOC CONCILIATED IN "BAD FAITH" AND, TO THE EXTENT THE LOWER COURT'S DECISION COULD BE VIEWED AS TANTAMOUNT TO A FINDING THAT EEOC ACTED IN "BAD FAITH," SUCH A FINDING IS ENTIRELY UNSUPPORTABLE. . 4 A. The District Court's Imposition of Fees and Costs as a Sanction is Unprecedented in the Context of a Finding that EEOC's Pre-suit Conciliation Efforst were Inadequate . . . . . . . . 4 B. On this Record, An Award of Fees and Costs Under the Corut's Inherent Authority to Sanction "Bad Faith" Actions of a Litigant is Unwarranted and an Abuse of Discretion . . . . . 6 C. Asplundh Misrepresents Critical Facts and Positions of EEOC . . . . . . . . . . . . . . . . . 13 1. Asplundh Seeks to Obfuscate the Fact that The District Court Relied on a Critical Misrepresentation by Asplundh . . . . . . . . 14 2. Asplundh Confuses EEOC's Statutory Mission and the Purpose of Conciliation . . . . . . . 20 3. Asplundh's Brief Makes a Number of Other Factual Errors . . . . . . . . . . . . . . . . 23 D. This Court Reviews De Novo the Legal Basis for a District Court's Fee Award, and Only if Fees Are Authorized on Some Proper Legal Basis Does the "Abuse of Discretion" Standard Apply . . . . . . . 25 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . 28 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . 29 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES page * Barnes v. Dalton, 158 F.3d 1212 (11th Cir. 1998), reh'g and reh'g en banc den., 172 F.3d 884 (11th Cir. 1999) . . . . . . . . . . . . . . . . . 7, 11, 13 Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc) . . . . . . . . . . . . . . 1 * Byrne v. Nezhat, 261 F.3d 1075 (11th Cir. 2001) . . . 6, 10-12 Carlucci v. Piper Aircraft Corp., Inc., 775 F.2d 1440 (11th Cir. 1985) . . . . . . . . . . . . . 27 * Chambers v. NASCO, Inc., 501 U.S. 32 (1991) . . . . . 6-8, 12 * Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978) . . . . . . . . . . . . . . . . . . 2 Cohen v. Carnival Cruise Lines, Inc., 782 F.2d 923 (11th Cir. 1986)(per curiam) . . . . . . . 26 EEOC v. Keco Industries, Inc., 748 F.2d 1097 (6th Cir. 1984) . . . . . . . . . . . . . 24 * EEOC v. Klingler Electric Corp., 636 F.2d 104 (5th Cir. 1981) . . . . . . . . . . . 1, 20-23 EEOC v. Liberty Trucking Co., 695 F.2d 1038 (7th Cir. 1982) . . . . . . . . . . . . . 19 EEOC v. Prudential Federal Savings & Loan Ass'n, 763 F.2d 1166 (10th Cir. 1985) . . . . . . . . . . . . 21 EEOC v. Reeves, No. CV 00-10515, 2002 WL 1151459 (C.D. Cal. May 6, 2002), appeal docketed, No. 02-56179 (9th Cir. July 15, 2002) . . . . . . . . . 4 First Bank of Marietta v. Hartford Underwriters Ins. Co., 307 F.3d 501 (6th Cir. 2002) . . . . . . . . 12 Fox v. Taylor Diving & Salvage Co., 694 F.2d 1349 (5th Cir. 1983) . . . . . . . . . . . . . 15 Georator Corp. v. EEOC, 592 F.2d 765 (4th Cir. 1979) . . . . . . . . . . . . . 24 * Goforth v. Owens, 766 F.2d 1533 (11th Cir. 1985) . . . . . 26 * Jerelds v. City of Orlando, 194 F. Supp. 2d 1305 (M.D. Fla. 2002), appeal dismissed (11th Cir. 9/27/02) . . . . . . . . 12, 13 Kilgo v. Ricks, 983 F.2d 189 (11th Cir. 1993) . . . . . 18, 26 Marshall v. Sun Oil Co., 605 F.2d 1331 (5th Cir. 1979) . . . . . . . . . . . . . 21 Mingo v. Sugar Cane Growers Co-Op of Florida, 864 F.2d 101 (11th Cir. 1989)(per curiam) . . . . . . . 26 Newsome v. EEOC, 301 F.3d 227 (5th Cir. 2002), cert. denied, 2002 WL 1619592 (U.S. Dec. 2, 2002) . . . 24 * Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980) . . . . . . . . . . . . . . . . . 7, 9 Truvillion v. King's Daughters Hospital, 614 F.2d 520 (5th Cir. 1980) . . . . . . . . . . . . . . 27 World Thrust Films, Inc. v. Int'l Family Entertainment, 41 F.3d 1454 (11th Cir. 1995)(per curiam) . . . . . . . 26 STATUTES 42 U.S.C. 2000e-4(g)(1) . . . . . . . . . . . . . . . 20 42 U.S.C. 2000e-4(g)(3) . . . . . . . . . . . . . . . 20 42 U.S.C. 2000e-4(g)(6) . . . . . . . . . . . . . . . 20 42 U.S.C. 2000e-4(h) . . . . . . . . . . . . . . . . 20 42 U.S.C. 2000e-5 . . . . . . . . . . . . . . . . . . 20 42 U.S.C. 2000e-5(a) . . . . . . . . . . . . . . . . 20 42 U.S.C. 2000e-5(b) . . . . . . . . . . . . . . . . 20 42 U.S.C. 2000e-5(f)(1) . . . . . . . . . . . . . . . 5, 20 42 U.S.C. 2000e-5(k) . . . . . . . . . . . . . . . . 2 COURT RULES Fed. R. Civ. P. 23 . . . . . . . . . . . . . . . . . . . 11 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 02-13571-EE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. ASPLUNDH TREE EXPERT COMPANY, Defendant-Appellee. _______________________________________________________ On Appeal from the United States District Court for the Northern District of Florida, Gainesville Division District Court No. 1:99cv121 MMP REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT Plaintiff-Appellant Equal Employment Opportunity Commission ("EEOC" or "Commission") explained, in its opening brief, why the disrict court's award of fees and costs to Asplundh Tree Expert Company ("Asplundh") was improper in this instance. First, the Commission met the standards for adequate conciliation in EEOC v. Klingler Electric Co., 636 F.2d 104 (5th Cir. Feb. 1981). In concluding otherwise, the district court misapplied Klingler and relied on Asplundh's misrepresentation of the facts. Moreover, even assuming, arguendo, that this Court concludes conciliation ended prematurely, the appropriate remedy would be a stay of litigation so the parties could conciliate further. Under either circumstance, the district court erred in awarding attorney's fees and costs in this case. Second, the district court's award of attorney's fees and costs against the Commission was not authorized under the fee- shifting provision of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. 2000e-5(k), because the court below never reached the merits and, therefore, Asplundh is not a "prevailing party" within the meaning of the statute. Fees were not warranted in any event because the Commission had a reasonable basis to believe that its actions before filing suit satisfied Title VII's conciliation requirements. Thus, even if 2000e-5(k) applied under these circumstances, the stringent standards for an award of fees to a Title VII defendant, see Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), were not met. Although Asplundh originally sought fees in the court below based, in part, on Title VII's "prevailing party" standard under 42 U.S.C. 2000e-5(k), see R.92 at 1, 4, 22, in its Answer Brief Asplundh now concedes that it is not a "prevailing party" under Title VII and admits that the district court's fee award cannot be defended on that basis. See Aspl.Brf.II at 21 n.7. Asplundh argues, instead, that the district court's fee award should be affirmed under the court's inherent authority to sanction a party for "bad faith" conduct during litigation. See, e.g., Aspl.Br.II at 9, 19-22. In so doing, Asplundh tries to misdirect this Court's attention away from the fact that, in concluding that EEOC did not conciliate in good faith, the lower court relied heavily on a critical misstatement of fact by Asplundh: defense counsel's unqualified assertion that after he sent EEOC his belated letter, he "never received any communication ... from anyone with the EEOC." R.81 9 [emphasis added]. EEOC files this Reply Brief to address this and other arguments that Asplundh raises in its Answer Brief. ARGUMENT THE COURT BELOW ERRED IN AWARDING ATTORNEY'S FEES TO THE DEFENDANT BECAUSE EEOC'S CONCILIATION EFFORTS WERE CONDUCTED IN GOOD FAITH, THE DISTRICT COURT MADE NO EXPRESS FINDING THAT EEOC CONCILIATED IN "BAD FAITH" AND, TO THE EXTENT THE LOWER COURT'S DECISION COULD BE VIEWED AS TANTAMOUNT TO A FINDING THAT EEOC ACTED IN "BAD FAITH," SUCH A FINDING IS ENTIRELY UNSUPPORTABLE. A. The District Court's Imposition of Fees and Costs as a Sanction is Unprecedented in the Context of a Finding that EEOC's Pre-suit Conciliation Efforts were Inadequate. In EEOC's opening brief in Asplundh I, we explained why the Commission believes that it conciliated this case in good faith prior to filing this lawsuit. In Asplundh II, the Commission explains why the district court's award of attorney's fees was improper, even assuming this Court concludes that EEOC should have undertaken additional conciliation efforts before filing suit. Dismissal of an EEOC lawsuit is wholly unprecedented where, as here, EEOC initiated conciliation with respect to the issues in litigation and, at worst, may have arguably ended conciliation prematurely. Asplundh cites no cases in which a court dismissed an EEOC lawsuit and awarded attorney's fees and costs solely in conjunction with a finding that EEOC ended conciliation prematurely, and EEOC has found none. Indeed, the only time courts have dismissed an EEOC lawsuit for failure to conciliate is where EEOC did not even initiate conciliation on a particular claim or issue before filing suit. See EEOC Rep.Brf.I at 24-26 and nn 15 & 16; EEOC Op.Brf.II at 30-31 and n.12. In cases like this, however, where EEOC expressly invited the respondent to conciliate the claims and sent a proposed conciliation agreement before filing the complaint, courts have either found EEOC's conciliation efforts sufficient or have stayed the litigation under 42 U.S.C. 2000e- 5(f)(1) to permit additional conciliation. See EEOC Op.Brf.I at 31-35. Where a court issues such a stay, an award of attorney's fees and costs is plainly unwarranted. See EEOC Op.Brf.II at 17. In its Answer Brief, Asplundh re-hashes the arguments it presented previously concerning the sufficiency of conciliation. See Aspl.Brf.II at 9-19. This misses the point completely. Regardless of how this Court rules on the issues in Asplundh I, Title VII does not authorize an award of fees and costs in connection with a finding that conciliation ended prematurely. B. On this Record, An Award of Fees and Costs Under the Court's Inherent Authority to Sanction "Bad Faith" Actions of a Litigant is Unwarranted and an Abuse of Discretion. Asplundh asserts that the district court's fee award is authorized under the court's "inherent authority" to sanction a party's "failure to act in good faith." See Aspl.Brf.II at 19. This argument must also fail, for several reasons. Courts have inherent authority "to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates" and to punish for contempt "both conduct before the court and that beyond the court's confines." Chambers v. NASCO, Inc., 501 U.S. 32, 43-44 (1991)(citations omitted). The Supreme Court has cautioned, however, that this inherent power "must be exercised with restraint and discretion." Id. at 44; see also Byrne v. Nezhat, 261 F.3d 1075, 1106 (11th Cir. 2001)(same)(citing Chambers, 501 U.S. at 50). Of relevance to this appeal, the Supreme Court has identified several "narrowly defined circumstances" in which federal courts have the inherent power to impose attorney's fees on a party or its counsel, including "when a party has 'acted in bad faith, vexatiously, wantonly, or for oppressive reasons.'" Chambers, 501 U.S. at 45-46 (citations omitted). The Supreme Court emphasized, however, that "a court must ... exercise caution" in invoking its inherent power to impose attorney's fees as a sanction, id. at 50, reiterating that this inherent power is limited "to cases in which a litigant has engaged in bad-faith conduct or willful disobedience of a court's orders ...." Id. at 47 (emphasis added). Following the guidance of Chambers, this Court has stated that "[t]he key to unlocking a court's inherent power is a finding of bad faith." See Barnes v. Dalton, 158 F.3d 1212, 1214 (11th Cir. 1998), reh'g and reh'g en banc den., 172 F.3d 884 (11th Cir. 1999). This Court explained: A finding of bad faith is warranted where an attorney knowingly or recklessly raises a frivolous argument, or argues a meritorious claim for the purpose of harassing an opponent. A party also demonstrates bad faith by delaying or disrupting the litigation or hampering enforcement of a court order. Id. (citations and internal quotations omitted); see also Chambers, 501 U.S. at 45-6 (imposition of attorney's fees might be warranted under court's inherent power where party shows bad faith "by delaying or disrupting the litigation or by hampering enforcement of a court order[]."). The manner in which EEOC conciliated this matter before filing suit is not the type of "bad faith" conduct that courts have found warrant an award of attorney's fees under the court's "inherent power." It is notable, at the outset, that the court's February 20, 2002, order addresses only the court's conclusion that EEOC did not conciliate in good faith, based on events that occurred, in their entirety, before the lawsuit was filed. See, inter alia, R.90. Thus, there is absolutely no support for Asplundh's suggestion that the district court's dismissal and award of fees was also based on, or justified by, anything that took place during the course of this litigation, see Aspl.Brf.II at 26-30, and Asplundh's discussion on pp 26-30 is wholly irrelevant to this appeal. Second, the court below did not indicate that it was acting under its inherent powers and never expressly found that EEOC "acted in bad faith." See, inter alia, R.90. Thus, the basic predicate for imposing attorney's fees under the district court's inherent powers - a finding of "bad faith" - is missing in this case. See Roadway Express, Inc. v. Piper, 447 U.S. 752, 766-67 (1980)(specific finding by district court as to whether conduct constituted or was tantamount to bad faith must precede any sanction under court's inherent powers); Byrne, 261 F.3d at 1106 n.69 ("Recognizing the need for caution, some circuits require that a district court make a particularized showing of bad faith to justify the use of its inherent power.")(citations omitted). Even if the district court's comments (referring to EEOC's actions as "egregious," "grossly arbitrary," and not in good faith, see R.90 at 10-11) could be considered "tantamount" to a finding of bad faith, such a finding is clearly erroneous on this record and any fee award based on it is, therefore, an abuse of the court's discretion. The lower court's conclusion that EEOC ended its conciliation efforts prematurely was based, in large part, on two erroneous beliefs: (1) that EEOC never communicated with Sampo after receiving his letter, and (2) that potential damages were limited to four months of backpay. As the Commission has explained, EEOC Op.Brf.I at 28-30, 35-39; EEOC Rep.Brf.I at 17 and n.10, these erroneous beliefs grew from a factual misrepresentation by Asplundh and a misunderstanding of the nature of EEOC's race harassment claims. When EEOC's conciliation efforts are assessed in light of what actually happened after Sampo sent his letter and in light of Asplundh's potential liability for harassment at its worksite of which it was aware, it is clear that this case is vastly different from those discussed above. Even if reasonable persons might disagree about whether EEOC should have reopened conciliation after Sampo sent his letter, the Commission's actions do not even begin to rise to the level of "bad faith" that courts have found warrant a sanction of dismissal or an award of fees. In Barnes, for instance, this Court upheld the imposition of a $10,000 sanction, representing a portion of defendant's expert costs, where plaintiff's counsel (1) repeatedly failed to perfect service on the defendant and then filed a motion for default knowing that service had not been perfected; (2) repeatedly filed a class action complaint that did not comply with Fed. R. Civ. P. 23; and (3) alleged frivolous disparate impact and pattern or practice claims the defense of which caused the defendant to incur expert expenses in excess of $70,000. 158 F.3d at 213-14. In Byrne, another case cited by Asplundh, see Aspl.Brf.II at 20, this Court upheld a fee award on the grounds that plaintiff's counsel abused the judicial process when they attempted to extort a settlement from the defendants by adding frivolous federal and state RICO claims to an otherwise straightforward medical malpractice suit, without conducting a reasonable inquiry into the factual bases for the RICO claims. 261 F.3d 1075, 1107, 1115-17. Similarly, in Chambers, the Supreme Court concluded that a defendant's repeated filing of meritless motions and pleadings and delaying actions warranted imposition of attorney's fees and costs on the defendant. See 501 U.S. at 38. See also First Bank of Marietta v. Hartford Underwriters Ins. Co., 307 F.3d 501, 522-25 (6th Cir. 2002)(award of attorney's fees under district court's inherent powers upheld based on district court's express finding that lawsuit was "laced with bad faith," where plaintiff's claims had no merit, plaintiff knew or should have known there was no legal or factual basis for filing suit, and suit was brought for improper purpose of trying to coerce defendant to settle a meritless claim). Indeed, courts have found an absence of "bad faith" and have declined, for that reason, to impose attorney's fees in response to conduct which actually exhibited poor judgment and overzealousness, in contrast to EEOC's decision, in this case, to proceed to litigation after receiving no response from Asplundh for almost a month. In Jerelds v. City of Orlando, 194 F. Supp. 2d 1305 (M.D. Fla. 2002), appeal dismissed (11th Cir. 9/27/02), for instance, the district court expressly declined to impose attorney's fees as a sanction against counsel under its inherent power. Id. at 1313 n.13. The court reasoned that even though it had granted the defendant summary judgment on the merits and had awarded attorney's fees to the defendant under a "prevailing party" standard, see id. at 1308-11, and even though plaintiffs' counsel had "exhibited extremely poor judgment in their zeal to prosecute [plaintiffs'] claims," id. at 1313, counsel's "overzealousness" was not "conduct tantamount to bad faith" and a sanction against plaintiffs' counsel was, therefore, unwarranted. Id. at 1313 and n.13 (relying on Barnes, 158 F.3d at 1214). Given the outcome in these cases, surely the Commission's decision to proceed to litigation in this case after West tried twice, unsuccessfully, to reach Sampo by telephone was a reasonable reaction to Asplundh's half-hearted and untimely response to EEOC's conciliation proposal and was not "conduct tantamount to bad faith" as construed by this Court in the context of an exercise of a court's inherent powers. C. Asplundh Misrepresents Critical Facts and Positions of EEOC. Much of Asplundh's Answer Brief in this second appeal simply re-hashes arguments presented in Asplundh I. Asplundh argues that EEOC did not "encourage voluntary compliance" (pp10-14), respond to Sampo's letter (pp15-16), or "reserve judicial action as a last resort" (pp16-19). In so doing, Asplundh makes assertions that are inaccurate, unsupportable and, in many cases, irrelevant. 1. Asplundh Seeks to Obfuscate the Fact that the District Court Relied on a Critical Misrepresentation by Asplundh. Asplundh erroneously suggests that EEOC agrees with the district court's findings of fact supporting its determination that EEOC did not engage in good faith conciliation. See Aspl.Brf.II at 8, citing EEOC Op.Brf.II at 29. Asplundh confuses two different sets of "facts": those on which the lower court based its conclusion that conciliation was inadequate, which the Commission disputes, and those that support the Commission's underlying claims of discrimination which, we noted, "the lower court recounted in some detail, and without significant criticism ...." See EEOC Op.Brf.II at 29, quoted in Aspl.Brf.II at 3. Although the facts surrounding the merits are essentially undisputed, the district court's "factual findings" concerning the conciliation process flow directly from a blatant factual misrepresentation by Asplundh's counsel, Peter Sampo, which Asplundh apparently seeks to perpetuate before this Court. Specifically, Asplundh asserted below (R.77 at 3, 5, 6, 9, 10) and the district court found (R.90 at 6) that "EEOC at no time responded to the Defendant's faxed letter or acknowledged having received such letter." See also R.90 at 10 ("EEOC's response to the foregoing letter [from Peter Sampo] was the filing of the instant lawsuit one day thereafter."). Faced with the documentary evidence of Debora West's correspondence and telephone log, which Asplundh offered into the record in the court below, Asplundh does not deny that EEOC Investigator Debora West left two telephone messages for Sampo in response to his letter asking that she call him, nor does Asplundh deny that Sampo called her back in response to the first telephone call. Instead, Asplundh asserts that West's two telephone messages did not actually constitute a response to Sampo's letter or did not seek to further the conciliation process. See Aspl.Brf.II at 15-16. Both positions are equally unpersuasive. First, by arguing that West's two telephone calls to Sampo did not "respond" to his letter, Asplundh seeks to divert this Court's attention from Sampo's outright misrepresentation to the court below. The basis for the district court's statement that EEOC never responded to Sampo's letter comes from Sampo's sworn statement, which Asplundh submitted to the court below, attesting under oath that after he sent his April 28, 1999, letter to the EEOC, "I never received any communication from Ms. West, or from anyone with the EEOC." R.81, par.9 (emphasis added). Sampo did not assert in his affidavit that he received a communication from Ms. West that was unresponsive; indeed, such an assertion would have been plainly unsupportable since his letter specifically asked West for "a phone call with you to discuss this case ...." R.67, Pl.'s Exhibit 6 attached to Declaration of Debora West. Rather, Sampo asserted, and the district court believed, that neither Ms. West nor anyone else from EEOC attempted to contact Sampo or acknowledged having received his April 28, 1999 letter. This assertion is plainly not true. Asplundh is being disingenuous, at best, when it tries to re-frame the issue by asserting that West's two telephone messages did not constitute a "response" to Sampo's letter. Building on the unsupportable assertion that West's telephone calls were not "responsive" to Sampo's letter, Asplundh offers the equally unsupportable proposition that the district court's failure to consider West's telephone calls to Sampo is, therefore, "harmless error." Aspl.Brf.II at 16 n.6. A debate over whether West's telephone call to Sampo would have been "responsive" if he had been in when she called, or whether the message she left during the second attempt satisfied EEOC's conciliation obligation "as a matter of law," see id., completely begs the real question. Sampo said he did not receive any communication from EEOC after he sent his letter, and Asplundh repeatedly urged this factual misrepresentation as evidence that EEOC did not conciliate in good faith. See EEOC Rep.Brf.I at 4-5 and n.2. The district court believed Sampo and concluded, on this basis, that EEOC did not act in good faith. Under these circumstances, it is abundantly clear that the district court's express reliance on Sampo's blatant factual misrepresentation cannot be considered "harmless error" inasmuch as it formed the faulty premise upon which the lower court's fee award is based. See Kilgo v. Ricks, 983 F.2d 189, 193 (11th Cir. 1993)(sanction of dismissal reversed where based on a clearly erroneous factual determination by district court). Second, since Sampo and West only exchanged telephone messages and never actually spoke, it is entirely speculative for Asplundh to suggest that their conversation, if they had actually spoken, would not have provided Sampo with the information he sought. See Aspl.Brf.II at 15. More importantly, however, Asplundh already had sufficient information to understand the basis of the EEOC's cause finding. Lewis's charge stated that his claim of racial harassment was based on the actions of Pete Evans. When Asplundh responded to this charge on February 3, 1997, Asplundh specifically discussed the incident between Lewis and Evans and pointed out that Evans was not an employee of Asplundh. Lewis's charge also stated that he believed he was discharged on June 20, 1996, "in retaliation for complaining of race discrimination." In response to this allegation, Asplundh asserted in its February 3, 1997, letter that Lewis was laid off "due to lack of work." The district director's March 31, 1999, Letter of Determination ("LOD") specifically referenced Lewis's original charges and then stated that EEOC's investigation indicated Asplundh's proffered reason for Lewis's layoff was pretextual and there was evidence of race discrimination and retaliation. There was no mystery about the nature of EEOC's findings; Asplundh simply disputed the validity of these claims under Title VII. To be sure, Asplundh is entitled to dispute the validity of the Commission's claims. A respondent is entitled to question either the legal validity or the factual sufficiency of claims asserted by the Commission. Asplundh was entitled to refrain from conciliating back in April of 1999 on this basis, see EEOC v. Liberty Trucking Co., 695 F.2d 1038, 1041 (7th Cir. 1982), and is entitled, at this stage, to defend that position in court. Under Title VII, however, Asplundh was not entitled to a more detailed explanation of the Commission's legal theory for these claims as a prerequisite to suit by the Commission. See EEOC Rep.Brf.I at 17- 18. This is apparently what Sampo was seeking when he wrote to West and asked her to call him. Asplundh is wrong when it argues, and the district court erred when it concluded, that EEOC failed to set forth the basis for the Commission's finding of discrimination in this case. Lewis's discrimination charge and the Commission's Letter of Determination set forth everything that Title VII requires EEOC to provide a respondent in conciliation. 2. Asplundh Confuses EEOC's Statutory Mission and the Purpose of Conciliation. Asplundh claims in its Answer Brief that "EEOC's statutory purpose is to exhaust the potential for conciliation." Aspl.Brf.II at 14. EEOC's statutory mission is to deter and seek remedies for unlawful employment practices. See 42 U.S.C. 2000e-5(a). Congress has authorized and empowered the Commission to accomplish this statutory purpose through education and outreach, 42 U.S.C. 2000e-4(h), technical assistance, 42 U.S.C. 2000e-4(g)(3), collaboration with other agencies, 42 U.S.C. 2000e-4(g)(1), investigation of discrimination charges and attempted conciliation where discrimination is found, 42 U.S.C. 2000e-5, intervention in private lawsuits, 42 U.S.C. 2000e-4(g)(6), and initiation of EEOC litigation where "the Commission [has endeavored] to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion" and "has been unable to secure from the respondent a conciliation agreement acceptable to the Commission." 42 U.S.C. 5000e-5(b) and (f)(1). Title VII does not require EEOC to "exhaust the potential for conciliation," and this Court does not construe EEOC's conciliation requirement in that fashion. In Klingler, this Court explained that Title VII requires the Commission to respond "in a reasonable and flexible manner to the reasonable attitudes of the employer." 636 F.2d at 107 (emphasis added); see also EEOC v. Prudential Federal Savings & Loan Ass'n, 763 F.2d 1166, 1169 (10th Cir. 1985)(courts recognize that "[b]ecause conciliation involves at least two parties, we must evaluate one party's efforts with an eye to the conduct of the other party.")(citing Marshall v. Sun Oil Co., 605 F.2d 1331, 1335 (5th Cir. 1979)). Here, EEOC responded reasonably to Asplundh's untimely and equivocal response to the Commission's repeated invitations to conciliate. Specifically, Asplundh never responded to EEOC's first invitation to conciliate (in the district director's March 31, 1999, LOD and the enclosed EEOC Form 153). Asplundh did not respond to EEOC's second invitation to conciliate until almost a week past the deadline, with a letter that West did not receive until after the district director mailed the notice finding conciliation efforts were unsuccessful. See R.67, Declaration of Debora West  7-12 and Exhibit 6. Asplundh's belated response did not include a counterproposal or even indicate a desire to negotiate. Rather, Asplundh sought information about the basis for EEOC's finding and requested an extension of time to respond to the conciliation proposal, without offering any explanation for why Asplundh had not responded within the deadline in the first instance or at least sought an extension before the deadline had passed. Id. When West thereafter attempted to reach Sampo by telephone, he allowed almost a week to pass before returning her first call, R.77, Exhibit 3, and then never followed up on West's message (in her second call) that he should contact the regional attorney if he wished to discuss the case further. Under these circumstances, EEOC's decision to go forward with litigation was a reasonable response to Asplundh's unreasonable and dilatory actions. Asplundh argues, however, that the district court properly awarded fees and costs against the Commission because "EEOC did not reserve judicial action as a last resort." Aspl.Brf.II at 16-19, citing, inter alia, R.90 at 11. This Court's statement in Klingler that EEOC's authority to determine the proper scope of conciliation would be preserved as long as the Commission "acts in good faith, while encouraging voluntary compliance and reserving judicial action as a last resort," see 636 F.2d at 107, must, however, be read in proper context. In requiring EEOC to respond reasonably to the reasonable attitudes of the employer, this Court clearly does not mean that an employer can prevent or delay EEOC from filing suit by simply ignoring EEOC's reasonable conciliation time frames. Nor is an employer entitled to stonewall the conciliation process by belatedly seeking information already in the employer's possession, and EEOC is not required to convince an employer of the validity of its claims as part of the conciliation process. The actions that EEOC took before filing this lawsuit comported fully with the conciliation requirements of Title VII as this Court has interpreted them in Klingler and other cases. Even if the circumstances in this case might warrant a stay of litigation for further conciliation, however, there is absolutely no precedent for dismissal and an award of attorney's fees and costs on facts such as these. 3. Asplundh's Brief Makes a Number of Other Factual Errors Asplundh mistakenly asserts that EEOC Investigator Debora West was responsible for finding "cause" and for ending the conciliation process. See Aspl.Brf.II at 5, 10-11, 14, 29. Both of these determinations were issued under the district director's signature. See R.67, Exhibits 3 and 5 to Declaration of Debora West; EEOC Op.Brf.I at 5, 28. Asplundh characterizes EEOC's cause finding against Asplundh as "inexplicable," arguing, among other things, that West failed to consider certain documents she received at the tail end of the investigation. See Aspl.Brf.II at 5, 29. The sufficiency of EEOC's "cause" determination is not before this Court, however. A district court addresses a plaintiff's Title VII claims de novo, and the sufficiency of the Commission's investigation as well as the soundness of the Commission's "cause" determination are irrelevant to this appeal and the underlying litigation. See EEOC v. Keco Industries, Inc., 748 F.2d 1097, 1100 (6th Cir. 1984), and cases discussed therein; Georator Corp. v. EEOC, 592 F.2d 765, 767 (4th Cir. 1979)(trial of employment discrimination claims is de novo and "court will not determine whether substantial evidence supported the Commission's preadjudication finding of reasonable cause"); cf. Newsome v. EEOC, 301 F.3d 227, 231 (5th Cir. 2002)(nature and extent of EEOC investigation is within agency's discretion), cert. denied, 2002 WL 1619592 (U.S. Dec. 2, 2002). In conjunction with Asplundh's erroneous assertion that West made the determination that conciliation should end, Asplundh spends considerable time speculating exactly when that determination was made. Asplundh baldly asserts that the determination had to have been made after EEOC received Sampo's letter, based (illogically) on the absence of any notation one way or another in West's telephone and correspondence log. See Aspl.Brf.II at 10-12. Regardless of whether the district director's decision was made on April 27th or on the morning of April 29th, and regardless of whether it was made in consultation with Investigator West or in her absence, the unrefuted record indicates that West received Sampo's letter sometime after the district director sent the April 29th notice of conciliation failure. See R.67, Declaration of Debora West,  11-12. There is absolutely no evidence to support the district court's mistaken premise that EEOC knew about Sampo's letter when the district director notified Asplundh that conciliation had concluded. D. This Court Reviews De Novo the Legal Basis for a District Court's Fee Award, and Only if Fees Are Authorized on Some Proper Legal Basis Does the "Abuse of Discretion" Standard Apply. EEOC disputes Asplundh's position that the award of fees and costs in this case should be analyzed under an "abuse of discretion" standard. See Aspl.Brf.II at 7-8. This Court must first review de novo the legal question of whether and on what ground a court may award attorney's fees and costs where EEOC allegedly failed to conciliate fully before filing suit. See EEOC Op.Brf.II at 12. Only if this Court concludes, as a matter of law, that a court is authorized to make such an award based solely on a finding of inadequate conciliation does the "abuse of discretion" standard come into play. Moreover, the district court's discretion is not unfettered. This Court has emphasized repeatedly that dismissal with prejudice is a "drastic" sanction that is warranted only as a last resort, and "only upon a 'clear record of delay or willful contempt and a finding that lesser sanctions would not suffice.'" See Mingo v. Sugar Cane Growers Co-Op of Florida, 864 F.2d 101, 102 (11th Cir. 1989)(per curiam)(emphasis in original), quoting Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985); see also World Thrust Films, Inc. v. Int'l Family Entertainment, 41 F.3d 1454, 1456 (11th Cir. 1995)(per curiam)(reversing dismissal sanction because district court failed to make any finding that lesser sanctions would not suffice); Kilgo, 983 F.2d at 192-93 (reversing dismissal sanction both because district court's decision was based on a clearly erroneous factual determination and because district court failed to make any finding that lesser sanctions would not suffice); Cohen v. Carnival Cruise Lines, Inc., 782 F.2d 923, 924-26 (11th Cir. 1986)(per curiam)(reversing dismissal sanction because this Court found "no clear record of delay or willful contempt" despite some delay on plaintiff's part, and because district court failed to consider less drastic sanctions). Contrary to Asplundh's assertion that review is "sharply limited," Aspl.Brf.II at 7-8, in each of the cases noted above this Court examined the record carefully to determine whether the drastic sanction of dismissal was warranted. Dismissal in this case was the predicate for the district court's imposition of fees and costs. Although the lower court did not indicate expressly in the February 20, 2002, order and judgment whether its dismissal was "with prejudice" or "without prejudice," the court did indicate its assumption that the order was final with respect to EEOC when it stated that the dismissal was "not too harsh of a remedy" because it did not bar Lewis from filing an individual claim. R.90 at 11 n.4 (citing Truvillion v. King's Daughters Hospital, 614 F.2d 520 (5th Cir. 1980)). The district court was required, therefore, to satisfy both aspects of the rigorous standard set forth above. Given that two of the critical factual underpinnings of the court's determination are plainly wrong, see pp 10, 13-17, supra, and that the lower court's determination that "[a] stay does not ... become the appropriate remedy in the instant case, but dismissal does," R.90 at 11, flowed from these same factual errors, the district court's decision cannot stand. EEOC acted reasonably at every step of the conciliation process. A review of the entire evidence in this case leaves "the definite and firm conviction that a mistake has been committed." Carlucci v. Piper Aircraft Corp., Inc., 775 F.2d 1440, 1447 (11th Cir. 1985). The district court's award of attorney's fees on the grounds that EEOC did not conciliate in good faith should be reversed. CONCLUSION For all of the foregoing reasons, EEOC respectfully submits that the district court erred when it awarded attorney's fees and costs against the Commission and in favor of Asplundh. The dismissal order and fee award should both be reversed and the matter remanded to the district court for further proceedings. Respectfully Submitted, NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel SUSAN R. OXFORD December 12, 2002 Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4791 CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the type-volume limitations set forth in F.R.A.P. 32(a)(7)(B)(i). The brief contains 6704 words. Susan R. Oxford CERTIFICATE OF SERVICE I hereby certify that on this 12th day of December, 2002, I caused an original and six copies of the attached Reply Brief, along with an electronic version on floppy disk, to be sent by Federal Express to the Clerk of the Court for the U.S. Court of Appeals for the Eleventh Circuit, and two copies of the attached Reply Brief, along with an electronic version on floppy disk, to be sent by Federal Express, next day delivery, to the following counsel of record: Robert E. Larkin, III, Esq. Michael Mattimore, Esq. ALLEN, NORTON & BLUE, P.A. 906 North Monroe Street Tallahassee, Florida 32303 In addition, on this same date I caused two copies of the attached brief and an electronic version on floppydisk to be hand-delivered to the following counsel for Amici Curiae Equal Employment Advisory Counsel (EEAC) and the Chamber of Commerce of the United States: Stephen A. Bokat, Esq. Reginald E. Jones, Esq. NATIONAL CHAMBER LITIGATION OGLETREE, DEAKINS, NASH, SMOAK CENTER, INC. & STEWART 1615 H Street, N.W. 2400 N Street, N.W., Fifth Fl. Washington, D.C. 20062 Washington, D.C. 20037 Ann Elizabeth Reesman, Esq. McGUINESS, NORRIS & WILLIAMS 1015 Fifteenth Street, N.W., Suite 1200 Washington, D.C. 20005 Susan R. Oxford __________________________________________________________________________ 1. This Court has aopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. See Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc). 2. Appellee Asplundh’s Answer Brief in this Appeal is referred to as Aspl. Br.II. EEOC’s Opening Brief in this Appeal is referred to as EEOC Op.Brf. II. Asplundh’s Answer Brief in Appeal No. 02-12386-EE is referred to as Aspl.Br.I, and EEOC’s Opening and Reply Briefs in that appeal are referred to, respectively, as EEOC Op.Brf.I and EEOC Rep.Brf.I. 3. Asplundh erroneously asserts that EEOC did not object below to the district court’s authority to award attorney’s fees or costs. See Aspl.Brf.II at 4. To the contrary, in EEOC’s Response to Defendant’s Statement of Costs, Expenses and Attorney’s Fees and Memorandum of Law, EEOC expressly disagreed with Asplundh’s assertion that the district court “had a factual and legal basis for awarding attorney’s fees, expenses and costs.” EEOC noted its intent to appeal the fee award and responded to the specific costs being sought by Asplundh without waiving the agency’s overall objection to an award of attorney’s fees, expenses and costs in this case. R.95 at 2. 4. Asplundh’s reference to EEOC v. Reeves, No. CV 00-10515, 2002 WL 1151459 (C.D. Cal. May 6, 2002), appeal docketed, No. 02-56179 (9th Cir. July 15, 2002), see Aspl.Brf.II at 15, is inapposite. The district court in Reeves dismissed EEOC’s lawsuit on the merits based on a series of summary judgment motions filed by the defendant, and then considered the adequacy of EEOC’s pre-suit conciliation only in the context of deciding whether to award fees and costs to Reeves as the prevailing party. See EEOC Rep.Brf.I at 20 n.11. 5. The Court in Chambers noted that a court may also assess attorney’s fees against a responsible party if the court finds “that fraud has been practiced upon it.” 501 U.S. at 45. Arguably, Asplundh practiced a “fraud” upon the district court when it submitted Sampo’s sworn (but erroneous) statement that no one from EEOC, including Investigator West, ever contacted him after he sent his April 28th letter, and when Asplundh thereafter argued this point repeatedly in opposition to EEOC’s motion for partial summary judgment on the issue of conciliation. See EEOC Rep.Brf.I at 4-6 and n.2. Although EEOC did not move below for imposition of sanctions against Asplundh on this basis, Chambers instructs that the district court has the inherent authority “to vacate its own judgment upon proof that a fraud has been perpetrated upon the court ... and to conduct an independent investigation in order to determine whether it has been a victim of fraud ....” 501 U.S. at 43. 6. The Supreme Court contrasted these rigorous requirements for exercise of a court’s inherent powers with the less rigorous requirements for imposing sanctions under the federal rules of civil procedure, which do not necessarily require a finding of “bad faith.” See 501 U.S. at 47; see also id. at 49 (discussing remand order in Roadway Express, Inc. v. Piper, 447 U.S. 752, 767 (1980)). 7. Given that one of the bases for sanctioning a party for “bad faith” involves a finding that the party unreasonably delayed litigation, it is ironic that Asplundh defends the district court’s fee award on the grounds that EEOC allegedly filed suit too quickly, arguing (erroneously and without factual foundation) that it was “unparalleled” for EEOC to file suit only thirteen days after conciliation ended. Aspl.Brf.II at 19; see also id. at 18 (characterizing EEOC’s lawsuit as a “premature prosecution”), 24 (asserting that “EEOC rushed to litigation”). In contrast, Asplundh previously argued below that it was prejudiced by EEOC’s delay in filing suit. See R.31, Memorandum in Support of Defendant’s Motion for Costs and Attorneys’ Fees and For Sanctions for Discovery Abuses at 4. Asplundh’s changing positions on this point cast doubt on its credibility in arguing its position before this Court. 8. Nevertheless, the Commission notes that it did not appeal either the protective order, R.12, or the discovery sanction, R.54, entered in this case below, and EEOC does not contest the district court’s issuance of these two prior orders. 9. Asplundh offered this, after the fact, as one of several alternate bases for the district court’s fee award, see R.92 at 1, 4, but neither the February 20th order nor the June 12th order identified this (or any other) legal authority for the district court’s award of fees and costs. See R.90, R.99. Asplundh has cited no cases in which a court exercised its inherent powers to impose attorney’s fees and costs on EEOC based solely on a determination of inadequate conciliation. Notably, Asplundh never even sought these fees and costs before the district court issued its order. Rather, in opposing EEOC’s motion for partial summary judgment on the issue of conciliation, Asplundh requested only “that it be awarded its costs and attorney’s fees in responding to this Motion.” R.77 at 12 (emphasis added). 10. The lower court’s decision was also apparently influenced by its erroneous belief that EEOC was actually aware of Sampo’s letter before the district director notified Asplundh that conciliation had ended. There is no support in the record for such a conclusion, and it is directly contradicted by West’s declaration. See R.67, Declaration of Debora West ¶¶ 11-12. 11. This Court reversed the sanction against the plaintiff herself because the requisite finding of “bad faith” was not supported by the record. Byrne, 261 F.3d at 1123-27. 12. For the first time in these two related and now-consolidated appeals, Asplundh asserts that Investigator West’s correspondence log “is inherently unreliable and should not be considered as part of the record” because EEOC redacted certain portions (those having to do with the agency’s deliberative processes) before supplying the log to Asplundh in discovery. See Aspl.Br.II at 11 n.4. The redacted telephone log is a proper part of the record because Asplundh submitted it to the district court in opposition to EEOC’s motion for partial summary judgment on the issue of conciliation. R. 77, Exhibit 3. Having offered it to the court below without qualification, Asplundh cannot now disavow its reliability. See, e.g., Fox v. Taylor Diving & Salvage Co., 694 F.2d 1349, 1356 (5th Cir. 1983)(party cannot claim evidence wrongly admitted into record where party’s attorney himself asked witness to disclose the information and made no objection when it was offered). More importantly, Asplundh has no factual basis for asserting the log’s unreliability for the first time at this late stage. EEOC relies on the log to establish the exchange of telephone messages between Sampo and West: that West called Sampo the same day she received his letter, he returned her call approximately one week later, and she then called him a second time and left a message that the case was now with the regional attorney. (EEOC does not rely on West’s log “to establish [EEOC’s] strategy and intent regarding the conciliation process,” as Asplundh wrongly asserts, see Aspl.Br.II at 11 n.4.) Since Asplundh does not deny that this sequence of telephone calls took place, see, e.g., Aspl.Brf.I at 9, 27-28, Asplundh has offered no credible basis for asserting that West’s log is “inherently unreliable” on this critical point. 13. Indeed, Asplundh skirts dangerously close to perpetuating the same misrepresentation before this Court that it maintained below when it states, in its brief, that “[a]t no time did anyone at the EEOC contact Sampo to discuss the case or to extend the conciliation process.” Aspl.Brf. II at 6. The same day that West received Sampo’s letter requesting a telephone conversation, West called Sampo to discuss the case. Sampo, on the other hand, waited almost a week to call her back. 14. Lewis’s charge alleged two different forms of race discrimination: racial harassment based on the actions of Pete Evans and discriminatory wages and pay increases on behalf of black workers generally. The LOD found “no cause” on the wage/pay increase issue. See R.67, Exhibits 1 & 3 to Declaration of Debora West. Thus, it was clear that the LOD’s reference to “race discrimination” could only refer to Lewis’s charge of racial harassment based on Evans’s actions. 15. West’s declaration specifically states that EEOC sent Asplundh a letter on April 29, 1999, indicating “that the Commission had determined that efforts to conciliate had been unsuccessful” and that “[s]ubsequently, the Commission received a letter dated April 28, 1999, from Peter L. Sampo ....” (Emphasis added). Sampo’s letter was addressed to West and West was the only investigator assigned to this case, so when Sampo’s faxed letter was received by the Commission, it was directed to West. West’s declaration indicates that she had no awareness of Sampo’s letter until after the district director sent the conciliation failure letter to Asplundh.