Nos. 07-16190, 07-16263
              ____________________________________________

                IN THE UNITED STATES COURT OF APPEALS
                     FOR THE NINTH CIRCUIT
              ____________________________________________

U.S. EQUAL EMPLOYMENT 
  OPPORTUNITY COMMISSION

      Plaintiff/Appellee/Cross-Appellant,

v.

GO DADDY SOFTWARE, INC.,

      Defendant/Appellant/Cross-Appellee.

        ____________________________________________________________

              On Appeal from the United States District Court
            for the District of Arizona, Hon. David G. Campbell
       ____________________________________________________________

      PRINCIPAL AND RESPONSE BRIEF OF PLAINTIFF/APPELLEE/CROSS-APPELLANT
              THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
        ____________________________________________________________

RONALD S. COOPER					U.S. EQUAL EMPLOYMENT 
General Counsel						OPPORTUNITY COMMISSION
							1801 L. St. NW, Rm. 7024
LORRAINE C. DAVIS					Washington, D.C.  20507
Acting Associate General Counsel			(202) 663-4870
							James.Tucker@EEOC.gov
JAMES M. TUCKER
Attorney

                              Table of Contents

Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Jurisdictional Statement. . . . . . . . . . . . . . . . . . . . . . . . . . .     1

Statement of the Issues Presented for Review on Appeal. . . . . . . . . . . . . . 1

Statement of the Issue Presented for Review on Cross-Appeal. . . . . . . . . . . .2

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  2

Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

District Court Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . .  12

I.	Pre- and post-verdict motions. . . . . . . . . . . . . . . . . . . . .   12

II.	District court decision. . . . . . . . . . . . . . . . . . . . . . . .   14

Summary of the Argument as Appellee. . . . . . . . . . . . . . . . . . . . . . . 16

Summary of the Argument as Cross-Appellant. . . . . . . . . . . . . . . . . .    17

Argument as Appellee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  18

I.	Standard of review. . . . . . . . . . . . . . . . . . . . . . . . . . .  18

II.	The district court correctly concluded that Go Daddy waived 
                     the bulk of its arguments challenging the sufficiency of the 
                     evidence. . . . . . . . . . . . . . . . . . . . . . . . . . 20

III.	The district court correctly concluded that the evidence at trial
     was sufficient to support a reasonable jury's conclusion that
     Franklin was aware of Bouamama's complaint at the 
     time he and Slezak terminated Bouamama's employment. . . . . . . . . . . .  28

IV.	In any case, the evidence was more than sufficient to support the 
jury's verdict in favor of the Commission. . . . . . . . . . . . . . . . . .     32

A.	The evidence that Bouamama engaged in protected 
     activity was sufficient to support the jury's verdict. . . . . . . . . . .  32

B.	The evidence that Bouamama was terminated because he 
     engaged in protected activity was sufficient to support 
     the jury's verdict. . . . . . . . . . . . . . . . . . . . . . . . . . .     42

V.	The district court did not abuse its discretion in denying Go 
     Daddy's Rule 59(a) motion for a new trial. . . . . . . . . . . . . . .      47

Argument as Cross-Appellant. . . . . . . . . . . . . . . . . . . . . . . . . . . 49

          I.        Standard of review. . . . . . . . . . . . . . . . . . . . .  49

II.	The district court abused its discretion in declining to order
          Bouamama reinstated to the Sales Representative position. . . . . .    49
 
          A.       The district court applied an improper legal standard in 
                concluding that reinstatement was inappropriate. . . . . . . . . 50
 
B.	      The district court's factual findings in support of its 
           decision to deny reinstatement are clearly erroneous. . . . . . . . . 54

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  59

Statement of Related Cases. . . . . . . . . . . . . . . . . . . . . . . . . . .  60

Addendum  

          Federal Rules of Civil Procedure, Rule 50

Certificate of Compliance

Certificate of Service

                             Table of Authorities
Cases								             page(s)

Aguinaga v. United Food & Commercial Workers Int'l Union, 
          993 F.2d 1463 (10th Cir. 1993). . . . . . . . . . . . . . . . . . . . . 25

Albemarle Paper Co. v. Moody, 
          422 U.S. 405 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . .14

Allen v. Autauga County Bd. of Educ., 
          685 F.2d 1302 (11th Cir. 1982). . . . . . . . . . . . . . . . . . . . . 51

Anderson v. Liberty Lobby, Inc., 
          477 U.S. 242 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . .19

Anderson v. United Tel. Co. of Kan., 
          933 F.2d 1500 (10th Cir. 1991). . . . . . . . . . . . . . . . . . . . . 24

Burlington N. & Santa Fe R.R. Co. v. White, 
          -- U.S. --, 126 S. Ct. 2405 (2006). . . . . . . . . . . . . . . . . .   33

Cassino v. Reichhold Chem., Inc., 
          817 F.2d 1338 (9th Cir. 1987). . . . . . . . . . . . . . . . . . . . 51-54

Chancellier v. Federated Dep't Stores, 
          672 F.2d 1312 (9th Cir. 1982). . . . . . . . . . . . . . . . . . . . .  53

Clark County Sch. Dist. v. Breeden, 
          532 U.S. 268 (2001). . . . . . . . . . . . . . . . . . . . .    33, 37, 38 

EEOC v. Crown Zellerbach Corp., 
          720 F.3d 1008 (9th Cir. 1983). . . . . . . . . . . . . . . . . . . .33, 34

Farley v. Nationwide Mut. Ins. Co., 
          197 F.3d 1322 (11th Cir. 1999). . . . . . . . . . . . . . . . .  50-52, 59

Farley Transp. Co. v. Santa Fe Trail Transp. Co., 
          786 F.2d 1342 (9th Cir. 1985). . . . . . . . . . . . . . . . . . . . .  47

Fed. Sav. & Loan Ins. Corp. v. Reeves, 
          816 F.2d 130 (4th Cir. 1987). . . . . . . . . . . . . . . . . . . . .   24

Freitag v. Ayers, 
          468 F.3d 528 (9th Cir. 2006). . . . . . . . . . . . . . . . . . . . .   34

Freund v. Nycomed Amersham, 
          347 F.3d 752 (9th Cir. 2003). . . . . . . . . . . . . . .   14, 18, 21, 22

Gotthardt v. Nat'l R.R. Passenger Corp., 
          191 F.3d 1148 (9th Cir. 1999). . . . . . . . . . . . . . . . . .    49, 54

Hale v. U.S. Trustee, 
          No. 06-35349, 2007 WL 4293312 (9th Cir. Dec. 10, 2007). . . . . . . . . 43

Josephs v. Pac. Bell, 
          443 F.3d 1050 (9th Cir. 2006). . . . . . . . . . . . . . . . . . . . .  18

Kusens v. Pascal Co., 
          448 F.3d 349 (6th Cir. 2006). . . . . . . . . . . . . . . . . . . . .   24

Learned v. City of Bellevue, 
          860 F.2d 928 (9th Cir. 1988). . . . . . . . . . . . . . . . . . . . .   34

Lifshitz v. Walter Drake & Sons, Inc., 
          806 F.2d 1426 (9th Cir. 1986). . . . . . . . . . . . . . . . . . . . 20-22

Molski v. M.J. Cable, Inc., 
          481 F.3d 724 (9th Cir. 2007). . . . . . . . . . . . . . . . . . . . 20, 47

Moyo v. Gomez, 
          40 F.3d 982 (9th Cir. 1994). . . . . . . . . . . . . . . . . . . . .33, 37

Murphy v. City of Long Beach, 
          914 F.2d 183 (9th Cir. 1990). . . . . . . . . . . . . . . . . . . . .   21

Pavao v. Pagay, 
          307 F.3d 915 (9th Cir. 2002). . . . . . . . . . . . . . . . . . . . .   18

Raad v. Fairbanks North Star Borough Sch. Dist., 
          323 F.3d 1185 (9th Cir. 2003). . . . . . . . . . . . . . . . . . . . .  42

Ray v. Henderson, 
          217 F.3d 1234 (9th Cir. 2000). . . . . . . . . . . . . . . . . . . . .  42

Reeves v. Sanderson Plumbing Prods., Inc., 
          530 U.S. 133 (2000). . . . . . . . . . . . . . . . . . . . . . . .  18, 19

Sellers v. Mineta, 
          358 F.3d 1058 (8th Cir. 2004). . . . . . . . . . . . . . . . . . . . .  51

Smith v. Marsh, 
          194 F.3d 1045 (9th Cir. 1999). . . . . . . . . . . . . . . . . . .  43, 46

Thorne v. City of El Segundo, 
          802 F.2d 1131 (9th Cir. 1986). . . . . . . . . . . . . . . . . .    51, 52

Trent v. Valley Elec. Ass'n Inc., 
          41 F.3d 524 (9th Cir. 1994). . . . . . . . . . . . . . . . . . . .  33, 38

United States v. Esparza-Gonzales, 
          422 F.3d 897 (9th Cir. 2005). . . . . . . . . . . . . . . . . . . . .   49

United States v. Fenix & Scisson, Inc., 
          360 F.2d 260 (10th Cir. 1966). . . . . . . . . . . . . . . . . .    24, 25

U.S. EEOC v. Century Broad. Co., 
          957 F.2d 1446 (7th Cir. 1992). . . . . . . . . . . . . . . . . . . . .  51

Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 
          259 F.3d 1101 (9th Cir. 2001). . . . . . . . . . . . . . . . . . . . .  19

Statutes

28 U.S.C.  451. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   1

28 U.S.C.  1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1

28 U.S.C.  1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1

28 U.S.C.  1337. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1

28 U.S.C.  1343. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1

28 U.S.C.  1345. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1

42 U.S.C.  2000e-3(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

42 U.S.C.  2000e-5(f)(3). . . . . . . . . . . . . . . . . . . . . . . . . . .     1

42 U.S.C.  2000e-5(g)(1). . . . . . . . . . . . . . . . . . . . . . . . . .  50, 59

Rules

Fed. R. Civ. P. 50(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  20

Fed. R. Civ. P. 50(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . .     20

Fed. R. Civ. P. 50(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  21

Other Authority

Advisory Committee Notes to the 1991 Amendments, 
          Fed. R. Civ. P. 50. . . . . . . . . . . . . . . . . . . . . . . .   21, 22

                                Jurisdictional Statement

	This action was brought in the United States District Court for the District of 
Arizona by the U.S. Equal Employment Opportunity Commission ("Commission") 
under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.  2000e et 
seq.  As such, the district court had jurisdiction over this case pursuant to 42 
U.S.C.  2000e-5(f)(3), which confers upon the federal district courts jurisdiction 
over actions brought under Title VII.  The district court also had jurisdiction over 
this case pursuant to 28 U.S.C.  451, 1331, 1337, 1343, and 1345.  After the case 
was tried to a jury, the district court, on April 25, 2007, entered final judgment.  
Appellant's Excerpts of Record ("ER") 3-4.  On June 21, 2007, defendant Go 
Daddy Software, Inc. ("Go Daddy") filed a notice of appeal in the district court, 
and on July 3, 2007, the Commission filed its notice of appeal.  This Court has 
jurisdiction over this appeal pursuant to 28 U.S.C.  1291, which provides the 
Circuit Courts of Appeals with jurisdiction over appeals from the final decisions of 
United States District Courts.

                     Statement of the Issues Presented for Appeal
I.	Whether the district court properly determined that Go Daddy's post-verdict 
Rule 50(b) motion was limited to the sole argument it raised in its pre-verdict Rule 
50(a) motion-whether there was sufficient evidence that Franklin was aware of 
Bouamama's complaint to Slezak, to support the jury's verdict.
II.	Whether the district court properly determined that there was sufficient 
evidence that Franklin was aware of Bouamama's complaint to Slezak, to support 
the jury's verdict.
III.	Whether, in any event, there was sufficient evidence of protected activity 
and causation to support the jury's finding of retaliation.
IV.	Whether the district court properly denied Go Daddy's Rule 59(a) motion 
for a new trial because the jury's verdict was not contrary to the clear weight of the 
evidence. 

                    Statement of the Issue Presented for Cross-Appeal
I.	Whether the district court abused its discretion in declining to award 
reinstatement.

                            Statement of the Case

	In this case, the Commission alleged that charging party Youssef Bouamama 
was subjected to unlawful discrimination in violation of Title VII, on the basis of 
his national origin (Moroccan), religion (Muslim), and having engaged in activity 
protected from retaliation under the statute, when Go Daddy did not select him for 
the newly-created position of Sales Supervisor and thereafter terminated his 
employment.  Appellee/Cross-Appellant's Supplemental Excerpts of Record 
("Supp.ER.") 1-2.  The Commission further alleged that Go Daddy violated federal 
recordkeeping regulations when it failed to preserve certain documents relating to 
Bouamama's nonselection.  Supp.ER.2.  The discrimination claims were tried to a 
jury, which returned a verdict in favor of the Commission on its retaliatory 
termination claim, but for Go Daddy on all other claims.<1> Supp.ER.8-12.  The jury 
awarded Bouamama $5,000 in compensatory damages and $250,000 in punitive 
damages, but on Go Daddy's post-trial motion the court reduced the punitive 
damages award to $195,000 in order to bring the total award for compensatory and 
punitive damages to $200,000-Title VII's damages cap for employers of Go 
Daddy's size.  Id.; ER.9-10.  The jury also rendered an advisory verdict of 
$135,000 in back pay, which the court reduced to $41,708, including prejudgment 
interest.  Supp.ER.11; ER.11-14.  The court denied the Commission's request for 
an award of reinstatement, finding that reinstatement was not warranted.  ER.14-
15.  The Court also awarded injunctive relief.  ER.16-18. 

                              Statement of Facts

	Go Daddy is a company which registers internet domain names for websites.  
Supp.ER.103.  Youssef Bouamama, who is Muslim and of Moroccan national 
origin, first began working for Go Daddy in September 2001 as a temporary 
Customer Service/Tech Support/Web Board employee in its call center.  
Supp.ER.49.  Three months later, Go Daddy converted Bouamama to a permanent 
full time employee, in the position of Sales Representative.  Supp.ER.18-19, 50, 
89.  In this position, Bouamama provided customer service via telephone and email 
to Go Daddy's clients, and also trained new hires in the Sales Representative 
position.  Supp.ER.51.  Brett Villeneuve, Go Daddy's Operations Manager and the 
person responsible for the call center, assessed Bouamama's performance as a 
Sales Representative during his tenure in that position, observing that while 
handling customer calls "wasn't his strongest point," Bouamama "was a good rep," 
and generally as an employee "all in all, he's okay.  He's got good technical 
knowledge."  Supp.ER.86-87, 89, 96-97.  On February 25, 2002, Villeneuve 
promoted Bouamama to the Team Lead position.  Supp.ER.53, 115-16.  In this 
position, Bouamama supervised and provided training and support to a team of five 
or six Sales Representatives.  Supp.ER.54, 91, 114.  Villeneuve noted that, as 
compared to the other Team Leads at Go Daddy, Bouamama's customer service 
skills were "right in there in the middle of them."  Supp.ER.92.  Bouamama was 
again promoted by Villeneuve in early July 2002, to the position of Inbound Sales 
Manager.  Supp.ER.94-95.  In this position, Bouamama provided support to the 
Sales Representatives, prepared sales reports and goals, and organized sales 
contests.  Supp.ER.55.  Bouamama displayed a strong work ethic, working almost 
every weekend but never requesting to be paid for any overtime.  Supp.ER.56-57.  
Villeneuve offered to hire an assistant to help Bouamama complete the Inbound 
Sales Manager duties, but Bouamama refused and continued to put in 
uncompensated overtime to make sure everything at Go Daddy was ready to go the 
next work day.  Supp.ER.56-57.  
     Shortly after making Bouamama a permanent employee, Villeneuve heard 
Bouamama speaking to a customer in French (Bouamama is multilingual) and 
asked where Bouamama was from, what language he was speaking, what other 
languages he spoke, and what religion he practiced.  Supp.ER.51-52.  Bouamama 
told Villeneuve that he was from Morocco, confirmed that he had been speaking 
French, that he also spoke Arabic, and that he was Muslim.  Supp.ER.52, 90.  After 
Villeneuve promoted him to the Inbound Sales Manager position, Bouamama 
complained to Heather Slezak, Go Daddy's Director of Personnel, about 
Villeneuve's questioning.  Supp.ER.28-29, 33, 78-79.  Slezak stated either that she 
would talk to Villeneuve, or that "[Villeneuve] is the way how [sic] it is, don't 
worry about him, he don't really mean stuff, something like that."  Supp.ER.79. 
     Slezak stated that when she receives complaints of discrimination, she 
speaks to the alleged discriminator, conducts a full investigation of the allegation, 
and takes any necessary corrective action.  Supp.ER.36-37.  Bouamama expected 
Slezak to "take [his] complaint into consideration," but she never followed up with 
him.  Supp.ER.79.         
     At another time, Villeneuve made a comment in Bouamama's presence, 
while speaking to other employees, that "the Muslims need to die" or "the bastard 
Muslims need to die."  Supp.ER.58.  Bouamama felt hurt by this comment, but did 
not say anything to Villeneuve because Bouamama understood that at that time 
"[w]e were at war. . . . After September 11 things changed, people are hurt, you 
know, I was hurt and, you know, it was devastating for everybody, it was horrible, 
and, you know, you try to be compassionate.  I understand the anger that some 
people are expressing, and that's why I don't [sic] say nothing."  Supp.ER.59.  
Bouamama added that he did not want to "make an issue in the company" or to be 
looked at as a "troublemaker," and he hoped that "maybe some day they'll see me 
as Youssef, you know, maybe they'll be more knowledgeable about, you know, my 
work ethic, my performance and they [will] look at me as Youssef, not as, you 
know, where he's from, what religion he practice or something like that."  
Supp.ER.59-60.  Bouamama also added that he did not complain about the 
comment because "[t]here's a culture in Go Daddy.  You complain you get fired."  
Supp.ER.60.  Bouamama had witnessed this culture in action at Go Daddy-seeing 
others complain and get fired-and he wanted to keep his job.  Id. 
	In early April 2003, Go Daddy hired Craig Franklin as the Director of the 
call center.  Supp.ER.29.  Villeneuve stayed on, reporting to Franklin.  
Supp.ER.42.  On April 2, 2003, Franklin held a meeting with the supervisors and 
managers at Go Daddy, including Bouamama, and informed them that he had been 
brought on board "to bring the company to another level" but he would not be 
making any changes to the company.  Supp.ER.61.  As Franklin was new to the 
company, Bouamama invited Franklin to an upcoming training session he was 
conducting in the sales department, in order to help bring Franklin up to speed on 
the functioning of that department.  Supp.ER.25, 61-62.  Bouamama-who speaks 
with a "very strong accent" recognized by at least one of Bouamama's coworkers 
as "middle eastern"-subsequently met with Franklin in his office.  Supp.ER.43-
44, 61.  After Franklin met Bouamama face-to-face for the first time, he cancelled 
this and two other meetings with Bouamama.  Supp.ER.62.
     Despite his telling Go Daddy's employees that he would not be making any 
changes at the company, Franklin decided to reorganize the call center.  As part of 
his reorganization plan, Franklin chose to eliminate the thirteen Team Lead 
positions, the weekend Operations Manager position, and Bouamama's Inbound 
Sales Manager position, and replace them with four, newly created, Sales 
Supervisor positions.  Supp.ER.20-22.  Go Daddy encouraged the employees in 
these eliminated positions to apply for the new Sales Supervisor positions.  
Supp.ER.26.  An employee whose position was being eliminated but chose not to 
apply or was not selected for the Sales Supervisor position had the option of taking 
a Sales Representative position, or taking a severance package and leaving the 
company.<2> Supp.ER.99.
     Bouamama testified, however, that he was only told of the severance 
package, and was not informed that he could return to the Sales Representative 
position.  Supp.ER.76-77, 80-81.  In fact, on April 4, 2003, Slezak, Villeneuve and 
Franklin all met together with Bouamama to inform him that his job had been 
eliminated, and told him that he could either apply for the Sales Supervisor 
position or just "walk away" from Go Daddy.  Supp.ER.62-63.  Franklin stated that 
he did not care about Bouamama's "background or history with the company, 
something like that."  Supp.ER.62.5.  Slezak repeated the "walk away" part of that 
message to Bouamama five times, such that he understood Slezak to be saying that 
he should quit.  Supp.ER.62.
     Bouamama testified that the day after this meeting, Franklin stopped by his 
cubicle, looked at Bouamama's pictures, and asked where they were taken.<3>
Supp.ER.63.  Bouamama replied Morocco, and Franklin asked if Bouamama was 
from Morocco and if he was Muslim.  Id.  Bouamama answered yes to both 
questions, and Franklin replied "you know, you're lucky that I like you," and then 
walked away.  Id.  Later that day Bouamama reported Franklin's comments to 
Slezak, telling her:
[T]his is the second time that people are concerned and taking interest 
about, you know, where I'm from, my religion.  You know, I can 
understand that it was happening with [Villeneuve] but this guy here 
[Franklin], I don't know him and two days ago he came and telling 
[sic] me that he doesn't care about my history and he wanted to 
eliminate my position.  The next day he's taking interest for [sic] who 
I am and where I'm from.

Supp.ER.64.  Slezak said she would look into the matter.  Id.              
     Almost all the employees affected by Franklin's plan, including Bouamama, 
opted to apply for one of the Sales Supervisor positions.  On April 9 and 10, 2003, 
a panel of Go Daddy management personnel-Franklin, Villeneuve, and Slezak-
interviewed the Sales Supervisor candidates.  Bouamama was interviewed first.  
Supp.ER.30-31, 113.  On April 14, 2003, Bob Parsons, the company's CEO, 
informed Bouamama that he did not get a Sales Supervisor position.  Supp.ER.65.  
However, unlike all the other unsuccessful candidates for the Sales Supervisor 
position, Bouamama was not offered the opportunity to return to a Sales 
Representative position.  Supp.ER.62. 
     In his meeting with Parsons, Parsons told Bouamama that instead of the 
Sales Supervisor position, he would be "doing sales statistics" for the company, 
and he did not want Bouamama to "worry about what is going on in the sales 
department."  Supp.ER.65.  Bouamama left this meeting with the impression that 
he would "be moving to another department doing statistics, sales or statistics 
analysis" (Parsons described the position but did not indicate its title).  
Supp.ER.67.  As Bouamama passed Franklin's office on his way back to his 
cubicle, Franklin saw Bouamama and said "come here," and called Bouamama 
"the F word."  Id.  Bouamama responded by "look[ing] at him like, 'What?'" and 
then Franklin again said "come here."  Supp.ER.67-68.  Bouamama replied that he 
had just spoken to Parsons, and went home.  Supp.ER.68.  That evening, 
Bouamama received an email from Barb Rechterman, Go Daddy's Executive Vice 
President, stating that Bouamama was to meet with Franklin and her.  Supp.ER.70, 
104.  
     The next day, at that meeting, Rechterman asked Bouamama to prepare a 
report for her "related to sales product and cost."  Supp.ER.70.  The request was 
made at around ten o'clock in the morning, and Rechterman told Bouamama to get 
it to her by noon.  Id.  Bouamama provided Rechterman a preliminary report at 
11:30 that morning, and asked her if his report was what she was expecting, but 
Rechterman did not respond.  Supp.ER.71.  Bouamama turned in the completed 
report at 2:30 that afternoon, and a short time later went to Rechterman's office 
and asked her again if his report met her expectations.  Id.  Rechterman responded 
that she did not know why Bouamama was sent to her department, and directed 
him to speak with Franklin about why he did not get a Sales Supervisor position.  
Id.
     Bouamama went to Franklin's office as directed, where Franklin told him 
"oh, I thought I took care of you."  Supp.ER.72.  Bouamama asked why he did not 
get the Sales Supervisor position, and Franklin told him that he needed to go speak 
to Rechterman.  Supp.ER.73.  Bouamama responded that he was "tired of all this," 
and, as his shift had ended, he went home.  Id.  The next day, Bouamama did not 
report to work, instead calling in sick.  Supp.ER.73-74.  Slezak called Bouamama, 
stating that "there was something urgent that we needed to talk about," and that 
Bouamama needed to come in to work to have this conversation.  Supp.ER.74.  
     Bouamama agreed to come to work in the afternoon, and when he arrived, 
he met with Slezak and Franklin.  Supp.ER.75.  Slezak told him "you did not get 
the Sales Supervisor position and you're not going to go back to the [sales] floor," 
and offered him the severance package.  Id.  Bouamama asked if he was being 
terminated, and they responded that "effective today immediately.  You [are] no 
longer with the company."  Supp.ER.76.
     
                    District Court Proceedings

I.  	Pre- and post-verdict motions.
	At trial, after the parties had each rested their cases and after the 
Commission had made its initial closing argument and Go Daddy had made more 
than half of its closing argument, the court asked Go Daddy if it wanted to move 
for judgment as a matter of law under Rule 50(a).  Supp.ER.109 ("Did you want to 
raise a Rule 50 motion?").  The court permitted Go Daddy to make its motion in 
the midst of its closing argument, by simply responding "[w]e would" to the 
court's inquiry, but directed Go Daddy to argue the motion after closing arguments 
were completed and the court had given instructions to the jury.  Id.  After 
instructing the jury and excusing it to deliberate the case, the court permitted Go 
Daddy to argue its Rule 50(a) motion.  Supp.ER.110-11 ("Mr. Ogden, you made a 
Rule 50 motion and I said I would hear it after we sent the jury out.  Is there 
anything you wish to say on it?").  Go Daddy made the following Rule 50(a) 
argument regarding the retaliation claim:
With regard to the Commission's retaliation claim, there hasn't been 
any evidence that Miss Slezak told any other panel members 
regarding the alleged reports made to her by Mr. Bouamama.  Mr. 
Franklin and Mr. Villeneuve both testified that, in fact, Miss Slezak 
had not reported any protected activity to them, and without this 
knowledge, knowledge by one of three panel members is insufficient 
for the jury to return a verdict on retaliation.

Supp.ER.112.  This was the entirety of Go Daddy's argument in support of its Rule 
50(a) motion on the Commission's retaliation claim.  See id.  The court said it 
would take "the motion under advisement but submit the case to the jury."  Id.
	The jury returned a verdict in favor of the Commission as to the claim that 
Bouamama's termination was the result of unlawful retaliation, but for Go Daddy 
on the remaining claims.  Supp.ER.8-12.  Go Daddy then moved for judgment as a 
matter of law under Rule 50(b), and/or for a new trial under Rule 59(a).  ER.20.  In 
its Rule 50(b) motion, Go Daddy argued, as it had in support of its Rule 50(a) 
motion, that the evidence was insufficient to show that Franklin was aware of 
Bouamama's complaint to Slezak.  ER.26-27.  In addition, however, it presented 
for the first time several other arguments why judgment as a matter of law was 
appropriate.  Specifically, Go Daddy added arguments that the evidence was 
insufficient to demonstrate that Bouamama engaged in activity protected under 
Title VII, that the evidence did not demonstrate a causal nexus between the 
protected activity and the termination because Go Daddy made the decision to 
eliminate Bouamama's position before he engaged in protected activity, and that 
there was otherwise insufficient evidence to suggest a causal connection between 
Bouamama's protected activity and his termination.  ER.21-26.  In its motion for a 
new trial, Go Daddy repeated its Rule 50(b) arguments.  ER.27-28.
     The Commission filed a motion for, in relevant part, equitable relief in the 
form of reinstatement.  Supp.ER.13.  Relying on Albemarle Paper Co. v. Moody, 
422 U.S. 405, 418 (1975), the Commission argued that reinstatement should be 
awarded under the general rule that the plaintiff is to be placed "as near as may be" 
in the situation he would have occupied absent the violation.  Supp.ER.14-15.    

II.	District court decision.
     In ruling on the parties' post-trial motions, the court first denied Go Daddy's 
motion for judgment as a matter of law under Rule 50(b).  The court ruled that the 
bulk of Go Daddy's 50(b) arguments were not properly before the court, as it had 
failed to make them in its Rule 50(a) motion.  ER.5-7 (citing Freund v. Nycomed 
Amersham, 347 F.3d 752, 761 (9th Cir. 2003)).  As for the one argument in Go 
Daddy's Rule 50(b) motion that had been raised in its pre-verdict Rule 50(a) 
motion-that the evidence did not show that Franklin was aware of Bouamama's 
complaint to Slezak-the court noted Bouamama's testimony that Franklin and 
Slezak had terminated him, and that he had "complained to Ms. Slezak about 
discriminatory conduct by Mr. Franklin only days before his termination."  ER.7.  
The court concluded that "[v]iewing the evidence in the light most favorable to 
plaintiff and drawing all reasonable inferences in its favor, . . . the jury reasonably 
could have found that both Mr. Franklin and Ms. Slezak were aware of the 
protected activity and that their termination of Mr. Bouamama was in response to 
that activity."  ER.7.  The court also denied Go Daddy's motion for a new trial.  
     The court denied the Commission's request for reinstatement.  After noting 
that reinstatement is a discretionary remedy, the court stated that reinstatement was 
inappropriate because the evidence, and jury verdict, showed that even if 
Bouamama had not been subjected to retaliation, his Inbound Sales Manager 
position would have been eliminated, he would not have received one of the Sales 
Supervisor positions, and he would have been offered a Sales Representative 
position.  ER.14.  However, the court continued (without citation to any evidence), 
the Sales Representative position is not the position Bouamama sought with Go 
Daddy, his prior performance in that position had been "less than fully satisfactory 
for him and his supervisors," and no evidence had been presented showing that his 
prospects at his current employment were any less than those he would have at Go 
Daddy.  ER.14-15.  The court also referred to Bouamama's allegations of 
discrimination having been leveled at persons still employed in management at Go 
Daddy, as well as the sizeable damages award, as reasons counseling against 
reinstatement.  ER.15.  From all this, the court concluded that "reinstatement is 
neither warranted nor wise."  ER.15 (citations omitted).
     
      
                      Summary of the Argument as Appellee
     The district court properly concluded that there was no merit to Go Daddy's 
Rule 50(b) motion for judgment as a matter of law or its Rule 59(a) motion for a 
new trial, and thus this Court should affirm the court's denial of those motions.  
First, as for Go Daddy's Rule 50(b) motion, the district court correctly determined 
that because Go Daddy had only challenged one narrow issue in its pre-verdict 
Rule 50(a) motion-whether the evidence was sufficient to show that Slezak 
informed Franklin that Bouamama had complained-it had waived the arguments 
that the evidence was insufficient to show that Bouamama had engaged in 
protected activity or that there was a causal connection between Bouamama's 
complaint and his termination.  The district court also correctly determined that 
there was no merit to the one argument Go Daddy had raised in its Rule 50(a) 
motion, as there was ample evidence to support a reasonable jury's conclusion that 
Slezak did in fact tell Franklin about Bouamama's complaint.  
     Furthermore, even if Go Daddy's remaining Rule 50(b) arguments regarding 
the sufficiency of the evidence had not been waived, those arguments also lacked 
merit.  The evidence was more than adequate to support a finding that 
Bouamama's complaint to Slezak about Franklin's elimination of his job and 
questioning him about his national origin and religion constituted protected 
activity.  
     The record also supports the Commission's claim that Bouamama was 
terminated after he engaged in this protected activity, when Go Daddy terminated 
him instead of letting him return to a Sales Representative position-and not, as 
Go Daddy claims, when Franklin decided to eliminate his management position.  
As such, the evidence was more than sufficient to support a reasonable jury's 
conclusion that Bouamama engaged in protected activity before he was terminated, 
and that there existed the requisite causal link between that protected activity and 
his termination.
     The district court also properly denied Go Daddy's Rule 59(a) motion for a 
new trial, and did not abuse its discretion in determining that the jury's verdict was 
not contrary to the clear weight of the evidence.  As the court correctly recognized, 
there was evidence supporting the Commission's position on every element on 
which it bore the burden of proof.
Summary of the Argument as Cross-Appellant
     The district court did, however, abuse its discretion when, despite the jury's 
returning a verdict finding that Go Daddy unlawfully retaliated against Bouamama 
when it terminated his employment, it refused to award reinstatement as a remedy 
for this unlawful termination.  First, the district court erred as a matter of law in 
determining that simply because Bouamama had leveled allegations of 
discrimination against individuals still employed at Go Daddy, and had recovered 
substantial damages, reinstatement was not warranted.  This ruling-in effect a 
conclusion that reinstatement is inappropriate simply because the parties had 
litigated a Title VII case and the plaintiff had prevailed-effectively eviscerates 
Title VII's provision for reinstatement as a remedy for prevailing plaintiffs, and 
runs counter to the jurisprudence of this and other Courts.  In addition, the factual 
bases relied on by the district court are without support in the record, and in fact 
run contrary to the evidence as a whole-and as such, amount to clear error.

                           Argument as Appellee
I.	Standard of review.
	This court reviews a district court's denial of a Rule 50(b) motion de novo, 
applying the same standard to the motion as that applied by the district court.  
Josephs v. Pac. Bell, 443 F.3d 1050, 1062 (9th Cir. 2006); Freund v. Nycomed 
Amersham, 347 F.3d 752, 760 n.8 (9th Cir. 2003).  In order to prevail on a Rule 
50(b) motion, the movant must establish that "the evidence permits only one 
reasonable conclusion, and that conclusion is contrary to the jury's verdict."  
Josephs, 443 F.3d at 1062 (citing Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 
2002)).  In determining whether the evidence meets that test, this Court "view[s] 
the evidence in the light most favorable to the nonmoving party . . . and draw[s] all 
reasonable inferences in that party's favor."  Id. (citing Reeves v. Sanderson 
Plumbing Prods., Inc., 530 U.S. 133, 149-50 (2000)).  Moreover, "although the 
court should review the record as a whole, it must disregard all evidence favorable 
to the moving party that the jury is not required to believe.  That is, the court 
should give credence to the evidence favoring the nonmovant as well as that 
'evidence supporting the moving party that is uncontradicted and unimpeached, at 
least to the extent that the evidence comes from disinterested witnesses."  Reeves, 
530 U.S. at 150-51.  "Credibility determinations, the weighing of the evidence, and 
the drawing of drawing of legitimate inferences from the facts are jury functions, 
not those of a judge."  Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 
255 (1986)). 
	When an argument challenging the sufficiency of the evidence is not 
properly made in the trial court pursuant to Rule 50(a), as the district court found 
here as to the majority of Go Daddy's post-trial Rule 50(b) arguments, this Court 
will reverse the trial court only "if there is 'plain error apparent on the face of the 
record' that, if unnoticed, would result in a 'manifest miscarriage of justice.'"  Yeti 
by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1109 (9th Cir. 2001) 
(citation omitted).  "'This exception . . . permits only extraordinarily deferential 
review that is limited to whether there was any evidence to support the jury's 
verdict, irrespective of its sufficiency.'"  Id. (citation omitted; emphasis in 
original).  This Court reviews a district court's denial of a Rule 59(a) motion for a 
new trial for abuse of discretion, and will reverse such a ruling only if there is no 
evidence in support of the verdict, or if the court made an error of law.  Molski v. 
M.J. Cable, Inc., 481 F.3d 724, 728-29 (9th Cir. 2007).
II.	The district court correctly concluded that Go Daddy has waived the bulk of 
its arguments challenging the sufficiency of the evidence.

 	As the district court held, Go Daddy is precluded from challenging the jury 
verdict as based on insufficient evidence on any issue other than whether Slezak 
told Franklin about Bouamama's complaint.  Having failed to properly preserve its 
other arguments in its Rule 50(a) motion, Go Daddy has waived any argument that 
there was insufficient evidence that Bouamama engaged in protected activity or 
that a causal link existed between his protected activity and his termination.  Go 
Daddy's arguments to the contrary are simply untenable.  
	Under Rule 50, a party may move for judgment as a matter of law, after the 
opposing party has been fully heard on the relevant issue, on the ground that there 
is no legally sufficient evidentiary basis for awarding judgment to the opposing 
party.  Fed. R. Civ. P. 50(a) (attached at Addendum p.1).  The party seeking 
judgment as a matter of law must make its Rule 50 motion before the case is 
submitted to the jury.  Id. at (a)(2).  Such motion "must specify the judgment 
sought and the law and the facts that entitle the movant to the judgment."  Id. 
(emphasis added); see also Lifshitz v. Walter Drake & Sons, Inc., 806 F.2d 1426, 
1429 (9th Cir. 1986) ("A motion for a directed verdict, however characterized, 
must 'state . . . specific grounds.'") (omission in original).  If the court does not 
rule on the motion before the case is submitted to the jury, "the court is considered 
to have submitted the action to the jury subject to the court's later deciding the 
legal questions raised by the motion."  Fed. R. Civ. P. 50(b) (emphasis added) 
(attached at Addendum p.1).
     This Court has long recognized that, in a renewed motion under Rule 50(b), 
"[a] party cannot raise arguments . . . that it did not raise in its pre-verdict Rule 
50(a) motion."  Freund, 347 F.3d at 761 (citing Advisory Comm. Notes to the 1991 
Amendments, Fed. R. Civ. P. 50).  "A party may secure a j.n.o.v. only 'in 
accordance with his motion for a directed verdict.'  A directed verdict motion can 
therefore serve as the prerequisite to a j.n.o.v. only if it includes the specific 
grounds asserted in the [Rule 50(a)]  j.n.o.v. motion."  Lifshitz, 806 F.2d at 1429 
(emphases added).  
     A grant of judgment as a matter of law under Rule 50(b) "is improper if 
based upon grounds not alleged in a directed verdict because, among other reasons, 
the moving party has not called the 'claimed deficiency in the evidence to the 
attention of the court and to opposing counsel at a time when the opposing party is 
still in a position to correct the deficit.'"  Murphy v. City of Long Beach, 914 F.2d 
183, 186 (9th Cir. 1990).  As this Court further recognized in Lifshitz, "[i]f this 
were not so, the directed verdict motion would not serve its purpose of providing 
clear notice of claimed evidentiary insufficiencies and of preserving the issue of 
the sufficiency of the evidence on a particular matter as a question of law."  806 
F.2d at 1429; see also Freund, 347 F.3d at 761 (same).  In addition, this Court's 
well-established rule is completely consistent with Rule 50's drafters' intent, as 
approved by Congress, that "[b]ecause the Rule 50 motion is only a renewal of the 
preverdict motion, it can be granted only on grounds advanced in the preverdict 
motion."  Fed. R. Civ. P. 50, Advisory Comm. Notes, 2006 amendment (emphasis 
added) (attached at Addendum p.7). 
     Examining Go Daddy's Rule 50(a) and (b) motions in light of this rule 
shows that the district court committed no reversible error in concluding that the 
only sufficiency of the evidence argument Go Daddy presented, and thus 
preserved, in its Rule 50(a) motion was in regard to Franklin's awareness of 
Bouamama's complaint to Slezak.  Go Daddy's entire Rule 50(a) motion on the 
Commission's retaliation claim was as follows: 
With regard to the Commission's retaliation claim, there hasn't been 
any evidence that Miss Slezak told any other panel members 
regarding the alleged reports made to her by Mr. Bouamama.  Mr. 
Franklin and Mr. Villeneuve both testified that, in fact, Miss Slezak 
had not reported any protected activity to them, and without this 
knowledge, knowledge by one of three panel members is insufficient 
for the jury to return a verdict on retaliation.

Supp.ER.112.  It is absolutely beyond question from the plain language of Go 
Daddy's motion that its argument was explicitly limited to the question of whether 
there was evidence that Franklin knew of Bouamama's complaint to Slezak.  The 
only "specific" "facts" that Go Daddy identified were related to whether "Miss 
Slezak told any other panel members" about Bouamama's alleged complaints, and 
that Franklin and Villeneuve claimed she had not reported anything to them.  The 
only "specific" "law" the motion identifies is the aforementioned notice 
requirement, because the motion asserts "without this knowledge, knowledge by 
one of three panel members is insufficient" to support a verdict in the 
Commission's favor.  Id.  The district court correctly ruled that Go Daddy's Rule 
50(b) motion was limited to the specific argument made in its Rule 50(a) motion 
and that its other arguments had thus been waived.    
	Go Daddy attempts to undermine the district court's decision by arguing that 
the district court's interpretation of Rule 50 is "overly strict" and that courts 
"liberally construe" Rule 50 motions.  AtBr.36-37.  This Court should reject Go 
Daddy's argument.  Go Daddy cites no case or authority which would support the 
conclusion that the district court here misapplied Rule 50 standards.  In fact, the 
district court's application of this Court's precedent governing Rule 50 motions 
abided by that precedent.  In addition, none of the authority relied on by Go Daddy 
would support the result Go Daddy seeks here.  
     Specifically, Go Daddy fails to identify any authority holding that a party, 
after making a narrow, specific, factual and legal Rule 50(a) argument on a precise, 
discrete element of a claim-as the company did here-should nevertheless be 
permitted to argue in its Rule 50(b) motion on other, different, discrete elements 
that were not identified in the Rule 50(a) motion.  See AtBr.37 (citing cases).  In 
one of the cases cited by Go Daddy, the pre-verdict motion challenged "each issue 
in the case," not a single, discrete element.  United States v. Fenix & Scisson, Inc., 
360 F.2d 260, 265 (10th Cir. 1966).  In another of Go Daddy's cited cases, the 
court recognized that the pre-verdict Rule 50(a) motion and post-trial Rule 50(b) 
motion contained the same "specific grounds" for a directed verdict.  Anderson v. 
United Tel. Co. of Kan., 933 F.2d 1500, 1503-04 (10th Cir. 1991).  
     Go Daddy also cited as support Kusens v. Pascal Co., 448 F.3d 349, 362-63 
(6th Cir. 2006), but in that case the court recognized that the movant argued 
"generally" in its Rule 50(a) motion regarding the entirety of the plaintiff's claim, 
and then in its Rule 50(b) motion the movant presented the same claim "with 
specificity."  This is exactly the opposite of what Go Daddy did here, where it 
identified a discrete, narrow issue in its Rule 50(a) motion and then tried to 
challenge more broadly the entirety of the Commission's case in its post-trial 
"renewal" of that motion.  Go Daddy similarly errs in relying on Federal Savings 
and Loan Insurance Corp. v. Reeves, 816 F.2d 130, 137-38 (4th Cir. 1987), as the 
pre- and post-verdict motions in that case involved a pure question of law, and not 
a challenge to the sufficiency of the evidence.    
     Indeed, another case cited by Go Daddy, Aguinaga v. United Food and 
Commercial Workers International Union, 993 F.2d 1463, 1470 (10th Cir. 1993), 
confirms that the district court properly applied the rule.  The appellate court in 
that case noted that while "technical precision" is not required in a Rule 50(a) 
motion, this is so only "as long as the trial court is aware of the movant's position" 
at the time of the Rule 50(a) motion.  993 F.2d at 1470; see also Fenix, 360 F.2d at 
265-66 ("Technical precision is not necessary in stating grounds so long as the trial 
court is aware of the movant's position.").  The court added that "[h]ad the court 
deemed the [movant's] claims to be new issues not previously raised on directed 
verdict, the learned judge would not have addressed them."  Aguinaga, 993 F.2d at 
1470.  This is precisely what the district court did here-it identified the bulk of 
Go Daddy's Rule 50(b) arguments as not having been previously raised, and thus 
deemed them waived.<4>
     Go Daddy further argues that it can meet the requirements of Rule 50 by 
presenting an "inartful" or "ambiguous" motion as long as the nonmovant is 
"aware of the grounds upon which the motion is made."  AtBr.38.  This argument 
is flawed.  First, Go Daddy's motion, while admittedly inadequate to support the 
arguments it now seeks to make, was neither inartful nor ambiguous.  It clearly 
conveyed that Go Daddy believed the Commission's case failed due to a lack of 
evidence that Slezak told Franklin that Bouamama complained.  The motion made 
no other arguments and thus did not put the Commission-or the trial court-on 
notice that Go Daddy was challenging the sufficiency of the evidence on any other 
issues.
     Go Daddy then does an about-face and argues that the plain terms of its Rule 
50(a) motion presented the issues of whether there was sufficient evidence that 
Bouamama had engaged in protected activity and that there was no causal 
connection between the protected activity and his termination.  See AtBr.38-39.  
This argument similarly lacks merit.  Go Daddy asserts it met the requirements of 
the rule by sporadically and disconnectedly inserting the words "hasn't been any 
evidence," "alleged reports," and "any protected activity" into its motion.  See 
AtBr.38-39.  What Go Daddy fails to recognize is that it has to do more than 
simply toss words around to comply with the rule.  It has to actually make an 
argument-which it neglected to do.  Go Daddy, in its oral motion to the district 
court, simply made no argument, specific or general, regarding whether the 
evidence was sufficient to show that Bouamama engaged in protected activity and 
whether there was evidence showing the existence of a causal connection between 
that protected activity and Bouamama's termination.  Rather, Go Daddy merely 
argued there was a lack of evidence regarding whether Slezak told Franklin about 
Bouamama's complaint, not about "causation" or "protected activity."  
Supp.ER.112.  This is exactly what a plain reading of the motion reveals, and 
exactly how the district court properly understood Go Daddy's motion.  Go 
Daddy's assertion to the contrary is simply untenable.
	Go Daddy next argues that it nevertheless satisfied the requirements of  Rule 
50 because its Rule 50(a) motion, "when combined with its evidence at trial, 
'squarely placed'" its protected activity and causal connection arguments before 
the court, and as such was sufficient to support their renewal in its post-trial Rule 
50(b) motion.  AtBr.39-43.  Go Daddy is incorrect.  The company presented 
absolutely no authority in support of its novel proposition that simply presenting 
evidence at trial on discrete issues not addressed in its Rule 50(a) motion is 
sufficient to permit inclusion of those unargued issues in a post-trial Rule 50(b) 
motion.  Of course, the lack of supporting authority for this proposition is 
understandable, given that such a standard would obviate the rule.  If a party could 
pursue a Rule 50(b) motion simply by virtue of having made arguments and 
presented evidence during the course of a trial, there would be no need for Rule 
50(a).  Accordingly, Go Daddy's presentation at trial of evidence on these other 
issues simply does not meet its burden under Rule 50(a), and therefore cannot 
serve as the basis for a "renewed" motion under Rule 50(b).<5>
III.	The district court correctly concluded that the evidence at trial was sufficient 
to support a reasonable jury's conclusion that Franklin was aware of 
Bouamama's complaint at the time he and Slezak terminated Bouamama's 
employment.

	As described above, the only argument Go Daddy properly presented in its 
Rule 50(b) motion was whether there was sufficient evidence that Slezak told 
Franklin about Bouamama's complaint.  In addressing this argument, the district 
court ruled against Go Daddy because based on the evidence, "a jury reasonably 
could have found that both Mr. Franklin and Ms. Slezak were aware of the 
protected activity and that their termination of Mr. Bouamama was in response to 
that activity."  ER.7.  In order to prevail on appeal, Go Daddy must demonstrate 
that the jury erred in reaching a verdict for the Commission because the evidence 
compels but one reasonable conclusion-a conclusion in favor of Go Daddy.  Go 
Daddy, however, has failed to make this showing.  As the district court concluded, 
the jury's verdict was amply supported by the evidence, and comports with the 
applicable substantive legal standards governing the establishment of a retaliation 
claim.  As such, there is no error in the court's decision on this issue.   
     Go Daddy's protestations to the contrary notwithstanding, the evidence was 
more than sufficient to support a reasonable jury's conclusion that Slezak told 
Franklin about Bouamama's complaint before they terminated him.  Bouamama 
testified that the day after he was told by Franklin, Slezak, and Villeneuve that his 
position was being eliminated, Franklin stopped by Bouamama's cubicle, looked at 
Bouamama's pictures in the cubicle, and asked where they were taken.  
Supp.ER.63.  Bouamama replied Morocco, and Franklin asked if Bouamama was 
from Morocco and if he was Muslim.  Id.  Bouamama answered yes to both 
questions, and Franklin replied "you know, you're lucky that I like you," and then 
walked away.  Id.  Later that day Bouamama reported Franklin's comments to 
Slezak, telling her:
[T]his is the second time that people are concerned and taking interest 
about, you know, where I'm from, my religion.  You know, I can 
understand that it was happening with [Villeneuve] but this guy here 
[Franklin], I don't know him and two days ago he came and telling 
[sic] me that he doesn't care about my history and he wanted to 
eliminate my position.  The next day he's taking interest for [sic] who 
I am and where I'm from. 
   
Supp.ER.64.  Slezak said she would look into the matter.  Id.  Slezak testified that 
she had received complaints of discrimination from others in the past, and 
described in detail what she typically did in response to complaints about 
discrimination.  See Supp.ER.36-37.  Slezak testified that she would speak to the 
alleged discriminator, conduct a full investigation of the allegation, and take any 
necessary corrective action.  Supp.ER.36-37.
     Based on the aforementioned evidence, particularly when viewed in the light 
most favorable to the Commission and taking all reasonable inferences in the 
Commission's favor, a reasonable jury could easily conclude that Bouamama 
complained to Slezak about Franklin's conduct, and that Slezak did precisely what 
she said she does in response to complaints of discrimination-she went to the 
alleged discriminator about the complaint, here, Franklin, and discussed it with 
him.  Go Daddy's argument that there is no evidence on this point, see AtBr.33, is 
simply incorrect.  
     The jury verdict is further buttressed by the evidence that, in contrast to his 
behavior prior to Bouamama's complaint, Franklin began to show open hostility 
toward Bouamama after Bouamama complained to Slezak.  On April 14, 2003, 
after meeting with Parsons, Bouamama passed Franklin's office on his way back to 
his cubicle.  Supp.ER.65, 67.  Franklin saw Bouamama and said "come here," and 
called Bouamama "the F word."  Supp.ER.67.  The following day, Bouamama 
went to Franklin's office when directed to do so by Rechterman, where Franklin 
told him "oh, I thought I took care of you."  Supp.ER.72.  Go Daddy 
understandably ignores this evidence, as a reasonable juror could infer from 
Franklin's altered disposition and behavior toward Bouamama that Franklin 
learned that Bouamama complained about him to Slezak, and that Franklin was not 
happy about the complaint.
     Go Daddy contends that there was no evidence showing that Slezak told 
Franklin about Bouamama's complaint because Bouamama stated he did not know 
what Slezak did with his complaint.  AtBr.33-34.  Go Daddy's argument is 
meritless.  Of course, it is irrelevant whether Bouamama actually knew if Slezak 
reported his complaint to Franklin or not, as the relevant question is what does the 
evidence suggest Franklin knew.  As such, Bouamama's lack of knowledge as to 
what Slezak actually did or did not do in no way diminishes the evidence 
suggesting that Slezak did in fact tell Franklin about Bouamama's complaint.
     Go Daddy also asserts that the evidence of notice on the part of  
Franklin is lacking because he, Slezak, and other Go Daddy officials testified that 
Bouamama never complained to them about discrimination or retaliation.  
AtBr.33-34.  This argument fails for two reasons.  First, it was not presented in the 
company's Rule 50(a) motion, and is therefore not properly before this Court on 
appeal.  See supra at 20-28.  Second, Go Daddy's argument completely ignores the 
fact that Bouamama testified that he did complain to Slezak, and the jury was free 
to discredit the testimony of Go Daddy's officials, which it apparently did.
     From all the aforementioned record evidence, viewed in the light most 
favorable to the Commission and making all reasonable inferences in the 
Commission's favor, a reasonable finder of fact could easily conclude that Slezak 
not only received Bouamama's complaint about Franklin's conduct, but that she 
communicated the complaint to Franklin.  The jury therefore had ample evidence 
from which to conclude that both Slezak and Franklin were aware of Bouamama's 
protected activity when they terminated his employment, and the district court 
therefore correctly denied Go Daddy's Rule 50(b) motion on this basis.
IV.	In any case, the evidence was more than sufficient to support the jury's 
verdict in the Commission's favor.

	As noted previously, the district court correctly concluded that Go Daddy 
had waived the majority of its Rule 50(b) arguments-its claims that the evidence 
was insufficient to show that Bouamama engaged in protected activity or to 
establish a causal nexus between the protected activity and the adverse action.  See 
supra at 20-28; ER.5-7 & n.1.  Go Daddy's arguments on these points, however, 
lack merit in any event because the evidence adduced at trial amply supports the 
jury's verdict on each of these points.
A.	The evidence that Bouamama engaged in protected activity was 
sufficient to support the jury's verdict.

     Go Daddy contends that the evidence was insufficient to support a 
reasonable jury's conclusion that Bouamama engaged in protected activity because 
he never complained, and even if he did the conduct about which he complained 
could not reasonably be viewed as a violation of Title VII.  See AtBr.20-27.  The 
company is incorrect.  
     Title VII's antiretaliation provision makes it "an unlawful employment 
practice for an employer to discriminate against any of his employees . . . because 
he has opposed any practice made an unlawful employment practice by this 
subchapter."  42 U.S.C.  2000e-3(a); Burlington N. & Santa Fe R.R. Co. v. White, 
-- U.S. --, --, 126 S. Ct. 2405, 2411 (2006); see also Clark County Sch. Dist. v. 
Breeden, 532 U.S. 268, 269 (2001) (same).  When an employee protests the actions 
of a supervisor as a violation of Title VII, the employee's complaint is a "protected 
activity" under the statute.  Trent v. Valley Elec. Ass'n Inc., 41 F.3d 524, 526 (9th 
Cir. 1994) (citing EEOC v. Crown Zellerbach Corp., 720 F.3d 1008, 1014 (9th Cir. 
1983)).  "It is not necessary, however, that the [complained-of] employment 
practice actually be unlawful; opposition clause protection will be accorded 
'whenever the opposition is based on a 'reasonable belief' that the employer has 
engaged in an unlawful employment practice.'"<6>  Moyo v. Gomez, 40 F.3d 982, 
984 (9th Cir. 1994) (emphasis in original) (quoting in part Crown Zellerbach, 720 
F.2d at 1013); see also Freitag v. Ayers, 468 F.3d 528, 541 (9th Cir. 2006) (same).  
Moreover, in determining whether an individual has engaged in opposition 
conduct, "courts liberally construe the provisions of [the antiretaliation portion of 
the statute] to effectuate the remedial purposes of the act."  Learned v. City of 
Bellevue, 860 F.2d 928, 932 (9th Cir. 1988).  "Courts have not imposed a rigorous 
requirement of specificity in determining whether an act constitutes 'opposition' 
for purposes of [the antiretaliation statute]."  Crown Zellerbach, 720 F.2d at 1013.  
An employee's complaint rises to the level of opposition conduct so long as "it 
refers to some practice by the employer that is allegedly unlawful," coupled with 
"a 'reasonable belief' that the employer has engaged in an unlawful employment 
practice."  Id. at 1012-13 (emphasis in original) (citations omitted).  
	Under this standard, there is a sufficient evidentiary basis for a reasonable 
jury to have concluded, as the jury did in this case, that Bouamama's complaint to 
Slezak was based on a reasonable belief that he was being subjected to an 
employment practice made unlawful under Title VII-that his job was being 
eliminated because of discrimination based on his national origin and/or religion.  
     Bouamama testified that when Franklin was brought on board at Go Daddy, 
Franklin announced to Bouamama and other managers that there would be no 
changes at Go Daddy.  Supp.ER.61.  After this meeting, Bouamama-who speaks 
with a "very strong accent" recognized by at least one of Bouamama's coworkers 
as "middle eastern"- met with Franklin in his office.  Supp.ER.43-44, 61.  
Bouamama invited Franklin to an upcoming training session he was conducting in 
the sales department, in order to help bring Franklin up to speed on the functioning 
of that department.  Supp.ER.25, 61-62.  After Franklin met Bouamama face-to-
face for the first time, he cancelled this and two other meetings with Bouamama.  
Supp.ER.62.
     The next time Franklin spoke to Bouamama was a few days later, when 
Franklin, Slezak, and Villeneuve met with Bouamama, and Slezak informed 
Bouamama that his Inbound Sales Manager position was being eliminated.  
Supp.ER.62.  Franklin commented that "he didn't care about [Bouamama's] 
background or history with the company, something like that."  Id.  Bouamama 
was not told that other positions at Go Daddy would also be eliminated-only that 
his position was being eliminated.  Supp.ER.62 ("Slezak told me that they're going 
to eliminate my position and there's going to be a new position as a Sales 
Supervisor").  
      Bouamama's next interaction with Franklin was before the Sales Supervisor 
interviews, where Franklin came up to Bouamama's cubicle and, upon noticing 
pictures of Morocco in the cubicle, asked Bouamama first where the pictures were 
taken, and upon hearing that they were of Morocco, then asked if Bouamama was 
from Morocco and if he was Muslim.  Supp.ER.63.  Franklin then told Bouamama 
"you know, you're lucky I like you" and walked away.  Id.  Bouamama 
subsequently complained to Slezak, stating that "two days ago [Franklin] came 
telling me that he doesn't care about my history and he wanted to eliminate my 
position.  The next day he's taking interest for [sic] who I am and where I'm 
from."  Supp.ER.64. 
       Based on this evidence, and making all inferences in the Commission's 
favor, a reasonable jury could certainly conclude that Franklin's conduct toward 
Bouamama gave rise to Bouamama's entirely reasonable belief that his job may 
have been eliminated because of his national origin and/or religion.  As such, there 
was more than sufficient evidence to support the jury's conclusion that 
Bouamama's complaint to Slezak was protected activity under Title VII.
     Go Daddy spends considerable time arguing that even if Bouamama 
complained to Slezak, that complaint fails to meet the Breeden standard for 
protected activity.  This, Go Daddy contends, is because Bouamama's complaint to 
Slezak concerned "harassment" by Franklin or a "hostile work environment," and 
since Bouamama's belief that he had suffered unlawful "harassment" was not 
objectively reasonable, his complaint is not protected by Title VII.  Go Daddy's 
argument here is factually incorrect and displays a profound misunderstanding of 
the relevance of Breeden to this case.
     In Breeden, the Supreme Court addressed an employee's claim that her 
employer retaliated against her after she lodged a sexual harassment complaint 
against her supervisor regarding a single incident of alleged harassment.  532 U.S. 
at 269-70.  The Court concluded that the employee had not engaged in protected 
activity under Title VII because "[n]o reasonable person could have believed that 
the single incident . . . violated Title VII's standard."  Id. at 271; see also Moyo, 40 
F.3d at 984 (protection from retaliation is accorded when the complaint "'is based 
on a 'reasonable belief' that the employer has engaged in an unlawful employment 
practice'") (citation omitted). 
     The record evidence amply demonstrates that Bouamama's complaint 
satisfied the requirements of Breeden, as, unlike the employee in Breeden, 
Bouamama complained to Slezak of conduct by Franklin that would plainly be a 
violation of Title VII-the elimination of his job-if done for discriminatory 
reasons, i.e., based on his national origin or religion.  At trial, Bouamama 
recounted his complaint of discrimination to Slezak as follows:
[T]his is the second time that people are concerned and taking interest 
about, you know, where I'm from, my religion.  You know, I can 
understand that it was happening with [Villeneuve] but this guy here 
[Franklin], I don't know him and two days ago he came and telling 
[sic] me that he doesn't care about my history and he wanted to 
eliminate my position.  The next day he's taking interest for [sic] who 
I am and where I'm from.
     
Supp.ER.64.  As described above, the circumstances giving rise to this complaint 
were Franklin's elimination of Bouamama's position, followed by questioning 
about Bouamama's national origin and religion, and Franklin's comment "you 
know, you're lucky I like you."  This evidence is more than adequate to support a 
reasonable jury's conclusion that Bouamama was complaining that his job may 
have been eliminated by Franklin because of Bouamama's national origin or 
religion.  And a finding of protected activity based on this evidence comports with 
the standard enunciated in Breeden and this Court's precedent.  See 532 U.S. at 
271; Trent 41 F.3d at 526.
	Go Daddy further argues that the evidence does not show that Bouamama 
ever complained of discrimination at Go Daddy.  See AtBr.20-27.  Its assertion, 
however, lacks merit.  Bouamama testified that he complained to Slezak just 
before his termination about Franklin's elimination of his position and concurrent 
questioning about his national origin and religion.  Supp.ER.64.  This, obviously, 
was evidence that Bouamama complained to Slezak about what he reasonably 
suspected to be discrimination.
	In arguing that Bouamama admitted at trial that he never complained, Go 
Daddy takes the evidence out of context.  At trial, Bouamama was asked by 
counsel for Go Daddy whether he had told the EEOC Investigator who handled his 
charge of discrimination that he did not complain about discrimination while he 
was at Go Daddy.  ER.54.  Bouamama replied "yes."  Id.  What Go Daddy fails to 
acknowledge in its brief, however, is that the transcript of the conversation 
Bouamama had with the EEOC Investigator-the relevant portions of which were 
admitted into evidence at trial-make clear that what Bouamama told the 
investigator was that he never complained about Villeneuve's making disparaging 
remarks about Muslims, not that he never made any complaints at all.  
     Bouamama discussed with the EEOC Investigator the unusual circumstances 
surrounding his February 2002 promotion to the Team Lead position, and stated 
that "discrimination started in the beginning.  The problem is, I will say that I'm 
guilty for the fact that a [sic] felt it in the beginning and I didn't say anything about 
it."  ER.95 (emphasis added).  Bouamama then explained that he did not complain 
about this early perceived discrimination because "after September 11th with the 
Arabs, the media, all what's [sic] going on, I said to myself, hey, keep it quiet . . . .  
So I said you know, I'm going to keep my mouth shut.  But I knew in the 
beginning that I was wrong."  ER.95 (emphasis added).  
     Bouamama's statement to the EEOC Investigator is consistent with 
Bouamama's trial testimony that while Bouamama was in the Team Lead position, 
Villeneuve made a comment in Bouamama's presence, while speaking to other 
employees, that "the Muslims need to die" or "the bastard Muslims need to die," 
but that Bouamama never complained to anyone at Go Daddy about that comment. 
Supp.ER.58, 84-85.  Bouamama testified that he felt hurt by this comment, but did 
not complain because he understood that at that time "[w]e were at war. . . . After 
September 11 things changed, people are hurt, you know, I was hurt and, you 
know, it was devastating for everybody, it was horrible, and, you know, you try to 
be compassionate.  I understand the anger that some people are expressing, and 
that's why I don't [sic] say nothing."  Supp.ER.59.
	The transcript of Bouamama's conversation with the EEOC Investigator 
further demonstrates that Bouamama's references therein to not complaining about 
discrimination apply only to the early comment made by Villeneuve.  Bouamama 
stated that he had "been discriminated before [sic] from Brett [Villeneuve], but I 
didn't say anything, you know, because of what was going on in the economy."  
ER.99.  Furthermore, on cross-examination, Go Daddy's counsel asked Bouamama 
about Villeneuve's anti-Muslim comment, and Bouamama agreed that he never 
complained about this comment-but, contrary to Go Daddy's assertion otherwise, 
Bouamama did not testify that he never complained of any discrimination at Go 
Daddy.  Supp.ER.84-85.
     From all this evidence, a reasonable jury could certainly conclude that in 
Bouamama's conversation with the EEOC Investigator, he only referred to his not 
complaining about Villeneuve's "Muslims need to die" comment, and not that he 
never complained to anyone at Go Daddy about perceived discrimination.  At no 
time did Bouamama testify that he never made any complaints of discrimination 
while at Go Daddy.  To the contrary, Bouamama explicitly testified that he 
complained to Slezak about Franklin, Supp.ER.64, and as such provided the jury 
with ample evidence to support its conclusion that he did in fact complain to Go 
Daddy about Franklin's conduct toward him and Franklin's elimination of his 
position. 
	Go Daddy notes that its management personnel all testified that they never 
received any complaints from Bouamama about discrimination, and that 
Bouamama did not make complaints on particular dates.  AtBr.20-21.  Of course, 
the jury was free to disregard the testimony of Slezak and instead credit 
Bouamama's testimony that he did in fact complain to her.  This, again, leaves the 
jury with ample evidence from which to conclude that Bouamama did in fact 
complain of discrimination, sufficient to support its verdict on this element of the 
retaliation claim.
	Go Daddy also asserts that Bouamama's failure to check the box marked 
"retaliation" on the EEOC intake questionnaire and his charge of discrimination, 
and that he did not tell the EEOC Investigator that Go Daddy had retaliated against 
him, supports its claim that he never complained about Franklin to Slezak.  
AtBr.21-22.  Go Daddy's argument is baseless.  Whether a charging party, such as 
Bouamama, checked a box marked retaliation or told the Commission he believed 
he was retaliated against is irrelevant.  Neither establishes that Bouamama did not 
complain.  Simply put, the fact that Bouamama-a lay person-did not check the 
"retaliation" box on a form in no way contradicts his sworn testimony at trial that 
he did complain of discrimination, and neither does the fact that he did not discuss 
retaliation with the EEOC Investigator.  These facts simply do not make it 
unreasonable for the jury to have credited Bouamama's testimony that he did 
complain of discrimination at Go Daddy.
B.	The evidence that Bouamama was terminated because he 
engaged in protected activity was sufficient to support the 
jury's verdict.
	
     In order to establish a prima facie case of retaliatory disparate treatment, a 
plaintiff must show, in relevant part, that "a causal link exists between the 
protected activity and the adverse action."  Ray v. Henderson, 217 F.3d 1234, 1240 
(9th Cir. 2000).  "[T]he plaintiff must make some showing sufficient for a 
reasonable trier of fact to infer that the defendant was aware that the plaintiff had 
engaged in protected activity."  Raad v. Fairbanks North Star Borough Sch. Dist., 
323 F.3d 1185, 1197 (9th Cir. 2003) (citation omitted).  Go Daddy argues that the 
evidence was insufficient to establish a causal nexus between Bouamama's 
protected activity and his termination because Franklin decided to eliminate 
Bouamama's position before he complained to Slezak.<7> See AtBr.29.  We reiterate 
that, as the district court properly concluded, Go Daddy has waived this argument.  
The district court also properly concluded that the argument, in any case, lacks any 
merit.  ER.6-7 & n.1.
     As the district court recognized, Go Daddy's argument is fundamentally 
flawed because it completely misperceives the nature of the Commission's claim.  
The Commission's claim was not that Go Daddy eliminated Bouamama's Inbound 
Sales Manager position because he complained about Franklin to Slezak.  Rather, 
the Commission claimed, and the jury found, based on ample evidence, that Go 
Daddy retaliated against Bouamama when it refused to place him in the Sales 
Representative position, and instead terminated him, after he complained to Slezak 
about Franklin.  Accordingly, the fact that Franklin decided to eliminate 
Bouamama's position before he complained to Slezak is irrelevant to the 
Commission's claim, and concomitantly irrelevant to the question of whether there 
is a causal connection between Bouamama's complaint and his termination. 
     Bouamama testified that when Franklin, Slezak, and Villeneuve met with 
him to inform him that his job was being eliminated, they told him he could either 
apply for the Sales Supervisor position or he could leave the company.  
Supp.ER.62, 63.  The next day, Franklin made inquiries of Bouamama about his 
national origin and religion, and commented that Bouamama was "lucky" that 
Franklin "liked" him.  Supp.ER.63-64.  Bouamama then complained to Slezak 
about Franklin's eliminating his position and questioning him about "who I am and 
where I'm from," and then, a few days after interviewing and not being selected 
for the Sales Supervisor position, he was terminated while all the other 
unsuccessful candidates were permitted to stay on with the company as Sales 
Representatives.  Supp.ER.99.  Bouamama testified that on his last day of 
employment-which was after he had complained to Slezak-Slezak told him 
"you did not get the Sales Supervisor position and you're not going to go back to 
the [sales] floor," and when Bouamama asked if he was being terminated, she and 
Franklin responded that "effective today immediately.  You [are] no longer with 
the company."  Supp.ER.75-76.  A reasonable jury could certainly conclude from 
this that the decision to terminate Bouamama was not made until after he 
complained to Slezak.  As such, there is ample evidence that the protected activity 
preceded the adverse employment action.   
     Go Daddy's contention that there is no causal link because Franklin decided 
to terminate Bouamama at the time he eliminated Bouamama's position, AtBr.29-
33, is flawed for several reasons.  First, it is contrary to Go Daddy's own position 
at trial that all the unsuccessful candidates for the Sales Supervisor position-
including Bouamama-had the option of staying on as a Sales Representative.  
See, e.g., Supp.ER.98-99 (Villeneuve's testimony).  Moreover, Go Daddy's 
assertion was by necessary implication rejected by the jury, which found, based on 
ample evidence, that Bouamama's termination from Go Daddy was the result of 
his not being permitted to stay on as a Sales Representative, and not because Go 
Daddy had earlier decided to eliminate Bouamama's management position.  As 
such, the jury agreed with the position advocated by the Commission, and Go 
Daddy cannot challenge the sufficiency of the evidence by mischaracterizing the 
Commission's claim.  This is exactly what the district court correctly recognized:
[A]s plaintiff correctly notes, the jury found that Defendant's 
retaliation resulted in Mr. Bouamama's termination, not the 
elimination of his position as Inbound Sales Manager.  Defendant 
presented no evidence that the decision to terminate Mr. Bouamama 
was made before he engaged in protected activity.  Indeed, defendant 
claimed that Mr. Bouamama was not terminated at all.

ER.7 n.1.  
     Go Daddy's argument is further undermined by the fact that it has flip-
flopped in this litigation on the question of whether or not Bouamama was entitled 
to a Sales Representative position, arguing in the district court that he was not, and 
then arguing to the contrary on appeal.  At trial, Go Daddy argued that once 
Bouamama's position was eliminated, and he was unsuccessful in securing one of 
the Sales Supervisor positions, he-like all the other unsuccessful candidates-
could either take a severance package or return to a Sales Representative position.  
See, e.g., Supp.ER.107-08 (Go Daddy's closing argument); Supp.ER.99-100 
(Villeneuve's testimony).  On appeal, however, Go Daddy asserts, contrary to its 
position at trial, that once Bouamama's job was eliminated and he failed to secure 
the Sales Supervisor position his only option was to take a severance package and 
leave the company.  See, e.g., AtBr.30 ("Bouamama could stay in his Inbound 
Sales Manager position (already slated for elimination) and apply for the Sales 
Supervisor position, or resign immediately from his Inbound Sales Manager 
position and accept a severance package.").  Since Go Daddy did not present this 
argument in the district court-and in fact argued the opposite, that Bouamama did 
in fact have an opportunity to stay on as a Sales Representative but simply failed to 
exercise that option-this argument is waived for purposes of appeal.  See Smith, 
194 F.3d at 1052 ("The difficulty for [the appellants], however, is that they failed 
to present this contention to the district court; it first appears in their opening brief 
on appeal.  As a general rule, we will not consider arguments that are raised for the 
first time on appeal.").
      
V.	The district court did not abuse its discretion in denying Go Daddy's Rule 
59(a) motion for a new trial.

	In arguing on appeal that the district court erred in denying Go Daddy's Rule 
59(a) motion for a new trial, Go Daddy relies on the same flawed arguments it 
presented in its post-verdict Rule 50(b) motion, contending that for those same 
reasons, there is no record evidence in support of the jury's verdict.  AtBr.45-46.  
Go Daddy, again, is incorrect, and its cursory presentation on appeal fails to 
establish that the district court abused its discretion in denying the company's 
motion. 	
	This Court reviews a district court's denial of a Rule 59(a) motion for abuse 
of discretion.  Molski, 481 F.3d at 728.  This Court will not disturb a district 
court's ruling denying a motion for a new trial unless "the record contains no 
evidence in support of the verdict."  Id. at 729 (citing Farley Transp. Co. v. Santa 
Fe Trail Transp. Co., 786 F.2d 1342, 1347 (9th Cir. 1985))  That is, so long as the 
verdict is not "contrary to the clear weight of the evidence," the district court's 
denial of the motion will be affirmed on appeal.  Id.  "Because determining 'the 
clear weight of the evidence' is a fact-specific endeavor, appeals courts are 
reluctant to second-guess district courts' conclusions.  An appellate court generally 
will not reverse the denial of a new trial motion if there was some 'reasonable 
basis' for the jury's verdict."  Id. (citations omitted).
	As the district court properly found, the jury's verdict was not contrary to 
the clear weight of the evidence; rather, it was amply supported by the evidence of 
record.  As described in greater detail above, see supra at 28-46, the Commission 
presented ample evidence to support the jury's verdict in its favor on every element 
of its claim that Go Daddy challenged in its post-trial motions.  There was 
evidence that Bouamama engaged in protected activity by complaining to Slezak 
about Franklin's eliminating his job and inquiring about his national origin and 
religion, that Slezak communicated this complaint to Franklin, and that Franklin 
thereafter terminated Bouamama by not offering him the opportunity to remain 
employed at Go Daddy in the Sales Representative position.  This is exactly what 
the district court concluded, see ER.7-8, and Go Daddy has failed to show that in 
light of this and other evidence supporting the jury's verdict in favor of the 
Commission, the district court's denial of its motion for a new trial amounted to an 
abuse of discretion.  Simply, far from being contrary to the clear weight of the 
evidence, the jury's verdict was amply supported by the evidence.<8>

Argument as Cross-Appellant

I.	Standard of review.
     This Court reviews for abuse of discretion a district court's refusal to award 
reinstatement as a remedy for an unlawful termination.  Gotthardt v. Nat'l R.R. 
Passenger Corp., 191 F.3d 1148, 1156 (9th Cir. 1999) (citations omitted).  A 
district court's findings of fact in support of its decision to refuse to award 
reinstatement, however, are reviewed for clear error.  Id. at 1155.  Under the clear 
error standard of review, this Court will reverse the district court's ruling if it has a 
"definite and firm conviction that a mistake has been committed," United States v. 
Esparza-Gonzales, 422 F.3d 897, 901 (9th Cir. 2005), such as when the district 
court's factual findings are not "plausible in light of the record viewed in its 
entirety," Gotthardt, 191 F.3d at 1155.  
II.	The district court abused its discretion in declining to order Bouamama 
reinstated to the Sales Representative position. 

     The jury returned a verdict finding that Go Daddy unlawfully retaliated 
against Bouamama when it terminated his employment.  Supp.ER.8-9.  
Nevertheless, the district court refused to order Go Daddy to reinstate Bouamama's 
employment in the Sales Representative position-the position to which he was 
entitled as a result of not being selected to fill one of the Sales Supervisor 
positions.  ER.14.  The court's decision rested on its conclusion that because of the 
fact that Bouamama had raised discrimination claims against managers still at Go 
Daddy and would be recovering damages from Go Daddy as a result of this 
litigation, as well as several other factual premises, reinstatement was "neither 
warranted nor wise."  ER.15.  The court's ruling, however, is contrary to well-
settled legal standards establishing that merely being involved in litigation cannot 
preclude reinstatement as an appropriate remedy, and otherwise relies on factual 
findings that are patently inconsistent with the evidence of record.  
A.	The district court applied an improper legal standard in concluding 
that reinstatement was inappropriate.

     The district court erred as a matter of law in concluding that reinstatement 
was not appropriate because the parties have been involved in litigation.  This 
standard is wrong as a matter of law and would effectively make reinstatement-
the "preferred remedy" in discriminatory termination cases-unavailable in 
virtually every unlawful termination suit.  As such, the district court's finding to 
the contrary, and denial of the Commission's requested relief on the basis of that 
finding, was an abuse of discretion.
     Title VII specifically provides reinstatement as a remedy for practices made 
unlawful by the statute.  42 U.S.C.  2000e-5(g)(1).  See also Farley v. Nationwide 
Mut. Ins. Co., 197 F.3d 1322, 1338 (11th Cir. 1999) (noting that victorious 
plaintiffs in wrongful discharge cases are entitled to "presumptive reinstatement").  
Reinstatement is the preferred remedy for future harms caused by the unlawful 
discharge, as opposed to front pay, as "'when a person loses [][her] job, it is at best 
disingenuous to say that money damages can suffice to make that person whole.  
The psychological benefits of work are intangible, yet they are real and cannot be 
ignored.'"  Farley, 197 F.3d at 1338 (alterations in original) (quoting Allen v. 
Autauga County Bd. of Educ., 685 F.2d 1302, 1306 (11th Cir. 1982)).  Denying 
reinstatement, and instead awarding front pay, is only appropriate if it is 
"impossible to reinstate the plaintiff" or there exists "excessive hostility between 
the parties."  Thorne v. City of El Segundo, 802 F.2d 1131, 1137 (9th Cir. 1986).  
     The mere fact that the parties have been adversaries in litigation does not 
make reinstatement inappropriate.  "'[H]ostility engendered from litigation' is not 
extraordinary and does not bar this preferred remedy.  Therefore, only 
'[s]ubstantial hostility, above that normally incident to litigation, is a sound basis 
for denying reinstatement.'"  Sellers v. Mineta, 358 F.3d 1058, 1067-68 (8th Cir. 
2004) (citations omitted).  "If 'hostility common to litigation' would justify a 
denial of reinstatement, reinstatement would cease to be a remedy except in cases 
where the defendant felt like reinstating the plaintiff."  U.S. EEOC v. Century 
Broad. Co., 957 F.2d 1446, 1462 (7th Cir. 1992).  Rather than the simple fact of 
litigation being sufficient, in and of itself, to preclude an award of reinstatement, 
there must be evidence of excessive hostility between the parties which makes 
reinstatement impossible.  Sellers, 358 F.3d at 1068; Century Broad., 957 F.2d at 
1462.  See also Cassino v. Reichhold Chem., Inc., 817 F.2d 1338, 1346 (9th Cir. 
1987) (holding that the district court did not abuse its discretion in denying 
reinstatement, as "the record indicates that some hostility developed between 
Reichhold and Cassino during the litigation") (citation omitted) (emphasis added); 
Thorne, 802 F.2d at 1137 (remanding for findings on whether excessive hostility 
existed between the parties, and noting that "the district court's finding does not 
take into account possible animosity generated during the protracted litigation"). 
     This is not to say that an award of reinstatement automatically follows a 
verdict in favor of a plaintiff.  "In discriminatory discharge cases, the decision 
whether to award reinstatement is within the discretion of the trial court."  Cassino, 
817 F.2d at 1346.  However, courts have tempered that discretion in termination 
cases with the recognition that "presumptive reinstatement" is the rule.  Farley, 197 
F.3d at 1338.  
     In the case at bar, a primary consideration in the district court's decision to 
deny reinstatement runs directly contrary to this authority-the fact that Go Daddy 
was sued and the plaintiff prevailed.  Specifically, the court stated the fact that 
Bouamama had accused Go Daddy managers of discrimination, had been involved 
in litigation against Go Daddy for several years, and "will recover substantial 
actual and punitive damages in this case," counseled against reinstatement.  ER.15.  
The court then concluded that reinstatement was "neither warranted nor wise," 
citing cases in which reinstatement had been denied because of hostility between 
the parties.  Id. (citing Cassino, 817 F.2d at 1347; Chancellier v. Federated Dep't 
Stores, 672 F.2d 1312, 1319-20 (9th Cir. 1982)).    
     It is clear from the factors the court points to as justification for its denial of 
reinstatement that the court failed to apply the heightened standard of "excessive 
hostility" this Court requires to deny reinstatement.  Denying reinstatement simply 
because a party successfully litigates a Title VII discrimination case is wrong as a 
matter of law.
     Moreover, the court pointed to no evidence whatsoever that the parties 
actually had developed a hostile or acrimonious relationship because of, or during, 
the litigation in this case.  ER.14-15.  The court simply presumed that because the 
parties had been involved in litigation, there existed a level of hostility between 
them that made reinstatement inappropriate.  This is simply incorrect.  To the 
contrary, the actual evidence of record strongly supports the conclusion that the 
relationship between the parties is not hostile or acrimonious.  First, Franklin is no 
longer at Go Daddy, making his relationship with Bouamama irrelevant for 
purposes of reinstatement.  Parsons, the CEO of the company, testified that he 
liked Bouamama while he worked at Go Daddy, he thought he was a good 
employee, and he still likes Bouamama.  Supp.ER.47-48.  Villeneuve testified that 
Bouamama "is a very intelligent man," he and Bouamama "got along okay" at Go 
Daddy, it was "cool" that Bouamama brought him Christmas gifts in 2002, and 
Villeneuve still had one of the gifts given to him by Bouamama.  Supp.ER.40, 101-
02.  No evidence was offered that suggested that Villeneuve's feelings toward 
Bouamama had soured, as a result of the litigation or otherwise, to make 
reinstatement inappropriate.  Nor is there any evidence which indicates that Slezak, 
the last of the Go Daddy officials accused of retaliation, harbored any animus 
toward Bouamama-as a result of the litigation or otherwise.  Accordingly, even if 
the court had applied the correct legal standard, there is no evidence in this case 
which could possibly support a finding that excessive hostility existed between 
Bouamama and Go Daddy sufficient to preclude reinstatement.  Thus, the district 
court's decision on this point is both legally and factually erroneous. 
B.	The district court's factual findings in support of its decision to deny 
reinstatement are clearly erroneous.

     The district court also abused its discretion in denying reinstatement because 
its factual findings are contrary to the evidence of record.  As noted previously, 
"[i]n discriminatory discharge cases, the decision whether to award reinstatement 
is within the discretion of the trial court."  Cassino, 817 F.2d at 1346.  However, 
the court's findings of fact that inform its decision whether to award such damages 
must be free of "clear error"-that is, this Court will not reverse those findings, 
and thereby conclude the district court's decision amounted to an abuse of 
discretion, so long as the district court's findings "'are plausible in light of the 
record viewed in its entirety.'"  Gotthard, 191 F.3d at 1155 (citation omitted).  
      Examining the record evidence and the court's ruling under this standard 
shows that the court's findings regarding reinstatement are not "plausible in light 
of the record viewed in its entirety" and, accordingly, the court's decision based on 
those findings amounts to an abuse of discretion.  The court noted that the 
evidence, and jury verdict, showed that if Bouamama had not been subjected to 
retaliation, he would have been offered a Sales Representative position.  ER.14.  
The court went on to note (without citation to any evidence) that the Sales 
Representative position is not the position Bouamama sought, his prior 
performance in that position had been "less than fully satisfactory for him and his 
supervisors," and no evidence had been presented showing that his prospects at his 
current employment were any less than those he would have at Go Daddy.  ER.14-
15.  From all this, the court concluded that "reinstatement is neither warranted nor 
wise."  ER.15 (citations omitted).  
     While the court was correct in recognizing that "Sales Representative is not 
truly the position Mr. Bouamama seeks" in the lawsuit, ER.14, it is uncontested 
that Bouamama was entitled to an opportunity to assume the Sales Representative 
position upon his unsuccessful bid for the Sales Supervisor position.  Supp.ER.99.  
The court noted that Bouamama "had been promoted beyond the position of Sales 
Representative some time before the events at issue in this case," ER.15, but this 
fact does not suggest that reinstatement was inappropriate.  It is unclear why the 
court deemed this a relevant consideration.  It is uncontested that this is a position 
unsuccessful candidates for the Sales Supervisor position were entitled to, and 
which the jury found was unlawfully denied Bouamama.  He was, therefore, 
entitled to the job.  It appears the court was concerned that reinstating Bouamama 
to the Sales Representative position would in effect be a demotion.  While this may 
factor into whether a victim of discrimination would desire reinstatement-and the 
evidence is that Bouamama wanted to be reinstated, see Supp.ER.76-it is not 
relevant to whether he is entitled to reinstatement.    
     The court found that "[t]he evidence further suggested that Mr. Bouamama's 
previous work as a Sales Representative had been less than fully satisfactory for 
him and his supervisors."  ER.15.  Villeneuve, who assessed Bouamama's 
performance as a Sales Representative during his tenure in that position, testified 
directly to the contrary-that while handling customer calls "wasn't his strongest 
point," Bouamama "was a good rep," and generally as an employee "all in all, he's 
okay.  He's got good technical knowledge.  He's-you know, he's okay."  
Supp.ER.86-87, 89, 96-97.  Villeneuve added that as compared to the other Team 
Leads at Go Daddy, Bouamama's customer service skills were "right in there in 
the middle of them."  Supp.ER.92. 
     The district court did not cite any evidence supporting its assertion that 
Bouamama's prior experience in the Sales Representative position was "less than 
fully satisfactory for him and his supervisors," but it might have based this 
conclusion on Villeneuve's testimony that he had received complaints about 
Bouamama's customer service skills, and Villeneuve's belief that Bouamama's 
telephone skill "wasn't his strongest point."  Supp.ER.87-88.  Examining this 
evidence in the context of Villeneuve's complete testimony on these subjects, 
however, reveals that the record in no way suggests that Villeneuve-or Go 
Daddy-considered Bouamama's level of skill in providing telephonic customer 
service unsatisfactory.  Villeneuve testified that he had reservations about putting 
Bouamama on "the phone side" (presumably taking customer service requests by 
telephone) prior to Bouamama's being converted to a regular Go Daddy employee 
from his initial status as a temporary employee, because he believed Bouamama 
was "a little more aggressive than [he] prefer[red] on the phones."  Supp.ER.86.  
Villeneuve also testified that he had received complaints about Bouamama from "a 
couple people" who felt that he was being rude to them" and that he had not taken 
care of their problems.  Supp.ER.88.  It is noteworthy, however, that although 
Villeneuve had the option of not converting Bouamama to a Go Daddy employee 
and returning him to the temporary agency, he elected to keep Bouamama and 
brought him on board as a permanent customer service employee.  Supp.ER.89.  
Villeneuve made Bouamama a permanent employee despite the reservations he 
had and the complaints he had received because "[h]e was a good rep.  I mean, 
he's technically solid.  He's a good guy.  There's just no reason not to [keep him]."  
Id.  Despite the court's vague characterization of Bouamama's prior experience as 
"less than fully satisfactory," there is no evidence in the record to suggest that Go 
Daddy did not want him in the Sales Representative position because he was "less 
than fully satisfactory."     
     Furthermore, even Go Daddy argued that all the employees whose jobs were 
eliminated to make way for the Sales Supervisor positions, and who were not 
selected for those new positions-including Bouamama-were entitled to choose 
between going back to a Sales Representative position or taking a severance 
package.  See Supp.ER.27, 32, 97-99.  Go Daddy presented no evidence and made 
no argument that it considered Bouamama ineligible for returning to that position.  
Rather, Go Daddy argued that Bouamama was entitled to the same retention 
opportunity as the other unsuccessful candidates.  Supp.ER.99.  Additionally, 
Bouamama testified that he would have returned to the Sales Representative 
position, if only he had been given the opportunity to do so, stating "I am not a 
quitter.  I will go back to the floor and I will pro[ve] them wrong."  Supp.ER.76.  
Thus, the evidence presented by both sides showed that Bouamama was ready, 
willing, and able to assume the Sales Representative position, and Go Daddy had 
no lawful reason for not placing him in that position.
     The district court also noted that, as to Bouamama's post-Go Daddy 
employer, there was no evidence that Bouamama "has a less promising future" 
than he would have had at Go Daddy had he been reinstated.  This "finding" is 
irrelevant to determining whether reinstatement should be awarded.  There is no 
authority for the proposition that in addition to proving that the termination was 
unlawful, a prevailing plaintiff must demonstrate that he is currently in a less-
desirable job in order to secure an award of reinstatement.  See 42 U.S.C.  2000e-
5(g)(1) ("If the court finds that the respondent has intentionally engaged in or is 
intentionally engaging in an unlawful employment practice . . . the court may . . . 
order such affirmative action as may be appropriate, which may include, but is not 
limited to, reinstatement."); Farley, 197 F.3d at 1338 (upon prevailing in 
discriminatory discharge case, the plaintiff is entitled to "presumptive 
reinstatement").
                             Conclusion
	For the aforementioned reasons, the Commission respectfully requests that 
this Court affirm the district court's denial of Go Daddy's motions for judgment as 
a matter of law and for a new trial, and reverse the district court's denial of 
reinstatement.

                       Statement of related cases

	The Commission is unaware of any related cases pending in this Court.

     Respectfully submitted,
	
     RONALD S. COOPER	 
     General Counsel
			
     LORRAINE C. DAVIS
     Acting Associate General Counsel
     
     ____________________

     JAMES M. TUCKER
     Attorney

     U.S. EQUAL EMPLOYMENT
       OPPORTUNITY COMMISSION
     1801 l St. NW, Rm. 7024
     Washington, D.C.  20507
     (202) 663-4870
     James.Tucker@EEOC.gov

                                      Addendum

                             Certificate of Compliance

	I hereby certify that the foregoing brief complies with the type-volume 
limitations set forth in Federal Rules of Appellate Procedure Rule 28.1(e)(2)(B)(i).  
The foregoing brief contains 14,204 words, from the Jurisdictional Statement 
through the Statement of Related Cases, as determined by the Microsoft Word 
2003 word processing program, with 14-point proportionally spaced type for text 
and 14-point proportionally spaced type for footnotes.
 

							____________________
							
                                                        James M. Tucker
							Attorney
                                                        U.S. EQUAL EMPLOYMENT
                                                           OPPORTUNITY COMMISSION
                                                        1801 L. St. NW, Rm. 7024
                                                        Washington, D.C.  20507
                                                        (202) 663-4870
                                                        James.Tucker@EEOC.go

                             Certificate of Service

     I hereby certify that the original and fifteen (15) copies of the foregoing 
brief, and five (5) copies of the Plaintiff/Appellee/Cross-Appellant's Supplemental 
Excerpts of Record, were sent this 14th day of January, 2008, by FedEx Next Day 
Air delivery, to Cathy Catterson, Clerk of Court, United States Court of Appeals 
for the Ninth Circuit, 95 Seventh Street, San Francisco, CA, 94103-1518.  
     I further certify that two (2) copies of the foregoing brief and one (1) copy of 
the Plaintiff/Appellee/Cross-Appellant's Supplemental Excerpts of Record, were 
sent this 14th day of January, 2008, by FedEx Next Day Air delivery, to counsel of 
record for Defendant/Appellant/Cross-Appellee Go Daddy Software, Inc., at the 
following address:
     
     Fred W. Alvarez, Esq.
     Michael J. Nader, Esq.
     Wilson Sonsini Goodrich & Rosati, P.C.
     650 Page Mill Rd.
     Palo Alto, CA  94304-1050

							____________________
							
                                                        James M. Tucker
							Attorney
							U.S. EQUAL EMPLOYMENT
                                                          OPPORTUNITY COMMISSION
                                                        1801 L. St. NW, Rm. 7024
                                                        Washington, D.C.  20507
                                                        (202) 663-4870
                                                        James.Tucker@EEOC.gov

***********************************************************************
<<FOOTNOTES>>

<1> The parties agreed to try the Commission's recordkeeping claim to the court, 
which found in favor of the Commission and awarded the limited injunctive relief 
of ordering Go Daddy to comply with federal recordkeeping requirements.  ER.10-
11, 17-18.  Go Daddy has not challenged on appeal the district court's ruling on the 
Commission's recordkeeping claim.  See generally Opening Brief of Appellant Go 
Daddy Software, Inc. ("AtBr.").

<2> Go Daddy omits from its statement of facts any mention of this trial testimony-
by Villeneuve, its own official-that individuals whose jobs were being eliminated 
by Franklin's reorganization were entitled to stay with the company as Sales 
Representatives, and were not, contrary to the company's repeated assertions 
throughout its brief on appeal, limited to either securing one of the new Sales 
Supervisor positions, or resigning with a severance package.  See, e.g., AtBr.10-11.

<3> Go Daddy asserts that this exchange took place on April 7, 2003, based on 
Bouamama's statement in his charge of discrimination.  See, e.g. AtBr.11 n.3.  
Any discrepancy as to whether this exchange took place on April 5, as 
Bouamama's trial testimony suggests, or April 7, as his charge states, is irrelevant 
for purposes of this appeal, as both dates fall between the April 4 meeting 
regarding the elimination of Bouamama's position and his April 17 termination.  
See ER.86-87 (charge of discrimination)

<4> The fact that the district court nevertheless, and in the alternative, addressed in a 
footnote the merits of some of Go Daddy's waived arguments in its decision on the 
Rule 50(b) motion does not, of course, diminish the court's prior ruling that these 
arguments had been waived and were not before the court.  See ER.7 n.1. 

<5> Go Daddy further asserts that the Commission cannot argue that Go Daddy 
waived its arguments because the Commission did not argue waiver to the district 
court.  AtBr.43-44.  This argument is frivolous, and none of the cases cited by Go 
Daddy support its position.  It goes without saying that a party may defend on 
appeal a judgment on grounds relied upon by the district court.  If Go Daddy's 
contention were correct, a party could never defend on appeal a ruling reached by a 
district court sua sponte.

<6> As such, the fact that the jury did not find that Bouamama had actually been 
subjected to national origin or religious discrimination is irrelevant to the question 
of whether Bouamama had a reasonable belief that Franklin's actions may have 
been unlawfully discriminatory.  See Moyo v. Gomez, 40 F.3d 982, 984 (9th Cir. 
1994).

<7> Go Daddy also argued in its Rule 50(b) motion that "Defendant's favorable 
treatment of Bouamama was an intervening event, negating any causal connection 
between Bouamama's protected activity and his departure from Go Daddy."  
ER.25.  The district court rejected this argument as waived, and also on the merits.  
ER.6-7 & n.1.  Go Daddy has not, however, presented this argument in its opening 
brief, and therefore has abandoned this argument on appeal.  See Smith v. Marsh, 
194 F.3d 1045, 1052 (9th Cir. 1999) ("[O]n appeal, arguments not raised by a party 
in its opening brief are deemed waived."); see also Hale v. U.S. Trustee, No. 06-
35349, 2007 WL 4293312, at *6 (9th Cir. Dec. 10, 2007) (same).

<8> Go Daddy also asserts that the district court's denial of its Rule 50(b) motion 
represents "a manifest miscarriage of justice," warranting reversal of the court's 
ruling, because there was "no evidence" that Bouamama engaged in protected 
activity or that Franklin was aware of such activity.  See AtBr.44-45.  Again, there 
is no merit to these assertions.  There was ample record evidence on each of these 
points, as well as the other elements of the Commission's retaliation claim, to 
support the jury's verdict.