IN THE UNITED STATES COURT OF APPEALS
                    FOR THE ELEVENTH CIRCUIT
                    ________________________
                                
                        No. 02-13571-EE
                    ________________________

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

          Plaintiff-Appellant,     

v. 

ASPLUNDH TREE EXPERT COMPANY,

          Defendant-Appellee. 
    _______________________________________________________
                                
    On Appeal from the United States District Court for the 
       Northern District of Florida, Gainesville Division
                District Court No. 1:99cv121 MMP
     _______________________________________________________     

               REPLY BRIEF OF THE EQUAL EMPLOYMENT
              OPPORTUNITY COMMISSION AS APPELLANT
    _______________________________________________________

                              NICHOLAS M. INZEO
                              Acting Deputy General Counsel

                              PHILIP B. SKLOVER
                              Associate General Counsel

                              LORRAINE C. DAVIS
                              Assistant General Counsel

                              SUSAN R. OXFORD
                              Attorney
                              
                              EQUAL EMPLOYMENT OPPORTUNITY COMM.
                              1801 L Street, N.W.
                              Washington, D.C.   20507
                              (202) 663-4791
                              
                                

                       TABLE OF CONTENTS
                                                            page


TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . .   i

TABLE OF AUTHORITIES  . . . . . . . . . . . . . . . . . . .  iii

ARGUMENT  . . . . . . . . . . . . . . . . . . . . . . . . .    4

     THE COURT BELOW ERRED IN AWARDING ATTORNEY'S FEES
     TO THE DEFENDANT BECAUSE EEOC'S CONCILIATION EFFORTS
     WERE CONDUCTED IN GOOD FAITH, THE DISTRICT COURT MADE
     NO EXPRESS FINDING THAT EEOC CONCILIATED IN "BAD FAITH"
     AND, TO THE EXTENT THE LOWER COURT'S DECISION COULD BE
     VIEWED AS TANTAMOUNT TO A FINDING THAT EEOC ACTED IN 
     "BAD FAITH," SUCH A FINDING IS ENTIRELY UNSUPPORTABLE. .  4

     A.   The District Court's Imposition of Fees and
          Costs as a Sanction is Unprecedented in the 
          Context of a Finding that EEOC's Pre-suit
          Conciliation Efforst were Inadequate . . . . . . . . 4

     B.   On this Record, An Award of Fees and Costs
          Under the Corut's Inherent Authority to
          Sanction "Bad Faith" Actions of a Litigant
          is Unwarranted and an Abuse of Discretion . . . . .  6

     C.   Asplundh Misrepresents Critical Facts and
          Positions of EEOC . . . . . . . . . . . . . . . . . 13

          1.   Asplundh Seeks to Obfuscate the Fact that
               The District Court Relied on a Critical 
               Misrepresentation by Asplundh . . . . . . . .  14

          2.   Asplundh Confuses EEOC's Statutory Mission
               and the Purpose of Conciliation . . . . . . .  20

          3.   Asplundh's Brief Makes a Number of Other
               Factual Errors . . . . . . . . . . . . . . . . 23

     D.   This Court Reviews De Novo the Legal Basis for a
          District Court's Fee Award, and Only if Fees Are 
          Authorized on Some Proper Legal Basis Does the
          "Abuse of Discretion" Standard Apply . . . . . . .  25

CONCLUSION  . . . . . . . . . . . . . . . . . . . . . . . .   28



CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . 29

CERTIFICATE OF SERVICE    



     

                      TABLE OF AUTHORITIES
                                
                             CASES
                                                            page

* Barnes v. Dalton, 158 F.3d 1212 (11th Cir. 1998), 
     reh'g and reh'g en banc den., 172 F.3d 884 
     (11th Cir. 1999) . . . . . . . . . . . . . . . . . 7, 11, 13

  Bonner v. City of Prichard, 661 F.2d 1206 
     (11th Cir. 1981) (en banc)  . . . . . . . . . . . . . .    1
       
* Byrne v. Nezhat, 261 F.3d 1075 (11th Cir. 2001) . . .  6, 10-12

  Carlucci v. Piper Aircraft Corp., Inc., 
     775 F.2d 1440 (11th Cir. 1985) . . . . . . . . . . . . .  27

* Chambers v. NASCO, Inc., 501 U.S. 32 (1991) . . . . .  6-8, 12

* Christiansburg Garment Co. v. EEOC, 
     434 U.S. 412 (1978) . . . . . . . . . . . . . . . . . .   2

  Cohen v. Carnival Cruise Lines, Inc., 
     782 F.2d 923 (11th Cir. 1986)(per curiam) . . . . . . .   26

  EEOC v. Keco Industries, Inc., 
     748 F.2d 1097 (6th Cir. 1984) . . . . . . . . . . . . .   24

* EEOC v. Klingler Electric Corp., 
     636 F.2d 104 (5th Cir. 1981)  . . . . . . . . . . . 1, 20-23

  EEOC v. Liberty Trucking Co., 
     695 F.2d 1038 (7th Cir. 1982) . . . . . . . . . . . . .   19 

  EEOC v. Prudential Federal Savings & Loan Ass'n,
     763 F.2d 1166 (10th Cir. 1985)  . . . . . . . . . . . .   21

  EEOC v. Reeves, No. CV 00-10515, 2002 WL 1151459 
     (C.D. Cal. May 6, 2002), appeal docketed, 
     No. 02-56179 (9th Cir. July 15, 2002) . . . . . . . . .    4

  First Bank of Marietta v. Hartford Underwriters
     Ins. Co., 307 F.3d 501 (6th Cir. 2002)  . . . . . . . .   12


  Fox v. Taylor Diving & Salvage Co., 
     694 F.2d 1349 (5th Cir. 1983) . . . . . . . . . . . . .   15

  Georator Corp. v. EEOC, 
     592 F.2d 765 (4th Cir. 1979)  . . . . . . . . . . . . .   24

* Goforth v. Owens, 766 F.2d 1533 (11th Cir. 1985) . . . . .   26

* Jerelds v. City of Orlando, 
     194 F. Supp. 2d 1305 (M.D. Fla. 2002), 
     appeal dismissed (11th Cir. 9/27/02) . . . . . . . .  12, 13

  Kilgo v. Ricks, 983 F.2d 189 (11th Cir. 1993) . . . . .  18, 26

  Marshall v. Sun Oil Co., 
     605 F.2d 1331 (5th Cir. 1979) . . . . . . . . . . . . .   21

  Mingo v. Sugar Cane Growers Co-Op of Florida, 
     864 F.2d 101 (11th Cir. 1989)(per curiam) . . . . . . .   26

  Newsome v. EEOC, 301 F.3d 227 (5th Cir. 2002),
     cert. denied, 2002 WL 1619592 (U.S. Dec. 2, 2002) . . .  24

* Roadway Express, Inc. v. Piper, 
     447 U.S. 752 (1980) . . . . . . . . . . . . . . . . .  7, 9 

  Truvillion v. King's Daughters Hospital, 
     614 F.2d 520 (5th Cir. 1980) . . . . . . . . . . . . . .  27

  World Thrust Films, Inc. v. Int'l Family Entertainment, 
     41 F.3d 1454 (11th Cir. 1995)(per curiam) . . . . . . .   26




                            STATUTES
     
42 U.S.C.  2000e-4(g)(1) . . . . . . . . . . . . . . .      20

42 U.S.C.  2000e-4(g)(3) . . . . . . . . . . . . . . .      20

42 U.S.C.  2000e-4(g)(6) . . . . . . . . . . . . . . .      20

42 U.S.C.  2000e-4(h)  . . . . . . . . . . . . . . . .      20

42 U.S.C.  2000e-5 . . . . . . . . . . . . . . . . . .      20

42 U.S.C.  2000e-5(a)  . . . . . . . . . . . . . . . .      20

42 U.S.C.  2000e-5(b)  . . . . . . . . . . . . . . . .      20

42 U.S.C.  2000e-5(f)(1) . . . . . . . . . . . . . . .   5, 20

42 U.S.C.  2000e-5(k)  . . . . . . . . . . . . . . . .       2

                          COURT RULES

Fed. R. Civ. P. 23 . . . . . . . . . . . . . . . . . . .      11

                                

             IN THE UNITED STATES COURT OF APPEALS
                    FOR THE ELEVENTH CIRCUIT
                    ________________________
                                
                        No. 02-13571-EE


EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

          Plaintiff-Appellant,     

v. 

ASPLUNDH TREE EXPERT COMPANY,

          Defendant-Appellee. 
    _______________________________________________________
                                                           
                                
    On Appeal from the United States District Court for the 
       Northern District of Florida, Gainesville Division
                District Court No. 1:99cv121 MMP
                                                                 
                                
              REPLY BRIEF OF THE EQUAL EMPLOYMENT
              OPPORTUNITY COMMISSION AS APPELLANT
                                                            
     
     Plaintiff-Appellant Equal Employment Opportunity Commission
("EEOC" or "Commission") explained, in its opening brief, why the
disrict court's award of fees and costs to Asplundh Tree Expert
Company ("Asplundh") was improper in this instance.
     First, the Commission met the standards for adequate
conciliation in EEOC v. Klingler Electric Co., 636 F.2d 104 (5th
Cir. Feb. 1981).  In concluding otherwise, the district court
misapplied Klingler and relied on Asplundh's misrepresentation of
the facts.  Moreover, even assuming, arguendo, that this Court
concludes conciliation ended prematurely, the appropriate remedy
would be a stay of litigation so the parties could conciliate
further.  Under either circumstance, the district court erred in
awarding attorney's fees and costs in this case.  
     Second, the district court's award of attorney's fees and
costs against the Commission was not authorized under the fee-
shifting provision of Title VII of the Civil Rights Act of 1964
("Title VII"), 42 U.S.C.  2000e-5(k), because the court below
never reached the merits and, therefore, Asplundh is not a
"prevailing party" within the meaning of the statute.  Fees were
not warranted in any event because the Commission had a reasonable
basis to believe that its actions before filing suit satisfied
Title VII's conciliation requirements.  Thus, even if  2000e-5(k)
applied under these circumstances, the stringent standards for an
award of fees to a Title VII defendant, see Christiansburg Garment
Co. v. EEOC, 434 U.S. 412 (1978), were not met.  
     Although Asplundh originally sought fees in the court below
based, in part, on Title VII's "prevailing party" standard under 42
U.S.C.  2000e-5(k), see R.92 at 1, 4, 22, in its Answer Brief
Asplundh now concedes that it is not a "prevailing party" under
Title VII and admits that the district court's fee award cannot be
defended on that basis.  See Aspl.Brf.II at 21 n.7.  Asplundh
argues, instead, that the district court's fee award should be
affirmed under the court's inherent authority to sanction a party
for "bad faith" conduct during litigation.  See, e.g., Aspl.Br.II
at 9, 19-22.  In so doing, Asplundh tries to misdirect this Court's
attention away from the fact that, in concluding that EEOC did not
conciliate in good faith, the lower court relied heavily on a
critical misstatement of fact by Asplundh: defense counsel's
unqualified assertion that after he sent EEOC his belated letter,
he "never received any communication ... from anyone with the
EEOC."  R.81 9 [emphasis added].  EEOC files this Reply Brief to
address this and other arguments that Asplundh raises in its Answer
Brief.

                            ARGUMENT
     THE COURT BELOW ERRED IN AWARDING ATTORNEY'S FEES TO THE
     DEFENDANT BECAUSE EEOC'S CONCILIATION EFFORTS WERE
     CONDUCTED IN GOOD FAITH, THE DISTRICT COURT MADE NO
     EXPRESS FINDING THAT EEOC CONCILIATED IN "BAD FAITH" AND,
     TO THE EXTENT THE LOWER COURT'S DECISION COULD BE VIEWED
     AS TANTAMOUNT TO A FINDING THAT EEOC ACTED IN "BAD
     FAITH," SUCH A FINDING IS ENTIRELY UNSUPPORTABLE.   

A.   The District Court's Imposition of Fees and Costs as a
     Sanction is Unprecedented in the Context of a Finding that
     EEOC's Pre-suit Conciliation Efforts were Inadequate.

     In EEOC's opening brief in Asplundh I, we explained why the
Commission believes that it conciliated this case in good faith
prior to filing this lawsuit.  In Asplundh II, the Commission
explains why the district court's award of attorney's fees was
improper, even assuming this Court concludes that EEOC should have
undertaken additional conciliation efforts before filing suit. 
Dismissal of an EEOC lawsuit is wholly unprecedented where, as
here, EEOC initiated conciliation with respect to the issues in
litigation and, at worst, may have arguably ended conciliation
prematurely.  Asplundh cites no cases in which a court dismissed an
EEOC lawsuit and awarded attorney's fees and costs solely in
conjunction with a finding that EEOC ended conciliation
prematurely, and EEOC has found none.  Indeed, the only time
courts have dismissed an EEOC lawsuit for failure to conciliate is
where EEOC did not even initiate conciliation on a particular claim
or issue before filing suit.  See EEOC Rep.Brf.I at 24-26 and nn 15
& 16; EEOC Op.Brf.II at 30-31 and n.12.  In cases like this,
however, where EEOC expressly invited the respondent to conciliate
the claims and sent a proposed conciliation agreement before filing
the complaint, courts have either found EEOC's conciliation efforts
sufficient or have stayed the litigation under 42 U.S.C.  2000e-
5(f)(1) to permit additional conciliation.  See EEOC Op.Brf.I at
31-35.  Where a court issues such a stay, an award of attorney's
fees and costs is plainly unwarranted.  See EEOC Op.Brf.II at 17. 
     In its Answer Brief, Asplundh re-hashes the arguments it
presented previously concerning the sufficiency of conciliation. 
See Aspl.Brf.II at 9-19.  This misses the point completely. 
Regardless of how this Court rules on the issues in Asplundh I,
Title VII does not authorize an award of fees and costs in
connection with a finding that conciliation ended prematurely.  
B.   On this Record, An Award of Fees and Costs Under the Court's
     Inherent Authority to Sanction "Bad Faith" Actions of a
     Litigant is Unwarranted and an Abuse of Discretion.

     Asplundh asserts that the district court's fee award is
authorized under the court's "inherent authority" to sanction a
party's "failure to act in good faith."  See Aspl.Brf.II at 19. 
This argument must also fail, for several reasons.  
     Courts have inherent authority "to impose silence, respect,
and decorum, in their presence, and submission to their lawful
mandates" and to punish for contempt "both conduct before the court
and that beyond the court's confines."  Chambers v. NASCO, Inc.,
501 U.S. 32, 43-44 (1991)(citations omitted).  The Supreme Court
has cautioned, however, that this inherent power "must be exercised
with restraint and discretion."  Id. at 44; see also Byrne v.
Nezhat, 261 F.3d 1075, 1106 (11th Cir. 2001)(same)(citing Chambers,
501 U.S. at 50).  Of relevance to this appeal, the Supreme Court
has identified several "narrowly defined circumstances" in which
federal courts have the inherent power to impose attorney's fees on
a party or its counsel, including "when a party has 'acted in bad
faith, vexatiously, wantonly, or for oppressive reasons.'"
Chambers, 501 U.S. at 45-46 (citations omitted).  The Supreme
Court emphasized, however, that "a court must ... exercise caution"
in invoking its inherent power to impose attorney's fees as a
sanction, id. at 50, reiterating that this inherent power is
limited "to cases in which a litigant has engaged in bad-faith
conduct or willful disobedience of a court's orders ...."  Id. at
47 (emphasis added).  
     Following the guidance of Chambers, this Court has stated that
"[t]he key to unlocking a court's inherent power is a finding of
bad faith."  See Barnes v. Dalton, 158 F.3d 1212, 1214 (11th Cir.
1998), reh'g and reh'g en banc den., 172 F.3d 884 (11th Cir. 1999). 
This Court explained:  
     A finding of bad faith is warranted where an attorney
     knowingly or recklessly raises a frivolous argument, or
     argues a meritorious claim for the purpose of harassing
     an opponent.  A party also demonstrates bad faith by
     delaying or disrupting the litigation or hampering
     enforcement of a court order.

Id. (citations and internal quotations omitted); see also Chambers,
501 U.S. at 45-6 (imposition of attorney's fees might be warranted
under court's inherent power where party shows bad faith "by
delaying or disrupting the litigation or by hampering enforcement
of a court order[].").  
     The manner in which EEOC conciliated this matter before filing
suit is not the type of "bad faith" conduct that courts have found
warrant an award of attorney's fees under the court's "inherent
power."  It is notable, at the outset, that the court's February
20, 2002, order addresses only the court's conclusion that EEOC did
not conciliate in good faith, based on events that occurred, in
their entirety, before the lawsuit was filed.  See, inter alia,
R.90.  Thus, there is absolutely no support for Asplundh's
suggestion that the district court's dismissal and award of fees
was also based on, or justified by, anything that took place during
the course of this litigation, see Aspl.Brf.II at 26-30, and
Asplundh's discussion on pp 26-30 is wholly irrelevant to this
appeal. 
     Second, the court below did not indicate that it was acting
under its inherent powers and never expressly found that EEOC
"acted in bad faith."  See, inter alia, R.90.  Thus, the basic
predicate for imposing attorney's fees under the district court's
inherent powers - a finding of "bad faith" - is missing in this
case.  See Roadway Express, Inc. v. Piper, 447 U.S. 752, 766-67
(1980)(specific finding by district court as to whether conduct
constituted or was tantamount to bad faith must precede any
sanction under court's inherent powers); Byrne, 261 F.3d at 1106
n.69 ("Recognizing the need for caution, some circuits require that
a district court make a particularized showing of bad faith to
justify the use of its inherent power.")(citations omitted).  
     Even if the district court's comments (referring to EEOC's
actions as "egregious," "grossly arbitrary," and not in good faith,
see R.90 at 10-11) could be considered "tantamount" to a finding of
bad faith, such a finding is clearly erroneous on this record and
any fee award based on it is, therefore, an abuse of the court's
discretion.  The lower court's conclusion that EEOC ended its
conciliation efforts prematurely was based, in large part, on two
erroneous beliefs: (1) that EEOC never communicated with Sampo
after receiving his letter, and (2) that potential damages were
limited to four months of backpay.  As the Commission has
explained, EEOC Op.Brf.I at 28-30, 35-39; EEOC Rep.Brf.I at 17 and
n.10, these erroneous beliefs grew from a factual misrepresentation
by Asplundh and a misunderstanding of the nature of EEOC's race
harassment claims.  When EEOC's conciliation efforts are assessed
in light of what actually happened after Sampo sent his letter and
in light of Asplundh's potential liability for harassment at its
worksite of which it was aware, it is clear that this case is
vastly different from those discussed above.  Even if reasonable
persons might disagree about whether EEOC should have reopened
conciliation after Sampo sent his letter, the Commission's actions
do not even begin to rise to the level of "bad faith" that courts
have found warrant a sanction of dismissal or an award of fees.
     In Barnes, for instance, this Court upheld the imposition of
a $10,000 sanction, representing a portion of defendant's expert
costs, where plaintiff's counsel (1) repeatedly failed to perfect
service on the defendant and then filed a motion for default
knowing that service had not been perfected; (2) repeatedly filed
a class action complaint that did not comply with Fed. R. Civ. P.
23; and (3) alleged frivolous disparate impact and pattern or
practice claims the defense of which caused the defendant to incur
expert expenses in excess of $70,000.  158 F.3d at 213-14.  In
Byrne, another case cited by Asplundh, see Aspl.Brf.II at 20, this
Court upheld a fee award on the grounds that plaintiff's counsel
abused the judicial process when they attempted to extort a
settlement from the defendants by adding frivolous federal and
state RICO claims to an otherwise straightforward medical
malpractice suit, without conducting a reasonable inquiry into the
factual bases for the RICO claims.  261 F.3d 1075, 1107, 1115-17. 
Similarly, in Chambers, the Supreme Court concluded that a
defendant's repeated filing of meritless motions and pleadings and
delaying actions warranted imposition of attorney's fees and costs
on the defendant.  See 501 U.S. at 38.  See also First Bank of
Marietta v. Hartford Underwriters Ins. Co., 307 F.3d 501, 522-25
(6th Cir. 2002)(award of attorney's fees under district court's
inherent powers upheld based on district court's express finding
that lawsuit was "laced with bad faith," where plaintiff's claims
had no merit, plaintiff knew or should have known there was no
legal or factual basis for filing suit, and suit was brought for
improper purpose of trying to coerce defendant to settle a
meritless claim).  
     Indeed, courts have found an absence of "bad faith" and have
declined, for that reason, to impose attorney's fees in response to
conduct which actually exhibited poor judgment and overzealousness,
in contrast to EEOC's decision, in this case, to proceed to
litigation after receiving no response from Asplundh for almost a
month.  In Jerelds v. City of Orlando, 194 F. Supp. 2d 1305 (M.D.
Fla. 2002), appeal dismissed (11th Cir. 9/27/02), for instance, the
district court expressly declined to impose attorney's fees as a
sanction against counsel under its inherent power.  Id. at 1313
n.13.  The court reasoned that even though it had granted the
defendant summary judgment on the merits and had awarded attorney's
fees to the defendant under a "prevailing party" standard, see id.
at 1308-11, and even though plaintiffs' counsel had "exhibited
extremely poor judgment in their zeal to prosecute [plaintiffs']
claims," id. at 1313, counsel's "overzealousness" was not "conduct
tantamount to bad faith" and a sanction against plaintiffs' counsel
was, therefore, unwarranted.  Id. at 1313 and n.13 (relying on
Barnes, 158 F.3d at 1214).  Given the outcome in these cases,
surely the Commission's decision to proceed to litigation in this
case after West tried twice, unsuccessfully, to reach Sampo by
telephone was a reasonable reaction to Asplundh's half-hearted and
untimely response to EEOC's conciliation proposal and was not
"conduct tantamount to bad faith" as construed by this Court in the
context of an exercise of a court's inherent powers.
C.   Asplundh Misrepresents Critical Facts and Positions of EEOC.

     Much of Asplundh's Answer Brief in this second appeal simply
re-hashes arguments presented in Asplundh I.  Asplundh argues that
EEOC did not "encourage voluntary compliance" (pp10-14), respond to
Sampo's letter (pp15-16), or "reserve judicial action as a last
resort" (pp16-19).  In so doing, Asplundh makes assertions that are
inaccurate, unsupportable and, in many cases, irrelevant.
1.   Asplundh Seeks to Obfuscate the Fact that the District Court
     Relied on a Critical Misrepresentation by Asplundh.

     Asplundh erroneously suggests that EEOC agrees with the
district court's findings of fact supporting its determination that
EEOC did not engage in good faith conciliation.  See Aspl.Brf.II at
8, citing EEOC Op.Brf.II at 29.  Asplundh confuses two different
sets of "facts":  those on which the lower court based its
conclusion that conciliation was inadequate, which the Commission
disputes, and those that support the Commission's underlying claims
of discrimination which, we noted, "the lower court recounted in
some detail, and without significant criticism ...."  See EEOC
Op.Brf.II at 29, quoted in Aspl.Brf.II at 3.  Although the facts
surrounding the merits are essentially undisputed, the district
court's "factual findings" concerning the conciliation process flow
directly from a blatant factual misrepresentation by Asplundh's
counsel, Peter Sampo, which Asplundh apparently seeks to perpetuate
before this Court.
     Specifically, Asplundh asserted below (R.77 at 3, 5, 6, 9, 
10) and the district court found (R.90 at 6) that "EEOC at no time
responded to the Defendant's faxed letter or acknowledged having
received such letter."  See also R.90 at 10 ("EEOC's response to
the foregoing letter [from Peter Sampo] was the filing of the
instant lawsuit one day thereafter.").  Faced with the documentary
evidence of Debora West's correspondence and telephone log, which
Asplundh offered into the record in the court below, Asplundh does
not deny that EEOC Investigator Debora West left two telephone
messages for Sampo in response to his letter asking that she call
him, nor does Asplundh deny that Sampo called her back in response
to the first telephone call.  Instead, Asplundh asserts that
West's two telephone messages did not actually constitute a
response to Sampo's letter or did not seek to further the
conciliation process.  See Aspl.Brf.II at 15-16.  Both positions
are equally unpersuasive.
     First, by arguing that West's two telephone calls to Sampo did
not "respond" to his letter, Asplundh seeks to divert this Court's
attention from Sampo's outright misrepresentation to the court
below.  The basis for the district court's statement that EEOC
never responded to Sampo's letter comes from Sampo's sworn
statement, which Asplundh submitted to the court below, attesting
under oath that after he sent his April 28, 1999, letter to the
EEOC, "I never received any communication from Ms. West, or from
anyone with the EEOC."  R.81, par.9 (emphasis added).  Sampo did
not assert in his affidavit that he received a communication from
Ms. West that was unresponsive; indeed, such an assertion would
have been plainly unsupportable since his letter specifically asked
West for "a phone call with you to discuss this case ...."  R.67,
Pl.'s Exhibit 6 attached to Declaration of Debora West.  Rather,
Sampo asserted, and the district court believed, that neither Ms.
West nor anyone else from EEOC attempted to contact Sampo or
acknowledged having received his April 28, 1999 letter.  This
assertion is plainly not true.  Asplundh is being disingenuous, at
best, when it tries to re-frame the issue by asserting that West's
two telephone messages did not constitute a "response" to Sampo's
letter. 
     Building on the unsupportable assertion that West's telephone
calls were not "responsive" to Sampo's letter, Asplundh offers the
equally unsupportable proposition that the district court's failure
to consider West's telephone calls to Sampo is, therefore,
"harmless error."  Aspl.Brf.II at 16 n.6.  A debate over whether
West's telephone call to Sampo would have been "responsive" if he
had been in when she called, or whether the message she left during
the second attempt satisfied EEOC's conciliation obligation "as a
matter of law," see id., completely begs the real question.  Sampo
said he did not receive any communication from EEOC after he sent
his letter, and Asplundh repeatedly urged this factual
misrepresentation as evidence that EEOC did not conciliate in good
faith.  See EEOC Rep.Brf.I at 4-5 and n.2.  The district court
believed Sampo and concluded, on this basis, that EEOC did not act
in good faith.  Under these circumstances, it is abundantly clear
that the district court's express reliance on Sampo's blatant
factual misrepresentation cannot be considered "harmless error"
inasmuch as it formed the faulty premise upon which the lower
court's fee award is based.  See Kilgo v. Ricks, 983 F.2d 189, 193
(11th Cir. 1993)(sanction of dismissal reversed where based on a
clearly erroneous factual determination by district court).  
     Second, since Sampo and West only exchanged telephone messages
and never actually spoke, it is entirely speculative for Asplundh
to suggest that their conversation, if they had actually spoken,
would not have provided Sampo with the information he sought.  See
Aspl.Brf.II at 15.  More importantly, however, Asplundh already had
sufficient information to understand the basis of the EEOC's cause
finding.  Lewis's charge stated that his claim of racial harassment
was based on the actions of Pete Evans.  When Asplundh responded to
this charge on  February 3, 1997, Asplundh specifically discussed
the incident between Lewis and Evans and pointed out that Evans was
not an employee of Asplundh.  Lewis's charge also stated that he
believed he was discharged on June 20, 1996, "in retaliation for
complaining of race discrimination."  In response to this
allegation, Asplundh asserted in its February 3, 1997, letter that
Lewis was laid off "due to lack of work."  The district director's
March 31, 1999, Letter of Determination ("LOD") specifically
referenced Lewis's original charges and then stated that EEOC's
investigation indicated Asplundh's proffered reason for Lewis's
layoff was pretextual and there was evidence of race discrimination
and retaliation.  There was no mystery about the nature of EEOC's
findings; Asplundh simply disputed the validity of these claims
under Title VII.  
     To be sure, Asplundh is entitled to dispute the validity of
the Commission's claims.  A respondent is entitled to question
either the legal validity or the factual sufficiency of claims
asserted by the Commission.  Asplundh was entitled to refrain from
conciliating back in April of 1999 on this basis, see EEOC v.
Liberty Trucking Co., 695 F.2d 1038, 1041 (7th Cir. 1982), and is
entitled, at this stage, to defend that position in court.  Under
Title VII, however, Asplundh was not entitled to a more detailed
explanation of the Commission's legal theory for these claims as a
prerequisite to suit by the Commission.  See EEOC Rep.Brf.I at 17-
18.  This is apparently what Sampo was seeking when he wrote to
West and asked her to call him.  Asplundh is wrong when it argues,
and the district court erred when it concluded, that EEOC failed to
set forth the basis for the Commission's finding of discrimination
in this case.  Lewis's discrimination charge and the Commission's
Letter of Determination set forth everything that Title VII
requires EEOC to provide a respondent in conciliation. 
2.   Asplundh Confuses EEOC's Statutory Mission and the Purpose of
     Conciliation.

     Asplundh claims in its Answer Brief that "EEOC's statutory
purpose is to exhaust the potential for conciliation."  Aspl.Brf.II
at 14.  EEOC's statutory mission is to deter and seek remedies for
unlawful employment practices.  See 42 U.S.C.  2000e-5(a). 
Congress has authorized and empowered the Commission to accomplish
this statutory purpose through education and outreach, 42 U.S.C. 
 2000e-4(h), technical assistance, 42 U.S.C.  2000e-4(g)(3),
collaboration with other agencies, 42 U.S.C.  2000e-4(g)(1),
investigation of discrimination charges and attempted conciliation
where discrimination is found, 42 U.S.C.  2000e-5, intervention in
private lawsuits, 42 U.S.C.  2000e-4(g)(6), and initiation of EEOC
litigation where "the Commission [has endeavored] to eliminate any
such alleged unlawful employment practice by informal methods of
conference, conciliation, and persuasion" and "has been unable to
secure from the respondent a conciliation agreement acceptable to
the Commission."  42 U.S.C.  5000e-5(b) and (f)(1).  
     Title VII does not require EEOC to "exhaust the potential for
conciliation," and this Court does not construe EEOC's conciliation
requirement in that fashion.  In Klingler, this Court explained
that Title VII requires the Commission to respond "in a reasonable
and flexible manner to the reasonable attitudes of the employer." 
636 F.2d at 107 (emphasis added); see also EEOC v. Prudential
Federal Savings & Loan Ass'n, 763 F.2d 1166, 1169 (10th Cir.
1985)(courts recognize that "[b]ecause conciliation involves at
least two parties, we must evaluate one party's efforts with an eye
to the conduct of the other party.")(citing Marshall v. Sun Oil
Co., 605 F.2d 1331, 1335 (5th Cir. 1979)).  Here, EEOC responded
reasonably to Asplundh's untimely and equivocal response to the
Commission's repeated invitations to conciliate. 
     Specifically, Asplundh never responded to EEOC's first
invitation to conciliate (in the district director's March 31,
1999, LOD and the enclosed EEOC Form 153).  Asplundh did not
respond to EEOC's second invitation to conciliate until almost a
week past the deadline, with a letter that West did not receive
until after the district director mailed the notice finding
conciliation efforts were unsuccessful.  See R.67, Declaration of
Debora West  7-12 and Exhibit 6.  Asplundh's belated response did
not include a counterproposal or even indicate a desire to
negotiate.  Rather, Asplundh sought information about the basis for
EEOC's finding and requested an extension of time to respond to the
conciliation proposal, without offering any explanation for why
Asplundh had not responded within the deadline in the first
instance or at least sought an extension before the deadline had
passed.  Id.  When West thereafter attempted to reach Sampo by
telephone, he allowed almost a week to pass before returning her
first call, R.77, Exhibit 3, and then never followed up on West's
message (in her second call) that he should contact the regional
attorney if he wished to discuss the case further.  Under these
circumstances, EEOC's decision to go forward with litigation was a
reasonable response to Asplundh's unreasonable and dilatory
actions.   
     Asplundh argues, however, that the district court properly
awarded fees and costs against the Commission because "EEOC did not
reserve judicial action as a last resort."  Aspl.Brf.II at 16-19,
citing, inter alia, R.90 at 11.  This Court's statement in Klingler
that EEOC's authority to determine the proper scope of conciliation
would be preserved as long as the Commission "acts in good faith,
while encouraging voluntary compliance and reserving judicial
action as a last resort," see 636 F.2d at 107, must, however, be
read in proper context.  In requiring EEOC to respond reasonably to
the reasonable attitudes of the employer, this Court clearly does
not mean that an employer can prevent or delay EEOC from filing
suit by simply ignoring EEOC's reasonable conciliation time frames. 
Nor is an employer entitled to stonewall the conciliation process
by belatedly seeking information already in the employer's
possession, and EEOC is not required to convince an employer of the
validity of its claims as part of the conciliation process.  The
actions that EEOC took before filing this lawsuit comported fully
with the conciliation requirements of Title VII as this Court has
interpreted them in Klingler and other cases.  Even if the
circumstances in this case might warrant a stay of litigation for
further conciliation, however, there is absolutely no precedent for
dismissal and an award of attorney's fees and costs on facts such
as these.
3.  Asplundh's Brief Makes a Number of Other Factual Errors
     Asplundh mistakenly asserts that EEOC Investigator Debora West
was responsible for finding "cause" and for ending the conciliation
process.  See Aspl.Brf.II at 5, 10-11, 14, 29.  Both of these
determinations were issued under the district director's signature. 
See R.67, Exhibits 3 and 5 to Declaration of Debora West; EEOC
Op.Brf.I at 5, 28.  Asplundh characterizes EEOC's cause finding
against Asplundh as "inexplicable," arguing, among other things,
that West failed to consider certain documents she received at the
tail end of the investigation.  See Aspl.Brf.II at 5, 29.  The
sufficiency of EEOC's "cause" determination is not before this
Court, however.  A district court addresses a plaintiff's Title VII
claims de novo, and the sufficiency of the Commission's
investigation as well as the soundness of the Commission's "cause"
determination are irrelevant to this appeal and the underlying
litigation.  See EEOC v. Keco Industries, Inc., 748 F.2d 1097, 1100
(6th Cir. 1984), and cases discussed therein; Georator Corp. v.
EEOC, 592 F.2d 765, 767 (4th Cir. 1979)(trial of employment
discrimination claims is de novo and "court will not determine
whether substantial evidence supported the Commission's
preadjudication finding of reasonable cause"); cf. Newsome v. EEOC,
301 F.3d 227, 231 (5th Cir. 2002)(nature and extent of EEOC
investigation is within agency's discretion), cert. denied, 2002 WL
1619592 (U.S. Dec. 2, 2002).  
     In conjunction with Asplundh's erroneous assertion that West
made the determination that conciliation should end, Asplundh
spends considerable time speculating exactly when that
determination was made.  Asplundh baldly asserts that the
determination had to have been made after EEOC received Sampo's
letter, based (illogically) on the absence of any notation one way
or another in West's telephone and correspondence log.  See
Aspl.Brf.II at 10-12.  Regardless of whether the district
director's decision was made on April 27th or on the morning of
April 29th, and regardless of whether it was made in consultation
with Investigator West or in her absence, the unrefuted record
indicates that West received Sampo's letter sometime after the
district director sent the April 29th notice of conciliation
failure.  See R.67, Declaration of Debora West,  11-12.  There
is absolutely no evidence to support the district court's mistaken
premise that EEOC knew about Sampo's letter when the district
director notified Asplundh that conciliation had concluded.
D.   This Court Reviews De Novo the Legal Basis for a District
     Court's Fee Award, and Only if Fees Are Authorized on Some
     Proper Legal Basis Does the "Abuse of Discretion" Standard
     Apply.

     EEOC disputes Asplundh's position that the award of fees and
costs in this case should be analyzed under an "abuse of
discretion" standard.  See Aspl.Brf.II at 7-8.  This Court must
first review de novo the legal question of whether and on what
ground a court may award attorney's fees and costs where EEOC
allegedly failed to conciliate fully before filing suit.  See EEOC
Op.Brf.II at 12.  Only if this Court concludes, as a matter of law,
that a court is authorized to make such an award based solely on a
finding of inadequate conciliation does the "abuse of discretion"
standard come into play.   
     Moreover, the district court's discretion is not unfettered. 
This Court has emphasized repeatedly that dismissal with prejudice
is a "drastic" sanction that is warranted only as a last resort,
and "only upon a 'clear record of delay or willful contempt and a
finding that lesser sanctions would not suffice.'"  See Mingo v.
Sugar Cane Growers Co-Op of Florida, 864 F.2d 101, 102 (11th Cir.
1989)(per curiam)(emphasis in original), quoting Goforth v. Owens,
766 F.2d 1533, 1535 (11th Cir. 1985); see also World Thrust Films,
Inc. v. Int'l Family Entertainment, 41 F.3d 1454, 1456 (11th Cir.
1995)(per curiam)(reversing dismissal sanction because district
court failed to make any finding that lesser sanctions would not
suffice); Kilgo, 983 F.2d at 192-93 (reversing dismissal sanction
both because district court's decision was based on a clearly
erroneous factual determination and because district court failed
to make any finding that lesser sanctions would not suffice); Cohen
v. Carnival Cruise Lines, Inc., 782 F.2d 923, 924-26 (11th Cir.
1986)(per curiam)(reversing dismissal sanction because this Court
found "no clear record of delay or willful contempt" despite some
delay on plaintiff's part, and because district court failed to
consider less drastic sanctions).  Contrary to Asplundh's assertion
that review is "sharply limited," Aspl.Brf.II at 7-8, in each of
the cases noted above this Court examined the record carefully to
determine whether the drastic sanction of dismissal was warranted. 
     Dismissal in this case was the predicate for the district
court's imposition of fees and costs.  Although the lower court did
not indicate expressly in the February 20, 2002, order and judgment
whether its dismissal was "with prejudice" or "without prejudice,"
the court did indicate its assumption that the order was final with
respect to EEOC when it stated that the dismissal was "not too
harsh of a remedy" because it did not bar Lewis from filing an
individual claim.  R.90 at 11 n.4 (citing Truvillion v. King's
Daughters Hospital, 614 F.2d 520 (5th Cir. 1980)).  The district
court was required, therefore, to satisfy both aspects of the
rigorous standard set forth above.  Given that two of the critical
factual underpinnings of the court's determination are plainly
wrong, see  pp 10, 13-17, supra, and that the lower court's
determination that "[a] stay does not ... become the appropriate
remedy in the instant case, but dismissal does," R.90 at 11, flowed
from these same factual errors, the district court's decision
cannot stand.  EEOC acted reasonably at every step of the
conciliation process.  A review of the entire evidence in this case
leaves "the definite and firm conviction that a mistake has been
committed."  Carlucci v. Piper Aircraft Corp., Inc., 775 F.2d 1440,
1447 (11th Cir. 1985).  The district court's award of attorney's
fees on the grounds that EEOC did not conciliate in good faith
should be reversed. 
                                
                           CONCLUSION
     For all of the foregoing reasons, EEOC respectfully submits
that the district court erred when it awarded attorney's fees and
costs against the Commission and in favor of Asplundh.  The
dismissal order and fee award should both be reversed and the
matter remanded to the district court for further proceedings.

                                Respectfully Submitted,

                                NICHOLAS M. INZEO
                                Acting Deputy General Counsel

                                PHILIP B. SKLOVER
                                Associate General Counsel

                                LORRAINE C. DAVIS
                                Assistant General Counsel



                                                              
                                SUSAN R. OXFORD
December 12, 2002               Attorney
                                EQUAL EMPLOYMENT OPPORTUNITY
                                   COMMISSION
                                1801 L Street, N.W.
                                Washington, D.C. 20507
                                (202) 663-4791



                   CERTIFICATE OF COMPLIANCE

     I hereby certify that this brief complies with the type-volume
limitations set forth in F.R.A.P. 32(a)(7)(B)(i).  The brief
contains 6704 words.
                                                        
                                Susan R. Oxford


                     CERTIFICATE OF SERVICE
                                
     I hereby certify that on this 12th day of December, 2002, I
caused an original and six copies of the attached Reply Brief,
along with an electronic version on floppy disk, to be sent by
Federal Express to the Clerk of the Court for the U.S. Court of
Appeals for the Eleventh Circuit, and two copies of the attached
Reply Brief, along with an electronic version on floppy disk, to be
sent by Federal Express, next day delivery, to the following
counsel of record:
               Robert E. Larkin, III, Esq.
               Michael Mattimore, Esq.
               ALLEN, NORTON & BLUE, P.A.
               906 North Monroe Street
               Tallahassee, Florida   32303

In addition, on this same date I caused two copies of the attached
brief and an electronic version on floppydisk to be hand-delivered
to the following counsel for Amici Curiae Equal Employment Advisory
Counsel (EEAC) and the Chamber of Commerce of the United States:
 
Stephen A. Bokat, Esq.             Reginald E. Jones, Esq.
NATIONAL CHAMBER LITIGATION        OGLETREE, DEAKINS, NASH, SMOAK
 CENTER, INC.                       & STEWART
1615 H Street, N.W.                2400 N Street, N.W., Fifth Fl.
Washington, D.C.   20062           Washington, D.C.   20037

Ann Elizabeth Reesman, Esq.
McGUINESS, NORRIS & WILLIAMS
1015 Fifteenth Street, N.W., Suite 1200
Washington, D.C.   20005



                                                       
                                Susan R. Oxford

__________________________________________________________________________

1. This Court has aopted as binding precedent all decisions of the former
 Fifth Circuit handed down prior to the close of business on September 30,
 1981.  See Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en
 banc).

2. Appellee Asplundhs Answer Brief in this Appeal is referred to as Aspl.
Br.II.  EEOCs Opening Brief in this Appeal is referred to as EEOC Op.Brf.
II.  Asplundhs Answer Brief in Appeal No. 02-12386-EE is referred to as 
Aspl.Br.I, and EEOCs Opening and Reply Briefs in that appeal are referred 
to, respectively, as EEOC Op.Brf.I and EEOC Rep.Brf.I.

3. Asplundh erroneously asserts that EEOC did not object below to the district
 courts authority to award attorneys fees or costs.  See Aspl.Brf.II at 4. 
 To the contrary, in EEOCs Response to Defendants Statement of Costs, Expenses
 and Attorneys Fees and Memorandum of Law, EEOC expressly disagreed with Asplundhs
 assertion that the district court had a factual and legal basis for awarding 
attorneys fees, expenses and costs.  EEOC noted its intent to appeal the fee 
award and responded to the specific costs being sought by Asplundh without waiving
 the agencys overall objection to an award of attorneys fees, expenses and costs
 in this case.  R.95 at 2.

4. Asplundhs reference to EEOC v. Reeves, No. CV 00-10515, 2002 WL 1151459 (C.D.
 Cal. May 6, 2002), appeal docketed, No. 02-56179 (9th Cir. July 15, 2002), see
 Aspl.Brf.II at 15, is inapposite.  The district court in Reeves dismissed EEOCs
 lawsuit on the merits based on a series of summary judgment motions filed by the
 defendant, and then considered the adequacy of EEOCs pre-suit conciliation only
 in the context of deciding whether to award fees and costs to Reeves as the prevailing
 party.  See EEOC Rep.Brf.I at 20 n.11. 

5. The Court in Chambers noted that a court may also assess attorneys fees against
 a responsible party if the court finds that fraud has been practiced upon it.  
501 U.S. at 45.  Arguably, Asplundh practiced a fraud upon the district court when
 it submitted Sampos sworn (but erroneous) statement that no one from EEOC, including
 Investigator West, ever contacted him after he sent his April 28th letter, and when 
Asplundh thereafter argued this point repeatedly in opposition to EEOCs motion for 
partial summary judgment on the issue of conciliation.  See EEOC Rep.Brf.I at 4-6 and 
n.2.  Although EEOC did not move below for imposition of sanctions against Asplundh on
 this basis, Chambers instructs that the district court has the inherent authority to
 vacate its own judgment upon proof that a fraud has been perpetrated upon the court ...
 and to conduct an independent investigation in order to determine whether it has been
 a victim of fraud ....  501 U.S. at 43. 

6. The Supreme Court contrasted these rigorous requirements for exercise of a courts 
inherent powers with the less rigorous requirements for imposing sanctions under the federal
 rules of civil procedure, which do not necessarily require a finding of bad faith.  See 
501 U.S. at 47; see also id. at 49 (discussing remand order in Roadway Express, Inc. v. Piper,
 447 U.S. 752, 767 (1980)). 

7. Given that one of the bases for sanctioning a party for bad faith involves a finding that
 the party unreasonably delayed litigation, it is ironic that Asplundh defends the district
 courts fee award on the grounds that EEOC allegedly filed suit too quickly, arguing (erroneously
 and without factual foundation) that it was unparalleled for EEOC to file suit only thirteen
 days after conciliation ended.  Aspl.Brf.II at 19; see also id. at 18 (characterizing EEOCs
 lawsuit as a premature prosecution), 24 (asserting that EEOC rushed to litigation).  In 
contrast, Asplundh previously argued below that it was prejudiced by EEOCs delay in filing
 suit.  See R.31, Memorandum in Support of Defendants Motion for Costs and Attorneys Fees
 and For Sanctions for Discovery Abuses at 4.  Asplundhs changing positions on this point 
cast doubt on its credibility in arguing its position before this Court.

8. Nevertheless, the Commission notes that it did not appeal either the protective order, 
R.12, or the discovery sanction, R.54, entered in this case below, and EEOC does not contest
 the district courts issuance of these two prior orders.  

9. Asplundh offered this, after the fact, as one of several alternate bases for the district
 courts fee award, see R.92 at 1, 4, but neither the February 20th order nor the June 12th 
order identified this (or any other) legal authority for the district courts award of fees 
and costs.  See R.90, R.99.  Asplundh has cited no cases in which a court exercised its inherent
 powers to impose attorneys fees and costs on EEOC based solely on a determination of inadequate
 conciliation.  Notably, Asplundh never even sought these fees and costs before the district
 court issued its order.  Rather, in opposing EEOCs motion for partial summary judgment on 
the issue of conciliation, Asplundh requested only that it be awarded its costs and attorneys
 fees in responding to this Motion.  R.77 at 12 (emphasis added). 

10. The lower courts decision was also apparently influenced by its erroneous belief that EEOC
 was actually aware of Sampos letter before the district director notified Asplundh that 
conciliation had ended.  There is no support in the record for such a conclusion, and it is
 directly contradicted by Wests declaration.  See R.67, Declaration of Debora West  11-12.

11. This Court reversed the sanction against the plaintiff herself because the requisite 
finding of bad faith was not supported by the record.  Byrne, 261 F.3d at 1123-27.

12. For the first time in these two related and now-consolidated appeals, Asplundh asserts
that Investigator Wests correspondence log is inherently unreliable and should not be 
considered as part of the record because EEOC redacted certain portions (those having to 
do with the agencys deliberative processes) before supplying the log to Asplundh in discovery.
 See Aspl.Br.II at 11 n.4.  The redacted telephone log is a proper part of the record because 
Asplundh submitted it to the district court in opposition to EEOCs motion for partial summary 
judgment on the issue of conciliation.  R. 77, Exhibit 3.  Having offered it to the court below
 without qualification, Asplundh cannot now disavow its reliability.  See, e.g., Fox v. Taylor
 Diving & Salvage Co., 694 F.2d 1349, 1356 (5th Cir. 1983)(party cannot claim evidence wrongly 
admitted into record where partys attorney himself asked witness to disclose the information 
and made no objection when it was offered).  

	More importantly, Asplundh has no factual basis for asserting the logs unreliability 
for the first time at this late stage.  EEOC relies on the log to establish the exchange of 
telephone messages between Sampo and West:  that West called Sampo the same day she received
 his letter, he returned her call approximately one week later, and she then called him a 
second time and left a message that the case was now with the regional attorney.  (EEOC does
 not rely on Wests log to establish [EEOCs] strategy and intent regarding the conciliation 
process, as Asplundh wrongly asserts, see Aspl.Br.II at 11 n.4.)  Since Asplundh does not deny
 that this sequence of telephone calls took place, see, e.g., Aspl.Brf.I at 9, 27-28, Asplundh 
has offered no credible basis for asserting that Wests log is inherently unreliable on this
 critical point.

13. Indeed, Asplundh skirts dangerously close to perpetuating the same misrepresentation before 
this Court that it maintained below when it states, in its brief, that [a]t no time did anyone
 at the EEOC contact Sampo to discuss the case or to extend the conciliation process.  Aspl.Brf.
II at 6.  The same day that West received Sampos letter requesting a telephone conversation, 
West called Sampo to discuss the case.  Sampo, on the other hand, waited almost a week to call
 her back.  

14. Lewiss charge alleged two different forms of race discrimination: racial harassment based
 on the actions of Pete Evans and discriminatory wages and pay increases on behalf of black 
workers generally.  The LOD found no cause on the wage/pay increase issue.  See R.67, Exhibits
 1 & 3 to Declaration of Debora West.  Thus, it was clear that the LODs reference to race 
discrimination could only refer to Lewiss charge of racial harassment based on Evanss actions.

15. Wests declaration specifically states that EEOC sent Asplundh a letter on April 29, 1999, 
indicating that the Commission had determined that efforts to conciliate had been unsuccessful 
and that [s]ubsequently, the Commission received a letter dated April 28, 1999, from Peter L. 
Sampo ....  (Emphasis added).  Sampos letter was addressed to West and West was the only investigator
 assigned to this case, so when Sampos faxed letter was received by the Commission, it was directed
 to West.  Wests declaration indicates that she had no awareness of Sampos letter until after the
 district director sent the conciliation failure letter to Asplundh.