IN THE UNITED STATES COURT OF APPEALS
                      FOR THE NINTH CIRCUIT
            ________________________________________
                                
                    No. 06-55110 & 06-55386
           __________________________________________
                                
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
     Plaintiff-Appellant,
 v.
ROBERT L. REEVES & ASSOCIATES,                    
A Professional Corporation,
     Defendant-Appellee.
     _______________________________________________________
                                
        On Appeal from the United States District Court 
             for the Central District of California
                       No. CV-00-10515-DT
     _______________________________________________________
                                
                  BRIEF OF PLAINTIFF-APPELLANT
          THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
     _______________________________________________________
RONALD S. COOPER              EQUAL EMPLOYMENT OPPORTUNITY
General Counsel                    COMMISSION
                              Office of General Counsel
CAROLYN L. WHEELER            1801 L Street, N.W., 7th Floor
Acting Associate General Counsel   Washington, D.C. 20507
                              (202) 663-7049
DONNA J. BRUSOSKI   
Attorney
                       TABLE OF CONTENTS
                                                             PAGE
TABLE OF CONTENTS  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .i
TABLE OF AUTHORITIES  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iv
STATEMENT OF JURISDICTION  . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE ISSUES  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
     1.   Nature of the Case and Course of Proceedings . . . . . . . . . . . . . . 2
     2.   Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
          a.  Pregnancy Discrimination . . . . . . . . . . . . . . . . . . . . . . 5
          b.  Hostile Environment . . . . . . . . . . . . . . . . . . . . . . . . .7
          c.  The Investigation and Litigation . . . . . . . . . . . . . . . . . .26
          d.  The "Conspiracy". . . . . . . . . . . . . . . . . . . . . . . . . . 32
     3.   District Court Decision . . . . . . . . . . . . . . . . . . . . . . . . 35
STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARGUMENT  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
I.   The Court Prejudiced the EEOC's Presentation of its Case
     Through Numerous Evidentiary Errors . . . . . . . . . . . . . . . . . . . . .38
     A.  The Court Erroneously Admitted Irrelevant Evidence . . . . . . . . . . . 38
          1.  The Court Admitted Irrelevant and Prejudicial
          Evidence About the Administrative Investigation . . . . . . . . . . . . 38
          2.  The Court Admitted Irrelevant and Prejudicial
          Evidence Supporting the Defendant's "Conspiracy"
          Theory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42
          3.  The Court Admitted Irrelevant and Prejudicial
          Evidence It Should Have Excluded under
          Fed. R. of Evid. 412 . . . . . . . . . . . . . . . . . . . . . . . . .  49
          4.  The Court Admitted Irrelevant and Prejudicial
          Evidence that Other Women Were Not Offended
          or Were Not Sexually Harassed . . . . . . . . . . . . . . . . . . . . . 52
     B.  The Court Erroneously Excluded Relevant Evidence . . . . . . . . . . . . 55
          1.  The Court Improperly Excluded Relevant
          Background Evidence That Would Have Supported
          the Commission's Pregnancy Discrimination Claim . . . . . . . . . . .   55
          2.  The Court Improperly Excluded Relevant Evidence
          of Harassing Incidents Victims Learned of Second-Hand . . . . . .       56
          3.  The Court Improperly Excluded Relevant Evidence
          of Leering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  61
II.  The District Court Abused its Discretion in Awarding Fees
     under Title VII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  62
     A.   The EEOC's Action Was Not Frivolous, Unreasonable
          or Without Foundation . . . . . . . . . . . . . . . . . . . . . . . . . 63
     B.   The EEOC's Investigation and Reasonable Cause
          Determination Do Not Support a Fee Award . . . . . . . . . . . . . . .  73
     C.   The EEOC's "Litigation Conduct"Does Not Support a Fee
          Award . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .80
STATEMENT OF RELATED CASES 
CERTIFICATE OF COMPLIANCE
APPENDIX
CERTIFICATE OF SERVICE
                                             
                     TABLE OF AUTHORITIES 
                              CASES 
B.K.B. v. Maui Police Department, 276 F.3d 1091 (9th Cir.2002)35, 50, 51
Barry v. Fowler, 902 F.2d 770 (9th Cir. 1990). . . . . . . 62, 68
Carter v. Chrysler Corp., 173 F.3d 693 (8th Cir. 1999) . . . . 60
Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978) 35, 62, 64
Dominguez-Curry v. Nevada Transport Department, 424 F.3d 1027 (9th Cir. 2005) 59
EEOC v. Astra USA, Inc., 94 F.3d 738 (1st Cir. 1996) . . . . . 77
EEOC v. Bruno's Restaurant, 13 F.3d 285 (9th Cir. 1993)35, 62, 64, 66, 72, 75
EEOC v. Caterpillar, Inc., 409 F.3d 831 (7th Cir. 2005).39-40, 65
EEOC v. Keco Industries, 748 F.2d 1097 (6th Cir. 1984) . . . . 40
EEOC v. Waffle House, Inc., 534 U.S. 279 (2002). . . . .47, 76-77
Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991) . . . . 53, 54, 59
Georator Corp. v. EEOC, 592 F.2d 765 (4th Cir. 1979) . . . . . 39
Harris v. Forklift Systems, Inc., 510 U.S. 17     (1993)53, 54, 59, 60, 61, 69
Hughes v. Rowe, 449 U.S. 5 (1980). . . . . . . . . . . . . . . 67
Leibovitz v. New York City Transit Authority, 252 F.3d 179 (2d Cir. 2001).60
McDonnell Douglas v. Green, 411 U.S. 792 (1973). . . . . . . . 39
National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) . 68
Obrey v. Johnson, 400 F.3d 691 (9th Cir. 2005) . . . . 35, 42, 56
Richardson v. United States, 841 F.2d 993 (9th Cir. 1988). . . 63
Sheffield v. Hilltop Sand & Gravel Co., 895 F.Supp. 105 (E.D. Va. 1995)62
                      TABLE OF AUTHORITIES
                                 
                              CASES 
                                                             PAGE
Socks-Brunot v. Hirschvogel, Inc., 184 F.R.D. 113 (S.D. Ohio 1999)50, 51, 52
Steiner v. Showboat Operating Co., 25 F.3d 1459 (9th Cir. 1994)62, 69
Stoll v. Runyon, 165 F.3d 1238 (9th Cir. 1999) . . . . . . . . 62
Swinton v. Potomac Corp., 270 F.3d 794  (9thCir. 2001) . . . . 59
United States v. Brown, 562 F.2d 1144 (9th Cir. 1977). . . .58-59
United States v. Dickens, 775 F.2d 1056 (9th Cir. 1985). . 45, 46
Upjohn Co. v. United States, 449 U.S. 383 (1981) . . . . . . . 79
Virk v. INS, 295 F.3d 1055 (9th Cir. 2002) . . . . . . . . . . 45
Wolak v. Spucci, 217 F.3d 157 (2d Cir. 2000) . . . . . . . . . 52
Woods v. Graphic Communications, 925 F.2d 1195 (9th Cir. 1991) 59
Wynn v. NBC, 234 F. Supp.2d 1067 (C.D. Cal. 2002)  . . . . . . 45
Yamaguchi v. U.S. Department of the Air Force, 109 F.3d 1475 (9th Cir. 1997)62
                        STATUTES and RULES
28 U.S.C.  1291 . . . . . . . . . . . . . . . . . . . . . . . .2
28 U.S.C.  1331 . . . . . . . . . . . . . . . . . . . . . . . .1
28 U.S.C.  1345. . . . . . . . . . . . . . . . . . . . . . . . 1
28 U.S.C.  1920 . . . . . . . . . . . . . . . . . . . . . . . .3
29 U.S.C.  215(a)(3)  . . . . . . . . . . . . . . . . . . . . 77
42 U.S.C.  2000e, et seq  . . . . . . . . . . . . . . . . . . .1
42 U.S.C. 2000e-5(f)(3) . . . . . . . . . . . . . . . . . . . .1
                      TABLE OF AUTHORITIES
                                 
                        STATUTES and RULES
                                                             PAGE
42 U.S.C.  2000e-5(k) . . . . . . . . . . . . . . . . . . . . 36
Fed. R. App. P. 4(a)(1)(B) . . . . . . . . . . . . . . . . . . .2
Fed. R. Evid. 401. . . . . . . . . . . . . . . . . . . . . 44, 47
Fed. R. Evid. 402  . . . . . . . . . . . . . . . . . . . . 44, 47
Fed. R. Evid. 403. . . . . . . . . . . . . . . . . . . . . 47, 58
Fed. R. Evid. 404. . . . . . . . . . . . . . . . . . . . . 45, 47
Fed. R. Evid. 608  . . . . . . . . . . . . . . . . . . . . 45, 47
Fed. R. Evid. 412  . . . . . . . . . . . . . . . . . . . . .2, 49
Fed. R. Evid. 412(b)(2)  . . . . . . . . . . . . . . . . . . . 50
Fed. R. Evid. 802  . . . . . . . . . . . . . . . . . . . . . . 58
Fed. R. Evid. 803 (2), (3) . . . . . . . . . . . . . . . . . . 58
                         MISCELLANEOUS 
Weinstein & M. Berger, Weinstein's Evidence  801(c) [01], at 801-77 (1987) 58
Rule 412, Advisory Committee Notes . . . . . . . . . . . . . . . . . . . . .50
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE NINTH CIRCUIT
            ________________________________________
                                
                    No. 06-55110 & 06-55386
           _________________________________________
                                
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
     Plaintiff-Appellant,
 v.
ROBERT L. REEVES & ASSOCIATES,
A Professional Corporation,
     Defendant-Appellee.
                    STATEMENT OF JURISDICTION
     a.  The Equal Employment Opportunity Commission ("EEOC" or "the
Commission") sued Robert L. Reeves & Associates ("Reeves") under Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C.  2000e, et seq., alleging pregnancy
discrimination and sexual harassment against a class of female former employees. 
The district court had jurisdiction under 42 U.S.C.  2000e-5(f)(3), and 28 U.S.C. 
1331 and 1345.
     b. The jury returned its verdict on November 2, 2005, and the court entered
final judgment against the EEOC on November 17, 2005.  RE1017.<1> On January 13,
2006, the court awarded attorneys' fees and expenses to Reeves (RE1035), and on
January 17, 2006, it awarded costs to Reeves (RE1052).  On January 20, and March
13, 2006, the EEOC timely appealed.  Fed. R. App. P. 4(a)(1)(B).  RE1054-59.
     e.  This Court has jurisdiction over these judgments.  28 U.S.C.  1291. 
                    STATEMENT OF THE ISSUES
     1.   Whether the district court committed reversible error in admitting irrelevant
and prejudicial evidence, including: evidence of the scope and conduct of the EEOC's
administrative investigation; evidence of Reeves' "conspiracy" theory to explain the
EEOC's lawsuit; evidence covered by Fed. R. Evid. 412; and evidence that other
women at the firm were not offended by Reeves' conduct or did not believe they were
sexually harassed by Reeves. 
     2.   Whether the district court committed reversible error in excluding relevant
evidence at trial, including: background testimony of former alleged victims of
pregnancy discrimination; evidence of harassing incidents victims learned of second-
hand; and evidence of Reeves' leering at women. 
     3.  Whether the district court abused its discretion in awarding attorneys' fees
against the EEOC.
                      STATEMENT OF THE CASE
     1.   Nature of the Case and Course of Proceedings
     The EEOC sued Reeves for pregnancy discrimination and sexual harassment
against a class of female former employees.  RE1.  In 2001 and 2002, the district
court granted Reeves' motions for summary judgment (RE42, 74), dismissed the
EEOC's case (RE88), and awarded fees and costs to Reeves (RE123).  The EEOC
appealed and this Court reversed, remanded for trial on the pregnancy and harassment
claims, and vacated the attorneys' fee award.  See Appendix to brief.
     On remand, the district court denied defendant's motion to dismiss, holding
that the EEOC had satisfied all jurisdictional prerequisites to suit, and it denied
defendant's motion for summary judgment on the affirmative defense of laches. 
RE210.  The court specifically rejected defendant's arguments that the investigation
and conciliation were inadequate.  RE225-233.
     After an eleven-day trial, the jury returned a verdict for Reeves (RE1013), and
the court entered judgment accordingly (RE1017).  The court awarded attorneys' fees 
to Reeves in the amount of $995,780.72, expenses not taxable as costs under 28
U.S.C.  1920 in the amount of $29,872.97 (RE1035), and costs in the amount of
$7,234.49 (RE1052).
     2.   Statement of Facts
     Robert L. Reeves founded Reeves & Associates, a law firm specializing in
immigration law, and he made all ultimate employment decisions.  In August 1997,
Judith Quilaton filed an EEOC charge against the firm, alleging Reeves fired her
because she was pregnant.  RE740.<2> Reeves said he fired Quilaton because of
performance problems.  RE805.  Investigator Deborah Kinzel-Barnes asked for
documentation and Reeves assigned Colin Greene as her contact.  RE740.  Kinzel-
Barnes identified two other pregnant employees who were firedDeanna Saez and
Rowena Silva.  RE743, 745-46, 296-97.  Based on the evidence, Kinzel-Barnes
concluded that the reasons given for the terminations were questionable, and decided
it was more likely than not that the women were fired because of pregnancy.  RE805-
08.
     Before the EEOC issued a cause finding on the pregnancy charge, Kinzel-
Barnes received an anonymous call suggesting she should look into Reeves' sexual
harassment of female employees.  RE747.  The caller said she was afraid to file a
charge (RE747-49), but provided names of other individuals she thought had been
harassed, and indicated that Daniel Hanlon and Colin Greene could provide
information about harassment (RE751-52).  Kinzel-Barnes sent a letter to Reeves in
August 1999, telling him that the EEOC was investigating a sexual harassment claim. 
RE813, 815.  Reeves denied the allegations.  RE804.
     Kinzel-Barnes was directed to interview Hanlon, Greene, and Nikki Jacobson,
the anonymous caller, to investigate the harassment allegation.  RE753.  Greene and
Hanlon substantiated Jacobson's allegations of a sexually hostile work environment. 
RE760, 763, 809-10.  On June 30, 1999, Jacobson told Kinzel-Barnes that Hanlon
and Greene had quit Reeves' firm.  RE751-52.  Hanlon mentioned he and Reeves
were in litigation, but Kinzel-Barnes did not think it relevant to the sexual harassment
or pregnancy discrimination allegations.  RE757-59, 776.  Kinzel-Barnes testified she
made a cause recommendation on the harassment claim because she believed it was
more likely than not that the harassment was severe or pervasive, given that the
harasser was the owner of the firm, his comments were frequent, and a number of
people were affected.  RE774. 
     a.  Pregnancy Discrimination
     Reeves hired Saez  to work as a receptionist (RE609-10, 613); she was a good
worker (RE625-26, 832), but Reeves fired her after he learned that she was pregnant
(RE619-20).  Reeves explained that (1) she was only hired temporarily until she paid
her legal fees and was let go when she did (RE425-26), and (2) she was let go
because she refused to make photocopies and her supervisor, Anna Reyes, had to
work overtime as a result (RE427, 434-35, 837-41).  Reeves' asserted reasons for
firing Saez were contradicted by the information he submitted to a state disability
insurance agency in May 1997, stating that Saez was terminated because of "illness,
injury or pregnancy."  RE428-32, 944.
     Saez testified that Reeves' reasons were untrue.  She would not have accepted
a job that lasted only temporarily until she paid off her legal fees because by that
point her pregnancy would be "showing."  RE612-13.  She was three months
pregnant, but not "showing," when Reeves hired her, and she was six months
pregnant when he fired her.  RE611-12, 625.  In addition, Reeves did not tell Saez she
was being laid off because she had paid her legal fees.  RE621, 434-35.  Indeed, Saez
continued to work for about three weeks after having paid her legal fees.  RE620-23. 
     Saez's job duties included primarily greeting clients, answering the phone, and
photocopying one to two hours a day (RE613-14), and evidence was presented that
Saez never refused to make photocopies (RE624-25), but that her supervisor, Reyes,
voluntarily assumed that task (RE846-48).  Undisputed evidence showed that one
receptionist was always needed at the front desk, to greet clients and answer
telephones.  RE613-14, 618, 834, 845-46, 848.
     The EEOC also introduced evidence of Reeves' negative treatment of other
pregnant women.  For example, while receptionist Silva was visibly pregnant, she
was stationed at a desk out of sight of the incoming clients.  RE614-19.  The EEOC
sought to introduce testimony from Silva and Quilaton about Reeves' attitude
towards them when they were pregnant.  This included evidence that Reeves' conduct
toward Silva went from complimentary and flirtatious to hypercritical once her
pregnancy became apparent (RE402-405, 850-52), and that Quilaton was fired shortly
after passing her probationary period, when she began wearing maternity clothes
(RE296). 
     The court excluded testimony from Quilaton and Silva on the ground that
summary judgment had already been granted, and not appealed, on their claims of
pregnancy discrimination.  RE402-405, 1117.  The court  refused to allow Silva to
testify about the change in Reeves' conduct toward her even after admitting evidence
that Reeves had been very nice to Marita Jurado, another employee, when she was
pregnant (RE850-52), and that a number of Reeves' employees, including Silva, took
maternity leave or were otherwise provided leaves of absence (RE886, 903-06, 915). 
The court also issued instructions that the jury was not to consider that Quilaton filed
a charge of discrimination because she was terminated for legitimate, non-
discriminatory business reasons (RE942-43), and that neither Quilaton nor Silva was
discriminated against on the basis of pregnancy  (RE943).
     b.   Hostile Environment
     In support of the harassment claim, the EEOC presented, or sought to present,
testimony of five women for whom the EEOC sought relief in this suit, of three other
women who had worked for Reeves, and of Reeves himself.  The court refused to
allow the EEOC to present evidence of Reeves' conduct the women learned of
second-hand and evidence of Reeves' leering at women.  Further, the court admitted
extensive testimony from women who were not offended by any conduct Reeves
directed toward them, as well as evidence about alleged deficiencies in the EEOC's
investigation and about an alleged conspiracy to damage the Reeves firm as the
motive for this suit.
          Nadia Preciado 
     Preciado, who worked for Reeves as a file clerk and, later, a receptionist
(RE535-36), testified that:  Reeves referred to his wife as a "bitch"  (RE540-41);
Reeves told jokes that involved sexual acts or parts of a woman or man, including one
she specifically remembered involving Santa and Mrs. Clause and lingerie, which she
thought was inappropriate for a boss to tell an employee (RE538, 541-44); other
women told Preciado about Reeves' conduct toward them, including comments about
their legs (RE538-39); and Reeves asked Preciado whether her children had the same
father (RE539-40).
     Preciado testified that she was offended by and felt uncomfortable about
Reeves' conduct and comments. RE539-40, 552-53, 558-63.  Preciado avoided
Reeves but never complained because she did not want to lose her job.  RE545-46. 
She resigned as "a way of getting out" of Reeves' firm. RE551.  The court asked
Preciado whether the EEOC had  coached her on what to say.  RE547.
     The court rejected the EEOC's offer of proof that:  Preciado would testify that
Reeves stared at her "a lot," "not in a normal way,"  from "head to toe;" that the
stares would last for more than a few seconds; and that she would often turn around
and catch Reeves staring at her, and he would grin.  RE374.  Preciado would also
have testified to a specific instance when Reeves was staring at a female client's back
side with his head crooked sideways, which shocked her, and that he looked at
women "like he's a pervert."  RE374.  The EEOC also provided an offer of proof that
Preciado would testify that Jacobson told her about harassing events.  RE374.
          Clarice "Fang" Liao      
     Liao, whose first attorney job was with the Reeves firm (RE511), testified that: 
Reeves made constant jokes about sex, penises, erections and Viagra (RE521-23,
527-29); Reeves remarked to Liao that it was "too bad [the firm] wouldn't be getting
X-rated [cable] channels" (RE519-20); Reeves asked Liao to dance at a conference
in Houston, gyrating his hips in front of her in a sexually suggestive way, which made
her believe he was trying "to come on" to her (RE514-19, 533); and Reeves looked
at her and told her that she was "looking very beautiful" (RE514).
     In addition, Jacobson testified that she observed Reeves' attempt to dance with
Liao at the Houston conference and Liao's discomfort.  RE662-69.  Coworker
Maureen Rodriguez also testified that she observed Liao's reaction after this incident: 
Liao came back to the hotel room very upset, close to tears, and told Rodriguez that
Reeves had been making advances.  RE732.  Rodriguez also testified that the three
women discussed ways to avoid Reeves, and stay together, at the conference.  RE731. 
However, when Liao was testifying about Reeves' conduct toward her at the Houston
conference, the court questioned her reactions.  RE517-18 (the court asked "Did he
touch you in any way?" and "Did he force himself on you at any - - in any way?"; to
which Liao responded, "No.").
     Liao testified that she was offended by Reeves' comments, jokes, and conduct.<3>
Specifically, she thought the X-rated channel comment was inappropriate from her
boss (RE519-20), she found a joke about a Japanese golfer bending down with a fax
coming out of his ass "very repulsive" and "graphic" (RE522-23), and she testified,
"What offended me most was the constant stream of jokes" (RE527).  Liao also
testified that she tried to avoid Reeves as much as possible, and she came into the
office early, and used the back door during the work day, to avoid Reeves.  RE525-
26.  Liao testified that Reeves' conduct made her so upset that when she went home
she cried.  RE523-24.  However, sustaining a defense objection on the basis of
relevance, the court did not allow Liao to answer whether she felt comfortable being
in the office alone with Reeves (RE525), nor Jacobson to testify about statements
Liao made to her about how Liao felt about the way Reeves treated her (RE669-70).
     Notwithstanding the above testimony, the court asked Liao whether the EEOC
had told her she was sexually harassed.  RE512-13.  The court also noted Liao's use
of the phrase "personal space" when testifying, and questioned whether the EEOC 
put words in her mouth (RE517).
     The court did not permit Liao to testify about Reeves' conduct that she learned
about second-hand.  RE527.  The EEOC's offer of proof stated that Liao would 
testify that during her employment with defendant, she heard that Reeves had sex at
the office with a firm client.  RE374.
          Jeanette Catuira (Suarez)     
     Catuira, who was in her early twenties at the time, worked as a secretary and,
then, paralegal for Reeves.  RE494.  Catuira described an incident when Reeves
brushed his body against hers in the hallway while she was making photocopies.  She
testified that:  Reeves said something like, "this is why I put the photocopy machine
here for some body bumping" as he brushed the front of his body against her back,
moving more slowly than Catuira felt necessary, even though he could have walked
around in another direction without touching her (RE498-503, 508-10).  She also
testified that Reeves asked another attorney if anything sexual had happened on his
date (RE495-97).<4> Catuira testified that Reeves' behavior and comments made her
feel uncomfortable, and that she "felt violated" by the copy machine incident
(RE497-504). 
     The court excluded some of Catuira's testimony, rejecting the EEOC's offer
of proof that:  "Reeves looked at [Catuira] from head to toe, checking her out,' and
when he saw her in his peripheral vision, he would turn his head to watch her.  This
happened at least 5 times, maybe 10 but probably not 20 times in [a] span of about
10 months."  RE374.  The EEOC also made an offer of proof about sexual jokes and
inappropriate comments:  "Reeves made unwelcome and inappropriate sexual jokes
and comments in [Catuira's] presence from about a half dozen times."  RE374.  The
EEOC's offer of proof about Reeves' comments/conduct that Catuira learned of
second-hand stated:  Latman told Catuira that Reeves told Latman, "You look healthy
today" while looking at her chest, and Latman was "grossed out" by that.  RE374. 
The court also admitted evidence, over the EEOC's objection (RE280), that Catuira
had dated Hanlon while working for Reeves (RE 447).<5>
          Lisa Wilkerson (Pullin)       
     Wilkerson, who worked for Reeves as a receptionist and, later, office
coordinator (RE449-50), testified that:  Reeves touched her inappropriately once or
twice, moving his hand slowly down her back and once patting her butt (RE451-52,
458-61, 478-87, 498-90); she overheard Reeves make the comment about another
woman, "she gives good head," (RE463-67, 489); and Reeves suggested several times
that Wilkerson wear shorter skirts and tighter blouses (RE453).  Wilkerson testified
that she was offended by Reeves' behavior and comments, which made her feel
uncomfortable and demeaned, and she tried to avoid him; however, she did not
complain because he was the boss and she was afraid of repercussions.  RE451-455,
459-61, 465-469, 475.  She felt violated by the touching incidents.  RE451, 459. 
Although she liked her job before these incidents, she did not want to go to work
afterwards (RE462), and she sent out her resume, looking for other jobs, but received
no offers (RE471-72, 492).  
     The court excluded proffered testimony that many secretaries told Wilkerson
that "sexual favors were performed for Mr. Reeves" and that Reeves would
sometimes look Wilkerson up and down.  RE374.  The court also did not allow
Wilkerson to testify about how she would describe the work environment after she
was promoted to office coordinator (she called it "hell" at deposition).  RE473.
However, the court allowed testimony that Wilkerson had worked at Frederick's of
Hollywood, a lingerie store, prior to working at the Reeves firm.  RE476-77.
          Nikki Mehrpo Jacobson    
     Jacobson worked as an attorney for the Reeves firm for over a year, and after
she quit the firm, she took several deportation cases to trial at Reeves' request. 
RE627-28, 677.  Jacobson testified that:  while they were looking in a catalog for a
new conference table, Reeves commented to Jacobson, "Wouldn't it be . . . a great
table to have sex on?" with a big smile on his face (RE635); when the table was
delivered, Reeves said it would be nice for a candle-lit dinner and he would bring the
champagne, to which Jacobson responded, "only if we can bring dates" and Reeves
said, "only if you don't tell my wife" (RE638-39); when she was looking for an over-
the-counter pain medicine for a headache, Reeves showed Jacobson some condoms
from his office desk and told Jacobson his son called them "Kennedy's" (RE629-31).
     Jacobson also testified that Reeves commented after a boating injury, "I hurt
all over except one place" or "except my organ" or something like that and "lucky for
you I don't hurt in that place" (RE660-62);<6> at happy hour one evening, when
Jacobson declined another drink, Reeves commented, "Don't worry.  I'll give you a
ride home, and I have even taken my Viagra for tonight." (RE644); Reeves joked to
Jacobson and another attorney, Nancy Miller, that men with small briefcases have
small dicks (RE640-42); Reeves asked about Jacobson's date, saying, "I want to
know who my competition is" (RE632-33);  Reeves stated at an office meeting that
women could not be both smart and beautiful (RE632).
     Jacobson testified that Reeves stated that he would keep a male assistant
around for a little while "even though he doesn't have boobs"  (RE645-46); Reeves
commented twice about Jacobson's breasts:  once, after her biopsy, he said "they're
still big enough" or "large enough" (RE673-74), and the other time, in her office, he
said something like "oh, look at those" while staring at her chest (RE650-54); Reeves
told Jacobson sexual jokes (RE629, 656-58); Reeves hugged Jacobson in a way that
made her uncomfortable (RE670); Jacobson witnessed Reeves' attempt to get Liao
to dance with him at the Houston conference (RE662-70); and she witnessed Reeves
put his hand on Liao's and tell her, "I've never noticed how beautiful you are" and
"You're going to go far in this firm" (RE664-65).  The court  questioned Jacobson
about this testimony.  RE664-65 (Q: You saw him put his hand on Liao's hand?  You
saw this?  A: Yes); RE666-67 (questions about how long Reeves left his hand on
Liao's hand and Liao's reaction).
     Jacobson testified that:  Reeves' sexual innuendo embarrassed her and made
her feel awkward and upset (RE631, 667, 642, 653); she was offended by the sexual
jokes Reeves told in the office (RE657-58); and his conduct made her scared,
stressed, anxious, depressed, and she had trouble concentrating (RE713-14). 
Jacobson testified that after Reeves made the "lucky for you" comment following his
boating injury, she was getting more and more scared of him.  RE662.  She told her
mother and law school friends about Reeves' sexual comments, jokes, and hugs,
which upset her enough to make her cry.  RE672-73.  Jacobson decided to leave
Reeves' firm when she learned her "buffers," Greene and Hanlon, were leaving,
because she did not want to deal with Reeves directly on her cases.  RE674-75. 
     Although Jacobson highlighted the firm's sexual harassment policy and put it
in Reeves' box anonymously (RE684-86, 711-12), she did not talk with Reeves about
the subject because he was the boss and she was too afraid of him (RE684, 711), and
she thought she would lose her job (RE685).  Jacobson did call the EEOC's
investigator, anonymously, about Reeves' sexual harassment in June 1999.  RE707. 
She did not discuss the sexual incidents with Reeves when she gave her two-weeks
notice, because she was scared of him and wanted to leave without dealing with the
issues.  RE676.  However, she agreed to continue working for Reeves' clients on
deportation cases until the fall of 1999, because she was able to reduce the amount
of time she had contact with Reeves to a few hours a week.  RE627-28, 677-78.
     The EEOC was barred from introducing evidence that Reeves watched
Jacobson intently and leered at her.  The EEOC's offer of proof set forth that
Jacobson would have testified:  Every time she wore her red suit, he would look her
up and down in a "looky kind of way that you go, God, stop doing that.'" RE374. 
Although Rodriguez testified that she saw Reeves watch Jacobson intently and then
comment about how her body looked in a gray suit (RE726-27), the court struck the
testimony about Reeves' comment as a "characterization" (RE727).
     The EEOC was also barred by the court's ruling on motions in limine from
introducing evidence of events that Jacobson learned of second-hand.  The EEOC's
offer of proof provided:  Jacobson learned through other women that Reeves told
"off-color" jokes and made sexual comments to other female employees; Preciado, 
Liao, "Joyce," and "Sarah" discussed Reeves' making comments to them in groups
in which Jacobson was present; Preciado told Jacobson about the way Reeves looked
at her and the comments he made; other women, including Arai and Liao, came to
Jacobson and said, "Reeves told me this joke" and it was the same joke Reeves had
told Jacobson; Jacobson was told that Reeves was having sexual relations with Yindi
Boetcher in the office on a Sunday when Frank Nelson came to work, and Jacobson
avoided coming into the office to work on Sundays as a result.  RE374.
     Over the EEOC's objection (RE280), the court allowed testimony about
Jacobson on the following subjects:  (1) Jacobson swore in the office.  RE605, 654-
56, 830, 862-63, 866, 887-88, 891.  Reeves testified that he reprimanded Jacobson
for one incident of swearing in front of two clients and another incident of swearing
in the office (which Jacobson denied), and also testified that she swore outside of the
office as well.  RE893-94.  (2) Jacobson received a gift basket in the office from an
admirer and the basket contained pasta in the shape of penises and breasts.  RE531. 
Yet, the court sustained objections to questions whether she welcomed the gift basket
or, rather, was surprised and embarrassed by it.  RE649-50.  (3) Jacobson engaged in
sexual discussions with coworkers; specifically, she once had a conversation with a
coworker about another coworker's "getting laid" (RE691-92), and she had another
conversation with a coworker in which she compared their breasts (RE830).  (4) 
Jacobson did undergraduate research on the effect of AIDS on college students'
sexual behavior.  RE692-94.  (5) Jacobson wore blouses that others thought were too
tight across the bust, showing her bra (RE573-74, 595), or cleavage (RE887). 
Clarissa Jamir Belmonte testified that Jacobson told her Reeves commented on the
size of her breasts (RE858), but it was really about his appreciating the low cut of her
blouse, a reaction Jacobson did not want from him (RE859-60, 864-65).  (6) Jacobson
used the word "breast" to Reeves when telling him that she needed time off for a
biopsy (RE895), and, once, at a happy hour with a group from the office, including
Reeves, she complained about a date with a man who kept staring at her breasts,
instead of her face, and said that he "wanted to get laid on the first night."  RE895-96. 
(7)  Jacobson and Greene dated one another from December 1998 to about September
1999.  RE671, 897-98.<7>
          Maureen Rodriguez
     Rodriguez worked as an attorney for the Reeves firm for a year (RE717), and
testified that Reeves often made sexual jokes and comments at Monday morning staff
meetings, almost at every meeting, and she tried to avoid these meetings (RE718-19). 
Rodriguez saw Reeves stand too close, leaning into one woman in the office.  RE720-
21 ("bodies brushing").  Rodriguez also testified that office support staff discussed
Reeves' behavior with her, and one young woman was upset because she felt Reeves
was making sexual advances toward her, standing too close, and hovering.  RE722-
24.  Rodriguez did not talk to Reeves about this because she did not think it would
help, and she feared retaliation.  RE723-24.  In addition, Rodriguez testified that
Reeves commented to her about Jacobson's, Liao's, and Nancy Miller's physical
attractiveness (RE724-25); and Reeves commented on Jacobson's breast size, her
appearance, and how it added to the attractiveness of the office (RE725-27). 
Rodriguez also testified that Jacobson told her about Reeves' sex-on-the-conference-
table comment, which upset Jacobson, and they discussed ways to avoid being alone
with Reeves.  RE728-29. 
     Rodriguez attended the Houston conference with Jacobson and Liao.  RE730. 
On the first night, when Reeves commented on Liao's physical attractiveness and said
she could go far in the firm, Rodriguez testified that Liao was upset and pulled back. 
RE730-31.  However, Rodriguez was not permitted to testify whether she was
offended by Reeves' conduct towards Liao.  RE731.  The three women discussed
ways to avoid Reeves, and to stay together, at the conference.  RE731.  On the last
night of the conference, Liao came back to the hotel room very upset, close to tears,
and told Rodriguez that Reeves had been making advances.  RE731-32.  
     Rodriguez testified that:  she did not complain to Reeves, because he displayed
inappropriate behavior and it was acceptable to him; she thinks he intended to do
exactly what he was doing; he did it throughout the office and was not going to
change his behavior; it was not just one person, one incident; and she did not
remember names because it was too many years ago.  RE733-34.  Rodriguez testified
that although she did not feel she had been sexually harassed, she was uncomfortable
and disappointed with the abusive attitudes.  RE738.  She further testified that "it was
to be expected at any moment that there would be inappropriate behavior" and "we
never knew when the inappropriate times would arise."  RE735-38.
          Miwi Arai
     Reeves offered Arai her first job as an attorney after law school and she worked
for him for over three years.  RE564-565.  Arai testified that Reeves made
inappropriate comments to her.  RE567-68.  She testified to an incident, during a
happy hour at the Peppermill, when Reeves invited her to share a hot tub and have a
threesome with his wife.  Id.  Although Arai thought Reeves was joking and she was
not offended, she believed the comment was inappropriate because he was her
employer and had a position of power over her.  Id.  
     Arai also testified that Reeves told jokes at Monday morning staff meetings. 
RE569.  Although Arai testified that she was not offended, she explained that she
"has a pretty tough skin" and "isn't easily offended."  RE579.  However, Arai also
testified that she did not think jokes involving sexual content were appropriate; "in
a professional workplace, you shouldn't have to be subjected to things that . . . make
you feel uncomfortable."  RE571.
     The court did not allow Arai to testify that Jacobson or Liao told her about
offensive comments by Reeves.  RE566-67.  However, the court did admit Arai's
deposition testimony that she thought Reeves "probably" did not intentionally mean
to violate the sexual harassment policy.  RE576.  
          Nancy Miller
     Miller is an attorney who has worked for Reeves since 1998.  RE585-86.  At
the time of trial, she was one of the firm's sexual harassment officers; she received
sexual harassment training in 2000 or 2001, after this lawsuit was filed.  RE586, 597,
600.  
     Miller was with Jacobson in Reeves' office when he made the comment to
Jacobson comparing penis size with briefcase size.  RE587-87a.  Miller testified that
she was surprised by the comment, not offended, but she thinks it was a dumb joke
and not the best joke to tell a female subordinate.  RE588.  She testified that Jacobson
looked surprised by Reeves' comment and left the room.  RE588-89. 
     Miller also testified that Jacobson came out of her office one day and said she
was leaving, she could not take it anymore; this was after Reeves' "lovely view"
comment to Jacobson.  RE590.  Miller testified that Jacobson assumed Reeves'
comment was referring to her breasts, and Jacobson was angry.  RE590-91.
     Miller acknowledged that Reeves told sexual jokes on occasion.  RE593-94. 
She specifically recalled that he made a joke at a party and a joke about Viagra. 
RE591-92.
          Opinions of other female employees 
     Over the EEOC's objection, the court allowed women to testify that they were
not offended or did not feel sexually harassed by Reeves.  RE269a.  Arai testified that
Reeves' conduct towards her did not offend her and that she was a "reasonable
person."  RE572, 579.  Miller testified that she was not offended by Reeves' jokes,
that she was a reasonable woman, and that she did not find the environment hostile
or abusive.  RE596-97, 599.<8> Latman testified that she never felt she was sexually
harassed by Reeves.  RE828-29, 831, 835-36.  Reyes testified that she never felt
sexually harassed (RE842-43), as did Clarissa Jamir Belmonte (RE862), Margaret
Eum (RE867), Maria Marcelo (RE883-85, 889-90), Sharon Chen (RE914), and Jackie
Phan (RE916-17).
     In addition to allowing the above testimony from non-class members that they
did not feel harassed, the court excluded evidence from a non-class member that she
was offended by Reeves' comments.  Specifically, it precluded testimony from
witness Margaret Eum (RE874-75) on the ground that her reaction is not relevant
because she is not a claimant (RE 880-82) (jury present).  The EEOC made an offer
of proof, stating that Eum would have testified:  that Kevin Garcia told Eum that
Reeves said if a client was unable to pay, then maybe Reeves should ask the client to
have his wife give Reeves a blow job; that because of the environment at the firm,
and the comments Reeves made about women, the consensus among female staff was
"don't be alone with Mr. Reeves."  RE374.  The offer of proof also set out that Eum
would have testified that Reeves engaged in sexual innuendo.  RE374.  However,
when called as a defense witness, Eum testified that during her job interview, Reeves
said to Hanlon, "This one's a looker," referring to Eum, and she thought the comment
was inappropriate.  RE873a-b.  Eum also testified that she attempted to avoid Reeves
and did not want to be alone with him.  RE873b-c.
          Reeves' Testimony
     Reeves himself admitted to telling a few jokes of a sexual nature in the
workplace.  RE437.  He admitted to repeating a jokecigars have a new warning
label: not for vaginal usebut did not recall how many times he repeated the joke. 
RE411-13.  Reeves also admitted making jokes about Viagra when it first came out,
including a joke about a man who took a Viagra pill that got stuck in his throat so he
had a stiff neck all night (RE413-14); Reeves testified, "I don't think that's an
inappropriate joke; I think an occasional joke in the office is good for morale" 
(RE414).  Reeves testified that he told "a few" jokes of a sexual nature at staff "happy
hours" and at work, but he did not tell "offensive" jokes and he told them only to 
those employees who shared jokes with him.  RE419-22, 437.  When Reeves
acknowledged regularly inviting attorney-employees to happy hour on Friday nights
(RE418-19), the court asked several questions about whether the happy hour was in
a restaurant or in the law firm (RE419).  Although Reeves admitted that he may have
told jokes of a sexual nature at these happy hours (RE419-20), he testified, "I never
told any of the claimants a joke of a sexual nature inside the workplace."<9> (RE420). 
However, he admitted that female employees were present when he told jokes of a
sexual nature in the workplace, but the jokes were not improper.  RE420-21, 423.
          Evidence of sexual liaison in the office
     The court excluded evidence that Reeves engaged in a sexual liaison in the
office one Sunday with former client/employee, Yindi Botcher, stating that this would
be trial by innuendo and "[t]his is turning into a soap opera."  RE855-57.  The court
ruled in response to the EEOC's offer of proof that several class members heard that
Reeves engaged in sex in the office and they would have testified that it impacted
their view of their work environment.  RE854-56, 374.  For example, Jacobson heard
about the episode with Botcher and she refrained from coming into the office on
Sundays as a result.  RE374.  At his deposition, Reeves denied having sexual
relations with Botcher at the office.  RE339-41.  Shortly before trial, the EEOC
learned from former employee Frank Nelson that Reeves admitted to Nelson that he
had sex with Botcher in the office.  The court refused to allow the EEOC to inquire
into this subject at Reeves' direct examination (RE415-16), and refused to allow the
EEOC to call Nelson for impeachment purposes (RE855).
     c.   The Investigation and Litigation 
     Prior to trial, the EEOC brought four motions in limine to exclude: (1) evidence
that the EEOC was "duped" by Jacobson, Hanlon, and Greene, to prosecute this
"false" harassment claim (RE240); (2) evidence of the procedural history of the case
(RE262); (3) evidence of the EEOC's administrative investigation (RE267), and (4)
testimony by investigator Kinzel-Barnes, except testimony going to Reeves' laches
defense (RE270).
     The court admitted evidence that:  (1) Kinzel-Barnes did not interview
potential witnesses about the Saez pregnancy claim (RE746); (2) Kinzel-Barnes
interviewed only Jacobson, Hanlon, and Greene before recommending cause on the 
harassment claim (RE752-55), and she did not interview any of the women identified
as having been harassed, or any witnesses still working for the Reeves firm (RE752-
54, 769, 774-75, 809-10);  (3) Kinzel-Barnes was directed by her superiors to
conclude the sexual harassment investigation after interviewing only Hanlon, Greene,
and Jacobson (RE769-73);  (4) Kinzel-Barnes sent Hanlon, Greene, and Jacobson
their affidavits for signature eight months after interviewing them (RE756-57, 762,
768-69), and recommended cause before obtaining their signed affidavits (RE765,
773);  (5) Kinzel-Barnes took Greene's statement on sexual harassment even though
he represented Reeves in the EEOC's investigation into the pregnancy claim (RE765-
68);  (6) Kinzel-Barnes became aware before recommending cause that Hanlon and
Greene were in litigation with Reeves but did not include that fact in her analysis or
modify their affidavits to reflect this (RE757-760, 775-78); see also RE822-26
(lengthy questioning of Kinzel-Barnes about the many causes of action that Hanlon
and Greene brought against Reeves, and the state court decisions in Reeves' favor);
see infra 32-33;  (7) Kinzel-Barnes was aware that Hanlon, Greene, and Jacobson all
quit within a short time period (RE751-52); and (8) when Reeves called Kinzel-
Barnes to ask who was the sexual harasser, she told him it was he (RE813), but when
he asked who had alleged he harassed them, she did not give him the names and told
Reeves she "can't identify who the witnesses are because the case is still open"
(RE814).  The court also allowed counsel to question Kinzel-Barnes at length about
her verification of the EEOC's responses to interrogatories.  RE781-792, 795-802. 
Finally, although Kinzel-Barnes' testimony was not contradicted by her deposition,
the court allowed a lengthy replaying of portions of her video deposition, which
reiterated all the same points.  RE789-96.
     In addition, the court extensively examined Kinzel-Barnes on the witness stand,
and negatively commented on her testimony, in the presence of the jury, as follows:
     Q:  Did you know there was a partnership dispute going on at this time
     over the break up of the firm?  A:  No, sir, I had no idea. 
     Q:  Yet you interviewed one side of the partnership breakup and not the
     other side.  Do you think that that was full and fair investigation on your
     part?  A:  I didn't know there was a breakup.
RE755.
     Q:  Do you know about the attorney-client privilege?  A:  Yes, sir, I do. 
                              * * *
     Q:  Didn't you feel it was unusual for an attorney that was representing one of
     the parties in the case to contact you and give you information about the . . .
     firm?
RE767-68.
     Q:  When you interviewed Mr. Greene, Mr. Hanlon, and Miss Jacobson,
     did you think you were getting hoodwinked?  A:  I did not, sir.
RE777.
     Q:  Other than the witnesses Greene, Hanlon, and Jacobson, did you
     attempt to interview or did you interview any other potential victim in
     this case prior to June of 2000?  A:  No, I did not.
RE781; see also RE809-10 (same).
     Q:  Did you get another side of the story from anyone at the Reeves &
     Hanlon firm regarding Miss Saez?  A:  No, sir, I did not.  
     Q:  You just took what Miss Saez told you as being correct without
     investigating?  A:  I typed it up and put it in an affidavit for her
     signature, yes.
     Q:  But did you do any independent investigation or contact any other
     people other than Miss Saez with regard to her claim for pregnancy
     discrimination?  A:  No, sir, I did not.
RE744. 
     Q:  Now, taking that answer that you just gave [that it was an evidence-
     based investigation regarding pregnancy discrimination and it had
     nothing to do with outside issues, such as any possible conspiracy
     against Reeves], I want you to tell us exactly what investigation you did
     to form that opinion [that Reeves had fired Saez because she was
     pregnant].  A:  I investigated Ms. Ignacio [Quilaton]'s claim when she
     led me to believe that another individual was terminatedshe was told
     that another individual was terminated that was also a receptionist that
     was pregnant at the law firm.  Then I followed up on that and
     interviewed that individual, Ms. Saez.  She also confirmed that she had
     been with the law firm and after a short period of time was terminated
     for a reason of not being able to photocopy, which made no sense. 
     Q:  Ms. Saez told you that?  A:  Yes.
     Q:  She told you that was the reason she was given to terminate her, Ms.
     Saez?  A:  That's correct.
     Q:  Did you ever have a discussion with Mr. Reeves regarding what Ms.
     Saez had told you?  A:  No, I did  not.
RE806-07.
     Q:  Now, you have to be very careful.  Did Mr. Reeves deny that he
     terminated Ms. Saez because she couldn't make photocopies?  A:  Yes. 
     I believe he did.
     Q:  He told you that?  A:  Not verbally.  In a position statement.
     Q:  He denied discriminating against pregnant women in his position
     statement, didn't he?  A:  He did.
     Q:  But did he ever put in that paper that I deny terminating Ms. Saez
     because she couldn't make photocopies'?  A:  I don't believe that was
     in the position statement, no, because the position statement was to the
     first charge [by Quilaton], sir.
     Q:  And so you concluded that he terminated Ms. Saez because she
     couldn't make photocopies?  A:  She was another individual found, yes,
     to be terminated during her pregnancy, and the reason that was given
     was she couldn't make photocopies.
RE812.
     Q:  Did you know that Ms. Jacobson and Mr. Greene were boyfriend and
     girlfriend during this period of time?  A:  I don't recall that, sir.
RE810-11.
     Q:  Do you know what due process means?  A:  Yes, sir.
     Q:  What is your understanding of due process?  A:  That individuals
     have a right to - - to the evidence or the allegations against them and a
     right to respond to them. 
     Q:  In this particular case, Ms. Savitt is asking you whether or not you
     specifically discussed any of the individuals who had made claims with
     Mr. Reeves?  A:  No.
     Q:  And the question then becomes if this is an evidence-based
     examination, wouldn't you expect the person who has been accused to
     know who has accused him so that they [sic] could adequately offer an
     explanation to defend themselves [sic]?
RE816-17.
     In addition to its questions of Kinzel-Barnes about the investigation, the court
allowed, and itself asked, questions of witnesses about whether they ever authorized
the EEOC to represent them (RE580-83, 868-73, 876-79), and then permitted, or
asked, questions about whether they authorized the EEOC to respond to
interrogatories on their behalf (RE584, 869); see also RE696-698 (opining outside the
presence of the jury that when a woman said she did not wish to be a claimant it was
"troublesome" for EEOC to keep "pushing this case" and that the court was "troubled
by the motivation with regard to the EEOC in keeping on pursuing this claim" since
"one of the claims is that the EEOC was duped into prosecuting this case as a result
of a partnership dispute that took place between Hanlon & Greene on one side and
Reeves on the other").
     d.  The "Conspiracy"
     The court denied the EEOC's motion to exclude evidence of a "conspiracy" to
damage Reeves' law firm, between Hanlon and Greene, on one hand, and Jacobson,
Catuira, Preciado, and the EEOC, on the other.  RE392-94; RE240.  This evidence
centered around a state court lawsuit Reeves brought in 1999 against Hanlon and
Greene alleging interference with contracts and prospective business, and
misappropriation of trade secrets.
     The state court ruled for Reeves, based on the abrupt manner of Hanlon and
Greene's departure, their solicitations of Reeves' personnel and clients, including
taking case files and using Reeves' confidential client data, and their failure to return
firm property, and awarded $200,000 in damages.  RE945 (April 11, 2001, trial court
decision).  The court refused to award punitive damages, however, finding that
Hanlon and Greene's conduct was "the result of immaturity" and "an apparent get-
rich-quick mentality," and the court declined to find "oppression, fraud or malice in
these circumstances."  RE961a; see also RE964 (February 20, 2003, decision of Court
of Appeals, affirming judgment); RE994 (August 12, 2004, decision of California
Supreme Court, affirming).  Evidence of this dispute was admitted in the EEOC's
case even though Reeves conceded that the California decisions do not criticize or put
blame on any individuals other than Hanlon and Greene (RE909), and all three
decisions were given to the jury as exhibits.  Although not mentioned in the state
court decisions, the district court allowed Miller, over objection, to characterize
Hanlon and Greene's business announcement as implying that Mr. Reeves had died. 
RE604, 607-08.  The court also allowed testimony, over hearsay objection, that
Greene had told Miller of his intention to report Reeves to every agency he could in
order to hurt the firm.  RE602-03.
     Over the EEOC's objection, the court admitted evidence of some of the
witnesses' close ties to Hanlon and/or Greene.  For example, Reeves testified that
Preciado left to go to work at Hanlon's office about a month after Hanlon and Greene
left the Reeves firm.  RE424.  Reeves testified that Catuira brought a claim of sexual
harassment against Alan Favish that Reeves believed to be false, and that he thought
she brought it at the behest of Hanlon (RE424, 446-48); Reeves also testified that
Catuira dated Hanlon while she worked at Reeves' firm (RE447); and Catuira
testified that she and Hanlon took a vacation to Jamaica together after Catuira left
Reeves' firm (RE505-06).
     The most extensive testimony about ties between the EEOC's sexual
harassment case and the Hanlon and Greene dispute related to Jacobson.  The
following evidence was admitted, due to the court's adverse ruling on the EEOC's
motion in limine.  Jacobson dated Greene for about nine months (RE671, 907-08);
she, Greene, and Hanlon were close friends while working at the firm, and they
maintained a friendly professional relationship thereafter (RE687-88, 700, 709-10);
she  made sure that she did not know the details of Hanlon and Greene's departure
so
 that she would not "spill the beans" (RE604); she talked with Greene and Hanlon
about putting the highlighted sexual harassment policy in Reeves' in-box (RE684-86,
689-90, 711-12); she made an anonymous call to Kinzel-Barnes (having gotten her
telephone number from Greene), told her about sexual harassment at Reeves' firm
and, later, identified Hanlon and Greene, among others, as individuals who could
provide information about the harassment (RE679-80, 705-08, 746-752);<10> she,
Hanlon, Greene, and other attorneys bad-mouthed Reeves while working there
(RE658-60); she tendered her resignation in early July 1999, within days of Hanlon
and Greene's departure (RE715-16, 751-52); and after Hanlon and Greene quit, she
encouraged a paralegal to leave the firm, saying she would be stupid to stay as the
firm would probably go under in the next six months (RE701-04, 917-18).  However,
Jacobson also testified that Hanlon and Greene did not recruit her to join their firm
(RE672), and even after she submitted her resignation notice to Reeves, she took
steps to ensure that her departure went smoothly and, when Reeves asked her to stay
on to take several cases to trial, she did so (RE675-78).
     3.   District Court Decision
     The court granted Reeves' motion for attorneys' fees.  RE1035.  The court
based its award on its conclusions that the EEOC's investigation was indadequate,
that the EEOC had engaged in improper discovery and litigation tactics prior to the
original grant of summary judgment reversed by this Court, and that, on the merits,
"all of the EEOC's claims proved to be frivolous, unreasonable, or without
foundation."  RE1038.
                        STANDARD OF REVIEW
     This Court reviews evidentiary rulings for abuse of discretion and reverses if
errors caused prejudice.  B.K.B. v. Maui Police Dep't, 276 F.3d 1091, 1104 (9th Cir.
2002).  This Court presumes that evidentiary errors are prejudicial, and must reverse
unless it concludes that the result was not tainted by the errors.  Obrey v. Johnson,
400 F.3d 691, 699-701 (9th Cir. 2005).  This Court reviews attorneys' fee awards
under 42 U.S.C.  2000e-5(k) in accordance with Christiansburg Garment Co. v.
EEOC, 434 U.S. 412 (1978), for abuse of discretion.  EEOC v. Bruno's Restaurant,
13 F.3d 285, 287 (9th Cir. 1993).
                       SUMMARY OF ARGUMENT
     The district court did not conduct a trial de novo of the Commission's
pregnancy and harassment claims, but rather allowed its courtroom to be used to
excoriate the Commission for its handling of the case.  Because of the court's
improper focus it committed two principal errors in admitting prejudicial and
irrelevant evidence:  (1) it allowed the jury to hear about the scope of the
Commission's investigation; and (2) it allowed the jury to hear about a so-called
"conspiracy" between the witnesses and the EEOC to destroy the Reeves law firm. 
     The court's other evidentiary errors were less dramatic, but no less damaging
to the Commission's case.  The court allowed the jury to hear evidence about the
witnesses' sexual histories; it allowed the jury to hear extensive testimony from
women who were not offended by Reeves' conduct; it excluded evidence that would
have helped to demonstrate Reeves' bias against pregnant employees; it excluded
evidence of harassment that victims learned about second-hand; and it excluded
evidence this Court had previously considered relevant of Reeves' leering at female
employees.  The effect of these errors, individually and cumulatively, was to taint the
jury's deliberations.  Obrey mandates reversal and remand to permit the EEOC to
present its claims in a full, fair, and impartial trial.
     The district court abused its discretion in awarding attorneys' fees by
mischaracterizing the facts, misunderstanding the nature of the EEOC's authority and
this lawsuit, and misapplying the Christiansburg standard.  This Court previously
reversed the grant of summary judgment and remanded this case for trial of the
pregnancy and harassment claims, and that determination necessarily means the
EEOC had a sufficiently plausible case to satisfy the minimal evidentiary threshold
imposed by Christiansburg.  The court's conclusions that the pregnancy and
harassment claims were deficient all reflect the same fundamental error of hindsight
evaluation of witness credibility criticized by this Court in Bruno's Restaurant.
     Further, the EEOC's pre-suit and litigation conduct provide no independent
basis for a fee award in this case:  the reasonableness of its investigation and cause
finding are subsumed in the analysis of the merits of the lawsuit itself, and in any
event, were entirely reasonable; and the EEOC's discovery conduct did not warrant
sanctions.  Thus, the fee award cannot stand.
                             ARGUMENT
I.   The Court Prejudiced the EEOC's Presentation of its Case Through
     Numerous Evidentiary Errors
     Although this Court remanded the EEOC's case for a trial of pregnancy
discrimination and sexual harassment claims, the district court did not conduct a trial
de novo, but rather turned the trial into a forum for criticizing the EEOC for what it
saw as an inadequate investigation and for being "hoodwinked" by individuals with
a grudge against Reeves into pursuing claims with no merit.  The court's jaundiced
view of the EEOC's case led it to commit serious errors both in admitting irrelevant,
prejudicial evidence, and excluding relevant, probative evidence.
     A.  The Court Erroneously Admitted Irrelevant Evidence
          1.  The Court Admitted Irrelevant and Prejudicial
          Evidence About the Administrative Investigation
     Despite granting the EEOC's motion to limit the scope of the inquiry into the
EEOC's administrative investigation (RE397-401), and despite ruling that the
EEOC's investigation met the jurisdictional prerequisites to suit (RE210, 742), the 
court permitted the EEOC's investigator Kinzel-Barnes to testify for nearly a day and
a half about her investigation of the pregnancy discrimination and sexual harassment
claims, answering many questions posed by the court itself.  Supra at 26-31.  The
court refused to issue an instruction (RE378) informing the jury that the EEOC's pre-
suit investigation was adequate as a matter of law, offered to put the investigator's
testimony into the proper perspective.  The court explained, "there are some . . .
significant flaws in the investigation of this case by Ms. Barnes," and, because of this,
"in good conscience I can't give this instruction."  RE912-13 (outside the presence
of the jury).<11> On the basis of the "evidence" that was admitted, defendant argued,
repeatedly, to the jury that the Commission's investigation was incomplete,
inadequate, biased, and flawed.  RE923-33, 938; e.g. RE 923-24 ("[T]hey [Hanlon,
Greene, and Jacobson] manipulated the EEOC and they got the EEOC into a position
where they did a terrible investigation."), RE925 ("Ms. Kinzel-Barnes had the nerve
to get up there and tell you she did an evidence-based investigation . . . ."). 
     Questions about the investigation elicited irrelevant information, and the
erroneous admission of this "evidence" tainted the jury's deliberations.  The law is
settled that the adequacy of an administrative investigation is beyond the scope of a
trial on the merits of Title VII claims.  Because Title VII proceedings are de novo,
McDonnell Douglas v. Green, 411 U.S. 792, 798 (1972), it is improper to delve into
the adequacy of the EEOC's underlying investigation.  Georator Corp. v. EEOC, 592
F.2d 765, 767 (4th Cir. 1979) ("the court will not determine whether substantial
evidence supported the Commission's pre-adjudication finding of reasonable cause"). 
As the Seventh Circuit recently held, in EEOC cases, "[t]he existence of probable
cause to sue is . . . not judicially reviewable."  EEOC v. Caterpillar, Inc., 409 F.3d
831, 832 (7th Cir. 2005).  The Caterpillar court specifically addressed the fact that
EEOC suits may not be confined to the allegations in a charge when an investigation
has led to finding cause on additional claims, and concluded that these prerogatives
of the Title VII enforcement scheme mean that courts "have no business" limiting
suits to claims "that the court finds to be supported by the evidence obtained in the
Commission's investigation."  Id.
     In short, courts should not inquire into the scope of an investigation or the
quality of the evidence the EEOC relied on to support a cause finding.  Because these
matters are not justiciable, it was error for the district court to engage in or permit this
inquisition during the trial of the EEOC's pregnancy and harassment claims.  See
EEOC v. Keco, 748 F.2d 1097, 1100 (6th Cir. 1984) (error to "inquire into the
sufficiency of the Commission's investigation.").  The rationale of decisions barring
inquiry into the EEOC's investigations and cause findings is that the administrative
process does not adjudicate rights or liabilities.  As the Sixth Circuit emphasized,
"[i]f the charge is not meritorious, procedures are available to secure relief, i.e., a de
novo trial in the district court."  Id.(citation omitted).  The existence of a de novo trial
is thus the cure for any deficiencies in the EEOC's investigationif the evidence does
not support a verdict, the jury will so find. 
     But in this case, the court did not allow the cure to work, apparently because
it did not trust the jury to come to a decision based on the evidence without steering
it to a conclusion based on the court's own skepticism about whether the EEOC had
conducted an evidence-based investigation.  By asking the investigator whether she
asked Reeves for his explanation for firing Saez, the court implied that if she had, she
would not have found cause on the pregnancy charge.  But it was for the jury to
decide if Reeves' shifting explanations were pretextual, and the court's questions to
Kinzel-Barnes usurped the jury's role of making that determination.  Further, the
court's questions suggested that it was not fair for Kinzel-Barnes to reach a cause
finding on the harassment claim without asking Reeves' side of the story.  But
Reeves' side of the story was fully presented at trial and thus there was no harm that
flowed from the investigator's arguably truncated investigation.  However, harm was
done to the Commission's presentation of its case because the court's comments and
questions implying that the EEOC's suit was improperly based on an inadequate
investigation surely signaled to the jury how the court expected it to view the
evidence.
     This inquiry into the conduct of the EEOC's investigation confused the jury
and deflected its attention from the main purpose of the trial, that is, to determine
whether Reeves actually violated Title VII.  The admission of this "evidence" was
erroneous and presumptively prejudicial under Obrey.  As the Obrey Court explained,
a reviewing court cannot "usurp the jury's function, by merely deleting improper
evidence from the record and assessing the sufficiency of the evidence to support the
verdict below.'" Obrey, 400 F.3d at 701 (citation omitted).  As in Obrey, it is
impossible to conclude that the erroneous admission of this evidence did not taint the
jury's verdict and therefore this Court should reverse and remand for a new trial.
          2.  The Court Admitted Irrelevant and Prejudicial
          Evidence Supporting the Defendant's "Conspiracy"
          Theory
     In addition to allowing the trial to focus on short-comings in the EEOC's
investigation, the court permitted Reeves to offer extensive evidence of a
"conspiracy" to harm the firm by Hanlon and Greene, who had left Reeves to form
their own firm.  Neither was a party in the EEOC's suit, nor were they individuals for
whom the EEOC sought relief, nor were they called as witnesses.  The court denied
the EEOC's motion to preclude evidence of the partnership dispute and resulting
lawsuit, or suggestions of a conspiracy among Hanlon, Greene, Jacobson, the EEOC,
or any witness or class member, or suggestions that the EEOC was "duped" into
pursuing this lawsuit, and ruled this evidence was relevant to the motivation and bias
of witnesses.  RE393; supra at 32-35.  Although no affirmative evidence was
presented at trial that the EEOC acted in concert with Hanlon and Greene, that was
the implication behind much of the testimony on this subject.<12>
     Reeves presented extensive evidence of Hanlon and Greene's misconduct with
respect to the firm.  Supra at 32-33.  The court also admitted hearsay evidence that
Hanlon or Greene advised employees to complain about Reeves to outside agencies. 
RE602-03.  In addition, the court admitted into evidence, over the EEOC's
objections, all three published state court opinions from Reeves' lawsuit against
Hanlon and Greene, which went to the jury as trial exhibits.  Supra at 33.  Moreover,
the court issued a jury instruction that it was taking judicial notice of Hanlon and
Greene's malfeasance (over EEOC's objection that judicial notice was unnecessary
and overly emphasized that evidence).  RE920-21.  As a result, defendant relied
heavily on its "conspiracy" theory in arguing to the jury that Reeves had been set up
and the EEOC's suit was improper.  RE923-32, 934-941; e.g. RE923 ("The defense
is that ... Hanlon & Greene, along with Nikki Mehrpoo Jacobson, vindictively
hatched a scheme to discredit Mr. Reeves, to harass and embarrass him and then they
enlisted the EEOC to do the job for [them]."). 
     The court erred in making these rulings.  Evidence of Reeves' business dispute
with Hanlon and Greene is not relevant to the issues of whether Reeves discriminated
against Saez because she was pregnant or whether Reeves maintained a sexually
hostile work environment.  Fed. R. Evid. 401, 402.  It is pure speculation to draw
from Hanlon and Greene's tort liability in a separate action an inference that the
EEOC, by virtue of bringing and maintaining this lawsuit, or any class members or
witnesses, by virtue of being called by the EEOC to testify in this case, were involved
in a conspiracy to bring down the Reeves firm.
     Nevertheless, Reeves attempted to extrapolate just such an ongoing
"conspiracy" to "collapse" the Reeves law firm based on the class members' and
witnesses' association with Hanlon and Greene and the EEOC's reliance on evidence
provided by these individuals in this suit.  Supra at 33-35.  There was no evidence
that Jacobson, Catuira or Preciado ever joined Hanlon or Greene in their misdeeds. 
They were not named, involved, or implicated in Reeves' suit against Hanlon and
Greene.  But the jury was urged to believe that because of the relationships among
these people it could infer their "participation" in Hanlon and Greene's misconduct. 
RE923-24.  This is classic "guilt by association" evidence which should have been
excluded under Rules 404 and 608 of the Federal  Rules of Evidence.
     It is well settled that evidence, allegations, suggestions, or innuendoes of "guilt
by association" with others who have committed bad acts or are of unsavory character
is impermissible character evidence, irrelevant, and highly prejudicial, and, if allowed
to be introduced and considered by the fact finder, can constitute reversible error. 
See, e.g., United States v. Dickens, 775 F.2d 1056, 1057-59 (9th Cir. 1985) (reversing
criminal defendant's conviction obtained in part through admission of prejudicial guilt
by association evidence of defendant's connection with an infamous drug ring).  This
doctrine is most often invoked in criminal cases where such character evidence is
used to support conviction and this Court cabins its use because of its inherent
prejudice and unfairness.  For example, in Dickens this Court rejected the argument
that evidence about mob associations was admissible for impeachment purposes, and
held that the defendant's association with others engaged in criminal activity "did not
bear on [his] truthfulness."  Id. at 1058.  This doctrine has also been invoked in other
types of proceedings.  See Virk v. INS, 295 F.3d 1055, 1060 (9th Cir. 2002)
(consideration of conduct of an individual not a party to immigration proceeding an
improper form of guilt by association); Wynn v. NBC, 234 F. Supp.2d 1067, 1089
(C.D. Cal. 2002) (severing claims against multiple defendants in age discrimination
case to prevent unfair taint of guilt by association).
     While the stakes are different in a civil case in which the witnesses whose
credibility is being challenged are the complainants rather than the defendant, the
doctrine of "guilt by association" still applies as a general rule of evidence.  Although
witness credibility is obviously a relevant concern, the issue here is whether the court
improperly allowed the complaining witnesses' credibility to be impugned by their
association with others who committed unrelated bad acts.  
     What happened here is exactly like what happened in Dickens.  As in Dickens,
the witnesses' "bias" in their own behalf and against Reeves for the conduct of which
they complain is self-evident, and questions about their relationships with Hanlon or
Greene do not demonstrate any motive for lying.  775 F.2d at 1059.  The evidence of
social, dating relationships in 1998 and 1999 (long over and superseded by marriages
to other individuals) does not demonstrate a motive for bias or perjury in testimony
offered under oath in a trial in 2005.  The evidence of the relationships and the
conduct of Hanlon and Greene was offered only to create a prejudicial implication
because there was no apparent similarity between Hanlon and Greene's conduct and
that of the harassment witnesses.  And finally, the evidence adduced very specific
descriptions of wrong-doing (although, of course not criminal conduct) and imputed
it by association to the witnesses in this case.  As in Dickens, the result of this line of
inquiry was prejudicial and mandates reversal.  Id.  Although the erroneous admission
of this evidence did not lead to a prison sentence, this attack on the credibility of three
of the EEOC's witnesses undermined its right to a fair, de novo trial on the merits of
its claims.
     Even if this evidence were not irrelevant and inadmissible under Fed. R.
Evid. 401 and 402, and impermissible character evidence under Fed. R. Evid. 404 and
608, the evidence suggesting that the EEOC was involved in a "conspiracy" or was
"duped" or "fooled" into bringing this lawsuit should have been excluded because
any probative value it has was "substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury."  Fed. R. Evid. 403.
     As the Commission explained to the district court, the EEOC is an independent
agency of the federal government and it makes decisions to litigate only after a multi-
level agency review, which is independent of any charging parties or aggrieved
victims.  RE99-100.  Individual class members and charging parties have no control
over how an investigation is conducted, or over whether the EEOC files suit on a
particular charge.  The Supreme Court recognized in EEOC v. Waffle House, Inc.,
534 U.S. 279, 291 (2002), that "[o]nce a charge is filed, . . . the EEOC is in command
of the process."  The EEOC believed that Reeves discriminated against pregnant
employees and created a sexually hostile environment.  It reached that determination
long before any ruling that Hanlon and Greene had engaged in tortious conduct, and
without any knowledge of the nature of the dispute between Reeves and his former
associates.<13> Independent witnesses corroborated the class members' allegations in
depositions.  This Court found that the EEOC presented sufficient evidence to
warrant trial on the sexual harassment and pregnancy discrimination claims. 
Appendix 1-2.
     It should have been up to jurors to decide whether pregnancy discrimination
and actionable sexual harassment occurred.  Any alleged conspiracy between Hanlon
and Greene had no bearing on the merits of this case.  Moreover, even assuming that
Hanlon and Greene concocted a conspiracy to harm the Reeves firm, and that the
EEOC's investigator was somehow influenced or "duped" by their conspiracy, that
does not explain the factual testimony of the witnesses in the EEOC's suit, many of
whom had no ties at all to Hanlon and Greene.  Nor does it demonstrate that
Jacobson, Preciado, and Catuira, who were close to Hanlon and Greene in 1998-99,
would perjure themselves in court in 2005.
     For these reasons, it was prejudicial error for the court to admit this evidence,
which could easily have confused the jury and deflected its attention from making
determinations on the merits of the discrimination claims.  Although this "conspiracy
theory" was the subject of much discussion, because it had nothing to do with the
merits of the claims being tried, the court issued no instructions to the jury about how
to evaluate the "evidence" of the "conspiracy."  Nothing was said about the elements
necessary to prove an actual conspiracy, so the jury was left to its unguided
speculations about the significance and relevance of the arguments it heard about
improper motivation on the part of the witnesses and the EEOC itself.  The witnesses
and the EEOC were indicted by innuendo and the court's plainly conveyed
disapproval, which surely tainted the jury's ultimate verdict, mandating reversal
under Obrey.
          3.  The Court Admitted Irrelevant and Prejudicial
          Evidence It Should Have Excluded under Fed. R. of
          Evid. 412
     The EEOC moved to exclude evidence of victims' sexual history or
predisposition under Fed. R. of Evid. 412.  RE280.  The court granted the EEOC's
motion in part (for the pregnancy victim, Saez), but denied it in part (for the hostile
environment victims).  RE385-393.  The court stated that this evidence was relevant
to the claim of sexual harassment, to show the conduct was not offensive or
unwelcome, and to show bias and motive.  RE392.  As a result, the court allowed
extensive, prejudicial testimony covered by Rule 412 with respect to Jacobson (supra
at 17-19), and it allowed evidence that Wilkerson had worked at Frederick's of
Hollywood prior to working for Reeves (supra at 14), and that Catuira had dated Dan
Hanlon in the past (supra at 12).
     Rule 412 prohibits the admission of this evidence.  It provides that evidence
relating to a victim's "sexual predisposition" or "other sexual behavior" is
inadmissable, unless it is "otherwise admissible under these rules and its probative
value substantially outweighs the danger of harm to any victim and of unfair
prejudice to any party."  Fed. R. Evid. 412(b)(2) (emphasis added).  This Court has
explained that the balancing test under Rule 412 shifts "the burden to the proponent
to demonstrate the admissibility rather than making the opponent justify exclusion of
the evidence," raises the bar for admission "by requiring that the probative value of
the evidence substantially outweigh the specified dangers," and puts "harm to the
victim on the scale in addition to prejudice to the parties."  B.K.B., 276 F.3d at 1104
(citations omitted) (sexual harassment action).  The rule "is designed to exclude
evidence . . . that the proponent believes may have a sexual connotation for the
factfinder," and inadmissible evidence of sexual predisposition includes evidence
"relating to the alleged victim's mode of dress, speech, or life-style."  Rule 412,
Advisory Committee Notes (1994 Amendment).
     Under this rule, evidence of the dating relationships between Jacobson and
Greene, and between Catuira and Hanlon, should have been excluded.  See, e.g.,
Socks-Brunot v. Hirschvogel, Inc., 184 F.R.D. 113, 117 (S.D. Ohio 1999) (evidence
of sexual conduct with other co-workers or supervisors "is both intrusive and, as
importantly, without any relevance.  Employees are free to engage or not engage in
amorous conduct with co-workers. . . .  That Federal Rule 412 prohibits such
testimony is beyond debate.").  Here, the court admitted evidence of the dating
relationships as relevant to bias.  As discussed (supra 45-47), this "guilt by
association" evidence constituted impermissible character evidence and was
irrelevant and highly prejudicial.  Moreover, that they had dating relationships several
years earlier is not probative of the truth of Jacobson's or Catuira's fact testimony at
trial as to Reeves' conduct that the EEOC alleged constituted sexual harassment.
     In addition, any discussions of a sexual nature between victims or witnesses
and coworkers in which Reeves did not take part should have been barred under Rule
412.  B.K.B., 276 F. 3d. at 1103-06, 1109 (reversible error to admit testimony of
sexual discussions between plaintiff and coworkers who were not alleged harassers);
Socks-Brunot, 184 F.R.D. at 119, 120 (error to admit evidence of workplace
conversations that plaintiff initiated or contributed to regarding sexual matters, even
if offered to disprove "unwelcomeness" in a sexual harassment case).  Under B.K.B.,
Jacobson's discussions with coworkers (other than Reeves) about sexual matters
should have been excluded.
     For the same reason, Jacobson's receipt of the penis-shaped pasta gift from a
third party and her undergraduate research on the effects of AIDS on the sexual
behavior of college students were completely unrelated to whether she welcomed
harassing conduct from Reeves at work and should have been excluded under Rule
412.  Wilkerson's employment at Fredrick's of Hollywood also should have been
barred by Rule 412.  See Wolak v. Spucci, 217 F.3d 157, 160 (2d Cir. 2000) (stating
that "[w]hether a sexual advance was welcome, or whether an alleged victim in fact
perceived an environment to be sexually offensive, does not turn on the private sexual
behavior of the alleged victim, because a woman's expectations about her work
environment cannot be said to change depending upon her sexual sophistication").
     Finally, Jacobson's use of swear words at work and elsewhere should have
been excluded under Rule 412.  See Sheffield v. Hilltop Sand & Gravel Co., 895
F.Supp. 105, 108 (E.D. Va. 1995) (excluding evidence of plaintiff's use of vulgar
language at work because it is certainly "offered to prove an alleged victim's sexual
predisposition"); Socks-Brunot, 184 F.R.D. at 123 (Rule 412 "encompasses an
alleged victim's speech when such speech is used to rebut a claim that conduct
constituting sexual harassment was unwelcome'").  Admission of the above-
described irrelevant and prejudicial testimony covered by Rule 412 painted the
victims in the EEOC's suit in an unfavorable light and could easily have tainted the
jury's deliberations on the sexual harassment claim, mandating reversal under Obrey. 
          4.  The Court Admitted Irrelevant and Prejudicial
          Evidence that Other Women Were Not Offended or
          Were Not Sexually Harassed
     Eight female employees or former employees for whom the EEOC did not seek
relief in this suit were permitted to testify that they were not offended by Reeves'
conduct and they did not feel sexually harassed, after the court denied the EEOC's
motion to exclude this testimony.  Supra at 22-23.  Their testimony was not relevant
to the claim before the jury and its admission confused the issues and may have
misled the jury about the appropriate legal standard for determining whether there
was a hostile environment.  RE269a.
     As the Supreme Court has held, for workplace harassment to be actionable, the
work environment must be both subjectively and objectively hostile or abusive. 
Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22  (1993).  The objective standard
requires a jury to consider all of the conduct to determine whether a reasonable
woman would have concluded that the environment was hostile or abusive.  "It
suffices to prove that a reasonable person subjected to the discriminatory conduct
would find, as the [employee] did, that the harassment so altered the working
conditions as to make it more difficult to do the job."  Id. at 25 (Ginsburg, J.
concurring) (internal citations and quotation marks omitted); Ellison v. Brady, 924
F.2d 872, 879 (9th Cir. 1991) (adopting "reasonable woman" standard).
     Admission of testimony that eight female employees were not harassed or did
not subjectively find Reeves' sexually suggestive conduct toward them to be
offensive constituted reversible error for several reasons.  First, the implication is
that, unless all or most of the women in a workplace are sexually harassed, then the
harassment is not "pervasive."  This is not the law.  It is beyond dispute that severity
and pervasiveness turn on the totality of the conduct experienced by each person
claiming to be aggrieved, not on the total number of people seeking relief for sexual
harassment.  See, e.g., Harris, 510 U.S. at 21-22 (standard requires proof that a
reasonable person in the victim's position would find conduct sufficiently severe or
pervasive to alter working conditions, and that each victim subjectively perceived her
environment to be abusive).  Nothing in the law suggests that all women in the
workplace have to perceive the environment to be hostile for any woman to be able
to recover for workplace harassment.
     Second, allowing testimony that other female employees did not subjectively
perceive their work environment to be abusive or hostile distracted the jury from its
obligation to look at the evidence from the "reasonable woman" perspective, as
required under the objective prong.  Ellison, 924 F.2d at 878-79.  For example, after
hearing Nancy Miller testify that she was not offended when Reeves made the
comment "lawyers with small briefcases have small penises," a juror might conclude
that Miller appeared reasonable (and, in fact, she testified that she was "a reasonable
woman") and, therefore, a reasonable woman would not be offended by Reeves'
conduct.  But Ellison makes clear that it is the victim's perspective that matters, and
so long as she is a "reasonable" woman, her view that conduct has altered conditions
of employment and created an abusive working environment is what should inform
the jury's deliberations.  Id. at 878. 
     Third, because the other female employees did not experience the same
comments and conduct as did the victims in the EEOC's case, they were not
competent to testify about the existence of a hostile environment (or lack thereof)
based upon the comments and events experienced by those victims. 
     Fourth, admission of evidence that some women who worked for Reeves were
not offended by his conduct turns the question of the objective hostility or
abusiveness of the work environment into a vote among the women who worked for
Reeves.  This question should have been put to the jurors for a vote, not to the women
who worked (and some of whom continue to work) for Reeves.  The error in
admitting this evidence tainted the outcome and mandates reversal under Obrey.
     B.  The Court Erroneously Excluded Relevant Evidence
          1.  The Court Improperly Excluded Relevant 
          Background Evidence That Would Have Supported the
          Commission's Pregnancy Discrimination Claim
     The court excluded testimony from both Quilaton and Silva because claims of
pregnancy discrimination on their behalf had been "dismissed" from the suit and not
appealed.  The court permitted testimony that Reeves had been very nice to employee
Marita Jurado when she was pregnant, and that a number of Reeves' employees
(including Silva) went on maternity leave or leaves of absence.  However, the court
refused to allow Silva to testify about the change in Reeves' attitude and conduct
toward her after learning of her pregnancy, or Quilaton to testify that she was fired
shortly after she began wearing maternity clothes.  The court also issued an
instruction that the jury must accept as true that Quilaton was terminated for
legitimate, non-discriminatory reasons and that neither Quilaton or Silva were
discriminated against on the basis of pregnancy.  Supra at 6-7.
     The testimony of Silva and Quilaton should have been admitted as background
evidence of pregnancy animus.  The fact that the EEOC did not continue to seek relief
for Silva or Quilaton does not mean that their evidence is irrelevant or inadmissible. 
They stand in the same shoes as any other employee who witnessed workplace events
but had no personal claim of discrimination.  This Court has held that evidence of an
employer's discriminatory treatment of other employees in the same protected class
is highly probative of discriminatory intent.  See Obrey, 400 F.3d at 696 (evidence
of treatment of others in plaintiff's class relevant to show "discriminatory state of
mind" and thus it was an abuse of discretion to exclude testimony going to bias and
pretext).  If this evidence had been before the jury, as it should have been, the
EEOC's pregnancy discrimination claim would have been stronger.  This error could
have changed the jury verdict thus reversal is required under Obrey.
          2.  The Court Improperly Excluded Relevant Evidence
          of Harassing Incidents Victims Learned of Second-
          Hand
     As this Court observed after reviewing the summary judgment record, the
evidence, "viewed in the light most favorable to the EEOC, shows that Reeves'
conduct was widely known throughout the firm."  Appendix at 2.  The district court,
however, frustrated the EEOC's efforts to get the evidence of this widespread
knowledge before the jury.  For example, the court refused to allow a witness to
testify that Reeves engaged in a sexual liaison in the office one Sunday with a former
client/employee, Yindi Botcher, holding that to allow this in would be trial by
innuendo.  Supra at 25.<14>  The sexual liaison evidence was crucial however, because
Jacobson heard about it and stayed out of the office on Sundays as a result.  Id.;
RE374.  Liao and Wilkerson also heard rumors about sexual favors in the office and
they impacted their view of their work environment.  RE374.  If the EEOC had been
able to establish a factual basis for the belief that Reeves had sex in his office, the
testimony that several victims had heard the stories about this would have been
admissible and relevant to support the claim that their working environment was
objectively hostile and that they subjectively perceived it to be hostile.  Believing that
Reeves had sex with a client/employee in his office surely influenced how his
employees viewed his comments about their appearance, his leering, his suggestive
sexual remarks, and his dirty jokes.  The jury was entitled to hear this evidence to
understand the context of the other testimony in the case.
     The court also excluded evidence of other harassing incidents that the victims
learned about second-hand, as unduly prejudicial under Fed. R. Evid. 403 and hearsay
under Fed. R. Evid. 802.  The EEOC filed a written offer of proof about "second-
hand" incidents known to Preciado (supra at 9), Liao (supra at 11), Catuira (supra at
12), and Jacobson (supra at 17).
     Several of these proffered bits of evidence are admissible under an exception
to the hearsay rule or are not hearsay at all.  For example, some proffered statements
are the "excited utterances" or statements about the "then existing mental conditions"
of those who had been subjected to comments or jokes, such as Latman's description
to Catuira of Reeves' remarks to her and the other women's reports to Jacobson of
jokes Reeves told them.  Fed. R. Evid. 803 (2), (3).  Testimony by Jacobson,
Preciado, and Arai about statements made by the victims was not hearsay because it
was not offered to prove the truth of those matters but to show the state of mind of
the declarants about the comments and jokes Reeves had directed at them.  4J.
Weinstein & M. Berger, Weinstein's Evidence  801(c) [01], at 801-77 (1987) (verbal
conduct offered to show state of mind or effect on state of mind is not hearsay).  This
Court has long recognized that such statements may be admissible as circumstantial
evidence of the declarant's state of mind.  United States v. Brown, 562 F.2d 1144,
1148 (9th Cir. 1977).  In a sexual harassment case, because victims must establish
that they subjectively viewed their working environment as abusive, such evidence
is critical.  See Harris, 510 U.S. at 21-22; Ellison, 924 F.2d at 875-76.
     All of the excluded evidenceof a sexual liaison and of jokes and comments
directed at othersis probative and relevant to the hostile environment claim.  This
Court has recognized the admissibility of such evidence, and its relevance in a hostile
environment case, even though it encompasses conduct that is not directed at the
victim claiming relief.  See, e.g., Dominguez-Curry v. Nevada Transp. Dep't, 424
F.3d 1027, 1036 (9th Cir. 2005) (district court erroneously disregarded evidence of
discriminatory comments directed "to other women" because a plaintiff may establish
a violation even if she is not "directly targeted'" by the hostility)(citation omitted);
Swinton v. Potomac Corp., 270 F.3d 794, 800 & n.1 (9th Cir. 2001) (affirming
verdict based in part on testimony about "the ubiquity of the racist atmosphere" and
assertions "that the majority of the people at U.S. Mat. had actually witnessed the use
of racially offensive language" and "that just about everybody' at U.S. Mat. had
heard Fosdick use racial slurs and comments'"); Woods v. Graphic Communications,
925 F.2d 1195, 1201 (9th Cir. 1991) (affirming judgment for plaintiff, Court held that
"the atmosphere of the plant was unquestionably polluted" and the plaintiff was
"subjected directly to some of [the racial hostility]"; "[e]ven if only a few of the[] acts
were directed at [the plaintiff] personally, they were far from isolated incidents").
     While there may be reasonable hearsay objections to some of the proffered
evidence, see Leibovitz v. New York City Transit Auth., 252 F.3d 179, 190 n.8 (2d
Cir. 2001) (plaintiff's testimony that coworkers told her of incidents of harassment
outside her presence is likely inadmissible hearsay), the court swept much too
broadly in excluding all of the so-called second-hand evidence in this case.  Some of
it would have simply corroborated the victims' statements about what they
themselves had experienced, and some of it would have simply demonstrated that
they heard about similar incidents which intensified the hostility of the working
conditions they experienced.  The jury should have been allowed to hear this
evidence to understand the "totality of the circumstances" relevant to assessing the
existence of a hostile environment.  Harris, 510 U.S. at 23 (assess all the
circumstances); see Carter v. Chrysler Corp., 173 F.3d 693, 700 & n. 7 (8th Cir.
1999) (plaintiff was told about graffiti and Chrysler contended she knew of it only
through hearsay; court deemed it relevant because "there is no dispute that she heard
about its existence during the time in which she experienced harassment").  In this
case, as in Carter, this evidence, though second-hand, is "relevant on whether a
hostile environment existed" and whether the victims "reasonably perceived other
conduct to be hostile or abusive."  Id. at 700 n.7.  Its exclusion was thus error, and
this error was presumptively prejudicial, mandating reversal under Obrey.
          3.  The Court Improperly Excluded Relevant Evidence
          of Leering
     When this Court reversed and remanded the district court's grants of summary
judgment, it recited the evidence supporting its determination that there were triable
issues of fact concerning the existence of a sexually hostile environment, including
evidence of Reeves' leering at female employees.  Appendix at 2.  Notwithstanding
that this Court considered this evidence relevant, the district court excluded it. 
RE406-09.  The EEOC explained that the evidence would show that Reeves subjected
all of the victims to head-to-toe sexual leers, that he stared at them in a sexually
suggestive way, that this made them feel uncomfortable, afraid, and/or disgusted, and
that Reeves' behavior made it unpleasant to come to work and some victims tried to
avoid him.  RE291.  Additionally, the EEOC filed written offers of proof about the
leering experienced by Preciado (supra at 8-9), Catuira (supra at 12), and Jacobson
(supra at 16-17), and observed by Rodriguez (supra at 17).
     This evidence is clearly admissible in a sexual harassment case, where the trier
of fact is to examine the "totality of the circumstances" in determining whether a
hostile environment has been created.  See Harris, 510 U.S. at 23.  The jury in this
case should have determined whether the claimants' subjective perception of these
stares and leers was reasonable.  This Court has routinely noted that evidence of a
harasser following and/or staring at an employee can support a finding of sufficient
severity or pervasiveness.  See Stoll v. Runyon, 165 F.3d 1238, 1239 (9th Cir. 1999)
("stalked her throughout the postal facility"); Yamaguchi v. United States Dept. of
the Air Force, 109 F.3d 1475, 1478 (9th Cir. 1997) ("stare at her during work");
Steiner v. Showboat Operating Co., 25 F.3d 1459, 1462 (9th Cir. 1994) ("stares,
glares, snickers, and comments").  Excluding this evidence improperly limited the
EEOC's presentation of its sexual harassment case and could have changed the jury's
verdict, mandating reversal under Obrey.
II.  The District Court Abused its Discretion in Awarding Fees.
     "Attorneys' fees in civil rights cases should only be awarded to a defendant in
exceptional circumstances."  Barry v. Fowler, 902 F.2d 770, 773 (9th Cir. 1990) 
(citation omitted).  No exceptional circumstances justify fees in this case.  The court
abused its discretion by misapplying the Christiansburg standard, which permits fees
to be awarded to prevailing defendants only "upon a finding that the plaintiff's action
was frivolous, unreasonable, or without foundation."  434 U.S. at 421; see Bruno's
Restaurant, 13 F.3d at 287 (Title VII fee award reviewed for abuse of discretion). 
The court's decision to award fees (RE1035) was based on a view of the evidence that
was limited by numerous prejudicial errors that tainted the entire trial, and on the
same mischaracterizations of the EEOC's administrative proceedings and
misunderstanding of the nature of the EEOC's authority and this lawsuit that infected
the initial fee award after summary judgment, which this Court vacated.  Appendix
at 1.  This Court's prior judgment implicitly determined that the EEOC's suit was not
frivolous, and the law of the case doctrine mandated the district court's adherence to
that determination.  See, e.g., Richardson v. United States, 841 F.2d 993, 996 (9th
Cir. 1988) (courts ordinarily precluded from reexaminining an issue previously
decided by a higher court in the same case).  Therefore, this Court should reverse the
district court's award of attorneys' fees.
     A.  The EEOC's Action Was Not Frivolous, Unreasonable, or
     Without Foundation
     This Court held on the first appeal in this case that the EEOC established
genuine issues of material fact as to its pregnancy discrimination and harassment
claims, precluding an award of fees and warranting trial.  At trial, the EEOC
presented the evidence upon which this Court relied in reversing summary judgment,
except evidence erroneously excluded by the district court.  Moreover, correcting for
the above described evidentiary errors (supra at 38-61), the merits of the EEOC's
claims have stronger evidentiary support than the court and jury realized, and cannot
fairly be characterized as frivolous.
     Since this Court already determined that the EEOC had a sufficiently plausible
case to clear the minimal evidentiary threshold imposed by the Christiansburg
standard, that judgment should not have been overturned because of the district
court's hindsight view of the case.  See Richardson, 841 F.2d at 996.  The court's
rationale for the fee award presents a classic example of a failure "to resist the
understandable temptation to engage in post hoc reasoning by concluding that,
because a plaintiff did not ultimately prevail, his action must have been unreasonable
or without foundation."  Christiansburg, 434 U.S. at 422.
     This Court has particularly warned against the temptation to take a hindsight
view of witness credibility.  As this Court explained in Bruno's Restaurant, 13 F.3d
at 290, even though the district court in that case explicitly found that the EEOC had
failed to present credible evidence of discriminatory conduct, the court abused its
discretion in awarding fees to the prevailing defendant, because "[t]o justify an award
of attorney's fees, . . . the district court would have had to find . . . that the EEOC
should have anticipated at the outset that none of its evidence of discriminatory
conduct was credible."  
     The EEOC has two claims in this lawsuit  one for pregnancy discrimination
and one for sexual harassment  and it represents the public interest, not the
individuals for whom it sought relief.  The pregnancy discrimination claim should not
be seen as groundless because when the EEOC filed suit, it reasonably believed that
Reeves fired or threatened to fire three pregnant receptionists for reasons the EEOC
believed were untrue, and after discovery and one successful appeal, the EEOC
proceeded to trial based on a reasonable belief that Reeves fired Saez for pretextual
reasons. 
     The court offered two justifications for awarding attorneys' fees on the
EEOC's pregnancy discrimination claim.  RE1042-43.  First, Saez and the EEOC's
investigator concluded that Reeves fired Saez because of her pregnancy, but relied
on different reasoning.  This rationale does not support an award of attorneys' fees. 
In fact, as a matter of law, the different and inconsistent reasons given for the
termination support an inference of pretext.  Moreover, there was other evidence
offered at trial to support this inference.  Supra at 5-7.  More importantly, the court's
reasoning suggests that the EEOC is limited in its litigation, not only by the claims
on which it finds reasonable cause, but also by the information or reasoning upon
which it bases its reasonable cause findings.  This view of the relationship between
an EEOC investigation and subsequent litigation is untenable.  See Caterpillar, 409
F.3d 832 (mistake to think complaint must be closely related to charge or that suit is
limited to claims a court thinks are supported by evidence obtained in investigation).
     Second, the court stated that the EEOC offered no evidence to rebut testimony
that Reyes was required to work overtime to compensate for Saez's refusal to do
photocopying and offered no testimony from other employees to support Saez's
claim.  RE1042-43.  To the contrary, the EEOC offered evidence from  coworkers
that Saez was a good worker and that she did not refuse to make photocopies.  In
addition, the EEOC offered undisputed evidence that one receptionist was always
needed at the front desk to greet clients and answer telephones and, therefore, at all
times, at least one receptionist was unavailable for photocopying.  A reasonable
inference was that Saez was not responsible for the overtime that Reyes worked to
handle photocopying.  Finally, the court failed to acknowledge evidence that Reeves
submitted a form to a State agency, stating that Saez was terminated because of
"illness, injury or pregnancy."
     Thus, whatever this Court's ruling on the merits of the pregnancy
discrimination verdict, it should reverse the fee award because the EEOC's pregnancy
discrimination claim was not "frivolous, unreasonable, or without foundation."  The
district court should not have awarded fees merely because it did not think Saez or
the EEOC had good reasons for believing she was a victim of pregnancy
discrimination.  Those reasons were supported by evidence and the jury's rejection
of the EEOC's claim cannot justify the hindsight determination that the claim was
frivolous.  See Bruno's Restaurant, 13 F.3d at 290.
     The district court abused its discretion in finding the EEOC's sexual
harassment claim frivolous and awarding fees because it disaggregated the claim as
if five separate individuals had sued and in each instance viewed the evidence of
harassment and credibility of witnesses with hindsight rather than as the
Christiansburg and Bruno's Restaurant standard requires.  The court's approach
necessitates response to its criticisms of the EEOC's evidence as to each victim, but
the reasonable foundation of the harassment claim ultimately must be viewed in light
of all the evidence adduced and offered as to all victims.
     1.  The court cited to its 2002 order granting attorneys' fees (RE102) with
regard to Wang, Arai, Eum, Babida, Quilaton, and Silva, and noted that the EEOC
"did not even challenge the [summary] judgment [ruling] or fee award as to these
claims" and then reaffirmed its prior findings of frivolity and lack of foundation 
(RE1041-42).  The court misunderstood the EEOC's prior appeal, in which the EEOC
challenged the fee award in its entirety.  Because the EEOC's claim of sexual
harassment was at issue in the fee appealnot separate claims of individual
claimantsthe EEOC did not argue the merits of the suit as to individual "claimants,"
nor did it need to.  Rather, the EEOC argued that the sexual harassment claim itself
was not frivolous (EEOC Opening Brief at 51-53), and this Court agreed when it
reversed the summary judgment rulings and vacated the fee award.
     In addition, the court's fee order implicitly justified attorneys' fees with regard
to the "claimants" named above on the ground that the EEOC failed to present a jury
question as to them.  Even if that were the proper focus in an EEOC case alleging
hostile environment on behalf of a group of victims, the court's approach conflicts
with the rule of cases applying Christiansburg that fees are not necessarily warranted
even if claims are not submissible.  See Hughes v. Rowe, 449 U.S. 5, 15-16 (1980)
(claims "legally insufficient to require a trial are not, for that reason alone,
groundless' or without foundation' as required by Christiansburg"); Barry, 902 F.2d
at 771 n.2, 773 (reversing fee award although district court directed verdict for
defendant in civil rights action).
     2.  The court justified the award of attorneys' fees as to the EEOC's claim on
behalf of Preciado on the ground that she was "impeached all over the place," citing
two examples.  RE1043.  First, the court stated that Preciado admitted she did not
consider certain incidents to constitute sexual harassment, and that she did not
consider Reeves' jokes to adversely affect her work performance.  Second, the court
stated that when she testified in the Hanlon and Greene lawsuit, Preciado
acknowledged that she had not been sexually harassed at Reeves' firm. 
     The court's rationale cannot be sustained because Preciado's "admissions" do
not render the EEOC's sexual harassment claim frivolous.  It is settled law that
hostile environment claims must be analyzed under the totality of the circumstances
rather than by disaggregating each harassing incident.  See National R.R. Passenger
Corp. v. Morgan,  536 U.S. 101, 115 (2002) ("Hostile environment claims are
different in kind from discrete acts.  Their very nature involves repeated conduct. .
. .  The unlawful employment practice' therefore cannot be said to occur on any
particular day.  It occurs over a series of days or perhaps years and, in direct contrast
to discrete acts, a single act of harassment may not be actionable on its own.").  Such
claims are based on the cumulative effect of individual acts.  
     Further, Preciado's answerwhen asked in the Hanlon and Greene litigation if
she had been harassedwas a layperson's effort to respond to a question seeking a
legal conclusion, and her answer has no bearing on the legal sufficiency of the
EEOC's claim that Reeves created a hostile environment for many of his female
employees.  A grant of attorneys' fees is not justified where, as here, one individual 
did not view certain events, in isolation, as constituting sexual harassment or did not
appreciate the legal significance of the cumulative effect of all of the harassing
conduct.  
     In addition, the court's reliance on Preciado's testimony that the jokes did not
impair her work performance is misplaced.  "[T]he test is not whether work has been
impaired, but whether working conditions have been discriminatorily altered." 
Harris, 510 U.S. at 25 (Scalia, J., concurring).  A plaintiff need only prove the
harassment made it more difficult to do the job.  See id. (Ginsburg, J., concurring);
see also Steiner, 25 F.3d at 1463 (abusive sexual conduct violates Title VII "if such
hostile conduct pollutes the victim's workplace, making it more difficult for her to
do her job, to take pride in her work, and to desire to stay in her position").
     3.  The court found that "the trial evidence did not support the EEOC's claim
as to Liao."  RE1043.  The court stated the primary basis of the claim on behalf of
Liao was "her characterization of Reeves' conduct during a three-day conference in
Houston" (id.), ignoring all of Liao's testimony about Reeves' suggestive remarks
and sexual jokes.  Supra at 9-10.  The court discounted Liao's "characterization of
Reeves' conduct" because she "could not remember anything specific that Reeves did
that made her want to avoid him."  RE1043.  To the contrary, Liao testified with
specificity (supra at 9-10), and the fact that she did not remember more does not
support the court's fee order.  The court also stated that it believed the EEOC had told
Liao to use the phrase "personal space" (RE1043-44), despite her testimony that
"personal space" was her own phrase, but suggested by the EEOC.  Liao did not
testify that the EEOC told her what to say or suggested that she testify untruthfully. 
The court's statement reflects its distrust of the EEOC, nothing more.  It does not
demonstrate that the claim on Liao's behalf was frivolous, unreasonable or without
foundation. 
     4.  The court justified its fee award with respect to the claim on behalf of 
Catuira because it thought the EEOC "grossly exaggerated Catuira's allegations" 
(RE1044), by describing (in its opening statement) the physical contact between
Catuira and Reeves as a "grind" rather than as an "inadvertent bump."  The court also
noted that the testimony about the time the body contact lasted was variable (five
seconds or a couple of seconds).  However, the duration of the incident was not the
only fact in evidence (supra at 11), and Caturira's description of the incident 
supported her testimony that she felt "violated.  The EEOC's characterization of the
physical contact as a "grind" may have been an exaggeration, but that word choice
alone does not render the EEOC's claim as to Catuira frivolous, unreasonable, or
lacking foundation.  The court also noted that Catuira used the term "personal space"
(RE1044), again implying that the EEOC coached her.  There was no evidence
presented that the EEOC did so, because it did not.
     5.  The court justified its fee award with respect to the claim on behalf of 
Wilkerson, stating that "the EEOC exaggerated Wilkerson's claims as well." 
RE1044.  The court again pointed to the EEOC's opening statement, that Reeves
patted Wilkerson's butt on numerous occasions.  Id.  Wilkerson's testimony at trial
was that Reeves slid his hand down her back once or twice, but he only patted her
butt once.  Again, the court's observations do not establish that the EEOC's claim as
to Wilkerson was frivolous, unreasonable, or lacking foundation, particularly in light
of evidence presented at trial that Reeves suggested to Wilkerson that she wear tighter
blouses and shorter skirts, and made an off-hand reference to oral sex, and taking into
account information that sexual favors were done in the office and Reeves looked
women up-and-down in a sexual manner.  Supra at 13.
     6.  With respect to the EEOC's claim on behalf of Jacobson, the court stated,
"[w]hile this [c]ourt previously found the EEOC's evidence in support of its claim on
Jacobson's behalf, while not enough to survive summary judgment, was sufficient to
establish it was not frivolous, the evidence at trial showed that many of Jacobson's
allegations were exaggerated or even fabricated."  RE1045.  The court highlighted
a number of discrepancies it identified between Jacobson's trial testimony and her
deposition testimony.  Id.  Some of these discrepancies are minor, and some merely
reflect a more detailed recollection at trial than at deposition, but none reveal 
significant inconsistencies.  The court's conclusion that these discrepancies rendered
the entire case as to Jacobson frivolous, unreasonable and lacking foundation is itself
unreasonable, because fees would be appropriate only if the court could have
concluded that the EEOC should have anticipated at the outset that none of its
evidence of discriminatory conduct, including Jacobson's testimony, was credible. 
Under the analysis provided in Bruno's Restaurant, 13 F.3d at 287-90, the court's fee
award cannot stand.  The district court itself acknowledged that this standard could
not be met at summary judgment, and this Court's reversal of the summary judgment
ruling implicitly acknowledged that the Commission's case was not frivolous,
unreasonable, or lacking in foundation at the outset.
     However, the court accepted defendant's argument that "Jacobson's
contradictions and distortions are particularly troubling because Jacobson provided
the anonymous tip which initiated the EEOC's sexual harassment investigation and
was the only woman the EEOC interviewed on this issue before rendering its cause'
finding."  RE1045.  Even if the discrepancies in Jacobson's testimony can be viewed
as meaningful (which they cannot), the court's view of her diminished credibility
cannot logically support a fee award based on the EEOC's failure to anticipate that
development when it first found cause or filed this lawsuit.  Even assuming arguendo
that Jacobson's trial testimony was "largely contradicted" by her deposition
testimony, the "contradiction" would be that her trial testimony provided stronger
support for the EEOC's sexual harassment claim than her earlier statements.  This
simply does not provide a basis for the district court to conclude in hindsight that the
EEOC's sexual harassment claim was frivolous at the outset.  The district court's
error in this respect is identical to that of the district court in Bruno's Restaurant, and
reversal of the fee award is compelled in this case for the same reason.
     B.   The EEOC's Investigation and Reasonable Cause
          Determination Do Not Support a Fee Award
     The court also justified its fee award because "[t]he lack of a meaningful
investigation combined with Hanlon and Greene's scheme to undermine Defendant
evidence an unreasonable action."  RE1038; supra at 42-43n.12.  The court found the
EEOC's investigation "was woefully inadequate to justify [the] initial reasonable
cause determination against Defendant."  RE1046; see also RE913. Whatever this
Court's finding as to the merits of the EEOC's lawsuit, this rationale does not support
an award of attorneys' fees.  
     This Court need not separately consider the EEOC's pre-suit conduct, or the
Hanlon and Greene "conspiracy," because any alleged defects in the EEOC's
investigation or reasonable cause determination relevant to the Christiansburg
standard would necessarily resurface in an analysis of whether the EEOC's lawsuit
was frivolous, unreasonable, or without foundation, making it redundant to apply the
Christiansburg standard by analyzing the EEOC's pre-suit conduct as well.
     The court's inadequate-investigation rationale for awarding fees is belied by 
the court's own holding that the EEOC had satisfied all jurisdictional prerequisites
to suit and specific rejection of arguments that the investigation was inadequate
(RE225-33) and that the EEOC did not engage in a "genuine investigation" of the
sexual harassment claim because the investigator interviewed only one of the women
for whom the EEOC later sought relief (RE227).  In addition, as discussed (supra at
42), no affirmative evidence was presented at trial that the EEOC acted in concert
with Hanlon and Greene; however, the court clearly drew that inference from the
testimony on this subject, which it should not have admitted into evidence.
     Further, the court's reasoning is unsound.  If the information Hanlon, Greene,
and/or Jacobson provided to the EEOC was true, their conduct would be viewed not
as a conspiracy but as whistle-blowing.  It is irrelevant whether Jacobson contacted
the EEOC at Hanlon or Greene's urging or whether Hanlon, Greene and/or Jacobson
were motivated to report sexual harassment because they disliked Reeves.  The issue
is not what motivated the complaint, but whether the EEOC reasonably believed the
complained-of conduct occurred.  There was no evidence that the EEOC investigated
or prosecuted this lawsuit knowing that the allegations of discrimination were false. 
The question of whether or not the EEOC was "duped" by Hanlon, Greene, or
Jacobson is essentially a question of whether or not the EEOC believed the wrong
witnesses.  If the EEOC was "duped," by definition it did not know that it was being
misled, and could not anticipate this outcome.  But even if it had been misled by
Hanlon, Greene, and Jacobson, it identified many other witnesses who essentially told
the same story of a workplace permeated with sexual jokes, comments, and innuendo,
as well as leering and sexual advances.  The EEOC presented most of this evidence
at trial and, as in Bruno's Restaurant, 13 F.3d at 290, could not have predicted in
advance that the jury would not credit the evidence or would not find it legally
sufficient to prove a pervasive hostile environment.  Thus, the fee award cannot stand.
     C.   The EEOC's "Litigation Conduct" Does Not Support a Fee
          Award
     The district court also justified its fee award on the ground that "the EEOC's
improper discovery tactics" support its determination that "the EEOC was making
improper use of the legal system to prosecute what it knew, or should have known,
were groundless claims."  RE1040.  Once again, there is no evidence that the EEOC
prosecuted this lawsuit knowing that the allegations of discrimination were false.  
     In addition, as the EEOC argued in the first appeal, the court's award of fees
for the EEOC's alleged discovery misconduct is particularly inappropriate because
the magistrate  who was in the best position to determine whether the EEOC actually
engaged in any misconduct  never awarded any sanctions against the EEOC.  The 
court persists in its mistaken view that the EEOC's actions with respect to "purported
Equal Pay violations asserted by the EEOC on Miwi Arai's behalf," and with respect
to responding to defendant's request for factual allegations underlying "the supposed
claims of Wang, Arai or Eum," resulted in the magistrate judge granting "terminating
sanctions."  RE1040.  But no such sanctions were granted.  The magistrate explicitly
declined to issue such sanctions in response to Reeves' motion.<15> RE68. The
magistrate also decided that attorney's fees were unwarranted.  RE69.  Thus, the court
mistakenly and improperly awarded fees for conduct the magistrate found did not
warrant monetary sanctions or fees.
     As for the EEOC's refusal "to stipulate to the dismissal of these claimants and
[its] oppos[ition to] Defendant's summary judgment motions as to their claims"
(RE1040, referring to Wang, Arai or Eum),<16> the court's finding again reflects a
misunderstanding of the EEOC's authority and its relationship to discrimination
victims.  The EEOC is a federal agency charged with vindicating the public interest
 not a private attorney representing a group of plaintiffs.  See, e.g., Waffle House,
534 U.S. at 291, 296 (stating that the EEOC is "the master of its own case" and can
pursue its claim with or without the charging party's consent; and that it vindicates
the public interest even when it pursues victim-specific relief).  Since the victims for
whom the EEOC seeks relief in this case are not parties to the action, there is no
technical way they can be "dismissed" from the suit, and the EEOC's statement that
it would not be pursuing the claims for relief on behalf of Wang, Arai, and Eum was
sufficient. 
     The court's misunderstanding of the EEOC's authority and the facts of this
case also led it to conclude that the EEOC's investigation of a potential EPA violation
as to Arai was improper and warranted attorney's feesan error it made in its 2002 fee
award as well.  RE1040; RE102.  The EEOC learned that Reeves had Arai sign a
release prohibiting her from initiating administrative proceedings or from 
participating in any administrative proceedings or lawsuits against Reeves &
Associates.  RE9 5.  Such a waiver violates public policy and the EPA.  See, e.g.
EEOC v. Astra USA, Inc., 94 F.3d 738, 743-44 (1st Cir. 1996); 29 U.S.C.  215(a)(3)
(anti-retaliation provision of EPA).  The EEOC initiated a separate investigation and
issued a separate director's charge (RE93), and explained the independent nature of
the charge to the district court (RE122).  Therefore, the EPA investigation and charge
cannot properly justify the fee award in this case.
     The court also misunderstood what occurred during discovery when it stated
that in pursuing the EPA claim, "the EEOC filed a frivolous motion to compel
discovery of irrelevant and improper information  social security numbers of third
parties not involved in this action," which led the magistrate "to issue a sua sponte
protective order."  RE1040; see also RE102.  In fact, the EEOC's request for the
social security numbers of Reeves' employees was related to this actionnot to
investigation of the EPA chargeand the court failed to cite anything in the record to
the contrary.  Moreover, the court's own order on reconsideration of the protective
order makes no finding that the EEOC's request for social security numbers and other
information was related to the EPA charge.  RE18, 39.
     In addition, the court's fee order stated that EEOC investigator Kinzel-Barnes
testified that she verified interrogatory responses without having the underlying
responses or litigation file.  RE1041.  While this is unfortunate, it was simply a staff
mistake and should not be a basis for awarding fees because it does not provide a
basis for concluding at this stage, post-appeal and post-trial, that the EEOC's lawsuit
was frivolous.  Instead, this represents the sort of post hoc reasoning and hindsight
judgment that the Christiansburg standard forbids.
     Finally, the court criticized the EEOC for seeking discovery from Reeves'
counsel "with flagrant disregard for the attorney-client privilege."  RE1041.  The
attorneys in question were Greene, Jack Schaedel, Richard Wilner, and Sue Ben
David-Arbiv.  Id.  Kinzel-Barnes interviewed Greene in September 1999, three
months after Greene had resigned from Reeves' firm (RE761-62), because the EEOC
believed Greene to have information about possible harassment at Reeves' firm
(RE767-68).  To the extent Greene provided information to the EEOC about Reeves'
harassing speech or actions, such information would not be covered by attorney-client
privilege unless he learned of it through communications with Reeves while giving
legal advice about sexual harassment.  See Upjohn Co. v. U.S., 449 U.S. 383, 394
(1981).  There is no evidence that Greene's knowledge was obtained in that context. 
Moreover, even if that had been the case, the appropriate remedy for any violation of
attorney-client privilege would be to sanction the violator, Greene, and not to impose
attorneys' fees against the EEOC. 
     The other attorneys the court identified as improper targets of the EEOC's
discovery efforts were never deposed or called as witnesses.  However, to the extent
Wilner and Schaedel were percipient witnesses either to potentially adverse
admissions by a claimant (as known through their conversations with Silva), or to
retaliatory conduct (such as Wilner's adverse treatment of Jacobson's request for
employment verification), they were not immune from being subject to discovery. 
RE41.  Ben David-Arbiv represented Reeves during the administrative conciliation
process.  The EEOC did not depose Ben David-Arbiv, but if it had, she was not
immune from being subject to discovery if she was a percipient witness to events that
Reeves put at issue in the litigation, such as the conciliation efforts.  RE1022, 1032.
     In sum, none of the criticisms the district court mounted of the EEOC's conduct
of this investigation and litigation nor its assessment of the merits of the suit itself can
support an award of fees under Christiansburg and Brunos's Restaurant and the fee
order must be set aside.
                           CONCLUSION
     This Court should reverse the entry of judgment in favor of Reeves &
Associates on the EEOC's pregnancy discrimination and sexual harassment claims,
reverse the award of attorney's fees and costs, and remand this case for a new trial.
                              Respectfully submitted,
                              RONALD S. COOPER
                              General Counsel
                              
                              CAROLYN L. WHEELER
                              Acting Associate General Counsel
                                                            
                                                            
                              _________________________________
                              DONNA J. BRUSOSKI   
                              Attorney
                              EQUAL EMPLOYMENT OPPORTUNITY
                                   COMMISSION
                              1801 L Street, N.W.
                              Washington, D.C.  20507
                              (202) 663-7049
          
                   STATEMENT OF RELATED CASES
                                
     This consolidated appeal (Civ. No. 06-55110 and Civ. No. 06-55386) is not
related to any other known case pending in this Court.
                    CERTIFICATE OF COMPLIANCE
     I hereby certify that this brief complies with the order of this Court entered
September 27, 2006, granting EEOC's motion to file an oversize brief that does not
exceed 19,000 words.  The brief contains 18,875 words.
                              __________________________________
                              Donna J. Brusoski
                             APPENDIX
                     CERTIFICATE OF SERVICE
                                
      I, Donna J. Brusoski, hereby certify that I served two copies of the foregoing
brief, this 11th day of October 2006 by Fed Ex, to the following:
                    John J. Manier
                    BALLARD, ROSENBERG, GOLPER & SAVITT
                    10 Universal City Plaza, 16th Floor
                    Universal City, CA  91608-1097
                    
                    
                    
                    
                    
                    
                    
                    ______________________
                    DONNA J. BRUSOSKI
                    Attorney
                    EEOC, Office of General Counsel
                    1801 L Street, N.W., 
                    Washington, D.C. 20507
                    (202) 663-7049
                    
                   
**************************************
<<FOOTNOTES>>
<1> RE refers to record excerpts.
<2> Portions of Tr. Exh. 272, the investigation file, were admitted into evidence and 
the file was discussed extensively throughout the investigators testimony,  notwithstanding that the court granted the EEOCs motion to limit the scope of 
questions to be asked of the investigator.  RE395-96; RE742; infra at 26-32.
<3> The court asked Liao whether she was offended by television advertisements 
for Viagra; Liao replied, No.  It was a different context, though.  RE528-29.
<4> The court cross-examined Catuira, who testified that she recalled the gist of the commentReeves was inquiring of Alan Favish whether anything sexual had happened on Favishs date the previous eveningbut not the exact words. RE506-07. 
<5> At the time of the trial Catuira had recently married and changed her name to 
Suarez.  See RE504.
<6> However, the court did not allow Jacobson to testify to what she thought Reeves 
meant by this remark.  RE661.
<7> Jacobson testified that Greene broke up with her in the fall of 1999 (RE671), and 
she married someone else the next year (RE683-84).
<8> Because Miller was the current sexual harassment officer of the firm at the time 
of trial, the EEOC elicited testimony about her view of whether Reeves jokes 
were inappropriate or offensive, for purposes of injunctive relief.
<9> Reeves testified that happy hour was not a work activity and attendance was 
not required.  RE900.
<10> The court asked Jacobson, Were you still dating Greene when you called the 
EEOC?  RE681-82.
<11> The court also said, If I were the trier of fact I would have found that Ms. 
Barnes had been manipulated by Hanlon, Greene, and Jacobson, especially in view of 
the fact that Mr. Greene was the attorney that was appointed to represent the 
interests of Hanlon and Reeves, and during the time that he was the attorney of record 
in dealing with the EEOC, he was giving information in violation of his attorney-client 
privilege to the EEOC to enable the EEOC to bring charges against Mr. Reeves to 
benefit Hanlon and Greenes new venture.  RE913.  There are two problems with 
the courts musings on this issue.  First, as a matter of fact, Greene did not 
violate any privilege.  See infra at 79.  Second, and more importantly, no such 
finding would be relevant in a Commission discrimination case because the 
perceptions of the investigator have no bearing on any element of the claims in 
the lawsuit.
<12>   In the attorneys fee order, the court stated:  [T]he evidence at trial showed that the EEOC either knew or inexcusably failed to deduce that it was being used as a weapon in Hanlon and Greenes campaign to destroy Defendant and his firm.  The EEOC investigator, Barnes, interviewed only one woman, Jacobson, with respect to alleged sexual harassment, and otherwise relied exclusively on two attorneys who were embroiled in litigation against Defendant, one of whom, Greene[,] had been Defendants in-house attorney and Barness contact person on the discrimination charge.  RE1039.  
The courts conclusions highlight the error it committed in admitting this 
evidence.  First, the courts statement ignores the fact that the evidence of 
harassment at trial came not from Hanlon and Greene, but from numerous women who 
testified to the jokes, comments, conduct, and touching that created what they perceived 
to be a hostile environment.  See supra at 7-22.  The jury should have been evaluating 
that testimony, not the courts view that the EEOC was improperly used by disgruntled 
former members of Reeves firm.  Second, the courts statement confirms the prejudice 
flowing from its error.  The statement admits the jury heard evidence that the EEOC was 
used as a weapon and demonstrates that this was not a de novo trial on the merits.
<13> The EEOC found cause in September 1999 and filed suit in September 2000.  RE1.  
The California state trial court ruled in Reeves favor on April 11, 2001.  RE945.
<14> Evidence of the Botcher liaison was also important for the purpose of impeaching 
Reeves.  As discussed (supra at 25), at deposition, Reeves denied having had sexual 
relations with Botcher at the office.  However, the EEOC learned from former Reeves 
employee, Frank Nelson, that Reeves admitted to Nelson that he had sex with Botcher in 
the office.  The court refused to allow the EEOC to inquire into this subject during 
Reeves direct examination, and it refused to allow the EEOC to call Nelson.  This 
evidence could have made a difference, if the jury had been allowed to hear it.
<15> Reeves & Associates first requested Rule 37 sanctions in a September 14, 2001, 
motion that the magistrate judge denied without prejudice for failure to give proper 
notice.  RE60. 
<16> The EEOC did not oppose summary judgment as to Wang, Arai, and Eum because it had 
already agreed not to pursue relief for them and thought the request for judgment was 
moot.  RE72.