No. 05-15743
         ________________________________________

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

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

 Plaintiff-Appellee,
 v.

AMERICAN HOME FURNISHINGS,

     Defendant-Appellant.
        _______________________________________________________

           On Appeal from the United States District Court 
           for the District of Arizona, No. 02-472 
         _______________________________________________________

                  BRIEF OF PLAINTIFF-APPELLEE
             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., Room 7030
Acting Associate General Counsel    Washington, D.C. 20507
                                    (202) 663-4724
LORRAINE C. DAVIS		
Assistant General Counsel		
 
ANNE NOEL OCCHIALINO	
Attorney

TABLE OF CONTENTS
                                                         PAGE

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . .	 i
TABLE OF AUTHORITIES  . . . . . . . . . . . . . . . . . . . . . .	 iii	
STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . .	 1
STATEMENT OF THE ISSUES  . . . . . . . . . . . . . . . . . . . . . . .	 2
STATEMENT OF THE CASE  . . . . . . . . . . . . . . . . . . . . . . . .	 4
A.	Nature of the Case and Course of Proceedings  . . . . . . .      4
B.	Statement of Facts	. . . . . . . . . . . . . . . . . .      4	
C.      Proceedings and Disposition Below  . . . . . . . . . . . . .  	 15
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . .	 20
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .	 23
I.	This Court should affirm the jury's verdict finding that AHF 
   violated Title VII by discriminating against Glenn because 
   of her race and awarding back pay and compensatory and 
   punitive damages . . . . . . . . . . . . . . . . . . . . . . . . . .  23

A.	The district court acted well within its discretion when it
      refused to exclude witness testimony as to Glenn's 
     damages as a Rule 37 discovery sanction. . . . . . . . . . . . . .  24

B.	AHF waived both its argument that the jury's interrogatories 
     were inconsistent and waived any argument that the evidence 
     was insufficient to support the jury's finding of liability or 
     award of damages . . . . . . . . . . . . . . . . . . . . . . . . .  30
     

TABLE OF CONTENTS (con't)

PAGE
C.	Even if AHF had not waived its arguments as to the 
     consistency of the verdict or sufficiency of the evidence, 
     this Court should affirm the jury's finding of liability and a
     ward of damages. . . . . . . . . . . . . . . . . . . . . . . . . .   33

1.	The jury interrogatory answers and verdict are 
consistent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   33

2.	The evidence was more than sufficient to support 
     the jury's finding of liability   . . . . . . . . . . . . . . . .    39

3.	The evidence was more than sufficient to support 
       the award of compensatory damages and back 
    pay  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  42

4.	Punitive damages are available and the evidence 
supports them   . . . . . . . . . . . . . . . . . . . . . . . . . . . .   45

II.	The district court acted well within its discretion in granting the 
   EEOC's motion for equitable relief. . . . . . . . . . . . . . . . . .  51

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   58	
STATEMENT OF RELATED CASES . . . . . . . . . . . . . .  . . . . . . . .   60
CERTIFICATES OF COMPLIANCE AND SERVICE

TABLE OF AUTHORITIES

Cases

Ablemarle Paper v. Moody, 422 U.S. 405, 418 (1975). . . . . . . . .       51

Arachnid v. Medalist Marketing Corp., 972 F.2d 1300 (9th Cir. 1992). . .  31

Bergene v. Salt River Project Agric. Improvement & Power Dist., 
 	272 F.3d 1136 (9th Cir. 2001). . . . . . . . . . . . . . . . . .  42

Bruso v. United Airlines, Inc., 239 F.3d 848 (7th Cir. 2001). . . 53, 54, 56

Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212 (1947). . . . . .    32

Costa v. Desert Palace, Inc., 299 F.3d 838 (9th Cir. 2002). . . . . . passim

Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 95 F.3d 1422   
   (9th Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Desrosiers v. Flight Int'l of Florida, Inc., 156 F.3d 952 (9th Cir. 1998).32

EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539 (9th Cir. 1987). . .  passim

EEOC v. Hacienda Hotel, 881 F.3d 1504 (9th Cir. 1989). . . . . .  52, 54, 56

Ellerth v. Burlington Indus., 524 U.S. 742 (1998). . . . . . . . . . . .  52

Faragher v. City of Boca Raton, 524 U.S. 775 (1998). . . . . . . . . . . .53

Fjelstad v. American Honda Motor Co., 762 F.2d 1334 (9th Cir. 1985). . .  24

Graves v. City of Coeur D'Alene, 339 F.3d 828 (9th Cir. 2003). . .    39, 40

Heath v. Cast, 813 F.2d 254 (9th Cir. 1987). . . . . . . . . . . . . . .  28

Kolstad v. Am. Dental Ass'n, 527 U.S. 526 (1999). . . . . .   15, 45, 48, 49
TABLE OF AUTHORITIES (con't)

Los Angeles Nut House v. Holiday Hardware Corp.,                                    
      825 F.2d 1351 (9th Cir. 1987). . . . . . . . . . . . . . . . . .    31

Lyons v. England, 307 F.3d 1092 (9th Cir. 2002). . . . . . . . .  40, 41, 42

Martinez-Serrano v. INS, 94 F.3d 1256 (9th Cir. 1996). . . . . . . . . . .33

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). . . . . . . . .    47

Monterey, Ltd. v. City of Monterey, 95 F.3d 1422 (9th Cir. 1996). . . . . 43

Norris v. Sysco Corp., 191 F.3d 1043, 1047 (9th Cir. 1999). . . . . .     34

Oncale v. Sundowner Offshore Servs. Inc., 523 U.S. 75 (1998). . . . . .   35

Passantino v. Johnson & Johnson Consumer Prods., Inc.,                                                       
212 F.3d 493 (9th Cir. 2000). . . . . . . . . . . . . . . . . . . . . 44, 50

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). . . . . .       34, 35, 36

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000). . 39, 40, 41

Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., -- U.S. -- ,                                            
126 S.Ct. 980 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Ward v. City of San Jose, 967 F.2d 280 (9th Cir. 1991). . . . . . . . .   34

Weinberg v. Whatcom County, 241 F.3d 746 (9th Cir. 2001). . . . . .   passim

Yeti By Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101
   (9th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . .   24

Zhang v. American Gem Seafoods, Inc., 339 F.3d 1020
   (9th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . 27, 29, 43

TABLE OF AUTHORITIES (con't)

Statutes

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

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

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

42 U.S.C.  1981a(b)(1). . . . . .     26, 45

42 U.S.C.  2000e-2(a). . . . . .      34, 52

42 U.S.C.  2000e-2(m). . . . . . . . .36, 37

42 U.S.C.  2000e-5(g)(1). . . . . .    18,51

42 U.S.C.  2000e-5(g)(2)(B). . . 36,38,45,46

Rules

Fed. R. Civ. P. 4(a)(4). . . . . . . . .    1

Fed. R. Civ. P. 26(a). . . . . .       25, 30

Fed. R. App. P. 28(a)(8). . . . . . . . .  23

Fed. R. Civ. P. 37. . . . . .   2, 25, 29, 30

Fed. R. Civ. P. 49(b). . . . . .   30, 31, 33

Fed. R. Civ. P. 50(a). . . . . . . . .     39

Fed. R. Civ. P. 50(b). . . . . . . . . 32, 39

TABLE OF AUTHORITIES (con't)

Fed. R. Civ. P. 59(e). . . . . . . . . . . .1

9th Cir. R. 28-2.5. . . . . . . . . . . .  23

9th Cir. R. 30-1.4(a). . . . . . . . . . . 15

				STATEMENT OF JURISDICTION

     a.	The district court had subject matter jurisdiction over this action 
pursuant to 28 U.S.C.  1331, 1345.
     b.        Pursuant to 28 U.S.C.  1291, this Court has jurisdiction over this 
appeal from the district court's final judgment entered on the jury's verdict. 
     c.        On March 23, 2005, the district court entered judgment consistent 
with the jury verdict in favor of Plaintiff-Appellee the Equal Employment 
Opportunity Commission ("EEOC" or "Commission") and against Defendant-
Appellant American Home Furnishings ("AHF").  EOR81.<1>  On March 30, 2005, 
which was within 10 days of the entry of the judgment, the EEOC filed a motion 
for equitable relief.  EOR82.  See Fed. R. Civ. P. 59(e) (stating that "a motion to 
alter or amend a judgment shall be filed no later than 10 days after entry of the 
judgment").  On April 15, 2005, AHF filed a notice of appeal from the judgment.  
EOR100.  Because the district court had yet to rule on the motion, however, the 
notice of appeal was premature.  See Fed. R. App. P. 4(a)(4)(A)(iv) (stating that the 
time to file an appeal runs from the entry of the order disposing of a Rule 59 
motion to alter or amend the judgment).  The notice of appeal was therefore 
ineffective.  See Fed. R. App. P. 4(a)(4)(B)(i).  On May 12, 2006, the district court 
ruled on the EEOC's motion for equitable relief.  SEOR44.  Pursuant to this 
Court's February 7, 2006, order, AHF filed an amended notice of appeal on May 
22, 2006, appealing from both the March 23, 2005 judgment and the May 12, 
2006, Order.  SEOR52. 

                         STATEMENT OF THE ISSUES
1.	Whether the district court properly exercised its discretion in denying 
AHF's motion in limine to exclude the testimony of LaWanda Glenn 
and other witnesses as to compensatory and punitive damages as a 
discovery sanction under Rule 37 of the Federal Rules of Civil 
Procedure where the EEOC disclosed early in the litigation the 
amount of damages it sought and that Glenn had information as to her 
compensatory damages, AHF had the opportunity to ask Glenn about 
her damages during her deposition, and AHF had two years before 
trial to request that the EEOC supplement its disclosure.

2.	Whether AHF waived any argument that it is entitled to a new trial or 
judgment as a matter of law on the grounds that the jury's verdict is 
inconsistent or because the evidence was insufficient to support the 
jury's finding of liability or damages where AHF never argued below 
that the jury's verdict was inconsistent or that the evidence was 
insufficient.

3.	Even assuming that AHF could raise on appeal for the first time issues 
as to the consistency of the verdict and the sufficiency of the 
evidence, whether the jury's finding of liability should be sustained 
because it is consistent with the special interrogatories and supported 
by the evidence, and whether the award of damages should also be 
upheld because the evidence supported it and because Title VII 
permits punitive damages in mixed-motive cases where the employer 
fails to show that it would have taken the same action without 
considering the victim's race.

4.	Whether the district court acted well within its discretion in granting 
broad injunctive relief where the jury found that AHF engaged in 
intentional discrimination and the court properly found that AHF had 
failed to show that future violations of Title VII were unlikely to 
recur. 

                         STATEMENT OF THE CASE
     A.	Nature of the Case and Course of Proceedings 
     This is an employment discrimination case in which the EEOC alleged that 
AHF violated Title VII by refusing to promote LaWanda Glenn because of her 
race.  A jury found in favor of the EEOC and awarded damages, and the district 
court entered judgment based on the verdict and awarded the EEOC $5,000 in back 
pay, $30,000 in compensatory damages, and $85,000 in punitive damages.  
EOR80.  In a subsequent order, the district court granted virtually all of the 
EEOC's requested injunctive relief.  SEOR44.

     B. 	Statement of Facts
	On January 1, 1993, LaWanda Glenn began working at one of AHF's new 
Tucson stores.  EOR159.  She started as a sales associate in the Housewares 
department.  PEOR95.<2> She had previously worked in sales for six years at a 
company called Gemco where she served variously as head of housewares and 
other departments.  PEOR100-01.  Part of her income as a sales associate for AHF 
came from sales commissions.  PEOR96.  After her mother fell and broke her hip, 
Glenn moved to the credit department to secure a steady income.  Id.  After six or 
eight months of working as a credit clerk, she became a "new accounts lead."  
EOR173.  This meant she took on more responsibility, such as being in charge of 
the cashiers and assisting the manager with employee counseling and interviewing.  
EOR173.  After six years, Glenn decided that there was not much more for her to 
learn in credit and she applied for and received a position as a "receiving lead" on 
the receiving docks.  EOR174.  Glenn earned positive performance evaluations and 
was "the employee of the quarter" in the first quarter of 2000.  PEOR87,98.  Her 
November of 1999 performance evaluation stated that she was "doing a great job" 
and was "self-motivated and very efficient."  PEOR99.
	Angela Dougherty, f/k/a Angela Wilke, was the Home Products Manager.  
PEOR44-45.  Her supervisor was Melissa Roe, the Store Manager, who in turn 
reported to Ted Leveque, the Vice President of Stores.  PEOR45.  As part of his 
duties, Leveque reviewed recommendations for hiring and promotions.  PEOR18.  
He made recommendations to the President and owner of AHF, Lee Blaugrund, 
concerning applicants for management and lead positions.  PEOR18.  Blaugrund 
had the final say with respect to all hirings and promotions.  PEOR18-19,75.  Lee 
and Blaugrund were headquartered in Albuquerque, New Mexico.  PEOR17.  
	During an interview for another position in April of 2000, Roe told Glenn 
about an opening for the Assistant Home Products Manager position and 
encouraged her to apply.  PEOR80-81.  Roe told Glenn that she was the only one 
she was telling about the position and Glenn would be perfect for it because of her 
longevity, knowledge of the store, and sales experience.  PEOR81.  Glenn applied 
for the position on April 14, 2000.  PEOR127.  She was told the salary range for 
the position, which was in the "low 20s."  PEOR51,108.  Glenn stated on her 
Placement Request Form that she sought the position because she "want[ed] to 
learn more.  This position will help me to better service the customers and will 
give me the ability to better assist fellow employees."  PEOR127.  There were no 
African-Americans in management at the Oracle store and had not been any since 
1994.  PEOR111,116.
	Dougherty interviewed Glenn for the position.  PEOR46.  Dougherty felt 
that Glenn was "definitely the most qualified" candidate and "stuck out."  
PEOR47.  Dougherty told Glenn that she "was going to recommend her and that 
[Dougherty] didn't foresee any issues."  Id.  Dougherty even recalls that she 
"congratulated [Glenn] and told her that she had a great interview."  Id.  Dougherty 
also testified that Glenn used proper English during the interview.  EOR117.  
Glenn similarly testified that Dougherty said that she was excited Glenn was 
applying because she was the only candidate and "she thought [Glenn] would be 
great for the position because of [her] knowledge of the store, [her] knowledge of 
the products from [her] previous sales and from working down in receiving."  
PEOR82.  According to Glenn, Dougherty offered her the position, which she 
accepted.  Id.  Glenn informed her supervisor and her mother that she had received 
the promotion.  PEOR84,93.  In the days following the interview, Glenn and 
Dougherty discussed ideas for the home products department, and Dougherty said 
again that she was excited Glenn was going to be working with her.  PEOR83.
	After the interview Dougherty recommended Glenn to Roe, who seemed to 
agree with the recommendation.  PEOR48.  In fact, Dougherty's supervisors had 
never disagreed with any of her promotion recommendations.  PEOR54.  
Dougherty expected that Roe, Glenn, and the human resources office would go on 
to discuss Glenn's salary.  PEOR48.
	Roe told Leveque that Dougherty had recommended Glenn - who was the 
only candidate - for the position.  PEOR20,24.  Leveque knew that Glenn is 
African-American.  PEOR26,27.  Although Leveque had never before interviewed 
anyone Dougherty had recommended - and although he never had (and has never 
since) interviewed another candidate for an assistant manager position in the 
Tucson store - Leveque decided that he wanted to meet with Glenn on his next trip 
to Tucson.  PEOR22,25-26,28,49,54.  Leveque testified that he did not want to 
interview Glenn but to ask her why she had been requesting so many moves within 
the company.  PEOR23.  Although Leveque purportedly wanted to offer Glenn 
some career counseling, he admitted that Glenn's direct supervisor was responsible 
for Glenn's development and career counseling.  PEOR34.  Leveque also admitted 
that he never offered any career counseling to any other employees, including a 
Caucasian employee named Eric Thompson who had requested three job moves 
within a five-month period beginning in January of 2000.  PEOR30-31,40.   
	Glenn eventually became concerned that she had not been moved into the 
new position.  PEOR85.  She asked Roe what was taking so long, and Roe said 
there were some salary concerns and that Glenn would have to interview with 
Leveque.  Id.  Roe told her to "keep an open mind."  PEOR86.  Before Leveque 
traveled to Tucson, he discussed Glenn's application with Blaugrund.  PEOR21,76.  
Blaugrund knew that Glenn is African-American.  PEOR78.
	On May 2, 2000, Roe paged Glenn to come upstairs for the interview.  
PEOR87. When Glenn arrived, Leveque told her to keep an "open mind."  
PEOR88.  According to Leveque, he gave Glenn some sales scenarios that she 
answered unsatisfactorily.  PEOR32.  Leveque also testified that Glenn said she 
was interested in moving up the corporate ladder, but Glenn denied saying that she 
was only interested in climbing the corporate ladder.  PEOR43,89.  Leveque 
focused the conversation on opportunities for Glenn in the operations side of the 
business.  PEOR90.  Glenn tried to focus the conversation on sales because she 
believed she was being interviewed for the Assistant Home Products Manager 
position.  PEOR89.  Leveque never said, either before or during the interview, that 
he was not interviewing her for the position.  PEOR29,89.  At the end of the 
interview Leveque told Glenn that her best career path was in operations.  
PEOR33.  At trial, Leveque testified that he had two concerns about promoting 
Glenn: first, that she had mishandled the sales hypotheticals he gave her, and, 
second, "the biggest concern was that she had only been in the operations area for 
eight months, and she wanted a career path, and she wanted to move up with the 
company."  EOR238.  
	After Leveque met with Glenn, he told Roe and Dougherty that he did not 
think that she was suited for the position and that Glenn had used poor grammar 
and incorrect English.  PEOR49-50,35.  He asked if they had other potential 
candidates.  PEOR35;EOR117.  They responded that they did - Holly Schroeder 
Kline, a Caucasian associate in the rug department who had no management 
experience and had never even applied for the job because she thought the salary 
was too low.  EOR117;PEOR35-36.  After Dougherty told Kline that the salary 
was negotiable, Kline applied.  PEOR53,55.  Her Placement Request form stated 
that she wanted the job out of a "desire to move up in the company, wanting to 
move past salesperson status."  PEOR39.  Dougherty interviewed her.  PEOR52.  
Roe and Dougherty recommended Kline to Leveque, who did not interview Kline 
or even ask that during her interview she be given the same sales scenarios that 
Glenn purportedly had failed to answer to Leveque's satisfaction.  PEOR37-38,53.  
According to Leveque, he knew that Kline had very good sales in the rug 
department and that Glenn had not had good sales in housewares.  EOR235.  
Kline's March 26, 2000, evaluation, however, said she needed to improve her 
punctuality and ranked her only second out of three sales associates.  PEOR120-
21.  Her two most recent evaluations rated her overall performance on a 1-5 scale 
(where 1 was the highest) as 2.3 and 3.0, whereas Glenn's overall rating during her 
three months as a sales associate was 2.6.  PEOR121-22.  Kline was promoted and 
given a starting salary of $23,000/yr.  PEOR57.
	At some point before AHF decided not to promote Glenn, Patricia Dudley-
Hronich, an employment manager in human resources, overheard a conversation 
between Blaugrund and Leveque.  PEOR59-61.  Blaugrund told Leveque "to get 
something on LaWanda [Glenn] because he didn't want her running his 
housewares department."  PEOR62.  Blaugrund's tone was "real gruff," and he 
"was very upset."  PEOR62-63.
	Roe and Dougherty told Glenn that she was not going to get the position.  
PEOR51.  Dougherty was "pretty upset" about the situation because she "really did 
feel at that time when [she] had the interview with [Glenn] that she was a qualified 
candidate and that she would have no problems in the position."  PEOR52.  
Dougherty explained that Leveque "felt that she wasn't ready for a promotion."  Id.  
Glenn "was very upset."  Id.  She felt "hurt and betrayed," "sad," "embarrassed," 
"confused," and she cried.  PEOR91-92.  Because Roe had approached her about 
the position, encouraged her to apply, and told her "how great [she] was and how 
perfect [she]'d be,"  she was surprised.  PEOR92-93.  Glenn had to tell her friends 
and coworkers that she was not being promoted, which embarrassed her, and she 
cried when she told her supervisor.  PEOR93-94.  After the promotion was taken 
away, she "wasn't [her] usual self"  PEOR105.  She "was unhappy," "down about 
things," and "had overall sadness."  Id.  She had "lots of sleepless nights" and 
"cried a lot."  PEOR106.  When Glenn later learned that Leveque said she had used 
poor English during her interview and had not presented herself well, she felt hurt 
and angry, and she cried.  PEOR102.  His comment "went to the core of who" she 
was and "how [she] was raised" because her mother and grandmother had made 
sure she used proper English.  PEOR103-04.  She later declined to apply for other 
assistant manager positions because she "knew emotionally [she] didn't have the 
strength to deal with another rejection . . . and it was just emotionally straining."  
PEOR105.  She stayed at AHF, however, "to prove that they were wrong" about 
her and because she "deserve[d] to be there."  PEOR106.  On July 13, 2000, Glenn 
filed a charge of discrimination.  PEOR107.  
	Amanda Carlson, the director of loss prevention, testified that after Glenn 
filed her charge she received a call from Blaugrund.  EOR155.  He asked her to 
"monitor LaWanda [Glenn] specifically and her activity."  EOR155-56.  He said 
"anything that could be used needed to be substantial," not "a minor policy 
violation."  EOR157.  Blaugrund admitted that at some point he asked Carlson to 
get something "concrete" on Glenn relative to her performance.  EOR157; 
PEOR113.<3> The request made Carlson uncomfortable because Blaugrund failed to 
give any reason for monitoring Glenn.  PEOR73-74.  Consequently, she called 
Dudley-Hronich and told her about the conversation.  PEOR67,73.  Dudley-
Hronich advised Carlson she "better do what [Blaugrund] told her to do."  
PEOR68.
	Leveque offered testimony at trial as to the difference in salary between 
what Glenn actually made at AHF following her non-promotion and what she 
would have made as Assistant Home Products Manager.<4> According to his 
testimony, Glenn's lost salary from April of 2000 to June of 2002 amounted to 
$3,148.  PEOR117-19.  In June of 2002, when Glenn was promoted to 
merchandise coordinator, she received a raise to $26,000, which was more than the 
salary for the Assistant Home Products Manager.  PEOR119.  While Leveque's 
calculations as to Glenn's back pay were based on the Assistant Home Products 
Manager position, Kline remained in that position just a short time before being 
promoted to Home Product Manager, where she immediately began earning 
$26,000/yr.  PEOR56-57.  By the time Kline left AHF, her salary was $27,000/yr.  
PEOR57-58.  When Glenn, who still worked at AHF, was asked at trial if she was 
making more in her current position than she would have with the promotion, 
Glenn responded, "I can't say whether I would be making as much.  I could have 
been at this point the manager of the home products floor making even more."  
EOR178,182-83.  
	AHF had no regular equal employment opportunity ("EEO") training prior 
to the trial.  PEOR77.  According to Dudley-Hronich, who became Human 
Resources Director in March 2001, AHF did not provide adequate EEO training 
and orientation.  PEOR63,64.  When she told this to Blaugrund, he disagreed.  
PEOR65.  No one ever asked her to provide or to obtain training on issues of race 
discrimination.  PEOR65-66.  Not until AHF lost at trial did it begin to develop 
EEO training.  PEOR130.  Ten months after the trial, however, not a single EEO 
training session had taken place.  PEOR132.  Dudley-Hronich also testified that if 
she had ever seen Blaugrund discriminating, she would not have reported it 
because she would be concerned that she could be fired.  PEOR69-70.
	Leveque testified that during his initial orientation with AHF, fewer than 30 
minutes were devoted to equal employment opportunity policies.  PEOR40A.  He 
later had some additional human resources training, but only about fifteen or 
twenty minutes of it pertained to EEO issues.  PEOR41-42.  Like Leveque, Glenn 
testified that at the time of her hiring in 1992, she received about thirty minutes of 
training about AHF's policies.  PEOR109.  Since then, she has not received any 
additional training on race discrimination - even after she became a manager.  
PEOR110.  

	C.	Proceedings and Disposition Below
	On September 19, 2002, the EEOC filed its complaint alleging that AHF 
violated Title VII by not promoting Glenn because of her race.  EOR16.  On 
October 19, 2004, the district court denied AHF's motion for summary judgment.  
EOR8.  AHF subsequently filed a motion in limine seeking to exclude any witness 
testimony, including Glenn's, as to compensatory or punitive damages.  EOR39.  
In a March 8, 2005, order the court denied the motion.  PEOR8.<5> The court stated 
that under the punitive damage standard set out in Kolstad v. American Dental 
Ass'n, 119 S.Ct. 2118, 2128 (1999), AHF's own employees would be the witnesses 
providing relevant testimony as to punitive damages.  Id. at 13-14.  The court also 
noted that AHF "has been aware from the beginning that Plaintiff would be 
seeking compensatory and punitive damages," the EEOC had informed AHF that 
Glenn would be the only witness as to damages, and AHF deposed her.  PEOR14.  
According to the court, if AHF "truly had an objection to Plaintiff's damage 
disclosures," it should have raised them during the two years before trial.  
PEOR14.  While the court acknowledged AHF's assertion that Rule 37(c) of the 
Federal Rules of Civil Procedure puts the burden on the Plaintiff to supplement 
discovery disclosure, the court noted that "the only way Plaintiff would have 
known that its responses/disclosures were insufficient and needed to be 
supplemented is to be informed by Defendant.  It would be an unfair trial strategy 
for a party to not inform the opposing party that its disclosures are inadequate and 
then wait until right before trial to ask a court to strike the evidence." PEOR14 
(Order at n.3).  The court also rejected AHF's argument that Weinberg v. Whatcom 
County, 241 F.3d 746 (9th Cir. 2001), was dispositive, finding that the case was 
distinguishable on its facts and because it involved the summary judgment standard 
of review.  PEOR14.
	After a four-day trial, the jury returned a verdict for the EEOC and awarded 
$5,000 in back pay, $30,000 in compensatory damages, and $85,000 in punitive 
damages.  EOR80.  The jury also answered four special interrogatories.  The first 
interrogatory asked whether "the Plaintiff proved by a preponderance of the 
evidence that LaWanda Glenn's race or color was the sole reason for the 
defendant's decision to not promote her."  The jury answered "no."  EOR78.  The 
second question asked whether "the Plaintiff proved by a preponderance of the 
evidence that LaWanda Glenn's race or color was a motivating factor for the 
defendant's decision to not promote her."  The jury responded, "yes."  Id.  The jury 
also answered "yes" to the second part of the interrogatory, which asked whether 
"American had a legitimate business reason not to promote" Glenn.  Id.  The jury 
also answered "yes" to the third interrogatory, which asked whether "the 
Defendant proved by a preponderance of the evidence that the Defendant's 
decision to not promote LaWanda Glenn was also motivated by a lawful reason."  
EOR79.  Finally, the jury answered "no" - not, as AHF wrongly states in its brief, 
"yes" - to the fourth interrogatory, which asked whether "the Defendant proved, 
by a preponderance of the evidence, that the Defendant would have made the same 
decision not to promote LaWanda Glenn even if her race or color had played no 
role in the Defendant's decision to not promote her."  Id.
       After the jury was polled, the judge asked whether any further record was to 
be made, and AHF's counsel said "no" but "we may file a motion for judgment 
notwithstanding the verdict."  PEOR124.  The judge told counsel he was entitled to 
do so but warned him to "read the rules and make sure you know the time period 
because it's nonwaivable."  Id.  On March 23, 2005, the court entered judgment 
based on the jury verdict.  EOR81.  AHF never renewed its request for judgment as 
a matter of law, and it never filed a motion for a new trial.  EOR13.  On March 30, 
2005, the EEOC filed a motion for equitable relief, and on April 15, 2005, AHF 
filed a notice of appeal.  EOR13.  On June 6, 2005, the court entered an amended 
judgment awarding costs and fees in addition to damages.  SEOR212.  
	On appeal, this Court agreed with the EEOC that the appeal was premature 
because the district court had not yet ruled on the EEOC's motion for equitable 
relief.  SEOR219.  Therefore, this Court ordered the appeal held in abeyance 
pending the district court's ruling.  SEOR219.  At a December 5, 2005, hearing on 
the EEOC's motion for equitable relief, Leveque testified that Blaugrund remained 
the CEO and President of AHF.  PEOR129.  He also testified that AHF had been 
sold but that Blaugrund retained a 10% interest in the company.  Id.  He further 
testified that one month after the trial, Glenn received a negative evaluation that 
rated her as "needs improvement" in 9 out of 11 categories.  PEOR131,133-34.
	The court subsequently granted nearly all of the EEOC's requested equitable 
relief in a May 12, 2006, order.  SEOR44.  The district court noted that Section 
706(g)(1), codified at 42 U.S.C.  706(g)(1), permits a court to award injunctive 
relief upon a finding that the respondent intentionally engaged in an unlawful 
employment practice.  SEOR45.  The jury, the court pointed out, found that AHF 
intentionally discriminated against Glenn and that the discriminators were the 
company's president and vice-president.  SEOR45-46.  The court found that AHF 
failed to "present 'clear and convincing proof of no reasonable probability of 
further noncompliance with the law'" and that there was no evidence that AHF 
"will not discriminate against other employees by way of retaliation for opposing 
unlawful practices or filing a charge of discrimination."  SEOR45.  Citing EEOC v. 
Goodyear Aerospace Corp., 813 F.2d 1539, 1543 (9th Cir. 1987), the court further 
found that injunctive relief "would deter [AHF] from future unlawful 
discrimination and would protect the aggrieved employee and others similarly 
situated from the fear of retaliation for filing a Title VII claim."  SEOR46.  
Additionally, the court said, "an injunction would (1) instruct [] Blaugrund and 
[AHF] that they must comply with federal law; (2) subject [AHF] to the contempt 
power of the federal courts [if AHF] commits future violations; and (3) reduce the 
chilling effect of any retaliation on AHF's employees' exercise of their Title VII 
rights.  Id. at 1544."  SEOR46.  Accordingly, the court granted the EEOC's request 
for injunctive relief.  This included, in part, the following: 1) enjoining AHF from 
discriminating based on race and from retaliating against employees who oppose 
discrimination; 2) expunging from Glenn's personnel file all references to her 
charge of discrimination and participation in this action; 3) providing Glenn a "To 
Whom it May Concern" letter, subject to her approval, giving her a positive 
recommendation and reflecting her performance evaluations prior to her filing her 
charge; 4) hiring a consultant, subject to the EEOC's approval, to provide Title VII 
training and to evaluate AHF's recruiting, hiring, and promoting practices; 5) 
updating its employee manuals and promotion procedures to include a section on 
steering and limiting persons to specific job positions, and distributing the manual; 
6) reevaluating its employee policies against race discrimination and retaliation 
and redistributing them; 7) filing bimonthly reports with the EEOC on any changes 
to its discrimination or retaliation policies, the filing of any race or retaliation 
complaints, the registry of persons attending training seminars, and a log of the 
names, race, and positions requested for those seeking promotion or transfers.  
SEOR46-51.
	AHF filed an amended notice of appeal, and then, with this Court's 
permission, a supplemental brief addressing its appeal of the injunctive relief, 
SEOR213, 220.

                         SUMMARY OF ARGUMENT
	This Court should affirm the judgment based on the jury's verdict finding 
that AHF discriminated against Glenn based on her race when it refused to 
promote her to the position of Assistant Home Products Manager.  Contrary to 
AHF's argument on appeal, the district court acted well within its discretion in 
finding that the EEOC made proper discovery disclosures as to the basis for its 
request for punitive and compensatory damages and in therefore refusing to 
exclude witness testimony as to Glenn's damages.  As the court noted, the EEOC's 
complaint informed AHF that the EEOC would seek punitive and compensatory 
damages.  Early in the litigation the EEOC disclosed the amount of damages it was 
seeking and that Glenn had information as to her compensatory damages, and AHF 
deposed her.  Moreover, as the court found, AHF had two years before trial in 
which to raise the EEOC's purported discovery violations but failed to do so.  
	This Court should reject AHF's argument that the jury's interrogatories and 
verdict were inconsistent because AHF never raised this argument below and has 
therefore waived it.  Even if AHF had not waived this argument, however, this 
Court should reject it.  AHF's argument is grounded in its profound 
misunderstanding of Title VII and its misrepresentation of the jury's fourth 
interrogatory response.  An employer violates Title VII when a plaintiff shows that 
race was a "motivating factor," even though the employer also had legitimate 
business reasons for its action.  Here, the jury rejected the theory that race 
discrimination was the sole reason for Glenn's non-promotion.  The jury 
concluded, however, that race was a motivating factor.  This established liability.  
The jury also found that AHF had failed to prove that it would have made the same 
decision without taking Glenn's race into consideration, entitling the EEOC to 
compensatory and punitive damages in addition to injunctive relief.  
	Although it is far from clear, AHF also appears to be trying to argue that the 
verdict is inconsistent because the evidence does not support the finding of liability 
or the award of damages, which is essentially an argument as to the insufficiency 
of the evidence.  AHF also clearly waived this argument because it failed to make 
it below in any post-judgment motion for judgment as a matter of law or for a new 
trial.  This argument also fails on the merits because the jury was presented with an 
abundance of evidence that supported its finding of liability and the award of 
damages. To the extent that AHF is also trying to argue that punitive damages are 
unavailable under Title VII or, more specifically, in mixed-motive cases under 
Title VII, this Court should reject that argument.  Punitive damages have been 
available for Title VII violations since 1991.  Neither the statute nor any Supreme 
Court or Ninth Circuit case has ever limited the availability of punitive damages to 
"single motive" cases. 	
	Finally, this Court should hold that the district court acted well within its 
broad discretion in granting equitable relief.  Contrary to AHF's argument on 
appeal, the jury's verdict clearly established that AHF engaged in intentional 
discrimination.  The court properly found that AHF failed to meet its burden of 
showing that future violations of Title VII were unlikely to recur.  Accordingly, the 
grant of injunctive relief was not an abuse of discretion.

                         ARGUMENT
I. 	This Court should affirm the jury's verdict finding that AHF violated Title 
VII by discriminating against Glenn because of her race and awarding back 
pay and compensatory and punitive damages.
	
	 AHF challenges the jury verdict and award of damages on multiple grounds.  
Most of AHF's arguments are extremely convoluted and difficult to understand, 
but the primary arguments appear to be as follows.<6> First, AHF argues that the 
district court erred in failing to exclude as a discovery sanction damage testimony 
from Glenn and other witnesses.  Br. at 25-34.  Second, AHF argues that the jury's 
answers to interrogatories were internally inconsistent and inconsistent with the 
jury verdict.  Br. at 34-44.  Although it is far from clear, AHF also appears to argue 
that the verdict and award of damages are inconsistent because the evidence does 
not support them.  Br. at 34-45.  Finally, AHF argues that punitive damages were 
inappropriate, either because they are unavailable under Title VII or because they 
are not supported by the evidence.  Br. at 44-49.  With the exception of AHF's first 
argument, all of these arguments were waived by AHF's failure to raise them 
below in any post-verdict motions for judgment as a matter of law or for a new 
trial.  Moreover, none of AHF's arguments are meritorious.
 
A.	The district court acted well within its discretion when it refused 
 to exclude witness testimony as to Glenn's damages as a Rule 37 
discovery sanction.

	Although it does not state what relief it is seeking, AHF argues that the 
district court erred in refusing to impose as a discovery sanction the exclusion from 
trial of the testimony of Glenn and other unnamed witnesses as to compensatory 
and punitive damages.<7> The standard of review for this claim, which AHF fails to 
note, is abuse of discretion.  Fjelstad v. American Honda Motor Co., 762 F.2d 
1334, 1337 (9th Cir. 1985) (also stating that findings of fact related to discovery 
order are reviewed for clear error and that selection of appropriate legal standard is 
reviewed de novo); see also Yeti By Molly, Ltd. v. Deckers Outdoor Corp., 259 
F.3d 1101, 1106 (9th Cir. 2001) (noting court's "particularly wide latitude" as to 
imposition of discovery sanctions).  AHF has failed to show that the district court 
erred in concluding that the EEOC did not engage in any discovery violations, 
much less that the district court abused its discretion in refusing to exclude from 
trial testimony as to compensatory and punitive damages.  Accordingly, this Court 
should reject AHF's argument.
	Relying exclusively on Weinberg v. Whatcom County, 241 F.3d 746 (9th 
Cir. 2001), AHF argues that the damages testimony should have been excluded 
under Rule 37 of the Federal Rules of Civil Procedure because the EEOC failed to 
adequately disclose the basis for the Commission's request for compensatory and 
punitive damages.  See Fed. R. Civ. P. 37(c)(1) (stating that a "party that without 
substantial justification fails to disclose information required by Rule 26(a) . . . is 
not, unless such failure is harmless, permitted to use as evidence at a trial . . . any 
witness or information not so disclosed").  Specifically, AHF contends that the 
EEOC failed to adequately disclose a proper damages calculation, provide 
information in its interrogatories as to Glenn's damages, disclose before the 
Pretrial Order that Glenn might testify as to emotional damages, or designate a 
witness besides Glenn to testify as to damages.  Br. at 26, 29.  Additionally, AHF 
asserts that Glenn did not provide answers during her deposition to questions about 
what she was seeking in punitive damages.
	The district court properly found that the EEOC had not engaged in any 
discovery violations.  As the court noted, AHF knew from the beginning of this 
litigation that the EEOC sought compensatory and punitive damages.  PEOR14.  
The "Prayer for Relief" in the EEOC's complaint stated that the EEOC was 
seeking compensatory damages "including emotional pain, suffering, 
inconvenience, loss of enjoyment of life and humiliation, in amounts to be 
determined at trial" as well as "punitive damages for [AHF's] malicious and/or 
reckless conduct . . . in amounts to be determined at trial."  EOR20.  AHF admitted 
below that the EEOC stated in its initial disclosures an amount of punitive and 
compensatory damages the EEOC sought.  EOR42;PEOR2.  AHF further 
conceded - and the district court noted below - that the EEOC stated in its answers 
to interrogatories that Glenn had information regarding her compensatory 
damages.  EOR43; PEOR14.  The district court further noted that AHF deposed 
Glenn, thereby giving it the opportunity to ask about her damages.  PEOR14.  
While AHF argues that Glenn did not provide sufficient response in her deposition 
as to the grounds for her punitive damage award, the district court properly noted 
that AHF's employees - not Glenn - would be the witnesses with testimony 
relevant to punitive damages.<8> Moreover, Glenn stated in her deposition that she 
did not understand counsel's questions about punitive damages.  EOR52.  She 
answered AHF's questions about her compensatory damages, stating that she felt 
"very hurt because of this discrimination and not [being] promot[ed]" and that she 
"never imagined this would happen to [her]."  PEOR7.   Additionally, she testified 
that she had been unhappy with how her interview went and that being passed over 
for the promotion made her "upset" and "sad."  PEOR4-6.  This testimony was 
sufficient to notify AHF of the basis for the EEOC's request for compensatory 
damages.  Although AHF asserts that the EEOC needed other witnesses, and even 
an expert witness, the EEOC did not need to produce any witness besides Glenn to 
testify as to her compensatory damages.  Zhang v. American Gem Seafoods, Inc., 
339 F.3d 1020, 1040 (9th Cir. 2003) ("[Plaintiff's]'s testimony alone is enough to 
substantiate the jury's award of emotional distress damages.").
	Even assuming for the sake of argument that the EEOC's disclosures 
somehow constituted a discovery violation, the district court did not abuse its 
discretion in refusing to exclude from trial the damages testimony.  As the district 
court stated, AHF had two years in which to object to the EEOC's disclosures.  It 
did not.  Instead, AHF waited until the eve of trial to object and then sought the 
extreme sanction of excluding Glenn's own testimony about her damages.  "It 
would be an unfair trial strategy for a party to not inform the opposing party that its 
disclosures are inadequate and then wait until right before trial to ask a court to 
strike the evidence."  PEOR (Order at n.3).  See Heath v. Cast, 813 F.2d 254, 261-
62 (9th Cir. 1987) (holding that the district court did not abuse its discretion in 
refusing to allow expert witness to be recalled at trial where the plaintiff claimed it 
had just learned of her expert report but court found that plaintiff knew of the 
report during discovery and "could have moved to compel its production and 
neglected to do so").  
	The district court also properly found that Weinberg v. Whatcom County is 
distinguishable.  In that case, the plaintiff brought a claim for negligence and 
unconstitutional takings but failed to produce any competent evidence as to his 
damages or to even name an expert witness who could offer damage evidence.  
Weinberg, 241 F.3d at 751-52.  Accordingly, the district court dismissed the claim 
on summary judgment for failing to offer any proof of damages.  Weinberg, 241 
F.3d at 752.  This Court affirmed.  Id.  As the district court found below, Weinberg 
is factually distinguishable from this case because the EEOC identified Glenn as a 
witness with information relevant to compensatory damages, the EEOC told AHF 
the exact amount it was seeking in punitive and compensatory damages, and AHF 
had the chance to depose Glenn.  Additionally, as the district court stated, AHF's 
own employees were the witnesses with information relevant to the availability of 
punitive damages.  PEOR14.  
	Weinberg is also distinguishable, as the court found below, because this 
Court explicitly stated in Weinberg that it was reviewing the district court's ruling 
under a summary judgment standard, which is de novo, instead of the more 
deferential abuse-of-discretion standard applicable to Rule 37 discovery sanctions.  
Although AHF seems to argue that Weinberg is dispositive because the EEOC did 
not, like the plaintiff in Weinberg, offer an expert witness, Br. at 29, this argument 
is meritless because the EEOC had no obligation to offer an expert witness.  
Zhang, 339 F.3d at 1040 (holding that plaintiff's testimony alone can support 
compensatory damage award).  	
	Finally, AHF argues in passing that the district court's refusal to exclude 
Glenn's damage testimony was erroneous in light of the court's order granting the 
EEOC's Rule 37 motion to exclude the testimony of Jose Fernandez for failure to 
timely disclose him as a witness.  According to AHF, "the issue of damages is 
much more critical to a case than not disclosing a witness" and "the court should 
have been consistent in its rulings."  Br. at 32.  AHF's tit-for-tat argument is 
unavailing.  First, the court's ruling as to Fernandez was based on AHF's failure to 
timely disclose him as a witness whereas there is no question that the EEOC 
disclosed Glenn early on as a witness with information relevant to damages.  
Second, AHF has not argued that the court's order excluding Fernandez was error.  
Therefore, that ruling has no place in this appeal.  The district court's obligation 
under Rule 37 was simply to conduct an individualized determination as to 
whether the EEOC had, "without substantial justification," failed to disclose 
information required by Rule 26(a) and, if so, whether the failure was harmless.  
The record clearly establishes that the EEOC did not fail to disclose information 
required by Rule 26(a).  Therefore, this Court should find that the district court 
acted well within its discretion when it refused to exclude from trial Glenn's 
testimony, or that of other witnesses, as to compensatory and punitive damages.
B.	AHF waived both its argument that the jury's interrogatories were 
inconsistent and any argument that the evidence was insufficient to 
support the jury's finding of liability or award of damages.

	In Point III of its brief, AHF argues that the jury's interrogatories were 
inconsistent with each other and led to an improper verdict, entitling AHF to a new 
trial or judgment as a matter of a law.  Br. at 34.  As an initial matter, we note that 
under Rule 49(b) of the Federal Rules of Civil Procedure a court has only two 
options when presented with answers to interrogatories that are inconsistent with 
each other and when one or more is inconsistent with the general verdict -  to 
"return the jury for further consideration of its answers and verdict" or to "order a 
new trial."  Fed. R. Civ. P. 49(b).  Accordingly, AHF would not be entitled to 
judgment as a matter of law even if the answers were inconsistent.  This is a moot 
point, however, because AHF has waived its argument that the interrogatories were 
inconsistent by failing to raise it below.  
	After the jury returned its verdict, the judge asked counsel whether any 
further record needed to be made, and counsel from AHF answered "no."  
PEOR124.  Accordingly, AHF did not make an oral Rule 49(b) motion at trial.  
Nor did AHF ever file a written post-trial Rule 49(b) motion seeking a new trial.  
EOR13-15.  Thus, AHF waived this argument.  Arachnid v. Medalist Marketing 
Corp., 972 F.2d 1300, 1304 (9th Cir. 1992) ("Since [plaintiff] failed to present its 
Rule 49(b) argument at any time to the district court, we consider it waived . . . .") 
(emphasis added).<9>
 	Although it is far from clear, AHF also seems to argue in Point III of its 
opening brief that the evidence was insufficient to support the jury's finding of 
liability or damages and that AHF is therefore entitled either to judgment as a 
matter of law or to a new trial.  See Br. at 34 (asserting that "the jury verdict is 
inconsistent" and requires a new trial "but for two optional readings, either of 
which would lead to outright reversal and a finding for the employer"), 37 ("The 
EEOC has not shown race-based discrimination against Ms. Glenn at work."; "Ms. 
Glenn never testified as to any financial loss, so there was no basis for any 
damages being awarded."; "The verdict was inconsistent as to both liability and 
damages.").  AHF also waived its insufficiency-of-the-evidence argument, 
however, by failing to file any post-trial motions below.  See Unitherm Food Sys., 
Inc.  v. Swift-Eckrich, Inc., -- U.S. -- , 126 S.Ct. 980, 987 (2006) (holding that a 
party's failure to file a post-verdict Rule 50(b) motion or a motion for a new trial 
precludes that party from seeking on appeal a new trial based on insufficiency of 
the evidence); Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 218 (1947) 
(holding that in the absence of a post-verdict Rule 50(b) motion an "appellate court 
[is] without power to direct the District Court to enter judgment contrary to the one 
it had permitted to stand"); see also Desrosiers v. Flight Int'l of Florida, Inc., 156 
F.3d 952, 957 (9th Cir. 1998) ("Because [defendant] failed to make a Rule 50(b) 
motion, this court has no power to grant, and therefore cannot consider, a judgment 
as a matter of law.").  
	Even if AHF had properly raised below its insufficiency-of-the evidence 
arguments by filing the appropriate post-trial motions, this Court should find that 
AHF waived these argument on appeal by failing to properly develop them.  See 
Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) ("Issues raised in 
a brief that are not supported by argument are deemed abandoned.").  AHF failed 
to cite the appropriate standard or rule for granting a motion for a new trial or for 
judgment as a matter of law based on the sufficiency of the evidence, to cite or 
discuss the applicable law as to the jury's finding of liability and the award of 
damages, or to discuss the evidence in any depth with appropriate cites to the 
record. 

C.	Even if AHF had not waived its arguments as to the consistency of the 
verdict or sufficiency of the evidence, this Court should affirm the 
jury's finding of liability and award of damages.

		1. 	The jury's interrogatory answers and verdict are consistent.
	AHF asserts that the jury's interrogatory answers are inconsistent because 
the "jury found a race-based motive under one interrogatory" and "found 'mixed 
motive' in three different answers in two other sections, thereby making the 
"verdict [ ] inconsistent as to both liability and damages" and entitling AHF to "a 
new trial or revers[al]" of the verdict.  Br. at 34-38.  As discussed above, the 
remedy available under Rule 49(b) for inconsistent answers to interrogatories is a 
new trial, not judgment as a matter of law.  AHF is not entitled to a new trial, 
however, because the jury's answers to the interrogatories are absolutely consistent 
with the jury's finding that AHF is liable for having discriminated against Glenn 
based on her race.  See Ward v. City of San Jose, 967 F.2d 280, 286 (9th Cir. 1991) 
(stating that when a motion for a new trial is based on "an alleged inconsistency in 
the jury verdict, the question is whether the verdict can be reconciled on any 
reasonable theory consistent with the evidence"); Norris v. Sysco Corp., 191 F.3d 
1043, 1047 (9th Cir. 1999) (stating that verdict inconsistency is a question of law 
subject to de novo review).  AHF's arguments to the contrary, which are virtually 
incoherent, are based on its fundamental misunderstanding of Price Waterhouse v. 
Hopkins, 490 U.S. 228 (1989), and Title VII, as well as AHF's misrepresentation 
of the jury's answer to the fourth interrogatory.
	We begin with the law.  On pages 38-44 AHF purports to offer a synopsis of 
Price Waterhouse and the mixed motive theory.  AHF makes the misguided 
assertion that Price Waterhouse "absolutely extinguished all theories other than 
mixed motive theories."  Br. at 41.  This is wrong.  Title VII prohibits disparate 
treatment based on a protected trait, such as race.  See 42 U.S.C.  2000e-2(a) ("It 
shall be an unlawful employment practice for an employer to . . . discriminate 
against any individual . . . because of such individual's race . . . .") (emphasis 
added).  It has always been the case that a plaintiff can establish a violation of Title 
VII by showing that race was the sole reason for an employment action.  See, e.g., 
Price Waterhouse, 490 U.S. at 260 (White, J., concurring in the judgment) ("In 
[single-motive] cases, the 'issue is whether either illegal or legal motives, but not 
both, were the "true" motive behind the decision.'") (citation omitted).  Price 
Waterhouse did nothing to alter, much less to "extinguish," the single-motive 
theory.  See e.g., Oncale v. Sundowner Offshore Servs. Inc., 523 U.S. 75, 79-80 
(1998) (emphasizing that Title VII prohibits discrimination "because of" a 
protected trait); Costa v. Desert Palace, Inc., 299 F.3d 838, 856 (9th Cir. 2002) 
("If, based on the evidence, the trial court determines that the only reasonable 
conclusion a jury could reach is that discriminatory animus is the sole cause for the 
challenged employment action or that discrimination played no role in the 
employer's decision-making, then the jury should be instructed to determine 
whether the challenged action was taken 'because of' the prohibited reasons.  42 
U.S.C.  2000e-2(a)."), aff'd, 539 U.S. 90 (2003).  
	The question presented in Price Waterhouse was whether an employment 
decision is "because of" sex in a "mixed motive" case, i.e., a case in which an 
employer offers evidence that both legitimate and illegitimate reasons motivated 
the decision.  Price Waterhouse, 490 U.S. 228.  The Court held that in such a case, 
an employer had an affirmative defense to liability if it could prove that it would 
have take the same action without considering the plaintiff's gender.  Price 
Waterhouse, 490 U.S. at 242, at 261 (O'Connor, J., concurring in judgment).  The 
Court was divided, though, over the issue of when the burden of proof shifts to an 
employer to prove the affirmative defense.  Id. at 258 (White, J., concurring in 
judgment), at 261 (O'Connor, J., concurring in judgment).  Congress disagreed 
with the Court's ruling and in 1991 passed an amendment to Title VII.  While AHF 
asserts that the 1991 amendment to Title VII did "not change the standard 
evaluating mixed motive personnel actions," it did just that.  Br. at 44.  Contrary to 
Price Waterhouse - which stated that an employer is not liable for discrimination if 
it would have taken the same action without considering the plaintiff's protected 
characteristic - Section 107 of the 1991 amendment states that an employer is 
liable whenever a plaintiff shows that race was a "motivating factor for an 
employment practice, even though other factors also motivated the practice."  42 
U.S.C.  2000e-2(m).  An employer can limit the remedies available in "mixed 
motive" cases, however, by showing that it "would have taken the same action in 
the absence of the impermissible motivating factor."  42 U.S.C.  2000e-
5(g)(2)(B).  In such a case, the plaintiff is entitled to declaratory relief, limited 
injunctive relief, and attorney's fees and costs, but not damages or any "order 
requiring any admission, reinstatement, hiring, promotion, or payment."  Id.  Thus, 
"single-motive" and "mixed motive" cases both require the employee to prove 
intentional discrimination, but in "mixed motive" cases an employer can avail 
itself of an affirmative defense to limit the scope of available remedies. Costa, 299 
F.3d at 857.
	Here, the jury's answers to the interrogatories show that it rejected the 
theory that Glenn's race was the sole reason for her non-promotion.  EOR78 
(answering "no" to the first question, which asked whether the EEOC had proved 
that Glenn's race or color was the "sole reason for the Defendant's decision to not 
promote her").  As to the second interrogatory, however, the jury answered "yes" 
to the question of whether the EEOC had shown that Glenn's race was a 
"motivating factor" in her non-promotion.  EOR78.  The jury's finding that race 
was a "motivating factor" - even if it was not the sole factor - established AHF's 
liability for violating Title VII.  See 42 U.S.C.  2000e-2(m) (stating that an 
"unlawful employment practice is established when" the plaintiff shows that race 
or color "was a motivating factor for any employment practice, even though other 
factors also motivated the practice").  In response to the second and third 
interrogatory questions, the jury found that AHF had a legitimate reason not to 
promote Glenn and that its decision not to promote her was "motivated by a lawful 
reason."  EOR78-79.  Finally, the fourth interrogatory asked whether AHF had 
established its affirmative defense to damages.  The question asked, "Has the 
defendant proved, by a preponderance of the evidence, that the defendant would 
have made the same decision not to promote LaWanda Glenn even if her race or 
color had played no role in the Defendant's decision to not promote her?"  AHF 
falsely stated in its brief that the jury answered "YES" to this question.<10> Br. at 35.  
In fact, the jury answered "NO" - meaning that AHF had failed to prove that it 
"would have made the same decision not to promote LaWanda Glenn even if her 
race or color had played no role in the Defendant's decision to not promote her."  
EOR79.  Therefore, AHF failed to establish its affirmative defense to the scope of 
remedies available, entitling the EEOC not only to declarative and injunctive relief 
but also to damages.  42 U.S.C.  2000e-5(g)(2)(B).  The jury's answers to the 
interrogatories thus were consistent with the verdict, which states, "We the jury, 
finding in favor of the plaintiff and against the defendant," and awarded damages.  
EOR80.  Accordingly, this Court should reject AHF's argument that the 
interrogatories are inconsistent with each other or the verdict.

2.	The evidence was more than sufficient to support the jury's finding 
of liability.

	This Court should reject AHF's suggestion that it is entitled to a new trial or 
judgment as a matter of law because "the EEOC has not shown race-based 
discrimination against Ms. Glenn at work."  Br. at 37; see also Br. at 38 (asserting 
that "this Court can remand this case for a new trial or reverse the verdict").  Had 
AHF actually filed a Rule 50(b) motion and had the district court rejected it, this 
Court would conduct a de novo review of the district court's order.  Costa, 299 
F.3d at 859.  The standard for granting a Rule 50(b) for motion for judgment as a 
matter of law - which AHF fails to set forth in its brief - is "very high."  Id.   This 
Court "can overturn the jury's verdict and grant such a motion only if there is no 
legally sufficient basis for a reasonable jury to find for" the EEOC.  Id.; see also 
Fed. R. Civ. P. 50(a).  In making its determination, this Court is prohibited from 
making credibility determinations or weighing the evidence, and it must draw all 
reasonable inferences in favor of the EEOC.  Reeves v. Sanderson Plumbing 
Prods., Inc., 530 U.S. 133, 150-51 (2000).  The denial of a motion for new trial is 
reviewed for abuse of discretion, and can be reversed only if the district court 
makes a legal error in applying the standard for a new trial or the record contains 
no evidence that can support the verdict. Graves v. City of Coeur D'Alene, 339 
F.3d 828, 839 (9th Cir. 2003).  Here, the evidence is clearly more than sufficient to 
support the jury's finding that Glenn's race and/or color was a motivating factor in 
AHF's failure to promote her to Assistant Home Products Manager.  Without 
going into great detail, we briefly review that evidence here.
	At trial, the EEOC offered evidence that Glenn, an African-American, 
applied for, and was qualified for, the position but was rejected despite her 
qualifications, and that AHF later filled the position with Holly Kline, a Caucasian.  
See supra, at pgs. 6-10.  Accordingly, the EEOC established a prima facie case of 
discrimination.  Lyons v. England, 307 F.3d 1092, 1112 (9th Cir. 2002) (reciting 
prima facie case standard for failure-to-promote claim).  The EEOC also offered 
evidence that AHF's explanations for failing to promote Glenn were unworthy of 
belief, which, together with the EEOC's prima facie case, allowed the jury to infer 
that AHF was "dissembling to cover up a discriminatory purpose."  Reeves, 530 
U.S. at 147.  Although Leveque told Roe and Dougherty that Glenn had used poor 
grammar and incorrect English in the interview, Dougherty testified that Glenn had 
used proper English when she interviewed her.  PEOR49-50;EOR117.  Leveque 
also testified that he did not promote Glenn because she had moved around too 
much in the company, but the EEOC offered evidence that AHF consistently 
promoted another Caucasian employee, Eric Thompson, who had requested three 
job transfers in five months and never offered him career counseling.  PEOR30-31.  
Similarly, while Leveque also testified that he did not promote Glenn because she 
said during her interview that she wanted to move up in the company, the EEOC 
offered evidence that Kline stated on her Job Placement Request that she wanted 
the job out of a "desire to move up in the company, wanting to move past 
salesperson status."  PEOR39.  Finally, although Leveque purportedly did not 
promote Glenn because he did not like her answers to hypothetical sales scenarios 
he gave her, he never gave these sales scenarios to Kline.  PEOR37-38.  This 
evidence, in conjunction with evidence supporting the EEOC's prima facie case is, 
standing alone, sufficient to support the jury's verdict.  See Reeves, 530 U.S. 148 
("[A] plaintiff's prima facie case, combined with sufficient evidence to find that 
the employer's asserted justification is false, may permit the trier of fact to 
conclude that the employer unlawfully discriminated.").
	The EEOC offered even more evidence, however, that supported the jury's 
finding of discrimination.  Specifically, the EEOC showed that the circumstances 
surrounding the promotion process were irregular, which is probative of pretext.  
See Lyons, 307 F.3d at 1101-02, 1115-16 (recognizing that failure to adhere to 
standard procedures may be evidence of pretext).  Undisputed evidence at trial 
showed that Kline had not even applied for the Assistant Home Products Manager 
position, Glenn was the only candidate, both Dougherty and Roe recommended 
her, Dougherty's supervisors had never before disagreed with her promotion 
recommendations, and Leveque had never before - and has never since - 
interviewed an assistant manager candidate.  See supra pgs. 6-10.  The EEOC also 
offered evidence that there were no African-American managers at the Oracle 
store, which is probative of pretext.  PEOR111,116.  Bergene v. Salt River Project 
Agric. Improvement & Power Dist., 272 F.3d 1136, 1143 (9th Cir. 2001) (holding 
that absence of female supervisors is probative of pretext).  Additionally, Dudley-
Hronich, who was then a manager in AHF's Human Resources Department, 
overheard a conversation between Blaugrund and Leveque sometime before 
Glenn's non-promotion.  According to her, Blaugrund was upset and told Leveque 
"to get something on LaWanda [Glenn] because he didn't want her running his 
housewares department."  PEOR62.  The jury reasonably could have found that 
this evidence, in toto, showed that Glenn's race was a motivating factor in her non-
promotion.  Because the evidence in the record is clearly sufficient to support the 
jury's finding of liability, this Court should affirm the judgment in favor of the 
EEOC on its Title VII claim.

3.	The evidence was more than sufficient to support the award of 
compensatory damages and back pay.

	AHF asserts that "there was no basis for any damages being awarded" 
because "Glenn never testified to any financial loss."  Br. at 37.   AHF also argues 
that it actually did Glenn a favor by failing to promote her because she ended up 
making $182 more than she would have with the promotion.  This, AHF reasons, 
negates her claim for back pay.  Br. at 45-46.  Even if AHF could properly raise on 
appeal the sufficiency of the evidence to support the back pay and compensatory 
damage awards, this Court should affirm the awards because they are clearly 
supported by the evidence.  See Del Monte Dunes at Monterey, Ltd. v. City of 
Monterey, 95 F.3d 1422, 1435 (9th Cir. 1996) ("We must uphold the jury's finding 
[of damages] unless the amount is grossly excessive or monstrous, clearly not 
supported by the evidence, or based only on speculation or guesswork."). 
	Glenn's testimony supported the $30,000 compensatory damage award.  See 
Zhang, 339 F.3d at 1040 (stating that a plaintiff's own testimony as to her 
emotional damages is sufficient to support a compensatory damage award).  As 
discussed more fully above, see supra pgs. 11-12 , Glenn testified that AHF's 
refusal to promote made her feel sad, embarrassed, and upset and that she lost 
sleep over the decision.  This testimony was more than sufficient to support the 
relatively modest award of $30,000 in compensatory damages.  See Zhang, 339 
F.3d at 1041 (holding that the district court "committed no error, let alone a clear 
abuse of discretion, in denying" a motion for a new trial as to $123,000 + award 
for emotional distress based on the plaintiff's own testimony).
	There was also more than enough evidence offered at trial to support the 
$5,000 award for Glenn's back pay.  As set out above, both Glenn and Leveque 
offered testimony as to the gap in salary between what Glenn would have made as 
the Assistant Home Products Manager and what she actually did make at AHF 
during the years following the denial of her promotion.  According to Leveque, 
Glenn's lost wages amounted to $3,148.  Glenn testified, however, that had she 
gotten the Assistant Home Products Manager position, she may have received 
other promotions and, indeed, Kline was promoted to be the Home Products 
Manager within a short time of her initial promotion and her salary increased from 
$23,000 to $26,000.  EOR182;PEOR55-56.  Accordingly, the back pay award was 
supported by evidence as to Glenn's lost wages and evidence that had she received 
the promotion she likely would have received other promotions and would have 
made substantially more money.  See Passantino v. Johnson & Johnson Consumer 
Prods., Inc., 212 F.3d 493, 511 (9th Cir. 2000) (holding that $100,000 back pay 
award "could easily be derived from [plaintiff's] testimony estimating that she 
would have received between $130,000 and $200,000 more had she been 
promoted"). 

		4.  Punitive damages are available and the evidence supported them.
 	This Court should reject AHF's argument that the award of punitive 
damages was inappropriate.  AHF's argument on this point is extremely difficult to 
comprehend.  AHF seems to question whether punitive damages are even available 
under Title VII.  Br. at 47.  The clear answer is yes.  Punitive damages have been 
available for Title VII violations since Congress enacted the Civil Rights Act of 
1991, which made such damages available in cases of intentional discrimination 
upon a showing that the employer "engaged in a discriminatory practice . . . with 
malice or with reckless indifference to the federally protected rights of an 
aggrieved individual."  42 U.S.C.  1981a(b)(1); see also Kolstad v. Am. Dental 
Ass'n, 527 U.S. 526, 530 (1999) (considering "the circumstances under which 
punitive damages may be awarded in an action under Title VII").
	  AHF additionally seems to argue that even if punitive damages are 
available under Title VII, they are not available in mixed-motive cases.  Br. at 44-
45 (quoting 42 U.S.C.  2000e-5(g)(2) and asserting that "the provisions for 
compensating the employee or awarding punitive damages are gone").  This 
argument appears to be premised on AHF's misreading of Section 706(g)(2)(B).  
As discussed above, Section 706(g)(2)(B) provides an employer an affirmative 
defense to limit the scope of available remedies when the employer shows that it 
"would have taken the same action in the absence of the impermissible motivating 
factor."  42 U.S.C.  2000e-5(g)(2)(B).  Here, however, the jury concluded that 
AHF had not shown that it "would have made the same decision not to promote 
LaWanda Glenn even if her race or color had played no role in the Defendant's 
decision to not promote her."  EOR 79.  Accordingly, AHF failed to prove the 
affirmative defense available under Section 706(g)(2)(B), freeing the district court 
to award punitive damages.  See Costa, 299 F.3d at 863-64 (in mixed motive case, 
remanding for consideration of punitive damages under Kolstad standard).  
	AHF further appears to assert that punitive damages were unavailable 
because "there was no discrimination."  Br. at 46.  Even assuming that AHF can 
challenge on appeal the sufficiency of the evidence to support the award of 
punitive damages, an attack on liability has no place in a discussion of the 
appropriateness of punitive damages because damages are available only after 
liability has been established.  Accordingly, this Court will only reach the issue of 
punitive damages if it affirms the jury's verdict finding that AHF unlawfully 
discriminated against Glenn.  Therefore, AHF must assume for purposes of 
discussing the punitive damage award that it violated the statute.
	AHF next suggests that punitive damages are inappropriate because there 
was no "overt discrimination." Br. at 46.  AHF's point here seems to be that 
punitive damages are unavailable in those cases in which a jury has inferred a 
discriminatory motive in the absence of direct evidence of discrimination.<11> Br. at 
46-47.  As discussed above, however, a showing of "overt discrimination" is not 
required.  Instead, the statute requires "intentional discrimination," which the jury 
clearly found.  
	Continuing to misunderstand and misstate the standard for awarding punitive 
damages,  AHF goes on to argue that punitive damages are also inappropriate 
because the EEOC did not show "identifiable discrimination with identified 
perpetrators and victims and a showing that the violation is likely to recur," that 
Glenn had met her "duty to mitigate back pay damages by seeking alternative 
employment with 'reasonable diligence,'" the existence of a "rational relationship 
between the wrong and the remedy," or "specific, malicious acts committed or 
condoned by identified supervisors."  Br. at 48-49.  This argument inappropriately 
suggests that the standards for back pay (where an employer can show that the 
plaintiff failed to mitigate her damages) and awarding injunctive relief (which is 
inappropriate where the employer shows that the violation is unlikely to recur) 
somehow inform a determination of whether to award punitive damages.  They do 
not.  In Kolstad v. American Dental, which AHF wrongly describes as holding that 
punitive damages require "a showing of specific malicious acts committed or 
condoned by a specific manager," Br. at 49, the Court set out the circumstances for 
awarding punitive damages.  The Court rejected the argument that Section 1981a 
requires "a showing of egregious or outrageous discrimination independent of the 
employer's state of mind." Id. at 535.  Instead, the Court held, a plaintiff must 
show that the employer discriminated "in the face of a perceived risk that its 
actions w[ould] violate federal law."  Id. at 536.  A plaintiff may establish this by 
showing that the discriminator knew of or was familiar with the antidiscrimination 
laws.  Id.  In general, a finding of intentional discrimination is sufficient to show 
the employer acted with malice or reckless indifference to the plaintiff's federally 
protected rights.  See id. at 536-37.  Egregious misconduct can supply evidence of 
the required state of mind, but it is not required.  Id. at 535.   The Court outlined 
two situations in which a showing of intentional discrimination might not be 
enough to meet the standard for awarding punitive damages, however: 1) when the 
employer was actually unaware of its Title VII obligations; or 2) when the 
employer believed that its discrimination was lawful, either because the plaintiff's 
theory of discrimination is novel or poorly recognized or the employer wrongly 
believes that it had a valid bona fide occupational qualification defense.  Id. at 537.
	AHF does not contend that either of these two exceptions are present here.  
AHF instead argues that punitive damages were not warranted because "the jury 
found that there was a legitimate business reason not to promote LaWanda Glenn" 
and because the "egregious facts to support punitive damages are nowhere 
available in this case."<12> Br. at 49.  AHF's former point is meritless because, as 
discussed above, punitive damages are available in mixed-motive cases, which, by 
definition, involves cases in which an employer has both lawful and unlawful 
reasons for taking an employment action.  AHF's latter point is also unavailing 
because, as discussed above, egregious conduct independent of AHF's state of 
mind is not required to award punitive damages.  The evidence, already discussed 
above, that supports the jury's finding of intentional discrimination also supports 
the jury's finding that AHF acted with malice or reckless disregard to Glenn's 
federally protected rights.  Certainly, the evidence supported the finding that 
Blaugrund and Leveque - AHF's President and Vice-President - were familiar 
with Title VII and AHF's EEO policy and were aware that failing to promote 
Glenn because of her race would violate the statute.  Additionally, the jury may 
have found that Leveque lied to Glenn, Dougherty, and Roe about why he did not 
promote Glenn and that both he and Blaugrund lied on the stand to cover up their 
racial discrimination.  This evidence further supports the award.  See Passantino, 
212 F.3d at 516 (affirming punitive damage award and stating that the jury could 
have found that defense witnesses lied to the plaintiff and at trial about their 
actions to cover up for retaliation).
II. 	The district court acted well within its discretion in granting the EEOC's 
motion for equitable relief.

	This Court should reject AHF's argument that the district court abused its 
discretion by granting the EEOC's motion for equitable relief.  See EEOC  v. 
Goodyear Aerospace Corp., 813 F.2d 1539, 1544 (9th Cir. 1987) (abuse of 
discretion standard applies to grant of injunctive relief).  Title VII states that upon 
a finding that an employer "has intentionally engaged in or is intentionally 
engaging in an unlawful employment practice . . . the court may enjoin the 
[employer] from engaging in such unlawful employment practice, and order such 
affirmative action as may be appropriate . . . ."  42 U.S.C.  2000e-5(g)(1).  In 
evaluating a request for injunctive relief, a district court must exercise its discretion 
in light of the prophylactic purposes of federal law: deterrence of future 
discrimination and make-whole relief for victims of discrimination.  Ablemarle 
Paper v. Moody, 422 U.S. 405, 418 (1975).
	Here, AHF makes two fundamental legal errors that undermine its argument 
that the district court abused its considerable discretion in granting injunctive 
relief.  First, AHF argues that there has been "no showing" that it engaged in 
intentional discrimination.  Supp. Br. at 8.  This argument again reflects AHF's 
unrelenting misunderstanding of both Title VII and the jury's verdict in this case.  
When a plaintiff alleges that she was discriminated against "because of" a 
protected characteristic, her claim is one of unlawful intentional discrimination.  
See 42 U.S.C.  2000e-2(a).  As discussed in detail above, the jury found that that 
Glenn's race/color was a motivating factor in AHF's decision not to promote her, 
even though AHF had other lawful reasons for not promoting her.  Thus, the jury 
found in favor of the EEOC on its claim of intentional discrimination, which 
permitted the district court to award injunctive relief under Section 2000e-5(g).  To 
the extent that AHF is arguing that injunctive relief is inappropriate because the 
evidence does not support the jury's finding that race or color was a motivating 
factor, that argument should be rejected because this Court will only reach the 
issue of injunctive relief if it rejects AHF's argument as to liability.  Consequently, 
AHF must assume for purposes of its discussion of the injunctive relief that it 
violated the statute.
	Second, AHF repeatedly states that the EEOC had the burden of establishing 
that future violations of the statute were unlikely to recur, but it is well established 
that AHF - not the EEOC - bore this burden.  Supp. Br. at 7; see, e.g., EEOC v. 
Hacienda Hotel, 881 F.3d 1504, 1519 (9th Cir. 1989) ("[V]ictims of employment 
discrimination generally are entitled to an injunction against future discrimination, 
unless the employer proves it is unlikely to repeat the practice.") (citing Goodyear, 
813 F.2d at 1544), abrogated on other grounds by Ellerth v. Burlington Indus., 524 
U.S. 742 (1998), Faragher v. City of Boca Raton, 524 U.S. 775 (1998).  AHF 
suggests that in any event it met this burden by showing that no other charges of 
discrimination or retaliation have ever been filed against it, there has been "no 
evidence of any store-wide problem of discrimination," it has an EEO policy and 
"zero tolerance" for discrimination, it never retaliated against Glenn (and, in fact, 
promoted her), and it has "laid out a proper ten-point post-decision plan for 
handling Glenn's personnel file and inquiries about her."  Supp. Br. at 6-14.  None 
of these points show that the district court abused its discretion in concluding that 
AHF had failed to meet its burden of showing that it was unlikely to violate Title 
VII in the future.
	AHF's suggestion that injunctive relief is inappropriate in the absence of a 
pattern or practice of discrimination is misplaced.  Nothing in Title VII limits the 
availability of injunctive relief to pattern or practice cases.  See Goodyear, 813 
F.3d at 1544-45 (in individual disparate treatment case, discussing standard for 
injunctive relief and remanding for consideration of merits and, if necessary, 
injunctive relief); see also Bruso v. United Airlines, Inc., 239 F.3d 848, 864 (7th 
Cir. 2001) ("[A] successful discrimination plaintiff need not demonstrate that his 
employer engages in a pattern or practice of discrimination in order to receive 
injunctive relief.").  Nor does the absence of other charges show that future 
violations are unlikely. Hacienda Hotel, 881 F.3d at 1519 (concluding that "the 
absence of further EEOC charges in recent times [is] encouraging," but it does not 
compel a district court to deny injunctive relief).
	The fact that AHF has an EEO policy and that Blaugrund testified that AHF 
has a "zero tolerance" policy also fails to satisfy AHF's burden of showing that 
future violations are unlikely.  Even a cursory glance at the policy - which is not 
even a page long - shows that it is inadequate.  EOR266.  For instance, the policy 
completely fails to inform employees how they would report any instances of race 
discrimination or retaliation.  EOR 266.  Nor does it state that employees will be 
protected from retaliation for doing so.  Even if the policy were adequate, however, 
its existence would not show that future violations are unlikely.  The policy was in 
place at the time Glenn was denied her promotion, which shows that an employer 
who fails to enforce its policies - like AHF - is just as likely to commit future 
violations of the statute as is an employer with no such policies.  EOR266; see 
Bruso, 239 F.3d at 864 (noting that the employer ignored anti-harassment policies 
and holding that the district court abused its discretion in refusing to award any 
injunctive relief).  
	AHF's argument that it established that future violations are unlikely 
because it did not retaliate against Glenn - and, in fact, promoted her -  is also 
unavailing.  As a factual matter, there was evidence presented to the district court 
suggesting that AHF has, indeed, targeted Glenn for retaliation because she filed a 
charge.  Blaugrund and Carlson, the then-Director of Loss Prevention, testified that 
after Glenn filed her charge, Blaugrund called Carlson and told her to "monitor" 
Glenn and get something "concrete" on her.  EOR155-57; PEOR113. Additionally, 
Leveque admitted at the December 5, 2005, hearing on injunctive relief that Glenn, 
who had previously received positive performance evaluations and promotions and 
raises, had been rated immediately after the trial as "needs improvement" in 9 out 
of 11 categories.  PEOR131,133-34.  Even if there were not any evidence that AHF 
has sought to retaliate against Glenn, however, this fact would not establish that 
future violations are unlikely.  This Court has rejected the argument that evidence 
that an employer has ceased to discriminate by promoting a plaintiff establishes 
that future violations are unlikely.  Goodyear, 813 F.3d at 1545.  Additionally, 
there was testimony from Dudley-Hronich - the former Human Resources Director 
- that if she saw Blaugrund discriminate, she would not have talked to him about it 
because she was concerned she might lose her job.  PEOR69-70.  
	Thus, the district court properly found that AHF had failed to present 
evidence that future violations were unlikely to recur.  SEOR45.  The court 
properly determined that "an injunction would (1) instruct Blaugrund and [AHF] 
that they must comply with federal law; (2) subject the company to the contempt 
power of the federal courts if [AHF] commits future violations; and (3) reduce the 
chilling effect of any retaliation on [AHF]'s employees' exercise of their Title VII 
rights."  SEOR46 (citing Goodyear, 813 F.2d at 1544).  AHF asserts that an 
injunction telling Blaugrund and AHF to comply with the law is unnecessary since 
they are already obligated to comply with the law, Br. at 9, but this Court has 
clearly held that when an employer fails to show that future violations are unlikely, 
victims of discrimination are entitled to an injunction against future discrimination.  
Hacienda Hotel, 881 F.3d at 1519; Goodyear, 813 F.2d at 1544-45.  AHF 
additionally makes the factually and legally meritless argument that the instruction 
to AHF and Blaugrund to comply with the law is unwarranted because AHF has 
been sold and "the management supposedly in need of instruction is no longer in 
charge," Br. at 9-10.  The undisputed evidence is that both of the management 
officials who discriminated against Glenn not only remain at AHF but remain in 
charge; Blaugrund is a 10% owner of the company and is the President and CEO 
while Leveque is still the Vice President.  PEOR129.  See also Bruso, 239 F.3d at 
848 (holding that employer failed to show that future violations were unlikely 
where "the two individuals who were most influential in Mr. Bruso's demotion are 
still employed there").  While AHF asserts that subjecting it to the contempt 
powers of the federal courts "is a blatant argument for mandatory injunction every 
time any defendant is adjudicated to have violated Title VII," Supp. Br. at 10, this 
argument is clearly meritless as injunctive relief may be avoided, for example, 
when an employer shows that future violations are unlikely to recur.  AHF also 
suggests that because this is a discrimination, not retaliation, case, the court 
improperly enjoined AHF from retaliating.  Id.  This argument, too, is unavailing 
as there was plenty of evidence, discussed above, showing that AHF had targeted 
Glenn for retaliation and because "by seeking injunctive relief, the EEOC not only 
deters future unlawful discrimination but also seeks to protect aggrieved 
employees and others similarly situated from the fear of retaliation for filing Title 
VII charges."  Hacienda Hotel, 881 F.2d at 1519.  The injunction does just that.  
	Finally, AHF asserts that "it has laid out a proper ten-point decision plan for 
handling Glenn's personnel file and inquiries about her, which are set out in full in 
Section II of Defendant's Response to Plaintiff's Motion for Equitable Relief filed 
April 14, 2006. (SEOR, pp. 20-22)."  Supp. Br. at 14.  The Commission is at a loss 
to understand what AHF means.  The cited pages of the record set out AHF's ten-
point response to the equitable relief requested by the EEOC - not a ten-point plan 
for handling Glenn's personnel file and inquiries about her.  In fact, most of AHF's 
responses argue that the relief proposed by the EEOC is not needed at all.  
SEOR20-22.  As to Glenn's personnel file, AHF makes the assertion that it need 
not expunge Glenn's file because "it does not contain anything relative to the 
charge of discrimination filed other than the actual charge . . . , which should 
remain in the file . . . ."  SEOR20.  In other words, AHF thinks it is just fine to 
retain in Glenn's personnel file her charge, which is an open invitation to retaliate 
against Glenn in the future and suggests that AHF thinks it would be perfectly 
acceptable to inform potential future employers of Glenn's protected activity.  
AHF's troubling argument on this point simply lends further support to the district 
court's decision to enjoin AHF from both discriminating and retaliating against 
Glenn and other employees.  Accordingly, this Court should hold that the district 
court acted well within its discretion in granting the EEOC's motion for equitable 
relief.
                         CONCLUSION
     For the reasons stated above, the Commission requests that this Court affirm 
the jury's verdict finding liability and the award of damages and injunctive relief.
     

			Respectfully submitted,

			RONALD S. COOPER
			General Counsel

			CAROLYN L. WHEELER
			Acting Associate General Counsel

			LORRAINE S. DAVIS 
			Assistant General Counsel

			___________________________
			ANNE NOEL OCCHIALINO
			Attorney
			U.S. EQUAL EMPLOYMENT COMMISSION
			Office of General Counsel
			1801 L Street, N.W., Rm. 7030
			Washington, D.C. 20507
			(202) 663-4724

 			September 20, 2006

                         STATEMENT OF RELATED CASES

     This appeal is not related to any other known case pending in this Court.

                         CERTIFICATE OF COMPLIANCE

     I hereby certify that this brief complies with the type-volume limitations of 
Fed. R. App. P. 32(a)(7)(B)(i).  The brief contains  13,661 words.

______________________________
Anne Noel Occhialino
     
     

                         CERTIFICATE OF SERVICE
     
      I, Anne Noel Occhialino, hereby certify that I served two copies of the 
foregoing brief this 20th day of September, 2006 by overnight mail, postage 
pre-paid, to the following:

Counsel for Defendant-Appellant
Michael L. Danoff
Michael Danoff & Associates
604 Chama, NE
Albuquerque, NM
87108
                     
  
_____________________
Anne Noel Occhialino
Attorney
U.S. EQUAL EMPLOYMENT COMMISSION, 
Office of General Counsel
1801 L Street, N.W., Room 7030
Washington, D.C. 20507
(P)(202) 663-4724
(F)(202) 663-7090

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

<1> "EOR" refers to AHF's Excerpts of Record and "SEOR" refers to AHF's 
Supplemental Excerpts of Record.

<2> "PEOR" refers to Plaintiff-Appellee EEOC's excerpts of record.  

<3> Although Blaugrund testified that his comment was made in reference to the rapid 
turnover of the employees Glenn supervised as merchandise coordinator in early 
2003, PEOR112-14, Carlson testified that Glenn was working on the docks at the 
time of their conversation, which is where Glenn was working when she filed her 
charge, PEOR73,118. 

<4> AHF attached to its brief a "Trial Aid Calculation Work History of LaWanda 
Glenn Used by Ted Leveque at Trial."  Although this Trial Aid makes it easier to 
understand Leveque's testimony, including it on appeal was improper because it 
was a demonstrative exhibit that was never admitted into evidence.

<5> Although AHF is appealing from this order, it failed to include it in its Excerpts 
of Record in violation of this Court's local rules.  See 9th Cir. R. 30-1.4(a).

<6> The failure of AHF's brief to comply with the federal and Ninth Circuit rules of 
appellate procedure have hindered the Commission's ability to understand and 
respond to AHF's arguments.  For instance, AHF failed to include a Summary of 
Argument, to state where issues were raised or ruled upon below, or to state the 
standard of review for each issue.  See Fed. R. App. P. 28(a)(8) (stating that 
appellant's brief must contain a summary of the argument); 9th Cir. R. 28-2.5 ("As 
to each issue, appellant shall state where in the record on appeal the issue was 
raised and ruled on and identify the applicable standard of review.").

<7> AHF concedes that the EEOC satisfied its Rule 26 obligation to disclose the basis 
for its request for back pay.  See Br. at 28 ("The Defendant-Appellant asked that 
Ms. Glenn be precluded from testifying about any type of damages except back 
pay . . . .") (emphasis added).

<8> The district stated in its order that the EEOC would have to show that AHF 
"failed to engage in good faith efforts to comply with Title VII."  PEOR14.  This is 
a misstatement of the law.  As discussed infra at I.C.4., the EEOC's burden was to 
show that AHF had engaged in intentional discrimination "with malice or with 
reckless indifference to the federally protected rights of an aggrieved individual."  
42 U.S.C.  1981a(b)(1).  Although there is a "good faith" defense available to 
employers in some situations, it is an affirmative defense for an employer to prove, 
and it was not available in this case.  See infra at pg. 49 n.12.  

<9> We note that this Court, unlike many other circuits, has allowed litigants who 
have failed to make a Rule 49(b) objection prior to the jury's dismissal to make a 
Rule 49(b) challenge on appeal.   See, e.g., Los Angeles Nut House v. Holiday 
Hardware Corp., 825 F.2d 1351 (9th Cir. 1987).  In those cases, however - unlike 
this one - the litigants had challenged the consistency of the verdict in post-trial 
motions.  See Arachnid, 972 F.2d at 1304 ("While the Los Angeles Nut House and 
Pierce courts both granted litigants some procedural flexibility in challenging the 
consistency of jury verdicts, neither held that a challenge may be made for the first 
time on appeal.").

<10> Because even a cursory glance at the record establishes that the jury's answer to 
this question was "No" - not "Yes" - the Commission assumes that counsel's 
misrepresentation of the record was the result of extreme carelessness instead of a 
deliberate intent to mislead this Court.

<11> In connection with this point, AHF asserts that the jury found liability under the 
"inference" standard of McDonnell Douglas, which was "one of the last big 
affirmative action 'quota' cases which inferred discrimination whenever statistics 
showed that there were fewer minorities in the workplace than in the community at 
large" and further asserts that "affirmative action is a largely discredited theory 
now, and there is no longer an automatic presumption of discrimination."  Br. at 
46-47.  The Commission is at a loss to understand either AHF's characterization of 
McDonnell Douglas or the point AHF is trying to make.  McDonnell Douglas, 
which involved a race-based disparate treatment claim, set forth the order and 
allocation of proof for bringing a Title VII claim.  McDonnell Douglas v. Green, 
411 U.S. 792 (1973).  The case did not involve either affirmative action or 
statistical evidence, although the Court stated in passing that upon remand 
"statistics as to petitioner's employment policy and practice may be helpful to a 
determination of whether the petitioner's refusal to rehire respondent in this case 
conformed to a general pattern of discrimination against blacks."  Id. at 805.  The 
EEOC's case does not involve affirmative action in any way and involves 
statistical evidence only to the extent that the EEOC offered evidence that the 
Oracle store had no African-American managers, which is probative of pretext.  In 
accordance with McDonnell Douglas and other Supreme Court law, the jury was 
asked to infer from evidence as to the EEOC's prima facie case, the falsity of 
AHF's explanation for its failure to promote Glenn, the irregular circumstances 
surrounding the promotion, and the lack of African-American managers at the 
Oracle store that AHF discriminated based on Glenn's race.

<12> AHF wisely does not argue that it is entitled to the "good faith" defense to 
punitive damages set out in Kolstad.  See Kolstad, 527 U.S. at 539-46 (setting out 
defense for acts by managerial employees).  It is undisputed that the discrimination 
in case was perpetuated by AHF's senior managers -  its President, Lee Blaugrund, 
and its Vice President, Ted Leveque, - making the defense unavailable.  See 
Kolstad, 527 U.S. at 542-43 (citing Restatement, which allows imputation of 
misconduct to principal for acts authorized by principal); Costa, 299 F.3d at 864 
("We have explained that Kolstad provided the employer with a new 'good faith' 
defense, enabling it to escape punitive damages if it can show that the challenged 
allegations were not taken by senior managers . . . .") (emphasis added).