IN THE UNITED STATES COURT OF APPEALS
                      FOR THE NINTH CIRCUIT
            ________________________________________
                                
                    Nos. 06-55110 & 06-55386
           __________________________________________
                                
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,               
     Plaintiff-Appellant,
 v.
ROBERT L. REEVES & ASSOCIATES,                    
A Professional Corporation,
     Defendant-Appellee.
     _______________________________________________________
                                
        On Appeal from the United States District Court 
             for the Central District of California
                       No. CV-00-10515-DT
     _______________________________________________________
                                
               REPLY BRIEF OF PLAINTIFF-APPELLANT
          THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
     _______________________________________________________
RONALD S. COOPER              EQUAL EMPLOYMENT OPPORTUNITY
General Counsel                    COMMISSION
                              Office of General Counsel
LORRAINE C. DAVIS             1801 L Street, N.W., 7th Floor
Acting Associate General Counsel   Washington, D.C. 20507
                              (202) 663-7049
CAROLYN L. WHEELER
Assistant General Counsel
                              
DONNA J. BRUSOSKI   
Attorney
                       TABLE OF CONTENTS
                                                             PAGE
TABLE OF CONTENTS  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .i
TABLE OF AUTHORITIES  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
ARGUMENT  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
I.   The District Court Committed Reversible Errors Admitting Irrelevant and
     Prejudicial Evidence and Excluding Relevant Evidence . . . . . . . . . . . . . . 2
     A.   Admission of Evidence of EEOC's Administrative Investigation and
          Reeves' "Conspiracy" Theory . . . . . . . . . . . . . . . . . . . . . . . . 2
          1.   The Commission Preserved its Objections to Evidentiary
                Errors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
          2.   Admission of Evidence of the Substance of the EEOC's
               Administrative Investigation Was Erroneous and Prejudicial     . . .  10
          3.   Admission of Evidence of the Defendant's "Conspiracy"
               Theory Was Erroneous and Prejudicial . . . . . . . . . . . . . . . .  13
          4.   The Court's Intrusive Questions Added to the Prejudicial
               Impact of the Conspiracy and Investigation Evidence . . . . . . .     16
     B.   Admission of Irrelevant and Prejudicial Evidence Covered by 
          Rule 412  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
     C.   Improper Exclusion of Relevant Background Evidence on the 
          Pregnancy Discrimination Claim . . . . . . . . . . . . . . . . . . . . . . 20
     D.   Improper Exclusion of Relevant Evidence of Harassing Incidents
          Victims Learned About Second-Hand . . . . . . . . . . . . . . . . . . . . .22
     E.   Improper Exclusion of Relevant Evidence of Reeves' Leering . . . . . . .   25
     F.   The Cumulative Effect of All These Errors Was Prejudicial . . . . . . . .  26
II.  The District Court Abused its Discretion in Awarding Fees
     under Title VII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
     A.   This Suit Was Not Frivolous, Unreasonable or Without Foundation30
     B.   Neither the Investigation nor the Commission's Litigation Conduct
          Supports a Fee Award . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
     
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
                       TABLE OF AUTHORITIES                      
CASES                                                        PAGE
B.K.B. v. Maui Police Department, 276 F.3d 1091 (9th Cir. 2002) . . . . . . . . . .  18
Barry v. Fowler, 902 F.2d 770 (9th Cir. 1990) . . . . . . . . . . . . . . . . . . . .29
Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978) . . . . . . . . . . . . . .  28
DeRosiers v. Moran, 949 F.2d 15 (1st Cir. 1991) . . . . . . . . . . . . . . . . . . .23
EEOC v. Bruno's Restaurant, 13 F.3d 285 (9th Cir. 1993) . . . . . . . . . . . . . 29,30
EEOC v. Johnson & Higgins, 91 F.3d 1529 (2d Cir. 1996) . . . . . . . . . . . . . . . 33
EEOC v. Waffle House, 534 U.S. 279 (2002) . . . . . . . . . . . . . . . . . . . . .  33
Godwin v. Hunt Wesson, Inc., 150 F.3d 1217 (9th Cir. 1998) . . . . . . . . . . . .   21
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) . . . . . . . . . . . . . . . . 25
Heyne v. Caruso, 69 F.3d 1475 (9th Cir. 1995) . . . . . . . . . . . . . . . . . . 21-22
Independent Towers v. Washington, 350 F.3d 925 (9th Cir. 2003). . . . . . . . .   14,16
                                                                 
Jerden v. Amstutz, 430 F.3d 1231 (9th Cir. 2006) . . . . . . . . . . . . . . . . .  2,6
Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) . . . . . . . . . . . . . . . . . 18
Molski v. M.J. Cable, Inc., 2007 WL 865532 (9th Cir. Mar. 23, 2007). . . . . .    15-16
Obrey v. Johnson, 400 F.3d 691 (9th Cir. 2005). . . . . . . . . . . . .  2,16,21,26, 27
Ohler v. United States, 529 U.S. 753 (2000) . . . . . . . . . . . . . . . . . . . . . 6
Plummer v. Western International Hotels Co., 656 F.2d 502 (9th Cir. 1981) . . .    10-11
Rocha v. Great American Ins. Co., 850 F.2d 1095 (6th Cir. 1988) . . . . . . . . .  17-18
                   TABLE OF AUTHORITIES (cont.)                  
CASES                                                        PAGE
United States v. Brooke, 4 F.3d 1480 (9th Cir. 1993) . . . . . . . . . . . . . . . 26-27
United States v. Griffin, 84 F.3d 912 (7th Cir. 1996) . . . . . . . . . . . . . . . . 23
United States v. Ogles, 406 F.3d 586 (9th Cir. 2005) . . . . . . . . . . . . . . . . . 3
United States v. Tilghman, 134 F.3d 414 (D.C. Cir. 1998) . . . . . . . . . . . . . . .18
United States v. Varela-Rivera, 279 F.3d 1174 (9th Cir. 2002) . . . . . . . . . . . . 20
RULES
Fed. R. Evid. 103(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . .3,5, 23, 25
Fed. R. Evid. 401 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Fed. R. Evid. 403 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Fed. R. Evid. 412. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18,19
Fed. R. Evid. 614(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
             IN THE UNITED STATES COURT OF APPEALS
                      FOR THE NINTH CIRCUIT
            ________________________________________
                                
                    Nos. 06-55110 & 06-55386
           __________________________________________
                                
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
     Plaintiff-Appellant,
 v.
ROBERT L. REEVES & ASSOCIATES,                    
A Professional Corporation,
     Defendant-Appellee.
     _______________________________________________________
                                
        On Appeal from the United States District Court 
             for the Central District of California
                       No. CV-00-10515-DT
     _______________________________________________________
                                
               REPLY BRIEF OF PLAINTIFF-APPELLANT
          THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
    _______________________________________________________
     In its opening brief, the Commission argued that the district court prejudiced
EEOC's presentation of its case through numerous evidentiary errors and abused its
discretion in awarding attorneys' fees.  In response, Reeves argues, mostly
incorrectly, that the Commission waived its evidentiary arguments, and otherwise
mischaracterizes or fails to respond to many of the Commission's arguments.  In
defending the fee award Reeves makes some of the same misrepresentations about the
record and the basis for the award that it made in the first appeal in this case.
                             ARGUMENT
I.   The District Court Committed Reversible Errors Admitting Irrelevant
     and Prejudicial Evidence and Excluding Relevant Evidence
     A.   Admission of Evidence of EEOC's Administrative Investigation and
          Reeves' "Conspiracy" Theory 
     In its brief, as at trial, Reeves relies heavily upon both its "conspiracy" theory
to explain this lawsuit and an attack on short-comings in the Commission's
administrative investigation.  By making these issues so pivotal to its argument,
Reeves demonstrates the significant role this irrelevant and highly prejudicial
evidence played at trial, as explained in detail in the Commission's opening brief.  Br.
at 37-49.  Contrary to Reeves' assertion (Resp. at 13, 19), the Commission did not
waive its objections to this evidence.  The district court abused its discretion in
admitting this evidence, which deflected both the jury's and the court's attention from
the merits of the pregnancy discrimination and sexual harassment claims.  This
Court's decision in Obrey v. Johnson, 400 F.3d 691, 699-701 (9th Cir. 2005), requires
reversal, especially when the cumulative effect of these evidentiary errors is
considered, as mandated by Jerden v. Amstutz, 430 F.3d 1231, 1240-41 (9th Cir.
2006).
     1.   The Commission Preserved its Objections to Evidentiary Errors 
     The Commission filed a motion in limine to exclude evidence of Reeves'
"conspiracy" theory (MIL#2RE240), which the court definitively denied.  RE392-
94.  Nothing further was required to preserve for appeal the Commission's objection
to this defense theory and the errors in admitting evidentiary facts to support it.  See
Fed. R. Evid. 103(a) ("Once the court makes a definitive ruling on the record
admitting or excluding evidence, either at or before trial, a party need not renew an
objection or offer of proof to preserve a claim of error for appeal."); United States v.
Ogles, 406 F.3d 586, 592 n.2 (9th Cir. 2005) (when denial of motion in limine is
definitive, review is for abuse of discretion despite absence of further objection).
     The Commission also filed motions in limine to exclude evidence going to the
administrative investigation:  evidence of the procedural history of this suit (MIL#6
RE262); evidence of the EEOC's investigation (MIL#10 RE267); and testimony of
EEOC investigator Kinzel-Barnes (MIL#13 RE270).  As Reeves states (Resp. at 13),
the district court "reserved ruling" on the procedural history motion.  However, the
court explained this ruling as follows:
     He[re] the motivation of the EEOC may be relevant if Hanlon and Greene
     manipulated witnesses to dupe the EEOC into bringing this litigation.
SRE184 (emphasis added).  The court did not allow the Commission to offer further 
argument on this ruling.  Id.  The court was "prepared to grant" the motion excluding
evidence of the administrative investigation, but also stated that "[t]his goes to the
motivation of Mr. Greene and the claimant [Jacobson] . . . [regarding] an ongoing .
. . power play or struggle for the assets of the [Reeves] law office."  RE396.  Finally,
the court was "prepared to deny" or "reserve ruling" on the motion to exclude EEOC
investigator Kinzel-Barnes' testimony, RE397, but commented as follows:
     Here, I thought this goes to what the real motivation behind the case
     was all about.  Was the EEOC manipulated into bringing this
     litigation?  Was there a fabrication by the complaining witnesses?  
RE397-98 (emphasis added).  
     While ruling on the motions in limine, the court commented several times that
Reeves should be allowed to present evidence that "the EEOC was . . . manipulated
by Hanlon and Greene and certain employees . . . into prosecuting this case" (REII2),<1>
likening such a situation to "prosecutorial misconduct" in a criminal context.  REII
2-3; see also REII3 ("if Hanlon and Greene and employees in concert with them were
able to get the EEOC to . . . do the dirty work for them . . . I think the defense should
be allowed to show that"); and REII4-5 ("If, in fact, that free for all [referring to the
Reeves v. Hanlon & Greene state court action] was the motivating factor here that got
the EEOC somehow duped, then why shouldn't Mr. Reeves show that."  To which the
Commission responded, that "has nothing to do with" the claims in its case and "that
type of evidence" would be "highly prejudicial.").
     The court's ruling on the conspiracy motion, and comments about how Hanlon
and Greene's motives related to the EEOC's investigation, constituted a ruling that
Kinzel-Barnes' testimony about the investigation was admissible to show the
Commission's "motivation."  Under Fed. R. Evid. 103(a), no further objections were
required to preserve this error for appeal.  Nevertheless, the Commission did object
to numerous questions directed to Kinzel-Barnes, all of which the court overruled. 
RE755 (relevance objection to question  about whether she learned of the partnership
dispute); RE769-70 (privilege objection  to question about being told to conclude the
investigation after talking to Hanlon, Greene, and Jacobson; court stated, in the jury's
presence, that it "goes to government's motivation"); RE824 (relevance objection to
question, "if you had known [about lawsuit] still think not duped?"); REII24-25
(three relevance objections to questions about case log, sexual harassment file, log
notes in investigative file); REII26-29; RE758 (objection to speculative and
argumentative question about whether she thought Hanlon had bias against Reeves);
RE765 (relevance objection to question whether Greene told her that he and Jacobson
were dating); RE775-77 (objection to argumentative and repetitive question about her
knowledge that Hanlon and Greene were in competition with Reeves).
     Thus, the Commission's evidentiary arguments are not based on "the mere
filing" of motions in limine (Resp. 13), and the Commission did not waive its
objections to errors in admitting evidence about defendant's "conspiracy" theory or
the administrative investigation.
     Reeves also suggests the Commission waived any objection to the introduction
of evidence of the alleged "conspiracy" motive for the lawsuit and of shortcomings
in the investigation by eliciting testimony itself, thereby conceding its relevance and
waiving objection to it under the logic of Ohler v. United States, 529 U.S. 753, 755
(2000).  Resp. at 13, 20.  Reeves' reliance on Ohler and the "opening the door"
doctrine stretches the meaning of that concept beyond all recognition.  The principle
in Ohler is not implicated in this case at all.  In Ohler the district court had ruled that
evidence of a prior conviction could come in as impeachment evidence if Ohler
testified.  She testified and attempted to remove the sting of that evidence by
admitting to the conviction on direct examination.  The Supreme Court held that she
could not challenge the ruling on the motion in limine because she had introduced the
evidence herself.  Id. at 760.
     In this case, any evidence the Commission adduced was not part of a pre-
emptive effort to remove the sting of otherwise damaging impeachment evidence, but
rather was introduced simply to address predicate facts in the case, or to rebut, not
admit, damaging information.  These questions in no sense "opened the door" for the
court's inquisition into the scope and adequacy of the Commission's investigation nor
into the role of the so-called "conspiracy" in guiding that investigation.  See Jerden, 
430 F.3d at 1239 n.9 (discussing the "opening the door doctrine" and holding that
plaintiffs' questions about diagnosis and its effect on the surgery is a fact independent
of the witness's personal opinion and did not thereby attempt to "introduce
inadmissible expert opinion" such that "Defendant would be permitted to follow [the
plaintiffs] through the door").
     Contrary to Reeves' assertion (Resp. at 14), the Commission's reference in its
opening statement to the fact that the EEOC had received and investigated a charge,
and its questions to witnesses about the fact or timing of their contacts with the EEOC
did not put the adequacy of the investigation into dispute.  The testimony Reeves'
cites demonstrates that the information the Commission elicited did not waive or
concede the relevance of the adequacy of the investigation, much less make it part of
its case in chief.  For example, the questions the Commission asked Reeves merely
established that a charge had been filed against him, SRE252-54; the questions posed
to Catuira addressed when she spoke to the EEOC and whether Hanlon had told her
what to say, SRE338-39; questions to Arai addressed when she was contacted by the
EEOC and the circumstances of her decision not to seek relief in this case, SRE409-
12; and questions the Commission posed to Jacobson covered the timing of her
contacts with the EEOC, while the court inquired extensively into her relationships
with Greene and Hanlon at that time and her knowledge of their intentions to leave
the firm, SRE464-72.  Finally, the Commission posed questions to Kinzel-Barnes
about her background as an investigator and experience in making cause findings,
SRE637-38, but these questions came after nearly a day and a half of intense
questioning of Kinzel-Barnes by the defendant and court on the subjects of her
investigation, the investigative file, and whether she had been "hoodwinked" by
Hanlon and Greene, and thus can hardly be viewed as the Commission's "opening the
door."
     Unlike the defendant in Ohler, the Commission elicited this testimony to rebut
or place in context evidence that had already been admitted over objection.  As
demonstrated by the objections set out, supra at 5, the Commission tried to cabin the
inquiry into the scope and impartiality of the investigation, but the court overruled
those objections.  In those circumstances, Commission efforts to rebut the inferences
of conspiratorial motives cannot be viewed as a waiver of objection to the admission
of evidence about the adequacy of the investigation.
     Although Reeves appears to suggest that instructions the Commission sought
indicate that the adequacy of the investigation was an issue the Commission raised
(Resp. at 14), by that point the Commission was attempting to lessen the damage of
the evidence that had been introduced challenging the sufficiency of the investigation. 
Ironically, as the Commission discussed in its opening brief (at 38 & n.11), the court
refused the Commission's request to give a jury instruction that the investigation was
adequate (RE378).  The jury instruction Reeves refers to (Resp. at 14) states only that
the Commission has a statutory mission to investigate discrimination charges and file
suit if it finds reasonable cause to believe a violation has occurred.  The Commission
consistently has maintained that the adequacy of the investigation is not properly an
issue during a trial on the merits of discrimination claims.
     Likewise, contrary to Reeves' assertions (Resp. at 19-20), the Commission
never conceded the relevance of the "conspiracy" evidence to the issues properly
before the jury at trial,<2> and the court's ruling on the motion in limine on this subject
and the Commission's objections to this evidence, discussed supra at 5, preserved this
issue for appeal.  Reeves inaccurately states that the Commission elicited testimony
that "Hanlon and Greene highlighted a copy of R&A's sexual-harassment policy, and
convinced Jacobson to put it in Reeves' in-box."  Resp. at 19.  The cited pages do not
support this characterization.  Jacobson testified that she highlighted the policy and
put it in Reeves' box despite Hanlon's encouraging her to speak directly with Reeves. 
RE684-86.  It was Reeves, not the Commission, who asked Jacobson if she discussed
giving Reeves the policy with Hanlon or Greene.  RE689-90.  Of course this
testimony came after Reeves had already testified to his belief that Hanlon and
Greene had told Jacobson to give him the harassment policy.  SRE260-63.  
     Further, the information Reeves highlights that the Commission elicited from
Preciado and Jacobson (Resp. at 20) about Hanlon and Greene does not constitute
waiver of its objections to the "conspiracy" evidence.  After the court definitively
ruled that the "conspiracy" evidence was relevant and admissible, the Commission's
questions on these facts cannot constitute waiver.  The Commission elicited testimony
on predicate facts of the witnesses' relationships and interactions with Hanlon and
Greene to rebut defendant's "conspiracy" theory, not to concede its relevance by
preemptively admitting a fact in question as the defendant did in Ohler.
     2.   Admission of Evidence of the Substance of the EEOC's
          Administrative Investigation Was Erroneous and Prejudicial
     As the Commission explained in full in its opening brief (Br. at 39-42), in an
action by the EEOC, questions going to the adequacy of an administrative
investigation have no place in a de novo trial on the merits because any review of the
sufficiency of the investigation or evidence supporting the cause finding is 
redundant.  All circuits that have addressed this issue in Commission actions have
agreed (Br. at 39-40).  Contrary to Reeves' characterization (Resp at 17), these cases
are on point because they directly prohibit exactly what occurred in this case.
     In response to the Commission's argument, Reeves relies on a rule announced 
in a  private Title VII action, that has no applicability to Commission litigation. 
Resp. at 15 (citing Plummer v. Western International Hotels Co., 656 F.2d 502, 505
(9th Cir. 1981)).  In Plummer, this Court held that a plaintiff should have been
permitted to introduce an EEOC probable cause determination, noting that defendants
would have an opportunity to present rebuttal evidence and point to "deficiencies in
the EEOC determination" and thus would not be prejudiced by its admission.  Id. at
505 n.9.
     There are two problems with Reeves' reliance on Plummer: (1) its rule is
inapposite in a Title VII law suit brought by the Commission and (2) the evidence
ruled admissible in Plummer is not what is at issue here.  Thus, the fact that
introduction of an EEOC cause finding into a private plaintiff's case does not destroy
the defendant's right to a de novo trial does not, as Reeves assumes, mean a fortiori
that the intrusion of questions about the sufficiency of an investigation into an EEOC
suit has no impact on the Commission's efforts to secure a de novo trial.  Resp. at 19.
     First, the Commission is aware of no cases brought by the Commission in
which the prior cause determination has been considered admissible (nor has Reeves
cited any), because such determinations do not carry evidentiary weight.  The fact that
the Commission found cause and thought suit was warranted is self-evident; the
underlying evidence supporting that determination (and other evidence developed
through discovery) are the proper substance and focus of a de novo trial, rather than
the investigator's assessment of the evidence, which is generally irrelevant once the
Commission decides to litigate.  For that reason, the Commission objected to
questions posed to the investigator about her understanding of the standards
governing sexual harassment claims, and the court erred in permitting these
questions.  See RE779 (questions about isolated, trivial, occasional conduct, and
about abusive or hostile environment).
     Second, the Plummer rule is inapt because the Commission did not seek to rely
on its cause finding, on evidence developed in the investigation, or on the
investigator's opinion to buttress its case, and thus, the Commission did nothing to
create a need for Reeves to challenge the reliability of that evidence or finding. 
Rather, the court and Reeves interrogated the Commission's investigator simply to
attack the scope, reliability, and motivation of the investigation itself.
     The focus of the trial in this case should have been on whether the evidence
showed that Reeves violated Title VII.  The district court deflected this focus by
allowing the jury to hear extensive testimony about flaws in the administrative
investigation.  As the Commission explained (Br. at 40-41), extensive and adverse
evidence on this subject surely prejudiced the jury, as well as the court, against the
merits of the Commission's pregnancy discrimination and sexual harassment claims.
     Contrary to Reeves' suggestion, the Commission does not argue that
information obtained by an investigator is never relevant to witness credibility at trial. 
Resp. at 17.  But that was not the focus of questions to the investigator in this case. 
Instead, information about the arguably limited scope of the investigation was used
extensively, by defendant and the court, simply to criticize the Commission's
investigation and to attack Kinzel-Barnes' credibility.  Resp. at 15-17.  But the
adequacy of a Commission investigation is non-justiciable at trial (Br. at 39-42), and
in any event, the court ruled that the Commission's investigation met the procedural
prerequisites to suit, specifically rejecting defendant's argument that the investigation
was inadequate.  Br. at 3, 38.  Further, Kinzel-Barnes was not a fact witness and her
credibility was thus not properly at issue, nor was her testimony primarily used to
impeach the credibility of witnesses who gave contradictory evidence at trial.
     3.   Admission of Evidence of the Defendant's "Conspiracy" Theory
          Was Erroneous and Prejudicial
     As the Commission explained in its opening brief (at 42-49), evidence Reeves
here re-emphasizes about Hanlon and Greene's "conspiracy" to harm Reeves' firm
(Resp. 19-26) was irrelevant and highly prejudicial to the trial of the merits of these
Title VII claims.  Simply put, whatever Hanlon or Greene's motives or actions
towards Reeves, they had nothing to do with whether Reeves engaged in pregnancy
discrimination or created a sexually hostile work environment for women in the
workplace he controlled.
     Although neither Hanlon nor Greene were witnesses at trial, and no evidence
was presented at trial that any class members ever participated in Hanlon or Greene's
tortious misconduct with respect to Reeves' firm (Br. at 42),<3> a disproportionate share
of the trial testimony elicited by defendant, and the court, focused on Hanlon and
Greene.  And, over the Commission's objections,<4> the jury was given an instruction
to take notice of Hanlon and Greene's misdeeds as well as copies of the three state
court decisions in Reeves' suit against them, again deflecting the jury's attention from
the claims at issue in this case.  Br. at 43.
     The monotonous repetition of Hanlon and Greene's misconduct and motives
form the basis for Reeves' assertion in its brief (Resp. at 26) that this evidence was
relevant to show the claimants' biases and motives to help Hanlon and Greene
"destroy" Reeves for the "pecuniary benefit of H&G and Claimants."  But the
evidence does not show any such motive on the part of the claimants and it is
precisely because of the prejudicial impact of such "bad character" and "guilt by
association" evidence that the entire "conspiracy theory" should have been excluded. 
Br. 45-48.  Reeves does not meaningfully respond to this argument.
     Efforts to tie Hanlon and Greene's motives to those of the Commission in
bringing this suit were particularly prejudicial.  In support of its argument that the
evidence about the investigation was relevant, Reeves contends that the
Commission's "suspect" motive "for finding cause and suing" (Resp. at 15) is at
issue.  But the "motives" of the Commission for bringing suit are as provided by
statute  to remedy alleged violations of Title VII  and nothing to which Kinzel-
Barnes could testify about what witnesses said to her could possibly cast any light on
that point.<5>
     The court's emphasis on these irrelevant concerns was similar to the improper
focus on the motives of a litigant challenging barriers to access in a suit brought
under the Americans with Disabilities Act in Molski v. M.J. Cable, Inc., 2007 WL
865532 (9th Cir. Mar. 23, 2007).  In that case this Court noted that the "narrow issue"
was whether defendant failed to identify and remove architectural barriers, so facts
going to Molski's "ulterior motive" for bringing the suit were either irrelevant under
Fed. R. Evid. 401 or "far more prejudicial than probative" under Rule 403.  Id. at
*2n.3.  Molski had not challenged the district court's evidentiary rulings, so this
Court had no occasion to rule on this apparent impropriety.  Id.  Here, of course, the
Commission has directly challenged precisely this type of evidentiary error and
contends that the error requires reversal.
     4.   The Court's Intrusive Questions Added to the Prejudicial Impact of
          the Conspiracy and Investigation Evidence
     Contrary to Reeves' assertion (Resp. at 18), the Commission's position is that
Judge Tevrizian's questioning, combined with all the evidence on the subjects of the
investigation and "conspiracy" that the jury heard, is a basis for reversal under this
Court's decision in Obrey, 400 F.3d at 699-701 (9th Cir. 2005).  The Commission did
not waive this argument under Independent Towers v. Washington, 350 F.3d 925, 929
(9th Cir. 2003), by failing to advance the argument in its opening brief.  See Br. at 27-
32 (setting out many of the court's questions); 37-49, especially 41, 49 (arguing the
prejudicial effect of the court's questions).  
     The Commission recognizes that judges have discretion to question witnesses
(Resp. at 18).  But here the judge's questions demonstrate that he abandoned his role
as an impartial arbiter.  For example, the judge asked the investigator whether she
thought she was "hoodwinked," whether she knew about due process, whether she
thought a "one-sided investigation" was a "full and fair investigation" (Br. at 28-31);
whether she knew about the Hanlon and Greene litigation, RE806; whether she knew
about the partnership dispute, RE809-11; whether she tried to get the "other side" on
the pregnancy claim, RE744; whether she thought she had an impartial declaration
from Hanlon, RE759; what investigation she actually did, RE806-07; what
information she had to support the harassment claim, RE809-11; and what she meant
by an "evidence based investigation," RE816-17.  The judge asked Liao about how
she came to conclude she was sexually harassed, and whether the EEOC told her that,
RE513; as well as whether EEOC had suggested use of the term "personal space,"
RE517.  And finally, the judge asked Preciado about whether EEOC coached her and
who it was who gave her reason to believe she was sexually harassed, RE547.  The
judge also commented in the jury's presence that information about Kinzel-Barne's
being told to conclude her investigation after interviewing Hanlon, Greene, and
Jacobson was relevant to the Commission's "motivation" in bringing this suit,
RE769-70.
     This type of questioning and commentary constitutes prejudicial error.  Such
questions conveyed to the jury the judge's own skepticism of the Commission's
witnesses as well as the Commission's case itself.  The court's questioning in this
case resembles the one-sided questioning in Rocha v. Great American Ins. Co., 850
F.2d 1095, 1099-1101 (6th Cir. 1988), which the Sixth Circuit found to be plain error,
reversing and remanding on that basis.  Id. at 1100 ("[T]he court's comments and
actions seem more appropriate for a cross-examiner than a fair and impartial judge. 
The jury was surely affected by such behavior and certainly that was to the prejudice
of plaintiff's substantial rights."); see also United States v. Tilghman, 134 F.3d 414,
416 (D.C. Cir. 1998) (trial court abused its discretion under Fed. R. Evid. 614(c) in
questioning defendant in manner that may have given jury impression that judge
doubted defendant's credibility; court of appeals stated: "We have reversed when
judicial interrogation may have damaged the appellant's credibility in the eyes of the
jury or may have given the jury the impression that the judge doubted the defendant's
credibility.") (internal citations omitted).
     B.   Admission of Irrelevant and Prejudicial Evidence Covered by
          Rule 412
     In Meritor Savings Bank v. Vinson, 477 U.S. 57, 69 (1986), the Supreme Court
said there is "no per se rule" against admitting evidence of "a complainant's sexually
provocative speech or dress' at work" (Resp. at 27).  The Vinson Court instructed the
district court on remand to "carefully weigh the applicable considerations [under the
rules of evidence] in deciding whether to admit evidence of this kind," that is,
whether "any marginal relevance of the evidence in question was outweighed by the
potential for unfair prejudice."  Id.  And as the Commission explained in its opening
brief (at 49-50), this Court has held that Fed. R. Evid. 412 puts the "harm to the
victim on the scale [to be weighed] in addition to prejudice to the parties."  B.K.B.
v. Maui Police Department, 276 F.3d 1091, 1104 (9th Cir. 2002) (sexual harassment
action).  In addition, Rule 412 was revised, and its protections expanded, after the
Supreme Court's decision in Vinson.  See Rule 412, Advisory Committee Notes to
1994 Amendment ("Rule 412 has been revised . . . to expand the protection afforded
alleged victims of sexual misconduct. . . . The rule aims to safeguard the alleged
victim against invasion of privacy, potential embarrassment and sexual
stereotyping.").  Under this standard, post-Vinson courts have found the type of
evidence set out in the Commission's opening brief (at 49-52) should be excluded. 
In this case, that evidence was either irrelevant or any relevance was outweighed by
harm to the victims or the Commission's case.  
     Contrary to Reeves' assertions (Resp. at 31-32), evidence of Jacobson's attire
and speech, her receipt of an unwelcome provocative gift from a third party, her
college research on AIDS, and discussions of a sexual nature between herself and
coworkers (not Reeves) are not relevant to whether Jacobson welcomed jokes and
comments of a sexual nature from Reeves, her boss, as the Commission explained in
its opening brief (at 50-52).  And, the Commission preserved its objections to these
lines of inquiry, asking Jacobson about her use of profanity only after the court had
overruled previous objections to this line of questions with other witnesses, RE605,
830; and about her receipt of the gift basket only after the court overruled objections
to this evidence when it was introduced with other witnesses, RE531-32; and
objecting on Rule 412 grounds to Reeves' questions to Jacobson about her AIDS
study and her use of the phrase "getting laid" (RE691-92).  Similarly, the Commission
objected to evidence about Jacobson joking with Latman about her breasts (REII31),
and to evidence of Wilkerson's prior employment at Fredericks of Hollywood
(RE476), but the court overruled all of these objections.<6>
     C.   Improper Exclusion of Relevant Background Evidence on the 
          Pregnancy Discrimination Claim
     The Commission's "claim" is for pregnancy discrimination.  In deciding not
to appeal the claim for relief on behalf of Quilaton and Silva, the Commission did not
abandon its pregnancy discrimination claim.  This Court remanded that claim for trial
(Br. at 3).  That the claim for relief at trial was asserted only on behalf of Saez did not
mean that evidence regarding Quilaton's or Silva's experience working for Reeves
while pregnant was irrelevant or that the Commission was barred from presenting
such evidence by the law of the case (Resp. at 36).  Reeves does not explain why
Quilaton or Silva differ from any other individual for whom the Commission does not
seek relief in this suit.  People can be witnesses to discrimination or experience some
discriminatory treatment without there being sufficient evidence to state a claim for
relief on their behalf.
     As the Commission discussed in its opening brief (at 56), evidence of
Quilaton's and Silva's experience should have been admitted as background evidence
of pregnancy animus in Reeves' workplace, which was relevant to the claim for relief
on behalf of Saez.  The Commission relied on Obrey, 400 F.3d at 697, for its
articulation of the principle that evidence of an employer's discriminatory treatment
of other employees in the same protected class is highly probative of discriminatory
intent.  Br. at 56.  Contrary to defendant's suggestion (Resp. at 36-37), this Court has
recognized the applicability of that principle in individual as well as pattern or
practice cases.  See Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir.
1998) (in individual disparate treatment case, testimony of non-plaintiff female
coworker that while she was giving a presentation at a sales meeting, someone gave
her a "Barbie doll kit" containing two dildos and a bottle of Wesson oil and that she
was not invited to company sponsored hunting and fishing trips was evidence of
discriminatory animus toward women); Heyne v. Caruso, 69 F.3d 1475, 1480 (9th
Cir. 1995) (holding that district court committed reversible error by excluding
testimony concerning employer's alleged discriminatory treatment of other female
employees, as such evidence is "relevant and probative of [defendant's] general
attitude of disrespect toward his female employees, and his sexual objectification of
them").  Thus, Quilaton's and Silva's testimony should have been admitted as
background evidence to the pregnancy discrimination claim for relief on behalf of
Saez.  
     The Commission made an offer of proof at trial that Silva in particular would
testify that Reeves' behavior toward her prior to learning of her pregnancy was
friendly and flirtatious, but after learning of her pregnancy he became hypercritical
of her, as evidence of pregnancy animus.  RE698-99, 851.  However, the court
erroneously rejected Silva's proposed testimony as irrelevant.  RE699.  In addition,
the court compounded its error in excluding this evidence when it instructed the jury,
over the Commission's objection,<7> that neither Quilaton nor Silva was discriminated
against on the basis of pregnancy.  Br. at 7, RE942-43.
     D.   Improper Exclusion of Relevant Evidence of Harassing Incidents
          Victims Learned About Second-Hand
     As the Commission discussed in its opening brief (at 56-60), evidence that
victims learned second-hand that Reeves had a sexual liaison in the office with a
former client/employee and that Reeves made jokes and comments of a sexual nature
to other women was relevant to the Commission's sexual harassment claim, and it
was important for impeaching Reeves.  This Court has held that such evidence is
admissible in a sexual harassment case.  Br. at 59.  The district court erroneously
excluded this evidence, and the Commission has preserved the issue for appeal,
contrary to defendant's contention.  (Resp. at 39-40).
     After the district court tentatively granted defendant's motion in limine to
exclude gossip, rumor, and hearsay concerning Reeves' alleged comments as "unduly
prejudicial, 403 and 802 apply" (RE405; REII6-7), the Commission preserved the
issue of the correctness of the court's evidentiary ruling by making an offer of proof
(REII20-22).  Fed. R. Evid. 103(a)(2).  The offer described "second-hand" incidents
known to Preciado, Liao, Catuira, and Jacobson.  See RE374; Br. at 58.<8>  Reeves did
not object to the Commission's written offer of proof submitted on October 19, 2005. 
Thus, apart from objections it made in its own motions in limine, Reeves waived the
independent objections it now raises (Resp. at 41-43) to the sufficiency of the
Commission's offer of proof.
     With respect to evidence of a sexual liaison in the office, the trial court refused
all the Commission's attempts to offer evidence.  The issue arose on the first day of
trial, during the hearing on the motions in limine.  The Commission explained it
would present evidence that Reeves was in his office one Sunday and one of his
employees (Frank Nelson) walked in on Reeves; Nelson did not actually see Reeves
in the act of sex with his client, but several years later, Reeves admitted to Nelson that
he had walked in while Reeves was having sex with a client in his office.  SRE189. 
The court, however, said, "No, we're not going to try this case by innuendo."  REII8. 
Again, also on the first day of trial, the Commission stated it would call Frank Nelson
to impeach Reeves.  REII9-11.
     On the second day of trial, on direct examination, the Commission asked
Reeves if he ever admitted to one of his former employees that he had sex in the
office with Yindi Botcher, a former client and former employee.  RE415-16.  At a
sidebar (Resp. at 44), the Commission explained, "We have a witness and a former
employee [Frank Nelson] who's going to testify that Mr. Reeves made an admission
to him that, in fact, he had sex in the office with an employee and former client." 
REII16-18.  The court sustained a defense objection and refused to allow this
testimony, rejecting the Commission's argument that the evidence was relevant to the
victims' state of mind as to their work environment.  Id.  The court also rejected the
Commission's argument that this evidence was relevant to Reeves' credibility.  Id. 
The Commission preserved the issue of error in the exclusion of this evidence, which
was surely relevant to how Reeves' female employees perceived his sexually
suggestive comments, jokes, and leering in the workplace.
     E.   Improper Exclusion of Relevant Evidence of Reeves' Leering
     As the Commission explained in its opening brief (at 61-62), evidence of
Reeves' leering at women in the work place is relevant and should have been
considered under the "totality of the circumstances" standard set out in Harris v.
Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
     Reeves acknowledges (Resp. at 45-56), that the trial court granted defendant's
motion in limine [Def #6] to exclude this evidence.  In opposition to that motion, the
Commission asserted that evidence would show that Reeves subjected all victims to
head-to-toe sexual leers, that he stared at them in a sexually suggestive way, that this
made them feel uncomfortable, afraid, and/or disgusted, and that Reeves' behavior
made it unpleasant to come to work and some of the victims tried to avoid him.  Br.
at 61, RE291.  The Commission's objections to this error were properly preserved
because the trial court ruled definitively, under Fed. R. Evid. 103(a), against the
EEOC on defendant's motion in limine.  See RE409.  In addition, after the court
refused the Commission's request to revisit its ruling on defendant's motion in limine
on the second day of trial (REII13-15), the Commission filed offers of proof about the
leering that each of the victims or witnesses experienced or observed.  Br. at 61;
RE374.  Reeves never objected to the offer of proof, and the offer preserved the issue
of the correctness of the court's evidentiary ruling.
     F.  The Cumulative Effect of All These Errors Was Prejudicial
     The cumulative effect of the district court's errors, particularly in admitting
irrelevant and prejudicial evidence of the scope of the Commission's investigation
and of the defense theory that the EEOC either joined, or was a pawn in, a conspiracy
to damage the Reeves firm, as well as its exclusion of relevant evidence that would
have helped to prove the pregnancy discrimination and harassment claims, cannot be
viewed as harmless under the rationale of Obrey and Jerden.  This Court must
presume there was prejudice from the district court's numerous mistaken rulings, and
Reeves cannot meet the burden described in Obrey of demonstrating that the errors
did not affect the jury's view of the case.  The Commission does not contend that the
verdict was contrary to the weight of the evidence, so Reeves' discussion of the
evidence in support of the verdict (Resp. at 50-70) is beside the point, because, as this
Court has emphasized, it is simply inappropriate to "usurp the jury's function, by
merely deleting improper evidence from the record and assessing the sufficiency of
the evidence to support the verdict below.'" Obrey,400 F.3d at 701 (citation omitted).
     The conclusion is unavoidable that the heavy emphasis on the conspiracy and
the truncated investigation may have influenced the jury's view of the evidence.  In
United States v. Brooke, 4 F.3d 1480, 1487 (9th Cir. 1993), this Court observed that
the unfair impact of prejudicial and irrelevant evidence "is heightened where the
improper evidence is extensive . . . [because] [t]he potential for unfair prejudice
increases proportionately with the amount of such evidence."  Here, as in Brooke, the
improper evidence of Hanlon and Greene's conspiracy and the Commission's
allegedly being duped by them into prosecuting this lawsuit "pervaded the trial."  Id. 
Also as in Brooke, the "significant possibility" that the jury was prejudiced against
the Commission and Jacobson, its chief harassment witness, outweighs the "marginal
probative value" of the conspiracy evidence.  Id. 
     Similarly, the exclusion of relevant evidence of pregnancy discrimination (the
evidence that Reeves treated Quilaton and Silva differently after their pregnancies
began to show) and harassment (evidence of incidents the women heard about second
hand and evidence of leering) is presumptively prejudicial for the precise reason that
the evidentiary errors in Obrey were held to be prejudicial.  It is impossible for a
reviewing court to determine that the "erroneous exclusion of evidence directly
probative of the defendant's discriminatory bias . . . did not taint the jury's verdict. 
The evidence at issue was not merely tangential or cumulative; rather, it was directly
probative of the central issues in dispute."  Obrey, 400 F.3d at 701-02. 
Discrimination and harassment cases are always fact intensive and here the outcomes
turned on the jury's view of the credibility of witnesses as well as its assessment of
whether the termination was because of pregnancy and whether the harassing conduct
described was sufficiently severe or pervasive.  The erroneous exclusion of relevant
evidence inevitably distorts that analysis, and the erroneous admission of prejudicial
and totally irrelevant evidence impugning the integrity and impartiality of the
Commission's investigation, makes it impossible to determine that "it is more
probable than not that the jury was unaffected" by these errors.  Id. at 702.
II.  The District Court Abused its Discretion in Awarding Attorneys Fees 
     As the Commission explained in detail in its opening brief (at 36-37, 62-80),
the district court abused its discretion under Title VII in awarding attorneys' fees. 
RE1035-51.  As it did in its initial fee award after summary judgment in 2002
(RE102), in awarding fees after trial (RE1035), the district court relied on many of
the same fundamental mischaracterizations of the facts, misunderstanding of the
nature of the EEOC's authority and this lawsuit, and misapplication of the standard
for fees under Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978).
     Contrary to Reeves' contention (Resp. at 70), this Court's previous reversal of
summary judgment and remand for trial on the pregnancy and harassment claims
necessarily means the Commission had a sufficiently plausible case to satisfy the
minimal evidentiary threshold imposed by Christiansburg, and, thus, this action was
not frivolous, unreasonable, or without foundation, for reasons set out in full in the
Commission's opening brief (at 63-67).  This Court has rejected the argument that a
civil rights plaintiff must present a jury question to avoid fees under Christiansburg. 
Barry v. Fowler, 902 F.2d 770 (9th Cir. 1990) (reversing fee award although verdict
directed for defendant on plaintiff's civil rights claim).  Thus, in remanding this case
for trial, this Court's prior judgment for the Commission necessarily recognized that
this suit was not frivolous.  
     Moreover, the district court's conclusions that the pregnancy and harassment
claims were deficient reflect the same fundamental error of hindsight evaluations of
witness credibility this Court criticized in EEOC v. Bruno's Restaurant, 13 F.3d 285
(9th Cir. 1993).  Br. at 63-73.  Contrary to Reeves' suggestion (Resp. at 70-71(internal
quotation and citation omitted)), this suit was not "brought or continued . . . in bad
faith."  Even the hostile district court judge did not make such a finding.
     Further, the district court's decision to award fees was based on an overly
narrow view of the evidence, due to numerous prejudicial errors, discussed above,
that tainted the entire trial.  And finally, the Commission's pre-suit and litigation
conduct provide no independent basis for a fee award in this case for two reasons: 
first, the reasonableness of the investigation and cause finding are subsumed in the
analysis of the merits of the lawsuit itself, and do not constitute justiciable issues in
a de novo trial (supra at 10-13; Br. at 38-42, 73-75); and second, the Commission's
discovery conduct did not warrant sanctions, as the magistrate judge who oversaw
discovery found (Br. at 75-80).  This Court should reverse the district court's award
of attorneys' fees.
     A.  This Suit Was Not Frivolous, Unreasonable or Without Foundation
     Contrary to Reeves' suggestion (Resp. at 72), as the Commission explained in
full in its brief (Br. at 64-73), it proceeded to trial based on a reasonable belief that
it had credible evidentiary support for its pregnancy discrimination and sexual
harassment claims.  See, e.g., Br. at 19-20 (testimony of Maureen Rodriguez provided
factual support to corroborate the Commission's claim that Reeves sexually harassed
women in the workplace); Br. at 21-22 (same regarding testimony of Nancy Miller);
see also RE65-67 (magistrate's November 1, 2001, order discussing EEOC's
supplemental interrogatory responses and finding them sufficient as to sexual
harassment claims on behalf of Jacobson and Liao).  For that reason alone, the fee
award was improper under Bruno's Restaurant, 13 F.3d at 290 ("To justify an award
of attorney's fees . . . the district court would have had to find . . . that the EEOC
should have anticipated at the outset that none of its evidence of discriminatory
conduct was credible.").  Therefore, whatever this Court decides on the merits of the
verdicts on the pregnancy discrimination and sexual harassment claims, it should
reverse the fee award because the Commission's claims were not frivolous,
unreasonable, or without foundation.
     Moreover, if it were possible to correct for the district court's evidentiary
errors, which this Court recognized in Obrey cannot reasonably be done without
reversal and remand for new trial, there is sufficient evidence that the Commission
had good reason to believe Reeves engaged in pregnancy discrimination and sexual
harassment (see Br. at 64-73), and a jury could find so.  Reeves' arguments, like the
district court's findings (RE1038-39, 1042-43, 1045-46), that there was no credible
support for the Commission's claims rely heavily on characterizations of the
Commission's "inadequate" or "deficient" investigation and on Hanlon and Greene's
"plot to destroy R&A" (Resp. at 72, 74, 80-83).  But this evidence had no place
before the jury (supra at 10-18; Br. at 36-49), and, regardless of how many
individuals the investigator contacted during the investigation, the Commission filed
this suit based on independent corroborating testimony of several young women
wholly unconnected with Hanlon or Greene.  In addition, the Commission filed this
suit based on the reasonable belief that Reeves fired or threatened to fire three women
because they were pregnant and that the sexually charged conduct and comments
attributed to Reeves were sufficiently severe or pervasive to have created a hostile
environment for women in his workplace.
     The district court improperly permitted Reeves, who distrusted many of his
employees, to conflate the coincident timing of two distinct occurrences  Hanlon and
Greene's departure from the firm and their independent tortious acts with the
Commission's filing of this Title VII lawsuit  and to attribute Hanlon and Greene's
bad faith or motives to the Commission as well.  Simply put, that Reeves was a victim
of Hanlon and Greene's bad acts does not in any way suggest that some of the young
women who worked for him were not also victims of Reeves' own bad acts in
violation of Title VII, or that the Commission lacked a reasonable basis for believing
so.  However, instead of allowing the Commission to put on its case, due to Reeves'
as well as the district court's deep distrust of the EEOC, both engaged in extensive
inquisition of the Commission's investigation and impugned the Commission's
"motives" for bringing this suit.  Supra at 3-5; 13-16; Br. at 62-80.  The district
court's fee award relies heavily on just this line of reasoning (RE1038-40, 1045-46),
which itself is infected with prejudicial error.<9>
     The Commission maintains that the district court abused its discretion in
justifying its fee award by disaggregating the claims for relief for each of the victims
in the Commission's suit as if separate individuals, rather than the EEOC, had sued
and then by relying on hindsight evaluations of evidence and credibility for each
(RE1041-46), contrary to Christiansburg and Bruno's Restaurant.  Br. at 66-67.  In
attempting to justify the district court's fee award on this basis, in essence Reeves
argues that the standard for sexual harassment liability should be the same as the
standard for attorneys' fees.  Resp. 72-73.  This is not the law.  Both the Supreme
Court, in Christiansburg, and this Court, in Bruno's Restaurant, have rejected such
a rule. 
     By treating this case as if it were brought by separate individuals, the court
misunderstood, or disregarded, the nature of an action by the Commission.  As the
magistrate in this case properly recognized in 2001, "[t]he EEOC seeks to vindicate
the public interest through enforcement of the civil rights laws, not the interest of a
private litigant."   RE64.  This comports with the Supreme Court's decision in EEOC
v. Waffle House, 534 U.S. 279, 291, 296 (2002), recognizing that the Commission
acts in the public interest even when it pursues victim-specific relief, and the
Commission can pursue its claim with or without the charging party's consent.  See
also EEOC v. Johnson & Higgins, 91 F.3d 1529, 1537 (2d Cir. 1996) (finding that in
light of the strong public interest in eradicating age discrimination and the
Commission's broad statutory power to enforce the ADEA, the Commission has the
authority to pursue ADEA action despite the fact that no current or former director
complains of the challenged policy).
     B.   Neither the Investigation nor the Commission's Litigation Conduct
          Supports a Fee Award
     
     As the Commission explained in its opening brief (at 73-75), the district court
erred in relying on its conclusion that the investigation was inadequate  combined
with Hanlon and Greene's scheme to undermine Reeves' firm, to justify the fee
award.  In addition, there is no support for Reeves' contention (Resp. at 81) that if the
investigator had interviewed anyone other than Hanlon, Greene, and Jacobson, the
Commission would not have found cause on the sexual harassment claim.  Focusing
still on only Hanlon, Greene, and Jacobson (Resp. at 81-83), Reeves ignores that the
Commission identified other witnesses who corroborated the story of workplace
harassment that these individuals told to the investigator.  Br. at 75.
     Reeves mischaracterizes the facts when it defends the district court's
conclusion, in support of its fee award, that the Commission engaged in improper
discovery tactics.  Resp. at 83-88.  The district court relied on the same "discovery"
matters that justified its 2002 fee award (RE1040-41, RE102), and the Commission
explained these matters in full in its opening brief in this appeal (Br. at 75-80), as
well as in the first appeal.
     The Commission explained (Br. at 75) that there is no evidence that it 
prosecuted this lawsuit knowing the allegations of discrimination were false and the
district court's award of fees on this basis (RE1040) cannot be justified.  Contrary to
Reeves' assertion, the Commission does not suggest that its litigation conduct is
"immune" from scrutiny (Resp. at 83).  But, here, the court's fee award for alleged
discovery misconduct is inappropriate because the magistrate, who oversaw discovery
in this case, never awarded sanctions against the Commission.  Br. at 75-76.  Reeves
mistakenly persists in maintaining that "the magistrate granted terminating sanctions"
(Resp. at 84), when, in fact, the magistrate explicitly declined to issue such sanctions
or to award attorney's fees.  Br. at 76.
     With respect to the Commission's position on summary judgment as to Arai,
Wang, and Eum, Reeves creates a straw man by referring to the document's title
(Resp. at 85).  The introductory text of the Commission's opposition to Reeves'
motion for summary judgment reads as follows:
     As a preliminary matter, the Plaintiff, U.S. Equal Employment Opportunity
     Commission ("Commission" or "EEOC") is puzzled that Defendant would
     include in its motion a request for partial summary judgment as to Ms. Wang,
     Ms. Arai and Ms. Eum.  The Commission notified Defendant as early as April
     13, 2001 for Ms. Wang, August 22, 2001 for Ms. Arai, and October 5, 2001 for
     Ms. Eum that it would not be proceeding on their behalves.
RE72; Br. at 76 n.16.  As the Commission explained in its opening brief (at 76-77),
this provides no support for the district court's award of fees based on the
Commission's refusal "to stipulate to the dismissal of these claimants." (RE1040). 
Reeves points to no practical purpose that would have been served if the Commission
had "dismissed" claims for relief on behalf of these three women, which it could not
do because they were not parties to the lawsuit.  Br. at 76-77.  Since the Commission
had already stated that it would not be pursuing relief on their behalf, Reeves was not
harmed and the district court was wrong to justify fees on this basis.
     Reeves mistakenly defends (Resp. at 85-86) the district court's fee award based
on an Equal Pay Act investigation (RE1040), the error of which the Commission
explained in its opening brief.  Br. at 77-78.  The district court's 2002 fee award also
relied on this rationale as a basis for fees, and the Commission also explained this
error in its first appeal, in its Opening Brief at 59-61.  There is no support for the
court's reliance on this rationale to award fees.  
     The district court's reliance on the Commission's staff mistake regarding
interrogatory verification (RE1041), Resp. at 86-87, addresses a concern entirely
outside the considerations Christiansburg is designed to govern.  Br. at 78.  And the
same is true of the court's criticism of the Commission for attempting to seek
discovery from Reeves' counsel (RE1040), which Reeves' defends (Resp. at 87).  The
Commission explained in its opening brief (at 78-80) that these were percipient
witnesses, the Commission never deposed or called two of the attorneys as witnesses,
and an award of fees against the EEOC was not the appropriate remedy with respect
to the third, Greene.
                            CONCLUSION
     For the foregoing reasons as well as those set out in the Commission's opening
brief, this Court should reverse the entry of judgment in favor of Reeves on the
Commission's pregnancy discrimination and sexual harassment claims, reverse the
award of attorney's fees, and remand this case for a new trial.
                              Respectfully submitted,
                              RONALD S. COOPER
                              General Counsel
                              LORRAINE C. DAVIS
                              Acting Associate General Counsel
                              CAROLYN L. WHEELER
                              Assistant General Counsel
                              _______________________________
                              DONNA J. BRUSOSKI
                              Attorney
                              EQUAL EMPLOYMENT OPPORTUNITY
                                   COMMISSION
                              1801 L Street, N.W.
                              Washington, D.C.  20507
                              (202) 663-7049
                    CERTIFICATE OF COMPLIANCE
     I hearby certify that this brief contains 8,836 words.
                              _________________________________
                              Donna J. Brusoski
                      CERTIFICATE OF SERVICE
     I hereby certify that I served two copies of the foregoing brief, this 6th day of
April 2007, by overnight mail, postage pre-paid, to the following:
                    John J. Manier
                    BALLARD, ROSENBERG, GOLPER & SAVITT
                    10 Universal City Plaza, 16th Floor
                    Universal City, CA  91608-1097
                    
  
                  ______________________
                    DONNA J. BRUSOSKI
                    Attorney
                    EEOC, Office of General Counsel
                    1801 L Street, N.W., 
                    Washington, D.C. 20507
                    (202) 663-7049
***********************************************************************
<<FOOTNOTES>>
<1> REII refers to the Commissions Second Record Excerpts.
<2> The Commissions statement that Hanlon and Greene substantiated the hostile work
environment allegations (Br. at 5) was simply a background fact about the investigation, 
not a concession that this information was relevant at trial. See Resp. at 20.
<3> Contrary to Reeves assertions (Resp. at 22, 23-24), there was no evidence of 
Jacobsons , Catuiras, or Preciados collusion with Hanlon and Greene.
<4> Contrary to Reeves assertion (Resp. at 25 n.1), the Commissions argument that the 
Reeves v. Hanlon & Greene decisions were inadmissible was, and has always been, based 
upon their lack of relevance and undue prejudice  to this lawsuit (not hearsay).  Br. 
at 42.  Therefore, the Commission did not waive this argument under Independent Towers 
v. Washington, 350 F.3d 925, 929 (9th Cir. 2003), by failing to advance it in its 
opening brief.
<5> Moreover, Reeves offers no rational explanation why the Commission would 
stubbornly adhere[] to a position in which it became emotionally and institutionally 
vested after being duped by Hanlon, Greene, and Jacobson.  Resp. at 16.  If it was 
obvious that the evidence so overwhelmingly refuted EEOCs harassment and 
discrimination claims as Reeves would have it (Resp. at 49), there is no logical 
reason why the Commission would have prosecuted, or continued to prosecute, these 
claims.  The Commission brings suit only after multi-layer review and approval by 
independent attorneys and attorney-managers in its Washington, D.C., headquarters 
Office of General Counsel (and only 300 to 400 cases are approved for litigation per 
year, out of the 70,000 to 80,000 charges received annually).  RE99-100; Br. at 47.  
There is nothing to suggest that the attorney-managers who authorized this litigation 
ever met Reeves or had any basis for the type of personal vendetta against him that 
would be required for defendants explanation of the Commissions motives to be true.
<6> The defendant correctly notes that the Commission did not renew its objections to 
questions to a number of witnesses about whether they were offended or felt harassed by 
Reeves conduct.  Resp. at 33.  Although such evidence was inadmissible and prejudicial 
for the reasons discussed in the Commissions opening brief (Br. at 52-55), this Court 
can reverse on this ground  only if the admission of this evidence constitutes plain 
error.  See United States v. Varela-Rivera, 279 F.3d 1174, 1177 (9th Cir. 2002).  In 
combination with all the other erroneous evidentiary rulings, the Commission contends 
that this error too contributed to the jurys verdict and interfered with the 
Commissions substantial right to a full and fair trial of its claims, and the error 
thus should be rectified in a new trial on remand.
<7> Contrary to Reeves assertion (Resp. at 37), the Commission argued that the jury 
instructions on Quilaton and Silva were improper because the women should have been 
allowed to testify.  As the court stated at trial, the Commission objected to th[e] 
instruction[s] preserving [the issue] for appeal (REII33-34), and the Commission 
argued in its opening brief that it was error for the court to have given the 
instructions.  Br. at 55.
<8> Reeves reliance (Resp. at 40, 48) on United States v. Griffin, 84 F.3d 912 (7th 
Cir. 1996), and DeRosiers v. Moran, 949 F.2d 15 (1st Cir. 1991), is inapt.  In neither 
case did the parties alleging error make a timely written offer of proof.
<9> For example, Reeves suggests several times (e.g., Resp. at 76) that the courts 
inference that the Commission coached witnesses is supported by some of the witnesses 
use of the term personal space, a term the court referred to in the fee award 
(RE1043-45).  This is a term in such common usage that the courts reliance on this as 
evidence of coaching reflects its bias against the EEOC.