EEOC v. RPH Management, Inc., d/b/a McDonald's (11th Cir.)
Brief as appellee
Jan. 9, 2006

             IN THE UNITED STATES COURT OF APPEALS
                    FOR THE ELEVENTH CIRCUIT
                     _______________________                                

                        No. 05-15457-GG
                     _______________________
                                

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

     Plaintiff-Appellee,

v.

RPH MANAGEMENT, INC., d/b/a McDONALD'S,

     Defendant-Appellant.

       ____________________________________________________

        On Appeal from the United States District Court
              for the Northern District of Alabama
       ____________________________________________________

           BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY
                     COMMISSION AS APPELLEE
       ____________________________________________________

JAMES L. LEE
Deputy General Counsel

CAROLYN L. WHEELER
Acting Associate General Counsel

VINCENT J. BLACKWOOD
Assistant General Counsel

PAUL D. RAMSHAW
Attorney

U.S. EQUAL EMPLOYMENT
  OPPORTUNITY COMMISSION
1801 L Street, N.W., Room 7040
Washington, DC  20507

  (202) 663-4737
  Paul.Ramshaw@eeoc.gov

              CERTIFICATE OF INTERESTED PERSONS
                               
The undersigned counsel of record for the EEOC, plaintiff/appellee/cross-
appellant, certifies that the following listed persons and parties have an interest
in the outcome of this case:
Armstrong, the Hon. Robert R., Jr., United States Magistrate Judge
Barkley, Justin A., attorney for appellant RPH
Barrett, Mason D., former attorney for appellee EEOC
Blackwood, Vincent J., attorney for appellee EEOC
Chubb Group of Insurance Companies, insurer of appellant RPH
DeLeonardo, Prisca M., former attorney for appellee EEOC
Equal Employment Opportunity Commission, appellee
Guerrier, Charles E., former attorney for appellee EEOC
Hanna, Richard P., president of appellant RPH
Harbuck, Jonathan S., former attorney for appellant RPH
Inzeo, Nicholas M., former attorney for appellee EEOC
Johnston Barton Proctor & Powell LLP, law firm for appellant RPH
Kullman Firm, PLC, former law firm for appellant RPH
Lee, James L., Deputy General Counsel for appellee EEOC
Lindsay, Heather F., attorney for appellant RPH
McDonald's Corporation, franchisor of the appellant RPH
Powell, Charles A., III, attorney for appellant RPH
Ramshaw, Paul D., attorney for appellee EEOC
Robichaud, Samantha, charging party/plaintiff-intervenor
RPH Management, Inc., d/b/a McDonald's, appellant
Reams, Gwendolyn Young, former attorney for appellee EEOC
Smith, the Hon. C. Lynwood, Jr., United States District Judge
Wheeler, Carolyn L., attorney for appellee EEOC
                         
                         
                         ______________________________
                         
                         Paul D. Ramshaw
                         Attorney for appellee EEOC
                         
                         Equal Employment 
                            Opportunity Commission
                         1801 L St., NW, Room 7040
                         Washington, DC  20507
                            202-663-4737 (voice)
                            202-663-7090 (fax)
                            Paul.Ramshaw@eeoc.gov
                         

                       TABLE OF CONTENTS
                                

 CERTIFICATE OF INTERESTED PERSONS  C-1
TABLE OF CONTENTS                    ii
TABLE OF AUTHORITIES                 iv
STATEMENT OF JURISDICTION             1
STATEMENT OF THE ISSUES               1
STATEMENT OF THE CASE                 2
 A.  Nature of the Case. . . . . . . . . . . . . . . . . . . . . . . . 2
 B.  Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . 2
 C.  District Court's Decision . . . . . . . . . . . . . . . . . . . .11
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . .13
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
I.STANDARD OF REVIEW . . . . . .  . . . . . . . . . . . . . . . . . . 14
II.         THE DISTRICT COURT'S DECISION DENYING FEES UNDER 
 THE ADA WAS WELL WITHIN ITS DISCRETION. . . . . . . . . . . . . . . .15
 A.  The district court applied the correct legal standard.. . . . . .15
 B.  The district court applied the standard properly. . . . . . . . .24
II.                                                           
 THE DISTRICT COURT ACTED WELL WITHIN ITS 
 DISCRETION IN DENYING FEES UNDER  1927 AND RULE 11.. . . . . . . . .33
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . .38
CERTIFICATE OF SERVICE

                     TABLE OF AUTHORITIES
                            Cases 
Baker v. Alderman, 158 F.3d 516 (11th Cir. 1998) . . . . . . . . . . . . . .15
Bonner v. City of  Prichard, 661 F.2d 1206 . . . . . . . . . . . . . . . . .21
Byrne v. Nezhat, 261 F.3d 1075 (11th Cir. 2001) . . . . . . . . . . . . 23, 35
*  Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S. Ct. 694 (1978)passim
Cordova v. Dillard's, Inc., 419 F.3d 1169 (11th Cir. 2005) . . .14, 15, 17, 35
EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256 (11th Cir. 2003) . . . . passim
EEOC v. Bruno's Restaurant, 13 F.3d 285 (9th Cir. 1992) . . . . . . . . . . 19
EEOC v. Johnson & Higgins, Inc., 91 F.3d 1529 (2d Cir. 1996) . . . . . . . .25
EEOC v. Klinger Elec. Corp., 636 F.2d 104 (5th Cir. Feb. 5, 1981) . 21, 22, 31
EEOC v. Magnolia Electric Power Ass'n, 635 F.2d 375 (5th Cir. Jan. 26, 1981).30
EEOC v. Pet, Inc., 612 F.2d 1001 (5th Cir. Mar. 3, 1980) (per curiam) . 21, 31
EEOC v. Pierce Packing Co., 669 F.2d 605 (9th Cir. 1982)11
EEOC v. Zia Co., 582 F.2d 527 (10th Cir. 1978) . . . . . . . . . . . . . . .31
Head v. Medford, 62 F.3d 351 (11th Cir. 1995) . . . . . . . . . . . . . . . 32
Hughes v. Rowe, 449 U.S. 5 (1980)32, . . . . . . . . . . . . . . . . . . .  34
Lauricia v. MicroStrategy Inc., 114 F. Supp. 2d 489 (E.D. Va. 2000), 
 rev'd, 268 F.3d 244 (4th Cir. 2001) . . . . . . . . . . . . . . . . . . . .25
Marshall v. Sun Oil Co., 605 F.2d 1331 (5th Cir. 1979) . . . . . . . . . . .24
Pelletier v. Zweifel, 921 F.2d 1465 (11th Cir. 1991) . . . . . . . . . . . .35
Quintana v. Jenne, 414 F.3d 1306 (11th Cir. 2005) . . . . . . . . . . . . . 17
Schwartz v. Millon Air, Inc., 341 F.3d 1220 (11th Cir. 2003) . . . . . .15, 34
Sullivan v. School Board, 773 F.2d 1182 (11th Cir. 1985) . . . . . . . . . .18
Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982) . . . . . . . . . .30

                           Statutes
28 U.S.C. 
  1291 . . . . . . . . . . . . . . . . . . 1
 
  1331 . . . . . . . . . . . . . . . . . . 1
 
  1343(a)(4) . . . . . . . . . . . . . . . 1
 
  1345 . . . . . . . . . . . . . . . . . . 1
 
  1927 . . . . . . . . . . .1, 14, 15, 33-35
42 U.S.C. 
 
  1988 . . . . . . . . . . . . . . . .32, 34
 
  2000e-5(b) . . . . . . . . . . . . . . .20
 
  2000e-5(f)(1) . . . . . . . . . . . 21, 31
 
  2000e-5(f)(3) . . . . . . . . . . . . . .1
 
  2000e-5(k) . . . . . . . 1, 12, 13, 23, 34
 
  12111 et seq. . . . . . . . . . . . . .  2
 
  12117(a) . . . . . . . . . . . . . . . .20
 
  12205 . . . . . . . . . . . . . . . .1, 13

                            Rules
                               
Federal Rule of Civil Procedure 11 . . . . . . . 1, 14, 15, 33, 35-36

                        Miscellaneous

Lindemann, Barbara, & Paul Grossman, Employment Discrimination Law 
     (3d ed. 1996) . . . . . . . . . . . . . . . . . . . . . . . . .24
     
                               

                   STATEMENT OF JURISDICTION

     The district court had jurisdiction over this action pursuant to 28 U.S.C.
 1331, 1343(a)(4) and 1345, and 42 U.S.C.  2000e-5(f)(3) and 12117.  The
district court dismissed the claims brought by the Equal Employment Opportunity
Commission on August 11, 2004, and the court entered an order on May 3, 2005,
dismissing the plaintiff-intervenor's claims pursuant to a stipulated settlement. 
Docket entry 57 ("R-57"), R-79.  The court entered an order on September 2,
2005, denying the defendant's motion for attorney's fees and sanctions against the
Commission, and closed the case.  R-89, R-90.  On September 30, 2005, the
defendant filed a timely notice of appeal from the September 2 order.  R-91.  This
court has jurisdiction over this appeal pursuant to 28 U.S.C.  1291.

                    STATEMENT OF THE ISSUES
     1.  Whether the district court acted within its discretion when it found the
Commission's action was not frivolous and denied the defendant's request for
attorney's fees under  12205 of the ADA and  706(k) of Title VII.
     2.  Whether the district court acted within its discretion when it found the
Commission's action was not frivolous and denied the defendant's request for
attorney's fees under 28 U.S.C.  1927 and its request for sanctions under Fed. R.
Civ. P. 11.
                     STATEMENT OF THE CASE
     A.  Nature of the Case
     This is an appeal from an order denying the defendant's request for
attorney's fees and sanctions in this enforcement action under the Americans with
Disabilities Act ("ADA"), 42 U.S.C.  12111 et seq.  The Equal Employment
Opportunity Commission filed a complaint on March 6, 2003, alleging that the
defendant violated the ADA by failing to promote and constructively discharging
Samantha Robichaud because of her disability.  R-1.  The district court granted
Robichaud's request to intervene in June 2003.  R-21.  The district court dismissed
the Commission's complaint in August 2004, holding that the agency failed to
satisfy the statutory conciliation requirement.  R-53, R-57.  The court dismissed
Robichaud's complaint in May 2005 pursuant to a stipulated settlement between
Robichaud and the defendant.  R-79.  In September 2005 the district court denied
the defendant's motion seeking attorney fees and sanctions against the
Commission.  R-89.
     B.  Statement of Facts
     RPH Management owns and operates several McDonald's fast-food
franchises.  Samantha Robichaud began working at one of RPH's restaurants in
August 2000.  R-10, Exhibit E ("R-10-E"), attached page marked "P28." 
Robichaud was born with Sturge Weber syndrome, evidenced by a port-wine-
colored birthmark covering much of her face.  Robichaud left her job in January
2001 and filed a charge with the EEOC on April 2, 2001, alleging that RPH
discriminated against her by failing to consider her for promotion, harassing her,
and constructively discharging her, all due to her perceived disability, her facial
disfigurement.  R-16-B.  Brenda Owens was assigned to investigate the complaint
for the EEOC.  R-97-2, p. 11.  On August 30, 2001, after reviewing information
RPH had provided and conducting further investigation, she prepared an
investigator's memorandum, which her supervisor reviewed and approved.  R-16-
A,  4c.  Owens testified that she conducted a telephonic pre-determination
interview on September 5, 2001, with Richard Hanna, RPH's president, informing
him of the agency's proposed findings and inviting him to submit rebuttal
evidence.  R-16-A,  4c.
     On September 10, the director of the Commission's Birmingham office
issued a letter of determination finding reasonable cause to believe that violations
had occurred.  R-10-D.  In the letter, the Commission found that although RPH
management was aware that Robichaud was continually subjected at work to
demeaning and derogatory comments relating to her facial disfigurement, the
company failed to take steps to stop it.  R-10-D.  The Commission also found that
Robichaud was denied promotion to a management position because of her
disability.  The Commission had evidence that an RPH manager told Robichaud
that, due to her disfigurement, she would not be promoted to a management
position, and that "the store owner, Rick Hanna, did not want [her] to be a
manager because he felt like [she] was detrimental to the business."  R-16-B; R-
10-D.  The investigation revealed no evidence of documented performance
problems.  R-10-D.
     In the letter transmitting the EEOC's determination, the director invited
RPH to participate in conciliation by, among other things, proposing a conciliation
agreement by Monday, September 24.  R-16-A,  4d.  On Wednesday, September
19, Jonathan Harbuck, RPH's attorney, left a telephone message for Owens about
conciliation.  That same day Owens returned the call (at a time when Harbuck
happened to be busy) and left a message.  Owens informed her supervisor, Leon
Kennedy, about Harbuck's call and asked Kennedy to contact Harbuck.  R-16-A,
 4e.  On Monday, September 24, Owens received a letter (that the district office
had received on Friday) from Harbuck dated September 12.  R-16-A,  4e.  The
letter requested more time to respond to the invitation to conciliate.  R-10-C. 
Owens called Harbuck that day, and Harbuck told her that Kennedy had already
given him an extension until Friday, September 28.  R-16-A,  4e.
     On Thursday, September 27, Harbuck delivered a letter to the district office
setting forth RPH's view of the case.  R-16-A,  4e; R-10-E.  The letter states that
Harbuck's personal investigation revealed that: (a) Robichaud had not been
harassed or constructively discharged; and (b) the reason Robichaud had not been
promoted to swing manager before she left was that she had not mastered the
duties of the drive-through-window position.  Harbuck nonetheless offered to
settle the matter for back pay of about $6,090, less Robichaud's interim earnings,
if any, during the relevant period.  According to the letter, the company decided
not to offer any damages for pain and suffering in part because of Robichaud's
"statement to her manager that she has accommodated herself to negative public
reactions [to her disfigurement] for her entire life."  R-10-E.
     Owens immediately transmitted RPH's offer to Robichaud, telling her how
much RPH had offered and how that figure had been calculated.  R-97-1, pp. 33-
35.  Robichaud rejected the offer, saying, "Absolutely no way!" R-97-1, p. 35. 
Robichaud told Owens that she considered the offer an insult, and that she wanted
more for pain and suffering.  R-16B ("EEOC Submission of Evidence for In
Camera Review"), Conciliation Log ("Concil. Log"), p. 2; R-97-2, pp. 82, 97. 
Robichaud testified repeatedly that hearing about the low offer felt like being
slapped or kicked in the face.  R-97-1, pp. 36, 42, 58, 61.  Robichaud told Owens
she would contact her attorney and submit a written rejection of the offer. R-16B-
2, Concil. log, p. 2; R-97-2, p. 97.  The next day, Friday, September 28, Owens
received a letter from Robichaud's attorney, Wilbor Hust, stating that RPH's offer
"is unacceptable to my client and she has no counter offer at this time."  R-16B-2,
Concil. log, p. 2; and R-16B-4, 9/28/01 Hust letter.  Hust asked the EEOC to
"issue the appropriate right to sue' letter so that we can proceed to protect her
interest in court."  R-16B-4, 9/28/01 Hust letter.<1>
     That same day, acting on the basis of  Robichaud's reaction to RPH's offer
and Hust's letter, Owens recommended that the Commission declare the
conciliation unsuccessful.  R-16B-2, Concil. Log, p. 2.  In her deposition Owens
testified that the Commission had trained her periodically in how to conduct
conciliation, but she did not recall being trained in positional bargaining, or being
taught that during negotiations employers will often start with an offer lower than
the amount for which they are later willing to settle.  R-97-2, pp. 13-14.  Owens
believed that the EEOC's primary role during conciliation is to facilitate
communication between the charging party and the employer.  R-97-2, pp. 122-23;
R-97-3, p. 151.  She indicated that the conciliation process depends on the willing
participation of the two parties, and testified that if, as she believed had happened
here, the charging party decisively rejects the employer's offer, states that she is
unwilling to make a counter-offer, and asks the Commission to issue her a right-
to-sue notice so she can go to court, the agency should usually consider further
conciliation futile.  R-97-2, pp. 37-39, 90, 96.  
     Allen Gosa, who has worked for the Commission for over 30 years and has
supervised intake, investigations, and conciliations, testified that: (a) investigators
are trained to know that respondents will start low and charging parties will start
high, and to evaluate those proposals and try to bring the parties together; (b) the
investigator should give the employer an idea of what the Commission would
consider a reasonable settlement, and if the employer makes an offer, the
investigator should usually evaluate it; (c) the conciliation agreement must be
acceptable to the EEOC as well as to the employer and the charging party; and (d)
when the charging party has been unreasonable, the agency has on rare occasions
entered a conciliation agreement with only the employer.  R-97-5, pp. 23-25, 28-
31, 41-42, 49, 58-62.
     Later on September 28, Kennedy, Owens's supervisor, approved her
recommendation to fail conciliation.  R-97-4, pp. 55-56.<2> September 28 was the
last business day in the EEOC's fiscal year, and Kennedy instructed his
investigators to close as many cases as possible before the fiscal year ended.  R-
97-4, pp. 68-69.  Kennedy agreed with Owens that it was common for the
Commission to fail conciliation if either party indicated that it was unwilling to
pursue the process further, and that in this case he read Hust's letter as saying,
"We don't want to negotiate with these people anymore."  R-97-4, pp. 55-56, 76-
77.  On Sunday, September 30, the district office enforcement manager signed
letters addressed to RPH and Robichaud declaring that conciliation had failed.  R-
10-F.  He testified that he sometimes worked on Sundays if his managerial duties
required it.  R-51-10,  4. 
     During discovery, RPH's attorney showed several EEOC employees a letter
addressed to the EEOC, signed by Harbuck and dated Thursday, October 4, 2001. 
R-97-2, Ex. 6.  The letter expresses RPH's "disappoint[ment at] learn[ing] that the
Commission has abandoned conciliation, since we heard nothing from you after
our settlement proposal was hand-delivered to Mr. Leon Kennedy on September
27."  Id.  The letter states: "Our client hopes and believes that conciliation can be
successful, assuming the Charging Party is willing to negotiate."  Id.  RPH failed
to present any evidence that this letter was ever mailed or received by the EEOC,
and none of the Commission-employee deponents recalled having seen it before. 
R-97-2, p. 132; R-97-4, p. 23; R-97-5, p. 187.<3>
     About 17 months later, in March 2003, the EEOC filed this enforcement
action, alleging that RPH violated the ADA by refusing to consider Robichaud for
promotion and constructively discharging her because of her facial disfigurement. 
R-1.  On April 22, RPH filed its answer and a motion to dismiss for lack of subject
matter jurisdiction grounded on the Commission's alleged "fail[ure] to engage in
good faith conciliation efforts."  R-3, 5 & 10.  Robichaud moved to intervene on
May 5, and the district court granted that motion on June 12.  R-13 & 21.
     On April 28, 2004, the magistrate judge issued a report recommending that
the EEOC's claims be dismissed because of the agency's failure to conciliate in
good faith.  The magistrate judge ruled that Owens, like "every litigator,"
"sure[ly]" knew that negotiators' first offers are rarely their last offers, and that
parties tend to commence negotiations by advancing "inflated demand[s]" and
"stingy offer[s]."  R-53, p. 8.  After noting that the Commission did not tell RPH
what relief it would consider reasonable, that Owens did not discuss with
Robichaud the option of making a counter-offer or seeking a better offer from
RPH, and that Owens did not communicate Robichaud's reaction to RPH and
afford the company the opportunity to increase its offer, the magistrate judge
"concluded that the EEOC made no real effort to conciliate Robichaud's claims." 
Id.<4> He therefore recommended that the Commission's complaint be dismissed. 
He did not specify whether the dismissal should be with or without prejudice. 
     The Commission filed objections to this report, arguing both that it was not
unreasonable for the agency to conclude on September 30 that further conciliation
efforts would be futile, and that if the EEOC's conciliation efforts had indeed been
inadequate, the appropriate remedy was to stay the case, rather than dismiss it.  R-
55.  On August 11, 2004, the district court adopted the magistrate judge's
recommendation and dismissed the Commission's claims with prejudice.  R-57. 
Robichaud's claims as intervenor were not affected by the order.
     Later in August RPH filed a motion seeking attorneys' fees and costs
totaling approximately $104,000.  R-60.  In January 2005, while that motion was
still pending, the magistrate judge stayed proceedings in the case and referred
RPH and Robichaud to mediation.  R-75.  By early May, RPH and Robichaud
reached a settlement and asked the court to dismiss her claims, and the court did. 
R-78, R-79.  Since all claims had now been resolved, the EEOC in June asked the
court to extend the time for appealing the August 2004 order dismissing the
agency's complaint until the court decided the motion for fees, and the court
granted that motion.  R-83, R-85.  On September 2, 2005, the magistrate judge
issued an order denying RPH's request for fees and expenses, and closing the case. 
R-89.
     C.   District Court's Decision
     In opposing an award of fees, the EEOC had first argued that RPH was not a
"prevailing party" because, in August 2004, after the district court dismissed the
agency's claims, RPH still faced the prospect of liability to Robichaud as
intervenor for the same actions that were at issue in the EEOC's claims.  In
rejecting this argument, the magistrate judge relied on the following rationale:
(a) the Eleventh Circuit in EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256,
1261 (11th Cir. 2003), in affirming the district court's dismissal and fee award to
defendant, had cited EEOC v. Pierce Packing Co., 669 F.2d 605, 608 (9th Cir.
1982); and (b) in Pierce Packing, where the district court had dismissed and
awarded fees because the Commission had satisfied none of the statutory
preconditions for litigation, the Ninth Circuit had called the defendants the
prevailing parties.  R-89, pp. 3-4.
     The magistrate judge recognized, however, that a prevailing defendant is
entitled to attorney's fees under  706(k) only if the action was frivolous or
unreasonable.  R-89, p. 4 (citing Christiansburg Garment Co. v. EEOC, 434 U.S.
412, 421, 98 S. Ct. 694, 700 (1978)).  He found that RPH was not entitled to fees
under this standard.  The magistrate judge distinguished the facts of this case from
the facts in Asplundh, where the Eleventh Circuit affirmed an award of attorney's
fees against the EEOC after the agency's claims were dismissed, as in this case,
for failure to conciliate.  R-89, pp. 7-8.  The magistrate judge noted that, in this
case, "there is no evidence of further contact from the defendant after the
Commission told the defendant that it would make no further efforts at
conciliation," and concluded: "This is not a case of coercion but more of
negligence or lack of due diligence on the part of the EEOC to engage in the
traditional back and forth' aspect of negotiations."  R-89, p. 8.  The magistrate
judge therefore denied fees under  706(k).
     The magistrate judge also rejected RPH's request for attorney's fees under 
28 U.S.C.  1927, Rule 11 of the Federal Rules of Civil Procedure, and the court's
inherent powers, ruling that the Commission did not expose the company to
unreasonable or meritless claims, because Robichaud sued on the same claims, and
the case continued after the agency was dismissed.  R-89, pp. 8-9.

                      SUMMARY OF ARGUMENT
     RPH argues that the district court should have awarded the company its fees
under  12205 of the ADA and  706(k) of Title VII because the Commission
brought this suit without first satisfying the statutory conciliation requirement. 
The argument should be rejected.  First, this Court affirms a district court decision
denying fees unless the district court abused its discretion.  Second, the issue that
the district court properly addressed was not whether the Commission had
satisfied the preconditions to litigation, but whether the agency's lawsuit was
frivolous.  Here, that meant asking not whether the agency was right (when it
claimed that it had satisfied the conciliation requirement), but whether the agency
had a non-frivolous argument that it was right.
     Third, the district court did not abuse its discretion in finding that the
EEOC's lawsuit was not frivolous, because it reasonably found on this record that
the Commission had a non-frivolous argument that it acted reasonably in
terminating conciliation when it did: namely, the agency reasonably believed in
late September 2001 that the charging party and her attorney were not interested in
participating any further in the conciliation process.  If one of the parties to
conciliation is not interested in pursuing conciliation any further, it is reasonable
for the Commission to conclude that additional conciliation would be futile and to
terminate conciliation, as it did in this case.  On this record, therefore, it was not
an abuse of discretion for the district court to find the Commission's lawsuit non-
frivolous and to deny fees.
     RPH also sought fees under 28 U.S.C.  1927 and sanctions under rule 11. 
The district court's decision denying these requests was not an abuse of discretion
because the Commission had a reasonable and good faith belief that it had
satisfied the conciliation requirement (and its lawsuit was therefore not frivolous),
and because Robichaud was also suing RPH on the same claims (and the
Commission's pleadings therefore did not vexatiously multiply the proceedings).

                            ARGUMENT

  I.   STANDARD OF REVIEW 
     RPH erroneously states that "[a] denial of attorney's fees should be reversed
where the record supports a finding that the plaintiff's action was frivolous."  RPH
Br. at 25 (footnote omitted).  On the contrary, a district court decision denying
attorney fees will be reversed on appeal only if it is found to be an abuse of
discretion.  Cordova v. Dillard's, Inc., 419 F.3d 1169, 1179 (11th Cir. 2005).  In
reviewing the district court's reasoning, this Court "view[s] the evidence in the
light most favorable to the non-prevailing plaintiff."  Id.   The district court abused
its discretion only if it arrived at the wrong result because it applied the wrong
legal standard or based its decision on clearly erroneous factual findings.  Id. at
1180.  The mere fact that the record could support a contrary conclusion is
insufficient to justify reversal of the district court's order.
     The same abuse-of-discretion standard applies when this Court reviews a
district court decision denying attorney fees under 28 U.S.C.  1927 or rule 11. 
Schwartz v. Millon Air, Inc., 341 F.3d 1220, 1225 (11th Cir. 2003) ( 1927);
Baker v. Alderman, 158 F.3d 516, 521 (11th Cir. 1998) ( 1927 and rule 11). 
II.  THE DISTRICT COURT'S DECISION DENYING FEES UNDER THE
     ADA WAS WELL WITHIN ITS DISCRETION.
     A.  The district court applied the correct legal standard.
     RPH contends that the district court abused its discretion by applying the
wrong legal standard.  According to RPH, a fee award against the Commission is
"warranted" based solely on the "EEOC's breach of its duty to conciliate,"  RPH
Br. at 16; see also 20 ("[T]he EEOC's violation of statutory or regulatory law,
even if not in bad faith, is sufficient for awarding fees to a prevailing defendant
under Title VII and the ADA.") (citation omitted).  RPH also argues that the
district court erred by requiring the company to show that the Commission acted in
bad faith.  RPH Br. at 14, 19-21.  RPH is wrong on both counts.  First, an award of
attorney's fees to RPH, the defendant in this ADA enforcement action, is not
warranted based solely on the district court's conclusion that the Commission
failed to satisfy a procedural prerequisite to suit.  As the Supreme Court held in
Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S. Ct. 694, 700
(1978), a district court may award fees to a prevailing defendant only if it finds
that the plaintiff's action "was frivolous, unreasonable, or without foundation,
even though not brought in subjective bad faith.'"  Secondly, contrary to the
company's argument, the district court applied this standard, which it cited
repeatedly in its decision (R-89, pp. 2 (quoting Christiansburg, 434 U.S. at 421, 98
S. Ct. at 700), 4, 8), and did not require RPH to establish bad faith.
     1.  Like Title VII, the ADA provides that "[i]n any action . . . commenced
pursuant to this chapter, the court, in its discretion, may allow the prevailing party
. . . a reasonable attorney's fee . . . ."  42 U.S.C.  12205 (compare to  706(k) of
Title VII, 42 U.S.C.  2000e-5(k)).  The statute does not distinguish between
prevailing plaintiffs and prevailing defendants, but the Supreme Court has held
that, while prevailing plaintiffs should recover their attorneys' fees "unless special
circumstances would render such an award unjust," a prevailing defendant is
eligible for a fee award only when "the plaintiff's action was frivolous,
unreasonable, or without foundation."  Christiansburg, 434 U.S. at 416-17, 421, 98
S. Ct. at 698, 700.  These different standards derive from the contrasting equitable
and policy considerations supporting the two types of awards.  Prevailing
plaintiffs should normally recover their fees, the Court reasoned, because
Congress relies on them "to vindicate a policy that Congress considered of the
highest priority," and because the losing defendants have violated federal law.  Id.
at 418, 98 S. Ct. at 699.  The rationale supporting fee awards to prevailing
defendants, however, is to protect employers from the burden of defending against
lawsuits "having no legal or factual basis."  Id. at 420, 98 S. Ct. at 700.
     The Christiansburg Court stressed that if courts award prevailing defendants
fees in non-frivolous cases, potential plaintiffs will be discouraged from bringing
what seem to be meritorious claims unless they are airtight, because potential
litigants can rarely predict how the litigation will proceed, and "[d]ecisive facts
may not emerge until discovery or trial."  Id. at 422, 98 S. Ct. at 700.  "Even when
the law or the facts appear questionable or unfavorable at the outset," the Court
stated, "a party may have an entirely reasonable ground for bringing suit."  Id., 98
S. Ct. at 701.  Awarding fees to prevailing defendants in non-frivolous cases, the
Court concluded, "would undercut the efforts of Congress to promote the vigorous
enforcement of the provisions of Title VII."  Id.
     In most cases applying Christiansburg, the issue is whether the plaintiff's
claim was frivolous on the merits.  See, e.g., Cordoba v. Dillard's, Inc., 419 F.3d
1169, 1186-87 (11th Cir. 2005) (even though properly dismissed at summary
judgment, plaintiff's ADEA claim had some legal and factual basis, and the
district court therefore abused its discretion in awarding defendant fees); Quintana
v. Jenne, 414 F.3d 1306, 1310-11 (11th Cir. 2005) (where the plaintiff established
a prima facie case of discrimination, his failure to prove pretext did not render his
claim frivolous, and the fee award was therefore an abuse of discretion); Sullivan
v. School Bd., 773 F.2d 1182, 1189 (11th Cir. 1985) (in determining whether to
award fees to defendant in case dismissed on the merits, court should consider
whether the plaintiff established a prima facie case, whether the defendant offered
to settle, and whether the claim went to trial).  In this case, however, RPH does not
argue that the Commission's claims were frivolous on the merits; the merits of the
allegations against the company were not considered by the district court.  Instead
the company argues that this action was frivolous because it was not maintainable
for procedural reasons.  There can be no question that the Christiansburg standard
applies to cases like this one where claims are dismissed for procedural reasons
because Christiansburg itself was such a case.
     In Christiansburg, the district court dismissed an EEOC enforcement action
because Title VII did not authorize the agency to sue on the basis of a charge
which had been closed prior to the 1972 amendments to Title VII.  Without
questioning the correctness of the district court's dismissal, the Supreme Court
affirmed the denial of the defendant's request for attorney's fees because it agreed
with the district court that the EEOC's interpretation of the 1972 amendments
"was not frivolous," and that the defendant was therefore not eligible for an award
of fees.  434 U.S. at 423-24, 98 S. Ct. at 701.  Accordingly it is clear that, under
Christiansburg, a defendant is not entitled to attorney's fees based merely on a
ruling that the EEOC was not authorized to bring suit against it.  On the contrary,
as the district court recognized, RPH is not entitled to attorney's fees if the
Commission had a non-frivolous argument that it had satisfied the conciliation
requirement before bringing suit  that is, if the agency had a non-frivolous
argument that it had acted reasonably in terminating conciliation when it did.  Cf.
EEOC v. Bruno's Restaurant, 13 F.3d 285, 290 (9th Cir. 1992) ("To justify an
award of fees, the district court had to find not merely that the EEOC failed to
adequately conciliate, but that [the agency's] belief that its conciliation efforts
were adequate was unreasonable.").
     2.  Although the district court repeatedly cited the Christiansburg standard,
including the point that a showing of bad faith is not necessary, RPH argues that
the court imposed a bad faith requirement because the court found it significant
that the Commission's conduct of the conciliation of Robichaud's charge did not
amount to "coercion."  This argument reflects the company's confusion about the
proper application of Christiansburg to this case.  In the course of determining
whether the Commission's lawsuit was frivolous under the Christiansburg
standard, the district court compared the Commission's conduct in this case with
this Court's description of the Commission's conduct in EEOC v. Asplundh Tree
Expert Co., 340 F.3d 1256 (11th Cir. 2003), a recent decision affirming an award
of attorney's fees against the Commission in a Title VII action that was also
dismissed based on the inadequacy of the agency's conciliation efforts.  The
district court here found that, unlike in Asplundh, the deficiencies in the agency's
conciliation efforts in this case were due to negligence and poor judgment, and not
due to "coercion" by the Commission.  R-89, p. 8.  Taking this statement out of
context, and ignoring the court's repeated articulation of the correct standard, RPH
argues that the district court's denial of fees was an abuse of discretion because
the court "incorrectly thought that Asplundh created a new standard that the
agency's conduct must be coercive' for a fee award to be appropriate."  RPH Br.
at 19.  On the contrary, the court's discussion when viewed in context represents a
wholly appropriate and convincing basis for concluding that it was not frivolous
for the Commission to believe that it had engaged in good faith conciliation efforts
in this case, as distinguished from Asplundh.
     Before filing an ADA lawsuit, the Commission must attempt to resolve the
charge via conciliation.  The ADA incorporates the enforcement provisions of
Title VII, 42 U.S.C.  12117(a), and  706(b) of Title VII states that, if the EEOC
investigates a charge and finds reasonable cause to believe an unlawful
employment practice occurred, "the Commission shall endeavor to eliminate any
such alleged unlawful employment practice by informal methods of conference,
conciliation, and persuasion."  42 U.S.C.  2000e-5(b).  Section 706(f)(1) of Title
VII provides that, if the Commission "has been unable to secure from the
respondent a conciliation agreement acceptable to the Commission," the agency
may bring an enforcement action against the employer, but the district court may,
upon request, "stay further proceedings . . . pending . . . further efforts of the
Commission to obtain voluntary compliance."  42 U.S.C.  2000e-5(f)(1).  
     This Court has ruled that these statutory provisions require the Commission
to make a good-faith attempt to resolve the charge via conciliation.  EEOC v.
Asplundh Tree Expert Co., 340 F.3d 1256, 1261 (11th Cir. 2003).  The
Commission fulfills its statutory duty to attempt conciliation, this Court has stated,
if it "outline[s] to the employer the reasonable cause for its belief that [the ADA]
has been violated, offer[s] an opportunity for voluntary compliance, and
respond[s] in a reasonable and flexible manner to the reasonable attitudes of the
employer."  Id.  at 1259 (quoting EEOC v. Klinger Elec. Corp., 636 F.2d 104, 107
(5th Cir. Feb. 5, 1981)).  Furthermore, the Fifth Circuit, in decisions which are
binding precedent in this Court,<5> has stated that, where the Commission initiates
conciliation efforts in good faith but terminates the process prematurely, the
district court should usually not dismiss the agency's complaint.  Rather, it should
stay the proceedings, as Title VII itself provides, to allow the Commission to
conduct further conciliation.  Klinger Elec., 636 F.2d at 107; EEOC v. Pet, Inc.,
612 F.2d 1001, 1002-03 (5th Cir. Mar. 3, 1980) (per curiam).  In Klinger the
district court ruled that the agency had failed to conciliate adequately, and the
court of appeals reversed because the district court had not conducted a sufficient
inquiry into whether the Commission's action in failing conciliation was
reasonable.  636 F.2d at 107.  The court of appeals added that if on remand the
district court found the EEOC's efforts inadequate, it should stay proceedings
rather than dismissing the case, especially since the agency had participated in
negotiations for two years.  Id.  In Pet, the court of appeals agreed with the district
court that the Commission's conciliation efforts had been inadequate  and indeed
"smack[ed] more of coercion than of conciliation"  but again stated that it would
have been better to stay the proceedings rather than dismiss them.
     Under Christiansburg, RPH would be eligible for an award of attorney's
fees if it could establish that it was objectively unreasonable for the Commission
to believe that it had met the requirement of good faith conciliation under the
applicable standard.  As RPH points out, and as the district court recognized by
quoting the Christiansburg standard, it was not necessary for RPH to establish that
the Commission acted in subjective bad faith when it filed suit.  RPH's argument
that the court imposed a bad faith standard is based entirely on the fact that the
court, in distinguishing this case from Asplundh, found that the Commission's
conduct in the conciliation process in this case did not amount to "coercion." 
Contrary to the company's argument, however, this does not indicate that the court
imposed a heavier burden on RPH than Christiansburg provides.
     First, although Christiansburg holds that a showing of bad faith is not
required, a defendant may still recover attorney's fees under Christiansburg, or
under the American Rule, if it establishes that a law suit was brought for an
improper purpose.  Christiansburg,  434 U.S. at 419, 98 S. Ct. at 699 (even without
 706(k), court may award defendant fees if plaintiff brought action in bad faith). 
This Court's decision in Asplundh suggests that fees were found appropriate in
that case primarily because the Court believed that the Commission acted in bad
faith by deliberately filing suit without adequate conciliation in pursuit of
publicity.  Asplundh, 340 F.3d at 1261 (supporting affirmance of fee award by
quoting Byrne v. Nezhat, 261 F.3d 1075, 1106 (11th Cir. 2001), as saying, "The
key to unlocking a court's inherent power [to award sanctions] is a finding of bad
faith" (citation deleted, brackets in Asplundh)).  RPH argued vigorously in the
district court, and continues to argue on appeal, that this case is controlled by
Asplundh.  R-68, pp. 8-11; RPH Br. at 17-20, 29, 31-32.  Accordingly, it was
necessary for the district court to explain why the Asplundh rationale does not
support an award of attorney's fees in this case.
     Furthermore, although the Christiansburg analysis focuses primarily on the
objective reasonableness of the Commission's belief that it had satisfied the
prerequisites to suit, RPH's argument that agency officials conducted the
conciliation efforts in bad faith is clearly relevant to the question of whether it was
reasonable for the Commission to believe, when it filed suit, that it had conciliated
in good faith as required by statute.  If, as the company argues, the Commission's
conciliation efforts were intentionally coercive, it would be less likely that the
agency had a reasonable belief that it had satisfied the statutory requirement to
conciliate in good faith.  Accordingly, the district court's consideration of  and
rejection of  RPH's argument that this case is controlled by Asplundh does not
suggest in any way that the court effectively required RPH to show that the
Commission acted coercively or in bad faith in order to be eligible for attorney's
fees.
     B.  The district court applied the standard properly.
     The district court did not abuse its discretion when it found that the
Commission had a non-frivolous argument that it acted reasonably in terminating
conciliation when it did.  Conciliation is a voluntary process on the part of the
charging party and the employer.  The EEOC has no authority to compel either
party to participate in the process in good faith.  "The goal of conciliation usually
is to reach a tripartite agreement signed by the parties and the Commission."  2
Barbara Lindemann & Paul Grossman, Employment Discrimination Law 1237 (3d
ed. 1996); see also Marshall v. Sun Oil Co., 605 F.2d 1331, 1335 (5th Cir. 1979)
("Conciliation is not a one-way street.  It is an attempt to reach a reasonable,
voluntary and mutual understanding.").  If either the employer or the charging
party reaches a point where that party is unwilling to participate in this voluntary
process any further, the Commission cannot force them to do so, and may
legitimately decide that further conciliation efforts would be futile.  Cf. EEOC v.
Johnson & Higgins, Inc., 91 F.3d 1529, 1535 (2d Cir. 1996) ("If the [employer]
refuses the invitation to conciliate or responds by denying the EEOC's allegations,
the EEOC need not pursue conciliation and may proceed to litigate . . . .");
Lauricia v. MicroStrategy Inc., 114 F. Supp. 2d 489, 496-97 (E.D. Va. 2000) (it
was "plainly not unreasonable" for the EEOC to fail conciliation "based on the
[charging party's] lack of interest in conciliation," especially in light of the
antagonistic relationship between the charging party and the employer) (dictum),
rev'd on other grounds, 268 F.3d 244 (4th Cir. 2001).  
     At the time conciliation efforts were halted in this case, the Commission had
a reasonable basis for believing that Robichaud was not willing to participate in
conciliation any further.  Both Robichaud and her attorney had unequivocally
rejected RPH's offer and her attorney had conveyed his intention to file suit
against the company.  When Owens described the company's offer, Robichaud
emphatically rejected it, saying, "Absolutely no way!"  R-97-1, p. 35.  She told
Owens that she considered the offer an insult, and that she would contact her
attorney and submit a written rejection of the offer.  R-16B-2, p. 2.  The next day
Hust, Robichaud's lawyer, delivered a letter to the EEOC stating that RPH's offer
"is unacceptable to my client" and she "has no counter offer at this time."  R-16B-
4.  Hust then asked the agency to "issue the appropriate right to sue' letter so that
we can proceed to protect her interest in court."  R-16B-4.
     Given the charging party's emphatic rejection of the company's de minimis
offer and her attorney's indication that she had decided to initiate litigation, it was
not unreasonable for the Commission to believe that even if the district court felt
that further conciliation efforts should have been made, it would stay the action for
further conciliation rather than dismiss it with prejudice.  RPH cites no case  and
the Commission knows of none  holding that the EEOC must continue its
conciliation efforts after one of the parties has informed the agency that it is
unwilling to participate any further in the conciliation process.  While it is true
that the Commission could in theory have continued conciliation efforts with RPH
even without Robichaud's participation, it would not be unreasonable to conclude
that where, as here, the charging party is represented by counsel who has stated an
intent to file suit, the employer would be unwilling to enter into a meaningful
conciliation agreement with the EEOC that would leave the charging party free to
proceed with her action. 
     RPH makes three principal arguments in support of its contention that the
EEOC's conciliation efforts were "woefully inadequate."  RPH Br. at 16.  These
arguments are all based on a distorted and one-sided view of the factual record. 
The district court did not clearly err when it rejected the company's version of
events and found that the EEOC could reasonably believe that its conciliation
efforts were adequate.
     First, RPH argues that it was unreasonable for the Commission to decide
that conciliation efforts were futile based solely on the opinion of Robichaud, who
"did not understand traditional bargaining techniques."  RPH Br. at 22-23. 
However, this ignores the crucial fact that, before the Commission failed
conciliation, it had received a letter from Robichaud's lawyer also unequivocally
rejecting the company's offer and requesting a notice of right to sue.  There is
nothing in the record indicating that Robichaud's lawyer was not familiar with
bargaining techniques.  Furthermore, his request for a notice of right to sue could
reasonably be construed as an indication that Robichaud was no longer interested
in resolving her complaint prior to litigation.
     RPH also argues that it was unreasonable for the Commission to end
conciliation when it did because Robichaud herself was open to further
conciliation at the time.  RPH Br. at 17, 22-23.  However, in making this
argument, the company relies on statements Robichaud made at her October 2003
deposition.  There is no evidence that Robichaud communicated this openness to
any Commission representative in late September 2001.  See supra p. 6 n.1. 
Indeed, Robichaud testified that she did not tell Owens in September 2001 that she
was open to considering further offers from RPH.  R-97-1, p. 50.
     Finally, RPH argues that the district court clearly erred in finding that the
company made no effort to reopen conciliation after it received notification that
the Commission considered conciliation to have failed.  RPH Br. at 19, 23.  On the
contrary, the district court's finding has ample support in the record.  RPH showed
several Commission-employee deponents a copy of a letter that Harbuck allegedly
wrote on October 4, 2001.  See R-97-2, p. 132; R-97-4, p. 23; R-97-5, p. 187. 
However, RPH offered no evidence that Harbuck mailed this letter and the
Commission received it.  The Commission-employee deponents testified they did
not recognize it.  Id.
     In February 2004, in the hearing on the motion to dismiss, the
Commission's attorney introduced a copy of the letter in order to respond to
RPH's argument that the company had requested re-opening and the Commission
had ignored that request.  R-50, p. 21.  The EEOC attorney stated: "This
correspondence [Harbuck's October 4 letter] was received after EEOC Exhibit 9
[Hust's September 28 letter], wherein the attorney [Hust] had indicated that they
were not willing to negotiate, has that caveat in it, []assuming that the charging
party is willing to negotiate.[']"  It is clear that the point the Commission attorney
was making was that even assuming that the agency received Harbuck's October 4
letter, that letter did not contain a clear request to re-open conciliation  because
the letter itself conditioned its optimistic "hopes and beliefs" concerning the
success of continued conciliation on the assumption that Robichaud was still
willing to negotiate, and the Commission had good reason to believe that neither
she nor her attorney was willing to do that.  R-97-2, Ex. 6; cf. R-16B-4.  In
addition, any implication that this statement at the February 2004 hearing
constituted a concession that the EEOC had received the Harbuck letter should
have been dissipated by the express statement in the agency's May 2004
objections to the magistrate judge's report and recommendation: "While
Respondent claims to have sent this [October 4] letter to [the district director], no
one at the EEOC ever saw the letter."  R-55, p. 7.  Given this state of the record, it
was not clearly erroneous for the district court to find that "there is no evidence of
further contact from the Defendant after the EEOC told the Defendant that it
would make no further attempts at conciliation." R-89, p. 8.<6>
     RPH also repeatedly argues that the inadequacy of the Commission's
conciliation efforts deprived the district court of jurisdiction over the agency's
suit, and that this somehow enhances its entitlement to attorney's fees.  RPH Br. at
1, 12 ("Circuit precedent . . . mandated the dismissal for lack of jurisdiction"), 13
(describing conciliation as a "jurisdictional prerequisite"), 14 (same), 27.<7> Under
Christiansburg, however, it makes no difference whether the ADA's conciliation
requirement is jurisdictional or not; the availability of attorney's fees against the
Commission turns on whether the Commission had a non-frivolous argument that
the requirement was met.  This is plain from Christiansburg itself, where the
Supreme Court held that, notwithstanding the fact that the Commission lacked the
authority to bring the underlying Title VII action, the defendant was not entitled to
attorney's fees because the Commission had a non-frivolous argument that it in
fact had such authority.<8>

     RPH argues that, even if the Commission's lawsuit was not frivolous when
it was filed, it became frivolous in August 2003 when this Court issued its
decision in Asplundh.  RPH Br. at 17-19.  This argument fails because Asplundh
did not purport to change the legal principles applicable to Title VII's conciliation
requirement.  Instead it reaffirmed this Court's existing rule that, in assessing the
adequacy of the Commission's conciliation efforts, "the fundamental question is
the reasonableness and responsiveness of the EEOC's conduct under all the
circumstances.'"  Asplundh, 340 F.3d at 1259 (quoting Klinger, 636 F.2d at 107). 
The Asplundh Court simply applied existing principles to the facts of that case. 
Accordingly, the inquiry for the district court  and for the Commission in
assessing the reasonableness of filing suit against RPH  did not change after
Asplundh.  Applying those same principles to the facts of this case, the district
court concluded that it was not unreasonable for the Commission to believe that its
conciliation efforts were adequate.  
     Finally, RPH contends that the district court's decision denying fees in this
case "must be reversed under Head v. Medford," 62 F.3d 351 (11th Cir. 1995). 
The contention should be rejected.  After the plaintiff in Head conceded that her
federal claims were "surplusage" and that she "cannot . . . state[ ] a cognizable
claim for relief in a Federal forum,'" this Court held that Head's federal claims
were "frivolous as a matter of law," and that the district court should accordingly
award defendants their fees fees under 42 U.S.C.  1988<9> unless special
circumstances dictated otherwise.  Id. at 356.  In this case, by contrast, the
Commission did not concede that its claims were meritless, but consistently
maintained below that the conciliation requirement was satisfied.  In light of
Robichaud's settlement with RPH, the Commission has decided not to pursue an
appeal from the dismissal of its claims.  However, as explained in detail above, we
still maintain that there was at least a reasonable basis for believing that the
procedural prerequisites to a Commission suit were met in this case.
II.       THE DISTRICT COURT ACTED WELL WITHIN ITS DISCRETION IN
     DENYING FEES UNDER  1927 AND RULE 11.
     RPH also sought fees under  1927 and rule 11.  The district court denied
these requests.  Section 1927 and rule 11 both protect litigants against frivolous
claims and pleadings, and the district court had just ruled that the Commission's
lawsuit was not frivolous.  In addition, the court ruled, the Commission had not
unnecessarily multiplied proceedings, because Robichaud also sued RPH raising
the same claims, and RPH would have had to defend itself against those claims, or
settle them, even if the Commission had never sued the company, just as it had to
do after the agency's claims were dismissed.  R-89, pp. 8-9.  On appeal RPH
argues that, the district court erred because, if the EEOC had tried harder to
conciliate Robichaud's claims, the parties might have been able to resolve the
charges in conciliation and avoid the costs of litigation entirely.  RPH Br. at 19. 
The argument is speculative, and RPH provides no rationale and no case authority
justifying  let alone requiring  a decision by this Court finding an abuse of
discretion by the district court.  Having referred RPH and Robichaud to mediation,
and having observed the amount of time those parties took to reach a settlement 
even after the Commission was no longer present as a third party  the district
court was in a good position to assess whether the Commission's litigation
vexatiously multiplied proceedings, and it found it did not.
     In any event, since the Commission had a non-frivolous and good faith
belief that it acted reasonably in terminating conciliation when the charging party
and her attorney opted to sue instead of conciliate, the district court acted well
within its discretion in denying RPH's requests for fees under 28 U.S.C.  1927
and Federal Rule of Civil Procedure 11.<10>
     Section 1927 authorizes a fee award against an attorney or party that
engages in unreasonable or vexatious conduct that unnecessarily multiplies the
proceedings.  Schwartz v. Millon Air, Inc., 341 F.3d 1220, 1225 (11th Cir. 2003). 
An award under  1927 is not justified merely because the district court rules that
the party's position lacked merit.  Rather, the section is designed to sanction
attorneys who "willfully abuse the judicial process by conduct tantamount to bad
faith," the type of bad faith shown when an attorney "knowingly or recklessly
pursues a frivolous claim."  Id.  
     The district court found that the Commission's lawsuit was not frivolous,
and we have shown supra that the district court did not abuse its discretion in so
ruling, because the Commission had a non-frivolous argument that it acted
reasonably in failing conciliation when it did.  If the EEOC had a non-frivolous
and good faith belief that it satisfied the statutory conciliation requirement, it
follows a fortiori that the agency was not acting in bad faith when it advanced that
argument in opposing RPH's motion to dismiss.  The district court did not find
that the Commission acted in bad faith when it opposed RPH's motion, and the
company has failed to show that such a finding is required on this record.  RPH's
reliance on Byrne v. Nezhat, 261 F.3d 1075 (11th Cir. 2001), is misplaced.  This
Court found a fee award under  1927 proper in Byrne, where the plaintiff's
attorney failed to investigate the facts or the law before signing the complaints,
knowingly lodged and re-lodged legally groundless claims in an attempt to extort a
settlement, and failed to inform the federal court of a state appellate decision
disposing of one of plaintiff's claims.  261 F.3d at 1107-17.  To summarize the
case is to expose its dissimilarity to the current case.  Cordova is more on point,
because there this Court vacated a fee award under  1927 as an abuse of
discretion when it ruled that the plaintiff's suit was not frivolous.  419 F.3d at
1186-87. 
     Sanctions under rule 11 may be awarded in the following situations: 
     (1) when a party files a pleading that has no reasonable factual basis; (2)
     when the party files a pleading that is based on a legal theory that has no
     reasonable chance of success and that cannot be advanced as a reasonable
     argument to change existing law; and (3) when the party files a pleading in
     bad faith for an improper purpose.
     
Pelletier v. Zweifel, 921 F.2d 1465, 1514 (11th Cir. 1991).  A court assessing a
request for rule 11 sanctions first determines whether the party's claims are
objectively frivolous, and, if so, whether the party was or should have been aware
that they were frivolous.  Id. at 1514 n.88.  We have shown supra that the
Commission's argument (that it acted reasonably in failing conciliation when it
did) was not objectively frivolous.  Since the district court found that the argument
was not objectively frivolous, it did not need to proceed to the second step and
assess whether the Commission knew or should have known it was frivolous.  The
district court did not abuse its discretion in finding the Commission's lawsuit non-
frivolous, and it therefore did not abuse its discretion in denying sanctions under
rule 11.

                           CONCLUSION

          For the foregoing reasons, the Commission respectfully requests this
Court to affirm the district court decision denying the defendant's request for
attorney's fees and sanctions.
                              Respectfully submitted,
                              
                              JAMES L. LEE
                              Deputy General Counsel
                              
                              CAROLYN L. WHEELER
                              Acting Associate General Counsel
                              
                              VINCENT J. BLACKWOOD
                              Assistant General Counsel
                              
                              
                              
                              ______________________________
                              PAUL D. RAMSHAW     
                              Attorney
                              
                              U.S. EQUAL EMPLOYMENT 
                                 OPPORTUNITY COMMISSION
                              Office of General Counsel
                              1801 L Street, N.W., Room 7040
                              Washington, D.C. 20507
                                 (202) 663-4737
                                        
                              
                   CERTIFICATE OF COMPLIANCE

     This brief complies with the type-volume limitation of Fed. R. App. P.
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Times New Roman 14 point.
                                                       
                              Paul D. Ramshaw
                              Attorney
                              U.S. EQUAL EMPLOYMENT 
                                  OPPORTUNITY COMMISSION
                              Office of General Counsel
                              1801 L Street, N.W., Room 7040
                              Washington, D.C. 20507

Dated:  January 9, 2006

                     CERTIFICATE OF SERVICE

     I hereby certify that a copy of the foregoing brief was served today by
mailing it first class to the following counsel of record:
                              Charles A. Powell, III
                              Heather F. Lindsay
                              Justin A. Barkley
                              Johnston Barton Proctor & Powell LLP
                              2900 AmSouth/Harbert Plaza
                              1901 Sixth Ave. North
                              Birmingham, AL  35203-2618
                              
                              
                              
                              Paul D. Ramshaw
                              Attorney
                              
                              U.S. EQUAL EMPLOYMENT 
                                  OPPORTUNITY COMMISSION
                              Office of General Counsel
                              1801 L Street, N.W., Room 7040
                              Washington, D.C. 20507
                                   202-663-4737
                              
January 9, 2006

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

<1> RPH states in its brief that Robichaud remained open to settling her charge [and]
 expected Owens to obtain another offer from RPH.  RPH Br. at 7.  Robichaud did testify 
in October 2003 that if RPH, back in September 2001, had come back to her with a higher 
offer, she would have considered it.  R-97-1, pp. 52-54.  RPH offered no evidence, 
however, that Robichaud or Hust communicated this openness to the EEOC at the time.  
Indeed, Robichaud expressly denied having done so.  R-97-1, p. 50 (Q.  Did you 
[Robichaud] tell her [Owens] anything to the effect of I dont want to make a counter 
offer, but if they have something else to offer, I will consider it?  A.  No.).

<2> Kennedy considered Owens, who had worked as an EEOC investigator for more than two 
decades, a seasoned investigator and did not supervise her work closely.  R-97-4, pp. 
30, 110; R-97-2, p. 7.

<3> At a hearing on February 11, 2004, on RPHs motion to dismiss, in the course of 
arguing that the request to reopen conciliation in Harbucks October 4 letter was 
conditional rather than absolute, the Commissions attorney stated: This correspondence 
[the October 4 letter] was received after EEOC Exhibit 9 [Husts September 28 letter] . . 
. .  R-50, p. 21.  In May 2004, on the other hand, in its objections to the magistrate 
judges report and recommendation, the Commission stated: While Respondent claims to 
have sent this [October 4] letter to [the district director], no one at the EEOC ever saw 
the letter.  R-55, p. 7 (emphasis added). 

     Believing that the magistrate judge had made a finding that the agency received and 
ignored the October 4 letter, the Commission argued that the evidence in the record did 
not support this finding.  R-55, p. 7 & n.4.  RPH responded by pointing out that the 
magistrate judge had not made that finding, and that in any event whether the EEOC 
received the October 4 letter is not material to the determination that the EEOC failed 
to engage in good faith conciliation efforts.  R-56, pp. 20-21 (emphasis added). 

<4> The magistrate judge stated in a footnote: In an October 4, 2001 letter, the 
defendants attorney requested that conciliation be reopened. R-53, p. 8, n.3.) 

<5> In Bonner v. City of  Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down 
prior to October 1, 1981.

<6> Moreover, RPH should not be heard to argue on appeal that the district court made a 
material error in finding that there was no evidence that the Commission received a 
request to re-open when the company argued in the district court that the question of 
whether the Commission received such a request was not material to the determination 
that the EEOC failed to engage in good faith conciliation efforts.  R-56, pp. 20-21.

<7> RPH repeatedly states that the district court dismissed this case for lack of 
jurisdiction.  RPH Br. at 14, 27, 29.  Neither the magistrate judge nor the district 
court stated that this lawsuit was dismissed for lack of jurisdiction. 

<8> The Fifth Circuit stated that adequate conciliation is a jurisdictional requirement 
in EEOC v. Magnolia Electric Power Assn, 635 F.2d 375, 378 (5th Cir. Jan. 26, 1981).  
However, Magnolia was decided before Zipes v. Trans World Airlines, Inc., 455 U.S. 385 
(1982), which held that filing a timely charge is not a jurisdictional prerequisite to 
suit in federal court.  The Zipes Court stressed that the provision granting district 
courts jurisdiction over Title VII actions does not limit that jurisdiction to actions 
based on a timely charge.  Id. at 393-94 (citing  706(f)(3)).  Similarly, that statutory 
provision does not limit a district courts jurisdiction to cases in which the 
Commissions conciliation efforts were adequate.  Moreover, Title VII itself provides 
that when the Commission has not conciliated a charge adequately, the district court may 
stay proceedings to allow for further conciliation.   706(f)(1) of Title VII, 42 U.S.C. 
 2000e-5(f)(1) (last sentence) (Upon request, the court may, in its discretion, stay 
further proceedings . . . pending . . . further efforts of the Commission to obtain 
voluntary compliance.).  The Fifth Circuit approved that procedure in Klinger, 636 F.2d 
at 107, and Pet, 612 F.2d at 1002-03, and the procedure presumes that the district court 
has subject matter jurisdiction over the lawsuit, because otherwise it would lack the 
jurisdiction to grant the stay.   Cf. EEOC v. Zia Co., 582 F.2d 527, 533 (10th Cir. 1978) 
(rejecting argument that adequate conciliation is a jurisdictional prerequisite). 

<9> The standard for awarding fees to prevailing defendants under  1988 is the same
 as the standard under Title VII.  Hughes v. Rowe, 449 U.S. 5, 18 (1980).

<10> RPH also maintains that the district court should have awarded fees under 42 U.S.C. 
 1988.  RPH Br. at 24-25.  As noted supra, p. 32 n.9, the standard for awarding fees 
under  1988 is the same as for awarding fees under  706(k) of Title VII.  Hughes, 449 
U.S. at 12.  Accordingly, if the district court did not abuse its discretion in finding 
the Commissions action non-frivolous under  706(k), it did not abuse its discretion in 
finding the action non-frivolous under  1988.