No. 08-10162
          __________________________________________

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

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

			Plaintiff-Appellee,

v.

BOBRICH ENTERPRISES d/b/a/ Subway,

			Defendant-Appellant.

        ________________________________________________

        On Appeal from the United States District Court
       For the Northern District of Texas, Dallas Division
                       No. 3:05-CV-1928
                    Hon. Barbara M.G. Lynn
         ________________________________________________

             BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY
                      COMMISSION AS APPELLEE
          ________________________________________________

RONALD S. COOPER				DORI K. BERNSTEIN
General Counsel					Attorney
						U.S. EQUAL EMPLOYMENT
VINCENT J. BLACKWOOD			        OPPORTUNITY COMMISSION
Acting Associate General Counsel		Office of General Counsel
						1801 L Street, N.W., Room 7044
CAROLYN L. WHEELER			        Washington, D.C.  20507
Assistant General Counsel			(202) 663-4734

                   STATEMENT REGARDING ORAL ARGUMENT

	The Equal Employment Opportunity Commission does not believe oral 
argument is necessary to resolve this appeal.  The district court properly exercised 
its discretion in its evidentiary rulings, and correctly applied well established legal 
standards and binding precedent to conclude that substantial evidence supports the 
jury's finding that Bobrich Enterprises d/b/a Subway subjected Tammy Gitsham, 
an employee with a severe hearing impairment, to disability-based harassment that 
altered her conditions of employment and created a hostile or abusive work 
environment, in violation of the Americans With Disabilities Act.

                           TABLE OF CONTENTS
                                                                     Page

Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . .  i

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . .  iv

Statement of Jurisdiction . . . . . . . . . . . . . . . . . . . . . .  1

Statement of the Issues . . . . . . . . . . . . . . . . . . . . . . . .1

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . .  2

A.	 Course of Proceedings . . . . . . . . . . . . . . . . . . . . 2

B.	 Statement of Facts . . . . . . . . . . . . . . . . . . . . .  3

C.	District Court Rulings . . . . . . . . . . . . . . . . . . .  19

1.  Exclusion of Collateral Impeachment Evidence . . . . . . . . . .  19	

           2.  Denial of Judgment as a Matter of Law . . . . . . . . .23

Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . .   27

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  29

I.  Substantial Evidence Supports The Jury's Finding That Tammy 
Gitsham's Severe And Permanent Hearing Loss Is A "Disability" 
As Defined By The ADA . . . . . . . . . . . . . . . . . . . . . . . . 29

A.  Standard of Review . . . . . . . . . . . . . . . . . . . . . . . .29

            B.  Argument . . . . . . . . . . . . . . . . . . . . . . .30

II.  Evidence That Gitsham Endured Persistent Public Ridicule Of 
Her Disability By Her Superiors Supports The Jury's Finding Of A 
Hostile Work Environment In Violation Of The ADA . . . . . . . . . . .41

A.  Standard of Review . . . . . . . . . . . . . . . . . . . . . . . .41

B.  Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . .  42

III.  The District Court Properly Exercised Its Discretion In 
Excluding Extrinsic And Collateral Impeachment Evidence Upon 
Finding Its Probative Value Was Substantially Outweighed By the 
Danger of Unfair Prejudice . . . . . . . . . . . . . . . . . . . . .  50

A.  Standard of Review . . . . . . . . . . . . . . . . . . . . . . . .50

B.  Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .56

Certificate of Compliance

Certificate of Service

                                TABLE OF AUTHORITIES

                                                                      Page
                                       Cases

Billings v. Town of Grafton,
   515 F.3d 39 (1st Cir. 2008) . . . . . . . . . . . . . . . . . .    47

Bragdon v. Abbott,
   524 U.S. 624 (1998) . . . . . . . . . . . . . . . . . . . . .  31, 37 

DeAngelis v. El Paso Mun. Police Officers Assn.,
   51 F.3d 591 (5th Cir. 1995) . . . . . . . . . . . . . . . . . . . .46 

Draper v. Coeur Rochester, Inc.,
   147 F.3d 1104 (9th Cir. 1998) . . . . . . . . . . . . . . . . . .  47

EEOC v. E.I. DuPont De Nemours & Co.,
   480 F.3d 824 (5th Cir. 2007) . . . . . . . . . . . . . . . 30, 31, 39 

EEOC v. WC&M Enterprises, Inc.,
   496 F.3d 400 (5th Cir. 2007) . . . . . . . . . . . . . . . . . .   43

Farpella-Crosby v. Horizon Health Care,
   97 F.3d 803 (5th Cir. 1996) . . . . . . . . . . . . . . .  30, 43, 44

Flowers v. Southern Regional Physician Services,
   247 F.3d 229 (5th Cir. 2001) . . . . . . . . . . . . . . . 39, 41, 42

Harris v. Forklift Systems, Inc.,
   510 U.S. 17 (1993) . . . . . . . . . . . . . . . . . . 44, 47, 49, 50

Harvill v. Westward Communications, L.L.C.,
   433 F.3d 428 (5th Cir. 2005) . . . . . . . . . . . . . . . . . 45, 46

Hockman v. Westward Communications, L.L.C.,
   407 F.3d 317 (5th Cir. 2004) . . . . . . . . . . . . . . . . . .   46

International Ins. Co. v. RSR Corp.,
   426 F.3d 281 (5th Cir. 2005) . . . . . . . . . . . . . . . . . 54, 55

Ivy v. Jones,
   192 F.3d 514 (5th Cir. 1999) . . . . . . . . . . . . . . . . . .   32

Kelly v. Boeing Petroleum Services, Inc.,
   61 F.3d 350 (5th Cir. 1995) . . . . . . . . . . . . . . . . . .51, 53

Lincoln v. Case,
   340 F.3d 283 (5th Cir. 2003) . . . . . . . . . . . . . . . . . 30, 42 

McConathy v. Dr. Pepper/Seven Up Corp.,
   131 F.3d 558 (5th Cir. 1998) . . . . . . . . . . . . . . . . . .   42

Oncale v. Sundowner Offshore Services,
   523 U.S. 75 (1998) . . . . . . . . . . . . . . . . . . . . .   47, 50

Pennsylvania State Police v. Suders,
   542 U.S. 129 (2004) . . . . . . . . . . . . . . . . . . . . . . . .27

Reeves v. Sanderson Plumbing Products, Inc.,
   530 U.S. 133 (2000) . . . . . . . . . . . . . . . . . . . . .  38, 39

Shepherd v. Comptroller of Pub. Accounts,
   168 F.3d 871 (5th Cir. 1999) . . . . . . . . . . . . . . . . . . . 46

Sprint/United Management Co. v. Mendelsohn,
   128 S.Ct. 1140 (2008) . . . . . . . . . . . . . . . . . .  50, 51, 54

Sutton v. United Air Lines, Inc.,
   527 U.S. 471 (1999) . . . . . . . . . . . . . . . . . .32, 37, 38, 40

Talk v. Delta Airlines, Inc.,
   165 F.3d 1021 (5th Cir. 1999) . . . . . . . . . . . . . . . . . .  32

Toyota v. Williams,
   534 U.S. 184 (2002) . . . . . . . . . . . . . . . . . .    30, 31, 37

                                                                     Page
                              Statutes

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

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

Americans with Disabilities Act of 1990, 

   42 U.S.C.  12102(2)(A) . . . . . . . . . . . . . . . . . .    31, 37

   42 U.S.C.  12102(2)(C) . . . . . . . . . . . . . . . . . . .  31, 39

   42 U.S.C.  12112 . . . . . . . . . . . . . . . . . . . . . . . .   1

   42 U.S.C.  12117(a) . . . . . . . . . . . . . . . . . . . . . . . .1

   42 U.S.C.  12201(a) . . . . . . . . . . . . . . . . . . . . . . . 31

                          Rules and Regulations

Fed.R.App.P. 4(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . .1

Fed.R.Civ.P. 50(a) . . . . . . . . . . . . . . . . . . . . .  23, 25, 41

Fed.R.Civ.P. 50(b) . . . . . . . . . . . . . . .   3, 24, 25, 28, 41, 42

  Adv. Comm. Notes on 2006 Amendment . . . . . . . . . . . . . . . .  41

  Adv. Comm. Notes on 1991 Amendment . . . . . . . . . . . . . . . .  42

Fed.R.Evid. 403 . . . . . . . . . . . . . . . . . 22, 29, 51, 52, 53, 54

Fed.R.Evid. 608(b) . . . . . . . . . . . . . . . . .  20, 29, 51, 52, 53

   Adv. Comm. Notes on 2003 Amendments . . . . . . . . . . . . . . .  52

   Adv. Comm. Notes on 1974 Enactment . . . . . . . . . . . . . . . . 53

   Adv. Comm. Notes to 1972 Proposed Rule . . . . . . . . . . . . . . 52

Fed.R.Evid. 609 . . . . . . . . . . . . . . . . . . . . . . . 20, 21, 51

28 C.F.R.  41.31(b)(2) . . . . . . . . . . . . . . . . . . . . . . . 31

29 C.F.R.  1630.2(i) . . . . . . . . . . . . . . . . . . . . . . . . 31

29 C.F.R.  1630.2(j) . . . . . . . . . . . . . . . . . . . . . . . . 32

29 C.F.R.  1630.2(j)(1)(i)(ii) . . . . . . . . . . . . . . . . . 32, 36

29 C.F.R.  1630.2(j)(3)(i) . . . . . . . . . . . . . . . . . . . . . 41

45 C.F.R.  84.3(j)(2)(ii) . . . . . . . . . . . . . . . . . . . . .  31

CTA5 Rule 47.5.4 . . . . . . . . . . . . . . . . . . . . . . . . . . .46

                         Miscellaneous Authorities

1 S. Childress & M. Davis,
   Federal Standards of Review  4.02 (3d ed. 1999) . . . . . . . . . 51

                        STATEMENT OF JURISDICTION

	The Equal Employment Opportunity Commission (EEOC) filed this 
enforcement action against Bobrich Enterprises d/b/a/ Subway (Bobrich) for 
engaging in unlawful employment practices in violation of Title I of the Americans 
with Disabilities Act of 1990 (ADA), 42 U.S.C.  12112.  (USCA5 16).  The 
district court had jurisdiction under 28 U.S.C.  1331 and 42 U.S.C.  12117(a).  
(USCA5 16-17).  After four days of trial proceedings, (R.81, R.84, R.85, R.86, 
Minute Entries), the jury returned a verdict in favor of the EEOC and awarded 
damages and backpay.  (USCA5 846, 873, 874, 902).  On January 8, 2008, the 
district court disposed of all post-trial motions, (USCA5 1050), and entered final 
judgment accordingly.  (USCA5 1060).  On January 17, 2008, Bobrich filed a 
motion for a new trial, (USCA5 1099), which the court denied on January 28, 
2008.  (USCA5 1109).  Bobrich timely filed a notice of appeal on February 21, 
2008. (USCA5 1110).  See Fed.R.App.P. Rule 4(a)(1)(B).  This Court has 
jurisdiction under 28 U.S.C.  1291.

                          STATEMENT OF THE ISSUES

     1.  Whether substantial evidence supports the jury's finding that Tammy 
Gitsham's severe and permanent hearing loss is a "disability" under the ADA.
     2.  Whether evidence that Gitsham endured persistent public ridicule of her 
disability by her superiors supports the jury's finding that Bobrich subjected her to 
a hostile work environment in violation of the ADA.
     3.  Whether the district court properly exercised its discretion in excluding 
extrinsic and collateral impeachment evidence upon finding that its probative value 
was substantially outweighed by the danger of unfair prejudice.

                          STATEMENT OF THE CASE

     A.   Course of Proceedings
     The EEOC sued Bobrich on September 28, 2005, claiming that Bobrich 
subjected Tammy Gitsham<1> to a hostile work environment and constructively 
discharged her because of her severe hearing impairment, in violation of the ADA.  
(USCA5 16-18).  The case was tried to a jury, which found in favor of the EEOC 
and awarded $50,000 in compensatory damages, $100,000 in punitive damages, 
and $16,500 in backpay.  (USCA5 921-22, 929).  Following trial, the parties 
reached agreement on appropriate injunctive relief, (USCA5 1015), and the district 
court granted the EEOC's motion to withdraw its application for injunctive relief.<2>
(USCA5 1050).  On January 8, 2008, the district court granted in part and denied 
in part Bobrich's post-trial motion for judgment as a matter of law under 
Fed.R.Civ.P. 50(b).  (Id.).  The court denied the motion as to the jury's findings 
that Gitsham has a disability, (USCA5 1051-53), and that Bobrich subjected her to 
a hostile work environment, (USCA5 1053-55); and as to the jury's award of 
punitive damages, (USCA5 1058-59).  The court granted the motion as to the 
constructive discharge claim, (USCA5 1055-58), and vacated the concomitant 
backpay award.  (USCA5 1058).  The court entered final judgment accordingly on 
January 8, 2008.  (USCA5 1060).  Bobrich filed a motion for a new trial on 
January 17, 2008, (USCA5 1099), which the court denied on January 28, 2008.  
(USCA5 1109).  Bobrich timely filed a notice of appeal on February 21, 2008. 
(USCA5 1110).

     B.  Statement of Facts
     Tammy Gitsham has severe and irreversible hearing loss in each ear.  
(Tr.Vol.2 pp.61-69).<3> Nearly three decades ago, when Gitsham was in her 20s, she 
"started having seizures" and was diagnosed with a "rare disorder" that has 
permanently damaged her ability to hear.  (Tr.Vol.1 p.155).  At that time, there 
were no hearing aids that could improve her hearing.  (Id.)  As her condition 
worsened, Gitsham's ability to comprehend speech deteriorated to the point where 
she "couldn't understand what people were saying."  (Id.)  "I could hear noises," 
Gitsham recalls, "but I couldn't distinguish words, and different types of tones."  
(Id.).
     Eventually, Gitsham entered "a very dark time in [her] life," when "over a 
period of 15 years [she] couldn't hear anything."  (Id.).  "[A]fter being deaf for so 
long," Gitsham learned about "a new technology" in computerized digital hearing 
aids "that didn't just amplify" sound, but could be programmed to enable her to 
hear "certain volumes [and] certain tones."  (Id. p.156).  Gitsham recalls the "life-
changing moment" when she received her first hearing aids and "walked 
out[side]," because she "hadn't heard birds sing for 15 years."  (Id.)  
     Gitsham has worn hearing aids in both ears since 1995.  (Id. p.154).  Even 
with these devices, however, her hearing remains significantly impaired.  (Id. 
pp.156-58).  Gitsham "can't hear in a loud environment" and "can't hear 
somebody behind [her]."  (Id. pp.156-57).  She "still ha[s] to read lips," and there 
are "still tones that [she'll] never be able to hear" because "even the new 
technology will not correct that."  (Id. p.157).  Gitsham cannot hear a doorbell or 
telephone ring, for example, and keeps her cellphone on vibrate.<4> (Id. pp.157-58).
     Although Gitsham remains unable to hear everything that is said in 
conversation, she "can read lips" and "look at a person's facial expressions" to 
gain comprehension.  (Id. p.157).  Yet "sometimes people talk too fast for [her] to 
really understand," and "[i]f they laugh out loud" she does not "understand what 
they are saying."  (Id.).  In "any loud environment," Gitsham must "turn [her] 
hearing aids down, because [she] can't understand anything" and hears "just a 
bunch of jumbled noise."  (Id.)  While working for Bobrich, Gitsham was unable to 
hear everything other employees said to her, and admitted that "[a] lot of times I 
would fake it," acting "like I heard."  (Tr.Vol.2 p.176).
    Travis Ortega, an audiologist who examined Gitsham in November 2003, 
described the nature and extent of her impairment.  (Tr.Vol.2 pp.54-64).  When 
Gitsham arrived for evaluation, Ortega reported, "she had worn two Phonack BT 
[behind-the-ear] hearing aids since 1996," and "[t]hey were weak and distorted."  
(Id. p.62).  Ortega performed an "audiological evaluation" in "a soundproof 
environment" using "an audiometer," and plotted her test results on an 
"audiogram."  (Id. pp.54, 56).  First, Ortega tested Gitsham's "speech reception 
threshold," by instructing her to repeat words transmitted through her headphones 
at decreasing decibel levels.  (Id. pp.56-57).  The "object" of the test "is to find the 
softest level that the patient can repeat those words back ... at least 50 percent of 
the time," and measures results on a decibel scale between 0 - "the  softest level 
we can present a sound to someone" - and 110, "the loudest that's plotted" on the 
audiogram.  (Id. p.57).  The softest speech levels Gitsham could respond to were 
measured at 75 decibels in her right ear and 60 decibels in her left ear, as compared 
with the range for "[n]ormal hearing," which is measured at "0 to 25 [d]ecibels."  
(Id. pp.57-58).
     Next, Ortega determined Gitsham's "most comfortable listening level," or 
"MCL," by adjusting the loudness of his voice through the headphones "to find a 
level that sounds good to the patient, to Tammy."  (Id. p.58).  Using Gitsham's 
MCL, Ortega conducted a "phonetically balanced ["PB" or speech] discrimination 
test" by "using a carrier phrase in which [he] would say, say the word 'and,' say 
the word 'yard,' say the word 'car,' and she has to repeat those words back to 
[him]."  (Id. pp.57-58).  The speech discrimination test, Ortega explained, "is 
designed to tell us how well [the patient] understands" speech, and predicts how 
well a hearing impaired person can be expected "to do ... with hearing aids."  (Id. 
p.59).  "Because in essence [a] hearing aid is amplifying that sound to a 
comfortable listening level," Ortega continued, the speech discrimination exam in 
effect simulates a hearing aid and tests "how well is she going to understand when 
we get that sound to a comfortable listening level."  (Id.)
    The results of Gitsham's speech discrimination test showed an accuracy rate 
of 84% in her right ear and 56% in her left ear.  (Id. pp.59-60).  According to 
Ortega, Gitsham's test results indicate "that when she gets around any other types 
of noise whatever, she is going to have a tremendous amount of difficulty 
understanding" speech.  (Id. p.60).  While "the most powerful hearing aids today 
... can make sound loud enough for patients to hear," Ortega explained that 
patients like Gitsham, with "severe hearing loss," will still struggle with 
comprehension:  "[M]ost people that have a severe hearing loss have difficulty 
understanding speech ... simply because there are some sensory cells that have 
been damaged, or are completely missing, with her type of hearing loss that makes 
it very difficult ... to understand."  (Id.)
    Ortega observed a common "misunderstanding" among people with limited 
`knowledge of "hearing loss and hearing aids":
[T]hey just assume that if somebody didn't hear you, speak up, turn it 
up.  Well, louder is not always better ... [P]eople with speech 
discrimination problems like this are searching for clarity.  That's what 
[Gitsham] lacks, is clarity.  [The PB] test is done in a soundproof room 
... and she had some difficulty understanding those words with no 
[competing] noises.  But in most environments you're going to have 
some competing noises, so those scores in essence are going to go down.

(Id. pp.60-61).  Gitsham's speech discrimination scores showed "a significant 
hearing loss," Ortega testified.  (Id. p.68).  Thus, while Gitsham "can definitely 
benefit from hearing aids," Ortega expected she would "really struggle with 
understanding ... because the hearing aids are giving her plenty of sound, but the 
clarity is what she has difficulty with."  (Id.)  Based on Gitsham's test results, 
Ortega could predict "that when she goes into noisy environments," like 
restaurants, "she's going to have a tremendously difficult time understanding" and 
would "have to be looking at [a speaker] to understand what's being said."  (Id.). 
     Ortega diagnosed Gitsham with "moderate to severe sensory neuro hearing 
loss in the left ear, and severe to profound sensory neuro hearing loss in the right 
ear."  (Id. p.63).  Without hearing aids, Ortega testified, Gitsham "hears some 
intense sounds ... like a train or a jackhammer, airplanes, possibly lawnmower," 
but she is unable to "hear normal conversations in either ear."  (Id. p.64).  Given 
the nature of her impairment, Ortega explained, hearing aids would enable her to 
"hear better," but she would "still have difficulty understanding what people are 
saying."  (Id.).  Gitsham "is very good at watching your mouth," Ortega observed, 
"and that's very important for her speech discrimination problem, is to get as many 
visual cues as she can," yet "it's essential for her to wear hearing aids to 
communicate."  (Id.).
     In November 2001, Gitsham applied to work for Bobrich, a company that 
operates around 23 Subway sandwich shops in the Dallas-Fort Worth area.  
(USCA5 553; Tr.Vol.2 pp.102-03).  Bobrich hired Gitsham as a store manager, and 
a month later promoted her to the position of area supervisor.  (USCA5 553).  In 
that capacity, Gitsham supervised around six or seven Subway shops, (Tr.Vol.1 
p.158), and was responsible for "overall store operations." (Id. p.112).  Gitsham's 
"two main areas of responsibility" were to ensure each store's compliance with 
Subway's corporate requirements for franchise operations, and to increase 
profitability by adhering to "labor guidelines" and "food cost goals." (Id.).  
     As area supervisor, Gitsham made sure her stores were supplied with such 
necessary items as employee uniforms, hats, and "new-hire packets." (Id. p.159).  
She also helped maintain her stores, climbing ladders to fix the roof and ceiling 
tiles, fixing store signs, and painting the drive-thru window and menu board.  
(Tr.Vol.2 p.5).  On store visits, Gitsham inspected the bathroom and dining area 
for cleanliness, made sure employees were dressed properly, and worked the 
sandwich line serving customers.  (Tr.Vol.1 pp.159-60).  Gitsham describes herself 
as "a people person," and most enjoyed her "interaction with the customers, the 
employees, with the manager" because she "loved to be around people."  (Id. 
p.160).  She liked "to work hard," and "especially liked Subway because [she has] 
a lot of energy."  (Id.)
     Jim Schuster, who directly supervised Gitsham from October 2002 through 
her resignation in June 2003, confirmed that "Tammy had a very good work ethic" 
and "took her job very seriously."  (Id. pp.112, 114-15).  According to Schuster, 
Gitsham "took a lot of initiative to make sure that those stores" within her area 
"got back in line" to comply with Subway's corporate requirements, and "did a 
good job" maintaining "the profitability" of her stores.  (Id. p.115).  Gitsham 
demonstrated "[v]ery strong" mechanical ability and "a good working knowledge 
about how to fix things," Schuster recalled, so "if something needed to get fixed ... 
she could take care of it."  (Id.)  Schuster also praised Gitsham's "ability to 
communicate the needs" of the business "to the employees," describing her as 
"very, very clear in terms of what was demanded, and what was expected from her 
store managers."  (Id.)
     When Gitsham was first promoted to area supervisor in December 2001, she 
reported directly to Wayne Gilbert, who was her immediate supervisor and had 
authority to discipline her.  (Id. p.161).  Around two months after Gitsham started 
at Bobrich, she discussed her hearing impairment with Gilbert.  (Id. p.165).  
Gilbert "had said something and [Gitsham] didn't understand him ... [b]ecause he 
was behind" her and she "can't hear somebody when they speak behind [her]."  
(Id.).  Gitsham told Gilbert, "I wear hearing aids, I'm hearing impaired," and "let 
him know ... if I walk by you and you say something and I don't hear you, just tap 
me on the shoulder, get my attention, wave to me."  (Id.).
     Following this disclosure, Gilbert began making fun of Gitsham's hearing 
impairment.  The first such incident occurred in a Subway store, when Gitsham did 
not hear something Gilbert had said to her.  (Id. p.166).  Gilbert "came around and 
he said, 'Tammy, you got your ears on?'"  (Id.).  Gilbert's remark, Gitsham 
recalled, "really threw me off guard, because nobody had ever said anything like 
that."  (Id.).  Gitsham "didn't get mad" and "really didn't say anything at that 
point," because she assumed "he would never say it again."  (Id.).
     Gitsham's assumption proved incorrect, however, as Gilbert continued to 
make similar comments to her face, on the phone, and in front of others.  (Id. 
pp.166-67).  Gilbert "would say, 'Tammy, you got your ears on,' or 'read my 
lips.'"  (Id. p.166).  When Verizon launched a widespread advertising campaign 
featuring a ubiquitous tag line, Gilbert "would start saying, 'Can you hear me 
now?'"  (Id.).  The ad slogan, Gitsham recalled, "became very popular with him 
when that came out."  (Id. p.167).
     Gitsham could tell from Gilbert's tone that he was not genuinely inquiring 
whether she could hear him because "he didn't say it in a concerned way," as if 
letting her know he was speaking and asking that she "please raise the volume" on 
her hearing aids.  (Id.).  According to Gitsham, Gilbert "was never mad when he 
said it, but" instead seemed motivated "to maybe draw attention, make people 
laugh, or get somebody's attention."  (Id.).  "[A]fter about the third time," when 
Gilbert "said it in front of a bunch of people, and they started laughing," Gitsham 
"pulled him aside and said, 'Wayne, you have to stop doing that.  It's really 
embarrassing.'"  (Id.).  In response, "[h]e just kind of laughed and ... blew it off."  
(Id.).
     During 2002, Bobrich promoted Gilbert to manage training and human 
resources (HR) for the company, and hired Jim Schuster to replace him as director 
of operations.  (Id. pp.107, 119, 163).  In his new position, Gilbert hired and 
trained the managers, handled "most of the employee paperwork," and "would 
chair meetings" attended by area supervisors and store managers.  (Id. pp.163-64).  
Gilbert worked out of Bobrich's "main corporate office" and remained Gitsham's 
"boss with regard to [HR] functions."  (Id. p.164).
     Every few weeks, and at least once a month, area supervisors and store 
managers attended regular meetings at Bobrich's corporate office to discuss such 
matters as upcoming sandwich promotions, sales contests, and any problems they 
encountered.  (Id. pp.167-68).  Gilbert usually attended these meetings "because he 
was always at the office," and would routinely embarrass Gitsham by drawing 
attention to her disability.  (Id. pp.168-69).  When Gilbert "would want to get the 
attention of all the managers," Gitsham recalled, "he would bang on the desk" and 
say, "'Tammy, you got your ears on?  Come on.  Let's get it going.  We don't have 
time,'" and "everybody would start laughing."   (Id. p.169).  Gitsham "would just 
either turn away or sit down," because she felt that losing her temper or walking 
out "would not have been the professional thing to do" and believed "if [she] 
brought attention to it, that it would get worse."  (Id. pp.169-70).
     Gilbert "started doing it in almost every meeting," Gitsham testified, and 
"[i]t became very embarrassing."  (Id. p.169).  Initially, Gitsham took Gilbert 
aside, told him she was bothered by his behavior, and asked him to stop: 
[E]ven in the beginning when he started doing that, I would wait until 
the meeting was over and I would call him over and I would say, 
"Wayne, you have to stop that.  These are my managers.  These are the 
people I work with every day.  It's very embarrassing for you to do this 
to me."

(Id. pp.169-70).  Gilbert "would laugh" in response to Gitsham's repeated requests, 
and when it became clear that "[h]e wouldn't stop," she "finally ... just even quit 
asking him." (Id. pp.170-71).
     Gail Massey, who managed a Subway store under Gitsham's supervision, 
witnessed Gilbert making fun of Gitsham during meetings at the corporate office.  
(Tr.Vol.2 pp.9-11).  "He would say, 'Do you have your ears?  Read my lips. Can 
you hear me now?'... Then he would laugh about it."  (Id. pp.10-11).  Massey 
estimated that she heard Gilbert make such comments to Gitsham "[t]en to twenty 
times probably," and sometimes in front of Bobrich president Robert Suarez.  (Id. 
p.11).
      Massey also recalled an occasion when Gilbert visited the Subway store 
Massey managed and told her to convey a message over the phone to Gitsham:
We were standing at the back table and he was working on my drive-thru 
computer and Tammy had called and he said, 'Ask her if she's got her 
ears on.'  And he said, 'That's the reason why I couldn't make love to 
her, is because she couldn't hear me if I whispered in her ear.'

(Id. pp.12-13).  Massey told Gilbert his remark "'wasn't very nice,'" but rather 
than apologize, Gilbert laughed.  (Id. p.13).  As directed, Massey repeated 
Gilbert's comment to Gitsham, who "didn't like it" and "just lost her breath, you 
could hear it."  (Id.).
     Jennifer Shuster, who managed another Subway store in Gitsham's area, 
also heard Gilbert ask Gitsham, "'Do you have your ears on?'" during a meeting of 
Bobrich supervisors and managers in the corporate office.  (Id. pp.20-21, 23-24).  
"He was trying to get her attention," Shuster testified, "but she was sitting in front 
of him, and she didn't hear him."  (Id. pp. 23-24).  Shuster "gave [Gilbert] a funny 
look" as if to say, "I can't believe you just said that ... [b]ecause you just don't say 
that." (Id. p.24).
    Gitsham felt that Gilbert's public ridicule during staff meetings adversely 
affected her ability to supervise her subordinate store managers by diminishing 
their respect for her authority:
I always needed the respect of my [store] managers ... to be able to do a 
job.  Because if you don't have [their] respect, they won't listen to you, 
or ... things will get out of hand.  I worked so hard for their respect.  So 
it was very important that I kept that, because if I went in there and I said 
we have to do this, we have a certain amount of time, if they didn't 
respect me, they wouldn't do that.

(Tr.Vol.1 p.170).  Gitsham also described the negative effects of the harassment on 
her emotional state:
[W]hen this started happening it made me feel like I did ... during the 15 
years that I was deaf [and] I secluded myself and didn't want to be 
around people.  And so ... when Wayne started making these comments 
and it was so depressing .... I started fearing that I was going to get in 
that same depressed state [as] when I was deaf.

(Id. pp.173-74).
     Gitsham complained to Jim Schuster, her immediate supervisor, about 
Gilbert's remarks, which Schuster himself had witnessed.  (Id. p.171).  Gitsham 
told Schuster "that Wayne was making fun of me in the meetings, and of course, he 
had heard it, and that it just had to stop."  (Id.)  Schuster responded, "Well, Wayne 
is Wayne," someone who "had been there for 15 or more years, and he was like a 
grandfather figure with everybody."  (Id. p.172).  In subsequent discussions, 
Gitsham told Schuster that "Wayne is getting out of hand ... he really needs to 
stop, he embarrasses me in these meetings."  (Id.)  Because Schuster did nothing in 
response to her initial complaint, Gitsham considered these talks "more of a 
counseling session to calm me down, because I would be upset."  (Id.).
    Schuster recalled hearing Gilbert joke about Gitsham's hearing aids more 
than once:
[I]t was probably about a month or two after I had started, and Tammy 
was in the office.  I believe we were getting ready for a meeting, and 
Wayne had made some sort of ... comment that I had no clue what he 
was talking about.  Something to do with do you have your radar on, or 
something of that nature. ... It wasn't until after the fact that I realized 
that Tammy had a hearing aid, and he made similar comment of have 
you got your ears on today that I connected that with that [earlier] 
comment.

(Id. pp.120-21).  "[T]he second time," Schuster recalled, Gitsham responded by 
"rolling [her] eyes, like here we go again, some sort of stupid comment again 
coming from the mouth of Wayne."  (Id. p.122).
    Schuster took no action upon hearing Gilbert's comments to Gitsham, or in 
response to Gitsham's complaints.<5> (Id. pp.122-23).  Schuster described Gilbert as 
"Santa Clause [sic] without a beard," a "very jovial, very friendly ... fatherly or 
grandfatherly figure."  (Id. p.119).  Yet Schuster also considered Gilbert "one of 
the most politically incorrect people I ever met," because he "would frequently 
make comments in a joking manner that from an outsider's perspective, if you 
were to come in and hear some of the things he would say, you would say, well, 
why is he getting away with that."  (Id. p.121).
    Schuster "never perceived the comments from Wayne as being harmful or 
harassing in nature," and saw little point in trying to correct Gilbert's behavior:
Wayne was just basically working out his last year, because he was 
going to retire.  It's certainly not as if I'm working with someone who is 
my age and I can give constructive feedback [that] hopefully will 
improve their performance.  Wayne was Wayne.  I don't think much was 
going to change with his attitude, or what he was going to say.

(Id.).  Consequently, Schuster neither spoke with Gilbert about his offensive 
remarks, nor reported them to Gilbert's supervisor, because he "just didn't see any 
benefit in doing so."  (Id. p.123).  
     In December 2002, Bobrich held a Christmas party for company employees 
at the corporate office.  (Id. p.174).  Gitsham, along with other supervisors and 
managers, "were all standing in line" at the party buffet when Robert Suarez, 
Bobrich's president, cut into the line ahead of Gitsham and said, "'Tammy, I need 
to jump in front of you.  You got your ears on?  I need to get in front of you 
because I have something to do.'"  (Id.).  "Everybody laughed" in response to the 
comment, and Gitsham felt "that was the last straw, because I knew if he was 
doing it, everybody else would start doing it."  (Id. pp.174-75).
 	Store managers Gail Massey and Jennifer Shuster attended the 2002 office 
Christmas party and described this incident and Gitsham's reaction.  Massey 
recalled that Suarez was "upset" when he arrived at the party:
He was trying to get through the [buffet] line, and he said, "Tammy, you 
got your ears on?"  He kind of pushed her and she hit me.  And he said, 
"If you could hear me you would have gotten out of my way faster."

(Tr.Vol.2 pp.11-12).  According to Massey, others at the party "just looked at 
[Gitsham] and she put her head down and she turned really red."  (Id. p.12).
     Shuster similarly testified that Suarez "said the exact same thing" to Gitsham 
that Gilbert had said.  (Id. p.24).  Suarez "was trying to get through a line at a 
Christmas party," Shuster recalled, "and he said, 'Do you have your ears on?'"  
(Id.).   Shuster described his tone of voice as "[s]erious," and Gitsham "kind of just 
moved out of the way."  (Id. at 25).  While Shuster did not think Gitsham had 
heard Suarez, Gitsham later discussed the incident with Shuster and "was really 
upset."  (Id.).
	After the Christmas party incident, Gitsham decided she "couldn't continue" 
to work for Bobrich.  (Tr.Vol.1 pp.175, 178).  Gitsham visited the EEOC on 
January 3, 2003, but declined to file a charge until she had secured another job.  
(Id. pp.175-76).  Gitsham told Jim Schuster that she planned to "start looking for 
another job" and explained why she "couldn't stay there anymore."  (Id.).  At 
Gitsham's request, Schuster wrote her a letter of recommendation "right at the 
beginning of the year 2003."  (Id. pp.116-17).  Gitsham applied for jobs while 
continuing to work for Bobrich, and in May 2003 announced her resignation, with 
two weeks notice.  (Id. pp.176-77).  When Gilbert learned Gitsham was leaving, he 
told her he was planning to retire the same day.  (Id. p.176).  Based on Suarez's 
conduct at the Christmas party, however, Gitsham felt as if she had become "the 
company joke" and "just couldn't stay."  (Id. pp.177-78).  Gilbert's harassment 
continued until Gitsham's employment ended.  (Id. p.176).
	A week after Gitsham stopped working for Subway, she began a new job as 
a store manager at Whataburger in Lawton, Oklahoma.  (Id. pp.179-80).  On June 
13, 2003, during the week between jobs, Gitsham filed a charge of discrimination 
with the EEOC.  (Id. pp.180-81).  Gitsham explained her decision to pursue 
redress:
I had worked so hard when I got my hearing back ... to get the job with 
Subway.  And I worked hard, I worked nights, weekends.  I did every-
thing that I could to make sure the stores were running well, that all the 
requirements that were given to me, they were met, or exceeded what I 
was supposed to do.  And when that was taken from me, it was very bad.

(Id. p.191).
	The EEOC investigated the charge and notified Bobrich of its determination 
of reasonable cause to believe Bobrich had violated the ADA.  (USCA5 553).  
Conciliation efforts failed, (id.), and the EEOC filed suit on September 28, 2005, 
claiming that Bobrich subjected Gitsham to a hostile work environment "because 
of her disability (severe hearing impairment)" and constructively discharged her, in 
violation of the ADA.  (USCA5 16).

     C.  District Court Rulings

     1.  Exclusion of Collateral Impeachment Evidence
     Prior to trial, the EEOC filed a motion in limine to exclude evidence that 
Gitsham had provided false information on her resume and pre-employment 
application form when she applied to work at Bobrich in November 2001.  
(USCA5 321).  On her resume, Gitsham listed experience as a general manager at 
Michelle's Nook from 1990-1998, and used it as a reference on her application.  
(USCA5 529, 534).  On the application form, Gitsham indicated she had never 
been charged with a felony or convicted, and wrote only her maiden name when 
asked to provide "Maiden Names/Other Names." (USCA5 534).
     During discovery in this litigation, Bobrich first learned that Gitsham had 
never worked at Michelle's Nook, (USCA5 359); had three felony convictions, 
dated 1977, 1978, and 1984, (USCA5 536-38); and had in the past used names she 
had not listed on the application.  (USCA5 737).  In moving to exclude this 
evidence, the EEOC argued that Gitsham's false statements were not directly 
relevant to any substantive claim or factual dispute, and were offered solely as 
collateral impeachment evidence to impugn her character for truthfulness.  
(USCA5 323-26, 563-68).  Gitsham's qualifications and job performance were not 
at issue, and Bobrich managers uniformly testified that the company hired 
applicants with criminal histories and had never fired an employee for lying on his 
or her resume.  (USCA5 324-26, 564-67).  Because Gitsham's lack of candor 
during the hiring process was offered solely to attack her character for truthfulness, 
the EEOC argued, these "[s]pecific instances of conduct" - i.e., her falsified 
resume and failure to disclose aliases and decades-old criminal convictions - could 
"not be proved by extrinsic evidence," Fed.R.Evid. 608(b),<6> such as the resume and 
application Bobrich proffered as exhibits.  (USCA5 326-27).  The EEOC further 
urged the court to exercise its discretion and exclude testimony about these 
incidents that Bobrich planned to elicit from Gitsham on cross-examination, 
because the probative value of the evidence was far outweighed by the significant 
risk that the jury would be unfairly prejudiced.  (USCA5 326-27, 567-68).
      After extensive briefing and oral argument, the district court granted the 
EEOC's motion, without prejudice to reconsideration if warranted by the testimony 
adduced at trial.  (USCA5 752).  In excluding evidence that Gitsham misrepresent-
ed her work experience, the court relied "principally on two facts, one, that it was 
six years before the trial; and two, that there is no evidence that [Bobrich] relied on 
it in any way."  (6/28/07 Tr. p.6).  Gitsham's criminal convictions, the court noted, 
occurred more than 20 and nearly 30 years ago and were thus "outside the time 
frame that the Rules of Evidence presume to be admissible."<7> (Id. pp.7-8).  "The 
prejudicial impact of this is extremely significant," the court found, and "the 
probative value is not sufficient to outweigh that prejudicial effect."  (Id. p.16).  
Even considering the "cumulative effect" of Gitsham's misrepresentations, the 
court was "not persuaded" to admit the evidence.  (Id. p.17).  Noting the absence of 
"testimony ... that either any or all" of the false information "would have made a 
difference," and the "highly prejudicial" nature of the evidence, the court 
concluded "that it's so prejudicial that it outweighs the probative value" and should 
be excluded.  (Id.)  The court indicated its ruling was subject to reconsideration, 
depending on witness testimony at trial.  (Id.)
     Bobrich again sought to introduce the extrinsic and collateral impeachment 
evidence at the conclusion of the EEOC's rebuttal case, but the court decided not 
to change its pre-trial ruling, citing "[t]he prejudicial impact."  (Tr.Vol.2 p.177).  In 
excluding Gitsham's resume, marked as Defendant's Exhibit 3, the court based its 
ruling on Fed.R.Evid. 403<8> and "on testimony ... before the Court" on the motion 
in limine, that the false information "would not have made a difference" in 
"Subway hiring or retaining Ms. Gitsham as an employee."  (Id. p.184).  Extrinsic 
evidence offered solely "for the purpose of general impeachment of the witness," 
the court decided, "is impeachment on a collateral matter that is improper."  (Id.).  
Even if the extrinsic evidence were admissible, the court concluded "that its 
probative value is outweighed by its prejudicial impact," and excluded it "under 
[Rule] 403."  (Id.).  The court also excluded Gitsham's pre-employment 
application, marked as Defendant's Exhibit 2, on which she failed to disclose her 
criminal convictions and aliases, citing "the nature of the criminal matters, and the 
timing of them," as "factors that were key in the Court determining under [Rule] 
403 not to admit those."  (Id. pp.185-87).

     2.  Denial of Judgment as a Matter of Law
	At the close of the EEOC's case, Bobrich moved for judgment as a matter of 
law (JMOL) under Fed.R.Civ.P. 50(a).  (USCA5 847; Tr.Vol.2 pp.71-72).  Bobrich 
advanced three arguments in support of its motion, asserting that the evidence 
showed, as a matter of law, that "Gitsham is not disabled under the ADA," 
(USCA5 848); "Gitsham is not regarded as disabled under the ADA," (USCA5 
849); and "Gitsham was not constructively discharged," precluding any backpay 
award.  (USCA5 851).  Counsel orally argued that the evidence did not support a 
finding that Gitsham is "disabled or regarded as disabled."  (Tr.Vol.2 pp.71-72).  
After hearing argument from the EEOC on whether Gitsham has a "disability" 
within ADA coverage, the court decided "to overrule the motion at this time," and 
indicated that if the EEOC prevailed, the court would "look carefully at this 
question" and "require full briefing" on what it considered "a relatively close 
question."  (Id. p.76).  Bobrich renewed the request for JMOL at the conclusion of 
its own case, adopting its earlier motion by reference without further oral or 
written argument.  (Id. p.171).  The court announced that its "ruling will be the 
same."  (Id. p.172).
 	The jury returned a verdict for the EEOC.  In response to specific questions, 
the jury found that:  at the time Gitsham worked for Bobrich, she had a 
"disability," i.e., an impairment that substantially limited a major life activity, or 
that Bobrich regarded as substantially limiting, (USCA5 916); Suarez and Gilbert 
subjected her to a hostile work environment because of her disability, (USCA5 
917-19); Bobrich constructively discharged Gitsham, (USCA5 920); and Bobrich 
"acted with malice or with reckless indifference" to her rights "to be protected 
from discrimination on the basis of her disability."  (USCA5 923).  The jury 
awarded $16,500 in backpay, $50,000 in compensatory damages, and $100,000 in 
punitive damages.  (USCA5 921-22, 929).
	Post-trial, Bobrich filed a renewed motion for JMOL under Fed.R.Civ.P. 
50(b).  (USCA5 935).  Bobrich reasserted its earlier arguments that Gitsham does 
not have a "disability" within ADA coverage, (USCA5 940-44), and was not 
constructively discharged and thus not entitled to backpay.  (USCA5 946-49).  In 
addition to the grounds earlier asserted, Bobrich argued for the first time that the 
company "did not subject [Gitsham] to a hostile work environment" because the 
alleged harassment was "not sufficiently pervasive or severe to alter the conditions 
of employment and create an abusive environment," (USCA5 945-46), and that 
punitive damages were not warranted.  (USCA5 950-51).  Bobrich did not advance 
either of these arguments in its pre-verdict motion for JMOL under Fed.R.Civ.P. 
50(a).  (USCA5 847-56).
	The district court granted in part and denied in part Bobrich's Rule 50(b) 
motion for JMOL.  (USCA5 1050-59).  The court sustained the jury's finding that 
Gitsham has a "disability," as defined by the ADA, because "the EEOC presented 
evidence sufficient for a reasonable juror to conclude that Ms. Gitsham, even with 
the assistance of hearing aids, is substantially limited in the major life activity of 
hearing."  (USCA5 1052-53).  The evidence adduced at trial, the court observed, 
"confirms the severity and long-term impact of Ms. Gitsham's hearing disability, 
which significantly restricted her ability to communicate with others in person and 
over the telephone."  (USCA5 1051).  The court cited "[a]udiological and medical 
documents" which measured the extent of Gitsham's hearing loss; the testimony of 
audiologist Travis Ortega, who examined Gitsham and "corroborate[d] [her] 
testimony about her personal experience ... that, even with the assistance of 
hearing aids, she cannot engage in conversation unless the speaker is directly in 
front of her, cannot hear speech over the telephone, regularly misses words during 
conversations, and is unable to hear her doorbell or telephone ring"; and Gail 
Massey's consistent testimony describing Gitsham's limitations.  (USCA5 1051-
52).  The permanence of Gitsham's impairment, moreover, reinforced the court's 
"conclusion that she has substantially limited hearing."  (USCA5 1052).
	The court rejected Bobrich's argument that "Gitsham was not disabled 
because hearing aids enabled her to function normally in the workplace."  (USCA5 
1053).  Evidence that "corrective measures allowed [Gitsham] to perform her job 
normally," the court reasoned, did not prove "that corrective measures allowed her 
to hear normally."  (Id.)  "Even if she is not substantially limited in the major life 
activity of working," the court explained, "evidence introduced by the EEOC 
demonstrated that she was substantially limited in the major life activity of 
hearing, even with the use of hearing aids."<9> (Id.)
	The court also found "sufficient evidence to conclude that the Bobrich 
supervisors' frequent ridiculing of Ms. Gitsham's impairment was severe conduct, 
creating a hostile work environment," (USCA5 1054), and upheld the jury's award 
of punitive damages, a ruling Bobrich does not contest on appeal.  "[T]he 
persistent, public derision of Ms. Gitsham's hearing loss was egregious," the court 
concluded, and "a reasonable jury could have concluded that Mr. Gilbert, as 
Director of [HR] and Training, was knowledgeable about Title VII's requirements 
and, therefore, acted 'in the face of a perceived risk that [his] actions ... violate[d] 
federal law.'" (USCA5 1058-59 (citation omitted)).<10>

                             SUMMARY OF ARGUMENT

	The district court correctly denied judgment as a matter of law on the 
EEOC's claim that Bobrich subjected Tammy Gitsham to a hostile work 
environment because of her disability.  Viewed most favorably to the EEOC, as 
required on appeal from a jury verdict, the evidence at trial demonstrated that 
Gitsham's ability to hear was substantially limited when she worked for Bobrich.  
Gitsham has severe and permanent hearing loss in both ears, and has worn two 
hearing aids since 1995.  Even with these assistive devices, Gitsham's hearing 
remains significantly impaired:  She must read lips and facial expressions to 
understand speech; she cannot comprehend a speaker who is not facing her; she 
cannot hear in a loud environment; she has difficulty communicating over the 
phone; and she cannot hear a doorbell or telephone ring.  
     The district court correctly concluded that this evidence, corroborated by 
Gitsham's medical records and the testimony of her audiologist, supported the 
jury's verdict that her hearing impairment was a "disability" under the ADA.  The 
jury also could have found, from evidence of the conduct and comments of 
Bobrich HR director Wayne Gilbert and CEO Bob Suarez, that the company 
regarded Gitsham's hearing as substantially limited, further supporting the verdict.
	The district court did not plainly err in denying judgment as a matter of law 
as to the jury's finding that Gilbert and Suarez subjected Gitsham to a hostile work 
environment because of her disability.  Bobrich failed to challenge the sufficiency 
of the evidence on this issue at the close of the evidence, and first raised it in its 
post-verdict motion under Fed.R.Civ.P. 50(b).  Bobrich thereby waived the issue 
for purposes of appeal, and this Court must uphold the verdict if there is any 
evidence to support the jury's finding that Gitsham endured harassment 
sufficiently severe or pervasive to alter her conditions of employment and create a 
hostile or abusing working environment.  Under standards established by the 
Supreme Court and applied in this Circuit, the district court correctly concluded 
that evidence of persistent public ridicule of Gitsham's disability by her superiors 
demonstrated harassment sufficiently "severe" and "egregious" to support the 
jury's finding of a hostile work environment.
	The district court properly exercised its discretion, under Fed.R.Evid. 608(b) 
and 403, in excluding collateral and extrinsic evidence that Gitsham misrepresent-
ed her work experience and failed to disclose decades-old convictions and aliases 
when she applied to work for Bobrich in 2001.  Gitsham's qualifications and job 
performance were not at issue, and Bobrich offered the evidence solely to impeach 
Gitsham's character for truthfulness.  The district court concluded, both before trial 
and upon reconsideration after hearing all the trial testimony, that the probative 
value of this collateral impeachment evidence was substantially outweighed by the 
risk of unfair prejudice.  Bobrich was afforded ample opportunity to contest 
Gitsham's account of the harassment - which was corroborated by several other 
employees - through cross-examination and the testimony of other witnesses.  
Under the deferential standard applicable to rulings under Rules 403 and 608(b), 
the trial court did not abuse its discretion in excluding "highly prejudicial" 
collateral and extrinsic impeachment evidence.

                                    ARGUMENT

I.  SUBSTANTIAL EVIDENCE SUPPORTS THE JURY'S FINDING 
THAT TAMMY GITSHAM'S SEVERE AND PERMANENT 
HEARING LOSS IS A "DISABILITY" AS DEFINED BY THE ADA.
 
A.  Standard of Review
	"A motion for judgment as a matter of law ... in an action tried by jury is a 
challenge to the legal sufficiency of the evidence supporting the jury's verdict."  
Lincoln v. Case, 340 F.3d 283, 289 (5th Cir. 2003) (citation and internal quotation 
marks omitted).  Thus, Bobrich "cannot prevail in seeking judgment as a matter of 
law unless there is no legally sufficient evidentiary basis for a reasonable jury['s] 
verdict."  EEOC v. E.I. DuPont De Nemours & Co., 480 F.3d 724, 730 (5th Cir. 
2007) (internal quotation marks and citations omitted).  JMOL "should be granted 
only when the facts and inferences point so strongly and overwhelmingly in favor 
of the moving party that reasonable persons could not arrive at a contrary verdict."  
Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 805-06 (5th Cir. 1996) 
(citations omitted).  The Court "considers all the evidence ... in the light most 
favorable to the nonmovant and indulges in all reasonable inferences in favor of 
the nonmovant," and must sustain a verdict supported by "substantial evidence," 
meaning "evidence of such quality and weight that reasonable and fair-minded 
persons in the exercise of impartial judgment might reach different conclusions."  
Id. at 806.  This Court "review[s] the district court's ruling on a motion for 
[JMOL] de novo, applying the same legal standard as the district court."  Lincoln, 
340 F.3d at 289-90.
B.  Argument
     "Under the [ADA], a physical impairment that 'substantially limits one or 
more ... major life activities' is a 'disability.'"  Toyota v. Williams, 534 U.S. 184, 
187 (2002) (quoting 42 U.S.C.  12102(2)(A)).  "The ADA's definition of 
'disability'" also "includes individuals who are 'regarded as having such an 
impairment [that substantially limits one or more of the major life activities].'"  
EEOC v. DuPont, 480 F.3d at 729 (quoting 42 U.S.C.  12102(2)(C)).  "[T]he 
ADA must be construed to be consistent with regulations issued to implement the 
Rehabilitation Act," Bragdon v. Abbott, 524 U.S. 624, 638 (1998) (citing 42 U.S.C. 
 12201(a)), which define "major life activities" "to include 'functions such as ... 
hearing ....'"  Id. at 638-39 (quoting 45 C.F.R.  84.3(j)(2)(ii); 28 C.F.R.  
41.31(b)(2)); see also 29 C.F.R.  1630.2(i) (same); see also Toyota, 534 U.S. at 
197 (category of "major life activities" within ADA's definition of disability 
"includes such basic abilities as walking, seeing, and hearing") (emphasis added).  
     Bobrich does not dispute that Gitsham's hearing loss is due to a physical 
impairment, or that hearing is a major life activity under the ADA.  Rather, 
Bobrich challenges the jury's verdict that "Gitsham suffered from a 'disability' 
while she was employed by Bobrich," (USCA5 916), solely on the ground that 
there is no legally sufficient evidentiary basis to support a reasonable jury's finding 
that her hearing loss is substantially limiting, or regarded as such.  See Bobrich Br. 
at 35 ("Although the evidence establishes that Tammy Gitsham suffers from 
hearing loss, the evidence also establishes that Ms. Gitsham is not substantially 
limited in her major life activities.") (emphasis in original).  Because the evidence 
is sufficient for a jury to find that Gitsham's hearing is substantially limited, and 
that Bobrich regarded her as substantially limited in her ability to hear, the jury's 
verdict that she has a "disability" must stand.  
     "To substantially limit means: (i) Unable to perform a major life activity that 
the average person in the general population can perform; or (ii) significantly 
restricted as to the condition, manner or duration under which an individual can 
perform a particular major life activity as compared to the condition, manner or 
duration under which the average person in the general population can perform the 
same major life activity."  Talk v. Delta Airlines, Inc., 165 F.3d 1021, 1024 (5th 
Cir. 1999) (citing 29 C.F.R.  1630.2(j)(1)(i)(ii)).  "Whether an impairment is 
substantially limiting is determined in light of (1) the nature and severity of the 
impairment, (2) its duration or expected duration, and (3) its permanent or 
expected permanent or long-term impact."  Id. (citing 29 C.F.R.  1630.2(j)).    
"[I]f a person is taking measures to correct for, or mitigate, a physical or mental 
impairment, the effects of those measures - both positive and negative - must be 
taken into account when judging whether that person is 'substantially limited' in a 
major life activity and thus 'disabled' under the Act."  Sutton v. United Air Lines, 
Inc., 527 U.S. 471, 482 (1999); see Ivy v. Jones, 192 F.3d 514, 516 (5th Cir. 1999) 
(under Sutton, district court must examine plaintiff's "hearing loss as corrected" by 
her use of hearing aids when determining whether her "impairment substantially 
limited her major life activity of hearing").<11>
     As the district court correctly concluded, substantial evidence supports the 
jury's verdict that Gitsham's severe and permanent hearing loss meets the ADA's 
definition of "disability."  (USCA5 1051-53).  Both Gitsham and audiologist 
Travis Ortega testified, without contradiction, that she has a physical impairment 
resulting in significant and permanent hearing loss in both ears.  (Tr.Vol.1 p.155; 
Tr.Vol.2 pp.61-69).  Medical records "demonstrated moderate to severe 
sensorineural loss in Ms. Gitsham's left ear and severe to profound sensorineural 
hearing loss in her right ear."  (USCA5 1052; see also Tr.Vol.2 p.63).  Audio-
logical testing revealed that "Gitsham hears sounds beginning in the 45 dcB and 75 
dcB range in her left and right ears, respectively," as compared with "the normal 
range for hearing [which] is approximately 0-25 dcB."  (USCA5 1052; see also 
Tr.Vol.2 pp.57-58).  The results of Gitsham's speech discrimination test, 
conducted in a soundproof environment at a volume adjusted to Gitsham's most 
comfortable listening level (MCL), showed an accuracy rate of 84% in her right 
ear and 56% in her left ear.  (Tr.Vol.2 pp.59-60; see also USCA5 1052).  
     Bobrich advances two arguments in an effort to discount the probative value 
of the medical evidence documenting the nature and extent of Gitsham's hearing 
loss.  First, Bobrich asserts that Ortega did not examine Gitsham during the time 
she worked for Bobrich.  Bobrich Br. at 35.  Yet Ortega examined Gitsham in 
November 2003, less than six months after she left Bobrich in June 2003, and 
nothing in the record suggests (let alone conclusively demonstrates) that Gitsham's 
condition changed significantly during that time.  To the contrary, Ortega's 
observation that Gitsham arrived for her exam wearing "weak and distorted" 
hearing aids she had worn "since 1996," would support a reasonable inference that 
the corrective measures she was using to improve her hearing while employed by 
Bobrich were not terribly effective. (Tr.Vol.2 p.62).
     Second, Bobrich contends that the audiological exam did not test Gitsham's 
"hearing as corrected by her hearing aids."  Bobrich Br. at 35 (emphases omitted).  
Bobrich's argument, however, betrays a fundamental misapprehension of the 
evidence.  Ortega described the testing procedure and purpose of the phonetically 
balanced (PB) speech discrimination exam, and explained the significance of 
Gitsham's test results.  (Tr.Vol.2 pp.57-59).  During the test, Gitsham sat in a 
soundproof  booth and was directed to repeat words transmitted through head-
phones with the volume adjusted to her most comfortable listening level (MCL).  
(Id. pp.57-58).  According to Ortega, the exam "is designed to tell us how well [the 
patient] understands" speech, and predicts how well a hearing impaired person can 
be expected "to do ... with hearing aids." (Id. p.59). "Because in essence [a] 
hearing aid is amplifying that sound to a comfortable listening level," Ortega 
explained, the testing method in effect simulates a hearing aid and tests "how well 
is she going to understand when we get that sound to a comfortable listening 
level," i.e., with the enhanced volume hearing aids would provide.  (Id.).
     Ortega's exam revealed that "what [Gitsham] lacks, is clarity."  (Id. p.60).   
Even when asked to repeat words spoken at her preferred volume "in a soundproof 
room," Ortega observed,
she had some difficulty understanding those words with no [competing] 
noises.  But in most environments, you're going to have some competing 
noises, so those scores in essence are going to go down.

(Id. pp.60-61).  Given the nature of Gitsham's impairment, Ortega testified that 
hearing aids would enable her to "hear better," but she would "still have difficulty 
understanding what people are saying."  (Id. p.64).  Even with the benefit of 
hearing aids, Ortega anticipated that she would "really struggle with understanding 
... because the hearing aids are giving her plenty of sound, but the clarity is what 
she has difficulty with."  (Id. p.68).  "[W]hen she goes into noisy environments," 
Ortega predicted, "she's going to have a tremendously difficult time understand-
ing" and would "have to be looking at [a speaker] to understand what's being 
said."  (Id.).
     As the district court correctly noted, Ortega's clinical observations both 
"corroborate Ms. Gitsham's testimony about her personal experience," and are 
"consistent with [the testimony] of Gail Massey."  (USCA5 1052).  Even with the 
assistance of hearing aids, Gitsham "can't hear in a loud environment"; "can't hear 
somebody behind [her]"; "still ha[s] to read lips" and "look at a person's facial 
expressions" to comprehend speech; and remains unable to hear certain tones, such 
as a doorbell or telephone ring, because "even the new technology will not correct 
that."  (Tr.Vol.1 pp.156-58).  Thus, even with hearing aids, Gitsham must use 
visual cues - lipreading and facial expressions - to comprehend speech and 
communicate effectively.  (Id. p.157).
     From this evidence, "a reasonable juror [could] conclude that Ms. Gitsham, 
even with the assistance of hearing aids, is substantially limited in the major life 
activity of hearing."  (USCA5 1052-53).  The average person in the general 
population is able to hear a doorbell and a ringing telephone; can hear and 
understand speech without looking at the speaker's lips and facial expressions; and 
is able to hear and converse in noisy environments.  Based on the evidence 
summarized above, the jury could reasonably find that Gitsham's ability to 
hear, while wearing hearing aids in both ears, remains "significantly restricted ... 
as compared to ... the average person in the general population."  See 29 C.F.R.  
1630.2(j)(1)(ii).
     Nonetheless, Bobrich argues that the evidence conclusively "establishes that 
Ms. Gitsham is not substantially limited in her major life activities" because she 
was able to communicate effectively with coworkers and customers and "could 
perform her job just fine."  Bobrich Br. at 35 (emphasis in original).  Yet the 
EEOC claims Gitsham has a "disability" within ADA protection because her 
impairment substantially limits her in the major life activity of hearing, not that 
she is substantially limited in her ability to communicate or to work.  By its plain 
language, the ADA defines a "disability" as "a physical or mental impairment that 
substantially limits one or more of the major life activities of such individual."  42 
U.S.C.  12102(2)(A) (emphasis added).  Thus, "one has a disability under [the 
ADA] if, notwithstanding the use of a corrective device, that individual is substan-
tially limited in a major life activity."  Sutton, 527 U.S. at 488 (emphasis added).  
     Bobrich's insistence that Gitsham's successful job performance establishes, 
as a matter of law, that her hearing loss is not a "disability" under the ADA is flatly 
inconsistent with Supreme Court precedent.   The Court has rejected the notion 
"that Congress intended the ADA only to cover those aspects of a person's life 
which have a public, economic, or daily character," Bragdon, 524 U.S. at 638, and 
criticized an analysis of ADA coverage that focused exclusively on the effect of an 
impairment on job performance.  See Toyota v. Williams, 534 U.S. 184, 693 (2002) 
(ADA's "definition of 'disability' ... is intended to cover individuals with 
disabling impairments regardless of whether the individuals have any connection 
to a workplace").  
     The Court in Sutton, moreover, recognized that some impaired individuals 
who, with mitigating measures, are able to work and otherwise function effectively 
in daily life, remain substantially limited in a major life activity and thus within 
ADA coverage.  Sutton, 527 U.S. at 488 ("individuals who use prosthetic limbs or 
wheelchairs may be mobile and capable of functioning in society but still be 
disabled because of a substantial limitation on their ability to walk or run").  
Similarly, the jury could have found that while Gitsham has developed skills (such 
as lipreading and heightened attention to visual cues) that enable her to 
communicate and work effectively, she remains substantially limited in her ability 
to hear, the major life activity in which the EEOC claims (and the jury found) she 
is substantially limited.  Because the evidence supports the jury's finding that 
Gitsham's impairment, when mitigated with hearing aids, substantially limits her 
ability to hear, she has a "disability" as defined by the ADA, notwithstanding her 
ability to communicate effectively and work productively despite her limitation.<12>
	The evidence also supports a finding that Gitsham has a "disability" within 
ADA coverage because Bobrich regarded her as substantially limited in the major 
life activity of hearing.  See 42 U.S.C.  12102(2)(C).  A claimant meets this 
statutory definition of "disability" if she "'(1) has an impairment that is not 
substantially limiting but which the employer perceives as substantially limiting, 
(2) has an impairment that is substantially limiting only because of the attitudes of 
others, or (3) has no impairment but is perceived by the employer as having a 
substantially limiting impairment.'"  EEOC v. DuPont, 480 F.3d at 729 (citations 
omitted).  A reasonable jury could find, based on the conduct of HR director 
Wayne Gilbert and company president Bob Suarez, that Bobrich perceived 
Gitsham's hearing loss as substantially limiting.
     Gilbert would bang on the desk to get Gitsham's attention at the start of a 
meeting, as if he believed she could not otherwise hear him announce that the 
meeting was about to begin.  (Tr.Vol.1 p.169).  He habitually asked her, "'Tammy, 
you got your ears on,'" (id. p.166), suggesting that her hearing aids were her "ears" 
and she could not hear without them.  He frequently told her to "'read my lips,'" 
(id.), signifying his perception that she could not hear him speak and would be 
unable to understand him without lip-reading.  He often repeated the popular ad 
slogan, "'Can you hear me now?,'" in a tone designed "to draw attention" to her 
impairment and "make people laugh."  (Id. pp.166-67).  There was also evidence 
that CEO Bob Suarez witnessed some of Gilbert's remarks to Gitsham and, at a 
company Christmas party, pushed her out of the way and asked, "You got your 
ears on?"  (Id. pp.174-75; Tr.Vol.2 pp.11-12, 24).
     A reasonable jury could have found that this conduct, by two high-level 
company officials, reflects a perception that Gitsham is unable or substantially 
limited in her ability to hear, and inferred that Bobrich regarded her as disabled.  
Nor does Bobrich argue otherwise.  See Bobrich Br. at 38-39.  In challenging the 
evidentiary sufficiency of a finding that Bobrich regarded Gitsham as disabled, 
Bobrich argues only that it "generally regarded Gitsham as a good employee and 
promoted her," and the evidence was thus insufficient "to establish that [Bobrich] 
regarded Ms. Gitsham as 'significantly restricted in the ability to perform either a 
class of jobs or a broad range of jobs.'"  Id. at 39 (quoting Sutton).  Bobrich's 
argument is inapposite, however, since the EEOC neither alleged nor sought to 
prove that Bobrich regarded Gitsham as substantially limited in working, the basis 
of coverage at issue in Sutton and one that would have required evidence that her 
hearing loss restricted her from a class or broad range of jobs.  See 29 C.F.R.  
1630.2(j)(3)(i).  Because the EEOC claimed that Bobrich regarded Gisham as 
substantially limited in hearing - a sufficient basis for statutory coverage, and one 
that Bobrich does not challenge on appeal - the jury's finding that Gitsham had a 
"disability" at the time she worked for Bobrich must be affirmed. 

II.  EVIDENCE THAT GITSHAM ENDURED PERSISTENT PUBLIC 
RIDICULE OF HER DISABILITY BY HER SUPERIORS SUPPORTS 
THE JURY'S FINDING OF A HOSTILE WORK ENVIRONMENT IN 
VIOLATION OF THE ADA. 

A. Standard of Review
	"If a party fails to move for judgment as a matter of law under Rule 50(a) on 
an issue at the conclusion of all the evidence, that party waives both its right to file 
a renewed post-verdict Rule 50(b) motion and also its right to challenge the 
sufficiency of the evidence on that issue on appeal." Flowers v. Southern Regional 
Physician Services, 247 F.3d 229, 238 (5th Cir. 2001).  "Because the Rule 50(b) 
motion is only a renewal of the pre-verdict motion, it can be granted only on 
grounds advanced in the pre-verdict motion."  Adv. Comm. Notes on 2006 
Amendment to Fed.R.Civ.P. 50.  Bobrich failed to challenge the sufficiency of the 
evidence to support a finding that disability-based harassment subjected Gitsham 
to a hostile work environment in moving for JMOL at the close of the EEOC's 
evidence and after both parties rested, see supra at 23-24; (USCA5 847-56), and 
first raised this issue in its post-verdict renewed motion for JMOL, see supra at 24-
25; (USCA5 945-46).  Because Bobrich thereby "waive[d] ... its right to challenge 
the sufficiency of the evidence on that issue on appeal," Flowers, 247 F.3d at 238, 
this Court reviews its "sufficiency of the evidence arguments" on the existence of a 
hostile work environment "only for plain error."  Lincoln v. Case, 340 F.3d 283, 
291 (5th Cir. 2003).  "Under plain error review," this Court "must decide 'whether 
there was any evidence to support the jury verdict,'" and "'[i]f any evidence exists 
that supports the verdict, it will be upheld.'"  Id. (citation omitted).<13>
B.  Argument
     "A cause of action for disability-based harassment" under the ADA "is 
'modeled after the similar claim under Title VII.'"  Flowers, 247 F.3d at 235 
(quoting McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 563 (5th Cir. 
1998)).  Accordingly, to be actionable, "the disability-based harassment must 'be 
sufficiently pervasive or severe to alter the conditions of employment and create an 
abusive working environment.'"  Id. at 236 (quoting McConathy, 131 F.3d at 563). 
To determine "whether a work environment is abusive, this court must consider the 
entirety of the evidence presented at trial, including the frequency of the 
discriminatory conduct, its severity, whether it is physically threatening or 
humiliating, or a mere offensive utterance, and whether it unreasonably interferes 
with an employee's work performance."  Id. (internal quotation marks and citations 
omitted).  
     "Under the totality of the circumstances test, a single incident of harassment, 
if sufficiently severe, could give rise to a viable ... claim as well as a continuous 
pattern of much less severe incidents of harassment."  EEOC v. WC&M 
Enterprises, Inc., 496 F.3d 393, 400 (5th Cir. 2007).  Applying this standard, "this 
court has found that a regular pattern of frequent verbal ridicule or insults sustained 
over time can constitute severe or pervasive harassment sufficient to violate Title 
VII."  Id.  See, e.g., Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 805-06 
(5th Cir. 1996) (testimony of plaintiff and her co-worker that supervisor "inquired 
about [plaintiff's] sexual activity or made comments similarly offensive two or 
three times a week ... some[times] in front of co-workers" was "substantial 
evidence from which the jury could have concluded that [his] comments and 
questions were sufficiently severe and pervasive as to alter the conditions of her 
employment and create an abusive working environment"). 
     The district court correctly concluded that the evidence presented at trial 
supports the jury's finding that Bobrich subjected Gitsham to a hostile work 
environment because of her disability, and denied JMOL on that issue.  (USCA5 
1050).  The court found "sufficient evidence to conclude that the Bobrich super-
visors' frequent ridiculing of Ms. Gitsham's impairment was severe conduct, 
creating a hostile work environment." (USCA5 1054).  Citing Supreme Court and 
Circuit precedent, the court noted that "[p]ublic denigration of a victim's disability 
is more likely to be considered severe conduct," and "persistent 'ridicule[] and 
insults' may also be egregious conduct altering the conditions of a victim's 
employment."  (Id., quoting Farpella-Crosby, 97 F.3d at 806, and citing Harris v. 
Forklift Systems, Inc., 510 U.S. 17, 24 (1993)).
     The court recounted evidence of repeated "statements such as, 'Tammy, got 
your ears on?' and 'Read my lips,' directed at Ms. Gitsham by the [HR] and 
Training Director, Wayne Gilbert, as well as [his] statement to another employee, 
'Ask Tammy if she has her ears on.  You know, that's why I could never make 
love to her.  She wouldn't be able to hear me when I whispered in her ear.'" 
(USCA5 1054-55).  The court also cited "a similar comment about [her] hearing 
disability" that "Bobrich's CEO, Mr. Suarez" made "to Ms. Gitsham in front of all 
the managers at a Christmas party."  (USCA5 1055).  The lack of "any formal or 
informal response" to "Ms. Gitsham's complaints to her direct supervisor, Mr. 
Schuster, about the daily embarrassing remarks by Mr. Gilbert," or "after Ms. 
Gitsham complained of Mr. Suarez's actions," the court observed, further 
supported finding "Bobrich's conduct egregious."<14> (Id.).
     Bobrich argues that the harassment Gitsham suffered does not meet "the 
elevated standard for 'severe and pervasive' conduct established by Fifth Circuit 
precedent."  Bobrich Br. at 18.  Yet Bobrich relies on an "elevated standard" this 
Court has since renounced as contrary to binding Supreme Court precedent.  
"[R]equiring [a plaintiff] to establish that the [harassing] conduct was both severe 
and pervasive," as Bobrich urges, "applie[s] the wrong legal standard," because 
"the Supreme Court has stated that Title VII provides a legal remedy to victims to 
establish that the abusive conduct was severe or pervasive."  Harvill v. Westward 
Communications, L.L.C., 433 F.3d 428, 434 (5th Cir. 2005).  Far from "being an 
irrelevant distinction," this Court recognized, "the requirement that a plaintiff 
establish that reported abusive conduct be both severe and pervasive in order to be 
actionable imposes a more stringent burden on the plaintiff than required by law."  
Id. at 435.  The Court in Harvill acknowledged "inconsistent application of the 
'severe or pervasive' standard in this circuit," but emphasized that "the Supreme 
Court's decisions are controlling and ... subsequent incorrect statements of the test 
are not binding."  Id.  Significantly, several of the decisions on which Bobrich 
principally relies to argue "that similar, or more offensive conduct" than that 
experienced by Gitsham "did not establish a hostile work environment," Bobrich 
Br. at 22 (emphasis deleted), are among those the Court in Harvill identified as 
having applied "the wrong legal standard."  See id. at 434-35 (citing, inter alia, 
Hockman v. Westward Communications, L.L.C., 407 F.3d 317, 326, 329 (5th Cir. 
2004), and Shepherd v. Comptroller of Pub. Accounts, 168 F.3d 871, 874 (5th Cir. 
1999), discussed in Bobrich Br. at 21-22 & note 1)).<15>
     In attempting to challenge the jury's verdict by comparing the harassment 
Gitsham suffered to the allegations of claimants in other hostile environment cases, 
moreover, Bobrich fails to recognize that the "real social impact of workplace 
behavior often depends on a constellation of surrounding circumstances, 
expectations, and relationships which are not fully captured by a simple recitation 
of the words used or the physical acts performed."  Oncale v. Sundowner Offshore 
Services, 523 U.S. 75, 81-82 (1998).  As the First Circuit recently explained,
The highly fact-specific nature of a hostile environment claim tends to 
make it difficult to draw meaningful contrasts between one case and 
another for purposes of distinguishing between sufficiently and 
insufficiently abusive behavior.  Conduct that amounts to sexual 
harassment under one set of circumstances may, in a different context, 
equate with the sort of "'merely offensive'" behavior that lies beyond the 
purview of Title VII, and vice versa.

Billings v. Town of Grafton, 515 F.3d 39, 49 (1st Cir. 2008); accord Draper v. 
Coeur Rochester, Inc., 147 F.3d 1104, 1109 (9th Cir. 1998) ("Discriminatory 
behavior comes in all shapes and sizes, and what might be an innocuous 
occurrence in some circumstances may, in the context of a pattern of 
discriminatory harassment, take on an altogether different character, causing a 
worker to feel demeaned, humiliated, or intimidated on account of her gender.").
     The Supreme Court has acknowledged that the determination whether 
discriminatory harassment is sufficient to create a hostile work environment "is 
not, and by its nature cannot be, a mathematically precise test," Harris, 510 U.S. at 
22, and "requires careful consideration of the social context in which particular 
behavior occurs and is experienced by its target."  Oncale, 523 U.S. at 81.  The 
jury in this case heard the testimony of Gitsham and other Bobrich employees 
describing the offensive remarks and conduct of Gilbert and Suarez; their tone of 
voice when making these comments; the "social context" in which their conduct 
occurred; and the reactions of Gitsham and others to these incidents. See supra at 
10-18 (summarizing and quoting pertinent testimony, with record citations). 
     According to these witnesses, Gilbert on numerous occasions made fun of 
Gitsham's disability, to her face and in front of other employees, and laughed when 
Gitsham and others told him his remarks were "'really embarrassing,'"  (Tr.Vol.1 
p.167), or his conduct "'wasn't very nice.'" (Tr.Vol.2 p.13).  Suarez publicly 
humiliated Gitsham at the company Christmas party in 2002, by repeating one of 
Gilbert's frequent taunts - "'Tammy, you got your ears on?'" - while pushing her 
aside in the buffet line.  See supra at 17-18 (quoting testimony of Gitsham, 
Massey, and Shuster).  Gilbert's harassment began shortly after Gitsham was 
promoted to area supervisor, under Gilbert's direct supervision, in December 2001, 
(Tr.Vol.1 pp.165-66), and continued until she left the company in June 2003.  (Id. 
p.176).  Suarez's conduct at the 2002 Christmas party, moreover, made Gitsham 
feel she had become "the company joke" and led her to quit a job she loved.  
(pp.177-78).  The trial judge, who also heard this testimony, concluded that a 
reasonable jury could have found the frequent, persistent, public harassment by 
two high-level company officials, targeted at Gitsham's disability, was "egregious" 
and "sufficiently severe to alter the terms of her employment and to create a hostile 
work environment."  (USCA5 1054-55).
	Bobrich primarily argues that Gitsham could not have been subject to a 
hostile work environment because the harassment she suffered "did not affect her 
performance or her opportunity to succeed at Subway."  Bobrich Br. at 19.  Yet a 
claimant need not show that discriminatory harassment caused a demonstrable 
decline in her job performance or measurably impeded her professional success for 
a jury to find the objectionable conduct altered her conditions of employment.  
"[T]he test is not whether work has been impaired, but whether working conditions 
have been discriminatorily altered."  Harris, 510 U.S. at 25 (Scalia, J., concurring).  
Rather, "[i]t suffices to prove that a reasonable person subjected to the 
discriminatory conduct would find, as the plaintiff did, that the harassment so 
altered working conditions as to 'ma[k]e it more difficult to do the job.'" Id. at 26 
(Ginsburg, J., concurring) (citations omitted).
    Bobrich trivializes the nature and impact of the harassment by Gilbert and 
Suarez, arguing that their conduct did no more than reveal Gitsham's disability to 
others.  See Bobrich Br. at 27-28.  Yet the jury was entitled to believe the 
testimony of Jennifer Shuster, who testified that Gitsham made no effort to conceal 
her disability, which was readily apparent because her hearing aids "were really 
big, and they went behind her ears."  (Tr.Vol.2 pp.21-22).  Gitsham's working 
conditions were altered not by the disclosure of her impairment, as Bobrich 
suggests, but rather by her bosses' persistent humiliation, which she was powerless 
to prevent.
    According to Gitsham, the repeated public ridicule of her disability by her 
superiors, in front of store managers she supervised, made her job more difficult by 
diminishing her subordinates' respect for her authority.  (Tr.Vol.1 p.170).  Because 
a jury could find that "a reasonable person in [Gitsham's] position, considering 'all 
the circumstances,'" would likewise feel such conduct undermined the respect 
necessary to be an effective supervisor, this evidence supports the jury's finding 
that the harassment altered her working conditions and created a hostile work 
environment.  See Oncale, 523 U.S. at 81 ("the objective severity of harassment 
should be judged from the perspective of a reasonable person in the plaintiff's 
position, considering 'all the circumstances.'") (quoting Harris, 510 U.S. at 23).

III.  THE DISTRICT COURT PROPERLY EXERCISED ITS 
DISCRETION IN EXCLUDING EXTRINSIC AND COLLATERAL 
IMPEACHMENT EVIDENCE UPON FINDING ITS PROBATIVE 
VALUE WAS SUBSTANTIALLY OUTWEIGHED BY THE 
DANGER OF UNFAIR PREJUDICE.

A.  Standard of Review

	"In deference to a district court's familiarity with the details of the case and 
its greater experience in evidentiary matters, courts of appeals afford broad 
discretion to a district court's evidentiary rulings."  Sprint/United Management Co. 
v. Mendelsohn, 128 S.Ct. 1140, 1144-45 (2008).  Accordingly, this Court 
"review[s] the evidentiary rulings of the district court under the deferential abuse-
of-discretion standard."  Kelly v. Boeing Petroleum Services, Inc., 61 F.3d 350, 356 
(5th Cir. 1995).  "This is particularly true with respect to Rule 403 since it requires 
an 'on-the-spot balancing of probative value and prejudice, potentially to exclude 
as unduly prejudicial some evidence that already has been found to be factually 
relevant.'"  Sprint, 128 S.Ct. at 1145 (quoting 1 S. Childress & M. Davis, Federal 
Standards of Review  4.02, p. 4-16 (3d ed. 1999)).
B.  Argument
	Fed.R.Evid. 608(b) governs the admissibility of evidence of prior instances 
of conduct offered solely for impeachment purposes.  The rule provides:  
Specific instances of the conduct of a witness, for the purpose of 
attacking ... the witness' character for truthfulness, other than conviction 
of crime as provided in rule 609, may not be proved by extrinsic 
evidence.  They may, however, in the discretion of the court, if probative 
of ... untruthfulness, be inquired into on cross-examination of the 
witness ... concerning the witness' character for truthfulness or 
untruthfulness ....

Fed.R.Evid. 608(b).
     Bobrich challenges the district court's exclusion of evidence that Gitsham 
falsified her work experience and failed to disclose decades-old criminal 
convictions and aliases when she applied to work at Subway in 2001.  See Bobrich 
Br. at 28.  Bobrich concedes Gitsham was qualified to work at Subway, was 
promoted to area supervisor, performed her duties successfully, and that 
management "felt [she] was performing well and wanted her to stay with the 
company" at the time she resigned.  Id. at 21.  Gitsham's qualifications and 
performance were thus not at issue, and Bobrich sought to introduce evidence of 
falsehoods on her resume and application solely to impeach her "character for 
truthfulness."  Fed.R.Evid. 608(b).  Because Rule 608(b) "impose[s] an absolute 
bar on extrinsic evidence ... if the sole purpose for offering the evidence was to 
prove the witness' character for veracity," Adv. Comm. Notes on 2003 
Amendments to Rule 608(b), the application and resume, marked as Defendant's 
Exhibits 2 and 3, were per se inadmissible and therefore properly excluded.  
(Tr.Vol.2 pp.183-87).  
     Bobrich also sought to elicit Gitsham's testimony on cross-examination that 
she fabricated work experience on her resume and did not disclose her criminal 
convictions or aliases on the application form, as a means to attack her "character 
for truthfulness," Fed.R.Evid. 608(b).  In formulating Rule 608(b), the Advisory 
Committee recognized that "[e]ffective cross-examination demands that some 
allowance be made for going into matters of this kind, but the possibilities of abuse 
are substantial."  Adv. Comm. Notes to 1972 Proposed Rule Fed.R.Evid. 608(b).  
Consequently, "the overriding protection of Rule 403 requires that the probative 
value not be outweighed by danger of unfair prejudice, confusion of issues, or 
misleading the jury."  Id.  In an effort "to emphasize the discretionary power of the 
court in permitting such testimony," moreover, Rule 608(b) explicitly entrusts the 
admissibility of such evidence to the trial court's discretion.  Adv. Comm. Notes 
on 1974 Enactment of Fed.R.Evid. 608(b).
     The district court properly exercised its discretion under Rules 608(b) and 
403 in excluding collateral evidence that Gitsham supplied false information 
during the 2001 hiring process at Subway, offered solely to attack her character for 
truthfulness.  Having carefully considered the arguments of each party, presented 
in pre-trial briefs and at a hearing on the motion in limine, the court determined 
that "[t]he prejudicial impact of this [evidence] is extremely significant" and "the 
probative value is not sufficient to outweigh that prejudicial effect."  (6/28/07 Tr. 
p.16).  At the conclusion of the evidence at trial, the district court again considered 
the issue and, having heard the testimony of Gitsham and all the witnesses, 
reaffirmed its decision to exclude the collateral impeachment evidence under Rule 
403.  (Tr.Vol.2 pp.184-87).  "When, as here, the district court has conducted, on 
the record, a carefully detailed analysis of the evidentiary issues and the court's 
own ruling, appellate courts are chary about finding an abuse of discretion."  Kelly, 
61 F.3d at 356.
     Bobrich argues that the district court abused its discretion in excluding the 
collateral impeachment evidence because "Wayne Gilbert ... was (believed) 
deceased at the time of trial, and could not present his own version of the facts," 
Bobrich Br. at 29, and consequently "Gitsham's character for truthfulness was the 
main issue of the case."  Id. at 33.  Yet Bobrich ignores the testimony of several 
witnesses - Gail Massey, Jennifer Shuster, and Jim Schuster - who corroborated 
various incidents of harassment by Gilbert and Suarez.  As Bobrich acknowledges, 
moreover, it was afforded ample opportunity to contest Gitsham's account through 
the testimony of employees who attested to Gilbert's friendly demeanor and 
reputation, see id. at 6, and maintained they never heard Gilbert make any 
offensive comments about Gitsham's hearing impairment.  See id. at 9.
	The district court, having heard all the testimony and other evidence 
admitted at trial, remained convinced that the probative value of the collateral 
impeachment evidence was substantially outweighed by the risk of unfair prejudice 
in exposing her falsified resume entry and decades-old criminal convictions and 
aliases. "The district court has broad discretion in assessing admissibility under the 
rule providing for exclusion of relevant evidence if its probative value is 
substantially outweighed by danger of unfair prejudice, confusion of issues or 
misleading jury."  International Ins. Co. v. RSR Corp., 426 F.3d 281, 299 (5th Cir. 
2005).  "With respect to evidentiary questions in general and Rule 403 in 
particular," the Supreme Court has very recently reminded, "a district court 
virtually always is in the better position to assess the admissibility of the evidence 
in the context of the particular case before it."  Sprint, 128 S.Ct. at 1146.  
Consequently, "[t]he trial judge's assessment of relative probative value of 
evidence and unfair prejudice is generally accorded great deference" by this Court, 
"because of his or her first-hand exposure to evidence and familiarity with the 
course of the trial proceedings."  International Ins. Co., 426 F.3d at 300.  
     In an apparent attempt to bolster a weak argument, Bobrich suggests that 
Gitsham presented "perjured testimony" in her deposition.  See Bobrich Br. at 31-
32.  As the record clearly shows, however, Bobrich's assertion is misleading, at 
best and slanderous, at worst.  During Gitsham's deposition, counsel for Bobrich 
questioned her about the 2001 interview and hiring process at Subway.  Asked 
generally about "any paperwork" she had completed and whether "all the 
information that you provided them ... was not only accurate but current," Gitsham 
replied, "[t]o my knowledge."  (USCA5 531).  Later in the deposition, when 
counsel inquired specifically about Gitsham's resume, marked as an exhibit, and 
asked if "the information contained on it is all true and correct," Gitsham disclosed 
that she had never worked at Michelle's Nook.  (USCA5 532).  Handed a copy of 
her application form and asked if "the information contained on [it is] true and 
correct," Gitsham answered "No, Ma'am," and again identified Michelle's Nook as 
"incorrect."  (Id.).  When Bobrich's counsel inquired specifically whether Gitsham 
had ever used certain aliases, she acknowledged she had.  (USCA5 533).  At the 
direction of EEOC's counsel, Gitsham did not respond to questions about her 
criminal history and Bobrich did not seek a ruling from the district court to compel 
a response.  (Id.).  During the hearing on the motion in limine, the district court 
carefully considered the deposition transcript and plainly rejected Bobrich's 
suggestion that Gitsham "perjured herself."  (6/28/07 Tr. at 9-16).

                                   CONCLUSION

	For the foregoing reasons, the EEOC respectfully urges this Court to affirm 
the judgment of the district court.

Respectfully submitted,
RONALD S. COOPER
General Counsel
						/s/  Dori K. Bernstein
VINCENT J. BLACKWOOD                            DORI K. BERNSTEIN
Acting Associate General Counsel                Attorney
						EQUAL EMPLOYMENT
CAROLYN L. WHEELER                              OPPORTUNITY COMMISSION
Assistant General Counsel                       Office of General Counsel
						1801 L Street, N.W., Room 7044
						Washington, D.C.  20507
						(202) 663-4734
						Dori.Bernstein@EEOC.gov 

                           CERTIFICATE OF SERVICE

	I, Dori K. Bernstein, certify that I filed this brief with the Court by sending, 
via Federal Express, seven copies together with a computer disk containing a PDF 
version of the brief.
	I also certify that I served two copies of this brief, as well as a computer disk 
containing a PDF version of the brief, this ___ day of June, 2008, by Federal 
Express, to the following counsel of record:

                                        Jeffrey Cook
                                        SULLIVAN & COOK, LLC
					2301 Cedar Springs Road
					Suite 200
					Dallas, Texas  75201

						 /s/  Dori K. Bernstein
						DORI K.BERNSTEIN			
						Attorney
						EQUAL EMPLOYMENT 
						   OPPORTUNITY COMMISSION
						Office of General Counsel
						1801 L Street, NW, Room 7044
						Washington, DC 20507
						(202) 663-4734
						Dori.Bernstein@EEOC.gov

                       CERTIFICATE OF COMPLIANCE

	This brief complies with the type-volume limitation of Fed. R. App. P. 
32(a)(7)(B) because it contains 13,604 words, excluding the parts of the brief 
exempted by Fed. R. App. P. 32(a)(7)(B).
	This brief complies with the typeface requirements of Fed. R. App. P. 
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because 
it has been prepared in a proportionally spaced typeface using Microsoft 
Word 2003 with 14 point Times New Roman.

						 /s/  Dori K. Bernstein
						DORI K. BERNSTEIN			
						Attorney
						EQUAL EMPLOYMENT 
						   OPPORTUNITY COMMISSION
						Office of General Counsel
						1801 L Street, NW, Room 7044
						Washington, DC 20507
						(202) 663-4734
						Dori.Bernstein@EEOC.gov 

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

<1> The complaint refers to Gitsham, who has since remarried, as Tammy Cataldi 
Flatte.  (USCA5 16).

<2> The parties reached agreement on injunctive relief before final judgment was 
entered, not, as Bobrich states, "[w]hile this appeal was pending." Bobrich Br. at 
12-13.

<3> References to the transcripts of trial testimony are designated "Tr.Vol._ p.__."  
References to the transcript of the pre-trial hearing held June 28, 2007 are 
designated "6/28/07 Tr. p.__."

<4> When using her cellphone, Gitsham must ask the speaker to repeat what is said, 
and at times still cannot understand what she hears.  (Tr.Vol.2 p.176).  Gail 
Massey, who worked with Gitsham at Bobrich, testified that Gitsham did not 
understand her when they spoke on the phone.  (Tr.Vol.2 p.14).

<5> Although Schuster did "[n]ot specifically" recall Gitsham's complaints that 
Gilbert was harassing her, he did "remember at least one occasion where she came 
to [him] and said, you know, I don't think Wayne likes me."  (Tr.Vol.1 p.129).  
Schuster could not "recall the specifics" of their discussion, and did nothing in 
response to Gitsham's "feedback" about Gilbert because, he explained, "I knew for 
a fact that Wayne did like her" and "very much appreciated her hard work [s]o I 
never really took it to Wayne from there."  (Id. p.125).

<6> Fed.R.Evid. 608(b) provides:  "Specific instances of the conduct of a witness, for 
the purpose of attacking or supporting the witness' character for truthfulness, other 
than conviction of crime as provided in rule 609, may not be proved by extrinsic 
evidence.  They may, however, in the discretion of the court, if probative of 
truthfulness or untruthfulness, be inquired into on cross-examination of the witness 
... concerning the witness' character for truthfulness or untruthfulness ...."

<7> Fed.R.Evid. 609 governs "Impeachment by Evidence of Conviction of Crime," 
and provides that "[e]vidence of a conviction under this rule is not admissible if a 
period of more than ten years had elapsed since the date of the conviction or of the 
release of the witness from the confinement imposed for that conviction, 
whichever is the later date, unless the court determines, in the interests of justice, 
that the probative value of the conviction supported by specific facts and 
circumstances substantially outweighs its prejudicial effect."  Fed.R.Evid. 609(b).

<8> Fed.R.Evid. 403 provides:  "Although relevant, evidence may be excluded if its 
probative value is substantially outweighed by the danger of unfair prejudice, 
confusion of the issues, or misleading the jury, or by considerations of undue 
delay, waste of time, or needless presentation of cumulative evidence."

<9> Having found "legally sufficient evidence" that Gitsham's hearing was 
substantially limited, the court declined to "reach the issue of whether [Bobrich] 
'regarded' her as disabled."  (USCA5 1053).

<10> The court found insufficient evidence that "Gitsham's resignation was a 'fitting 
response' to [the] harassment," as required under Pennsylvania State Police v. 
Suders, 542 U.S. 129, 134 (2004), and granted JMOL on the constructive discharge 
claim and vacated the concomitant backpay award.  (USCA5 1057-58). "Gitsham's 
awareness, prior to her resignation, of Gilbert's imminent departure from Bobrich 
made her response unreasonable," the court explained, since Gilbert was "her 
principal antagonist" and his impending retirement "seemed to portend a more 
hospitable workplace." (USCA5 1057). The EEOC did not cross-appeal and does 
not challenge the entry of JMOL on the constructive discharge claim or the denial 
of backpay.

<11> The district court properly instructed the jury in accord with this established 
precedent.  (USCA5 908-09).  Bobrich did not object to this instruction and does 
not challenge it on appeal.

<12> Bobrich also relies on the testimony of company president Suarez and other 
management officials who claimed they were unaware of Gitsham's impairment 
for much, or all, of the time she worked there.  See Bobrich Br. at 36.  This Court, 
however, is "mindful of the Supreme Court's admonition in Reeves v. Sanderson 
Plumbing Products, Inc.[, 530 U.S. 133, 150 (2000)], that in entertaining a 
motion for judgment as a matter of law, a reviewing court must appreciate that 
'[c]redibility determinations, the weighing of the evidence, and the drawing of 
legitimate inferences from the facts are jury functions, not those of a judge.'"  
Flowers v. Southern Regional Physician Services, 247 F.3d 229, 236 (5th Cir. 
2001).  The jury was free to disbelieve this testimony of company management, 
and this Court "must disregard" it in deciding whether Bobrich was entitled to 
JMOL.  Reeves, 530 U.S. at 151 ("[A]lthough the court should review the record 
as a whole, it must disregard all evidence favorable to the moving party that the 
jury is not required to believe. ... That is, the court should give credence to the 
evidence favoring the nonmovant as well as that 'evidence supporting the moving 
party that is uncontradicted and unimpeached, at least to the extent that that 
evidence comes from disinterested witnesses.'") (citations omitted).

<13> Bobrich is incorrect in urging this Court to apply the same de novo standard of 
review to an issue raised for the first time in its post-verdict motion for JMOL (i.e., 
the evidentiary sufficiency of the jury's finding a hostile work environment), as to 
issues raised in its pre-verdict motion (i.e., the evidentiary sufficiency of the jury's 
finding Gitsham had a "disability").  See Bobrich Br. at 13, 18.  Because "[a] post-
trial motion for judgment can be granted only on grounds advanced in the pre-
verdict motion," Adv. Comm. Notes on 1991 Amendment to Fed.R.Civ.P. 50(b), 
Bobrich waived its challenge to evidentiary sufficiency on the hostile environment 
issue by failing to raise it before the case went to the jury.  Having failed properly 
to preserve the issue, Bobrich is entitled to review only for plain error.

<14> The district court's summary of evidence supporting the hostile environment 
claim accurately reflects the trial record.  See supra at 10-18 (summary of 
testimony describing harassment, with record citations).

<15> Nearly all of the other cases on which Bobrich relies to support this argument, 
see Bobrich Br. at 21, 23-24 (citing cases), are non-precedential district court 
decisions or unpublished opinions of this Court issued after January 1, 1996, that 
"are not precedent, except under the doctrine of res judicata, collateral estoppel or 
law of the case."  See CTA5 Rule 47.5.4.  The sole exception, DeAngelis v. El 
Paso Mun. Police Officers Assn., 51 F.3d 591 (5th Cir. 1995) (cited in Bobrich Br. 
at 25-26), is distinguishable.  This Court in DeAngelis reversed a jury verdict 
against a public municipal employer on a Title VII hostile environment claim 
"supported only by evidence of a few written jibes at women police officers 
generally and the plaintiff in particular, published in the police association 
newsletter."  Id. at 592.  The Court held "that such evidence, rife as it is with first 
amendment overtones, will not suffice."  51 F.3d at 592.  Bobrich, however, is a 
private non-governmental employer, and there are no "first amendment overtones" 
to penalizing the offensive conduct by Gilbert and Suarez.