Nos. 07-16190, 07-16263
____________________________________________

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

U.S. EQUAL EMPLOYMENT 
  OPPORTUNITY COMMISSION

      Plaintiff/Appellee/Cross-Appellant,

v.

GO DADDY SOFTWARE, INC.,

      Defendant/Appellant/Cross-Appellee.

____________________________________________________________

On Appeal from the United States District Court
for the District of Arizona, Hon. David G. Campbell
____________________________________________________________

REPLY BRIEF OF PLAINTIFF/APPELLEE/CROSS-APPELLANT
THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
____________________________________________________________

RONALD S. COOPER				U.S. EQUAL EMPLOYMENT 
General Counsel					OPPORTUNITY COMMISSION
						1801 L St. NW, Rm. 7024
CAROLYN L. WHEELER				Washington, D.C.  20507
Acting Associate General Counsel		(202) 663-4870
						James.Tucker@EEOC.gov
LORRAINE C. DAVIS
Assistant General Counsel

JAMES M. TUCKER
Attorney

                         Table of Contents

Table of Authorities . . . . . . . . . . . iii

Argument . . . . . . . . . . . . . . . . . . 1

Conclusion . . . . . . . . . . . . . . . .  28

Certificate of Compliance

Certificate of Service

                     Table of Authorities
Cases						        page(s)

Albemarle Paper Co. v. Moody, 
          422 U.S. 405 (1975) . . . . . . . . . . . . . .9, 12, 15

Brito, et al. v. Zia Corp., 
          478 F.2d 1200 (10th Cir. 1973) . . . . . . . . . . . .14

Cassino v. Reichhold Chem., Inc., 
          817 F.2d 1338 (9th Cir. 1987) . . . . . . . . . . . 1, 9

Caudle v. Bristol Optical Co.,
          224 F.3d 1014 (9th Cir. 2000) . . . . . . . . . . . . 12

EEOC v. Kallir, Philips, Ross Inc., 
          420 F. Supp. 919 (S.D.N.Y. Oct. 8, 1976) . . . .  26, 27

Farley v. Nationwide Mut. Ins. Co., 
          197 F.3d 1322 (11th Cir. 1999) . . . . . . . . . . . . 6

Fine v. Ryan Int'l Airlines, 
          305 F.3d 746 (7th Cir. 2002) . . . . . . . . .    15, 16

Gotthardt v. Nat'l R.R. Passenger Corp., 
          191 F.3d 1148 (9th Cir. 1999) . . . . . . . . 1, 2, 6, 9

Henry v. Lennox Indus., Inc., 
          768 F.2d 746 (6th Cir. 1985) . . . . . . . . . . . .  14

Louisiana v. United States, 
          380 U.S. 145 (1965) . . . . . . . . . . . . . . . . . .9

McIntosh v. Jones Truck Lines, Inc., 
          767 F.2d 433 (8th Cir. 1985) . . . . . . . . . . . .  12

McKnight v. General Motors Corp., 
          973 F.2d 1366 (7th Cir. 1992) . . . . . . . . . . . . 15

Robinson v. Shell Oil Co., 
          519 U.S. 337 (1997) . . . . . . . . . . . . . . . . . 13

Rousch v. KFC Nat'l Mgmt. Co., 
          10 F.3d 392 (6th Cir. 1993) . . . . . . . . . . . .   14

Selgas v. American Airlines, Inc., 
          104 F.3d 9 (1st Cir. 1997) . . . . . . . . . . . . .  10

Sellers v. Mineta, 
          358 F.3d 1058 (8th Cir. 2004) . . . . . . . . . . . .  2

Smith v. Marsh, 
          194 F.3d 1045 (9th Cir. 1999) . . . . . . . . . . . . 26

Thorne v. City of El Segundo, 
          802 F.2d 1131 (9th Cir. 1986) . . . . . . . . . 2, 3, 20

U.S. EEOC v. Century Broad. Co., 
          957 F.2d 1446 (7th Cir. 1992) . . . . . . . . .    2, 20

Wicker v. Hoppock, 
          73 U.S. (6 Wall.) 94 (1867) . . . . . . . . . . . . .  9

Statutes

42 U.S.C.  1981a . . . . . . . . . . . . . . . . . . . . . . . 12

42 U.S.C.  2000e-5(g)(1) . . . . . . . . . . . . . . . . . .6, 12

                                  ARGUMENT

	At the close of trial in this case, the jury returned a verdict finding that Go 
Daddy had illegally terminated Bouamama's employment in retaliation for having 
complained of discrimination.  Supp.ER.8-9.  Nevertheless, the district court 
refused to award reinstatement-the "preferred remedy" in discriminatory 
discharge cases, Gotthardt v. Nat'l R.R. Passenger Corp., 191 F.3d 1148, 1156 (9th 
Cir. 1999) (citing Cassino v. Reichhold Chem., Inc., 817 F.2d 1338, 1346 (9th Cir. 
1987)-as a remedy for the illegal, discriminatory discharge.  
     As argued in the Commission's opening brief, the district court committed 
fundamental errors in refusing to award reinstatement.  First, the court erred as a 
matter of law in concluding that the fact that Bouamama had leveled allegations of 
discrimination against individuals still employed at Go Daddy, and had recovered 
substantial damages, weighed against reinstatement.  This standard essentially 
amounts to a rule that reinstatement is inappropriate simply because the parties have 
litigated a Title VII case and the plaintiff prevailed, effectively eviscerates Title VII's 
explicit provision for reinstatement as a remedy for prevailing plaintiffs, and would 
make reinstatement unavailable in nearly all unlawful termination suits.  See 
Commission's opening brief ("Comm'n Br.") 50-54.  Such a rule is contrary to the 
statute and to the settled law of this Court.  Reinstatement is the preferred remedy in a 
discrimination suit, Gotthard, 191 F.3d at 1156, absent evidence showing that "it is 
impossible to reinstate the plaintiff" or there exists "excessive hostility between the 
parties," Thorne v. City of El Segundo, 802 F.2d 1131, 1137 (9th Cir. 1986).  It makes 
no sense to deny reinstatement, as the district court did, because the plaintiff prevailed 
on a claim of discrimination since it is only when a plaintiff prevails that reinstatement 
would be available.  
	This, of course, is not to say that a prevailing plaintiff is automatically 
entitled to reinstatement.  Reinstatement may not be available where there is 
evidence of excessive hostility between the parties that would make reinstatement 
inappropriate.  See Comm'n Br.51-52 (citing cases).  The simple fact of litigation, 
however, is not sufficient, in and of itself, to establish the requisite hostility needed 
to preclude an award of reinstatement.  Sellers v. Mineta, 358 F.3d 1058, 1068 (8th 
Cir. 2004); U.S. EEOC v. Century Broad. Co., 957 F.2d 1446, 1462 (7th Cir. 
1992).  Here, the district court did not identify any evidence in support of its 
determination that reinstatement was not warranted, other than noting that the 
parties had been in litigation over Bouamama's termination.  ER.14-15.  Moreover, 
the district court never made the requisite finding of excessive hostility necessary 
to justify denial of reinstatement.  The district court's failure to identify any 
supporting evidence or to make the requisite finding is understandable, as the 
record does not even suggest the existence of the type of "excessive hostility 
between the parties" that would make it "impossible" to reinstate Bouamama.  
Thorne, 802 F.2d at 1137.  
     It is uncontested that Franklin, who Go Daddy identifies as the "sole 
decision-maker" regarding the discrimination against Bouamama, see Go Daddy's 
opening brief at 33, is no longer employed at Go Daddy.  Parsons, Go Daddy's 
CEO, testified that he liked Bouamama while he worked at Go Daddy, he thought 
Bouamama was a good employee, and he still likes Bouamama.  Supp.ER.47-48.  
Villeneuve testified that he and Bouamama "got along okay" at Go Daddy, and 
that he still had one of the Christmas gifts Bouamama gave him-hardly the 
behavior of one who harbors so much animosity against the gift-giver that he could 
not work with that person.  Supp.ER.40, 101-02.  There is no evidence that 
Villeneuve's feelings toward Bouamama had soured, as a result of the litigation or 
otherwise.  Nor is there any evidence which indicates that Slezak harbored any 
hostility toward Bouamama.  Simply, there is no evidence of the type of "excessive 
hostility" that would make reinstatement inappropriate. 
     In addition, the factual findings the district court did make in support of its 
decision wholly lack support in the evidentiary record, or are otherwise irrelevant 
to a determination of whether reinstatement should have been awarded.  See 
Comm'n Br.54-59.  The court stated that the Sales Representative position is not 
the position Bouamama sought.  That Bouamama was seeking a different position 
before he was fired is irrelevant to whether he was entitled to be reinstated to the 
Sales Representative position.  The question is what position would he have 
assumed had Go Daddy not retaliated against him by terminating his employment.  
It is uncontested that all the unsuccessful applicants who bid for the Sales 
Supervisor position-including Bouamama-were entitled to assume the Sales 
Representative position.  Supp.ER.99.  Accordingly, since Bouamama would have 
been entitled to return to the Sales Representative position had he not been 
discriminatorily terminated, that is the position to which he is entitled to be 
reinstated.  
     The fact that Bouamama "had been promoted beyond the position of Sales 
Representative some time before the events at issue in this case," a point heavily 
relied upon by the district court, ER.15, is similarly inconsequential.  Again, the 
point is not what position he sought or previously held, but what position he would 
have held had he not been terminated, and that is the Sales Representative position.  
Furthermore, reinstatement to the Sales Representative position would have been 
in keeping with Go Daddy's overall operational restructuring.  Go Daddy 
eliminated several management positions, and employees who unsuccessfully bid 
for the Sales Supervisor position and whose management positions had been 
eliminated by this restructuring also took Sales Representative positions in order to 
stay with the company.  Reinstating Bouamama as a Sales Representative would be 
totally consistent with Go Daddy's new corporate structure.
     The court also found that Bouamama's prior performance as a Sales 
Representative had been "less than fully satisfactory for him and his supervisors."  
ER.15.  This finding is contrary to the testimony of Go Daddy's own officials.  
Villeneuve, who assessed Bouamama's performance as a Sales Representative 
during his tenure in that position, testified directly to the contrary-that while 
handling customer calls "wasn't his strongest point," Bouamama "was a good rep," 
and generally as an employee "all in all, he's okay.  He's got good technical 
knowledge.  He's-you know, he's okay."  Supp.ER.86-87, 89, 96-97.  Villeneuve 
further offered that he decided to convert Bouamama to a permanent employee, 
despite some reservations he had and some complaints he had received about 
Bouamama, because "[h]e was a good rep.  I mean, he's technically solid.  He's a 
good guy.  There's just no reason not to [keep him]."  Supp.ER.89.  Accordingly, 
by Go Daddy's own evidence Bouamama was a satisfactory employee.  Moreover, 
although the district court surmised that Bouamama's performance as a Sales 
Representative had been less than fully satisfactory, the evidence is undisputed that 
Go Daddy would not have and did not terminate his employment for that reason.  
Indeed, as the district court acknowledged, Go Daddy promoted Bouamama to 
management from the Sales Representative position.  The law clearly does not 
protect only stellar employees, and whatever deficiencies Bouamama might have 
had, Go Daddy demonstrated that, had Bouamama not complained about 
discrimination, he would have been worth keeping.
	The court also noted that there was no evidence showing that Bouamama's 
prospects with his current employer were any less than those he would have had at 
Go Daddy.  ER.14-15.  This factor, however, is irrelevant to determining whether 
reinstatement should be awarded, as there is no requirement-under the statute or 
otherwise-that a prevailing plaintiff demonstrate that he is currently in a less-
desirable job as a result of the unlawful termination in order to secure an award of 
reinstatement.  See 42 U.S.C.  2000e-5(g)(1) ("If the court finds that the 
respondent has intentionally engaged in or is intentionally engaging in an unlawful 
employment practice . . . the court may . . . order such affirmative action as may be 
appropriate, which may include, but is not limited to, reinstatement."); Farley v. 
Nationwide Mut. Ins. Co., 197 F.3d 1322, 1338 (11th Cir. 1999) (upon prevailing 
in discriminatory discharge case, the plaintiff is entitled to "presumptive 
reinstatement").  Under these circumstances, the district court's denial of 
reinstatement based on factual findings that both lack support in the record and are 
contradicted by the record, and are thus not "plausible in light of the record viewed 
in its entirety," Gotthardt, 191 F.3d at 1155, constitutes an abuse of discretion. 
     Go Daddy's arguments in its response brief in support of the district court's 
decision are similarly unavailing, as they are based on irrelevant factual assertions 
and/or incorrect legal suppositions.  First, Go Daddy contends that because the 
Commission sought reinstatement "to a position comparable in pay and 
responsibility to the Inbound Sales Manager position or to any other position 
deemed appropriate by the Court," it waived any argument that Bouamama should 
be reinstated to the Sales Representative position.  Go Daddy's Response Brief 
("R.Br.") at 30, 44-45.  There is no merit to this waiver argument.  The 
Commission's reinstatement request clearly and unambiguously asked the court to 
award reinstatement either to a position of comparable pay and responsibility to 
Bouamama's previous Inbound Sales Manager position, or to "any other position 
deemed appropriate by the Court."  Supp.ER.14.  It cannot be argued seriously that 
this broad request-for reinstatement to whatever position the court deemed 
appropriate under the circumstances of this litigation-does not include the 
position of Sales Representative.  
     Moreover, the court recognized that "the evidence and jury verdict confirm 
that if no retaliation had occurred, Mr. Bouamama[] . . . would have been offered a 
position as a Sales Representative."  ER.14.  Plainly both the district court and Go 
Daddy were aware that the Commission was requesting reinstatement to whatever 
position the court deemed appropriate, including the Sales Representative 
position-the very position to which Go Daddy claimed unsuccessful candidates 
such as Bouamama were entitled.  See Comm'n Br.58 (citing Supp.ER.27, 32, 97-
99).  
     Go Daddy's assertion that the district court did not have a "full opportunity 
to address the specific issue," R.Br.45, is quite puzzling, given that the court made 
specific findings with respect to whether the Sales Representative job was the 
position to which Bouamama would be entitled if he was reinstated, and concluded 
that reinstatement to it was not appropriate.   And Go Daddy makes no argument 
that the district court should not have entertained the issue.  Even if there were 
some merit to Go Daddy's assertion that the Commission did not adequately 
request reinstatement to the Sales Representative position-and there is none-
there is no legal basis for prohibiting the Commission from appealing this issue 
where the district court specifically addressed reinstatement to the Sales 
Representative job and Go Daddy makes no argument that it erred in doing so.  
The Commission properly presented its reinstatement request to the court, and Go 
Daddy's argument to the contrary is meritless.
     Go Daddy next contends that reinstatement is inappropriate because 
Bouamama found other work after the company illegally terminated him.  Go 
Daddy's argument is contrary to Title VII's remedial scheme and this Court's 
precedent.  As noted above, Title VII expressly provides for reinstatement as a 
remedy for an unlawful termination, and this Court has long recognized 
reinstatement as the "preferred remedy" for Title VII violations of that nature.  
Gotthard, 191 F.3d at 1156 (citing Cassino, 817 F.2d at 1346).  
     This precedent is in perfect harmony with the Supreme Court's longstanding 
recognition that it is "the purpose of Title VII to make persons whole for injuries 
suffered on account of unlawful employment discrimination."  Albemarle Paper 
Co. v. Moody, 422 U.S. 405, 418 (1975).  Pursuant to this purpose, Congress 
endowed the courts with "not merely the power but the duty to render a decree 
which will so far as possible eliminate the discriminatory effects of the past as well 
as bar like discrimination in the future."  Id. (quoting Louisiana v. United States, 
380 U.S. 145, 154 (1965)).
     In order to properly exercise this power and discharge this duty, courts must 
place the victim of illegal discrimination in the position he would have occupied 
but for the unlawful act.  As the Supreme Court further explained in Albemarle,       
[T]he general rule is, that when a wrong has been done, and the law 
gives a remedy, the compensation shall be equal to the injury.  The 
latter is the standard by which the former is to be measured. The 
injured party is to be placed, as near as may be, in the situation he 
would have occupied if the wrong had not been committed. 

Id. at 418-19 (quoting Wicker v. Hoppock, 73 U.S. (6 Wall.) 94, 99 (1867)).
     Simply put, reinstatement is the preferred remedy-the "first choice"-in 
discriminatory discharge cases because this remedy "accomplishes the dual goals 
of providing full coverage for the plaintiff and of deterring such conduct by 
employers in the future."  Selgas v. American Airlines, Inc., 104 F.3d 9, 12 (1st 
Cir. 1997) (citation omitted).  Here, reinstating Bouamama to the position of Sales 
Representative-the position that, the court correctly concluded, he would have 
occupied had he not been unlawfully terminated-fosters the Supreme Court's 
requirement to provide make-whole relief and return the victim of discrimination, 
as best as possible, to the situation he would have occupied absent the employer's 
unlawful conduct.  Such a result also fully comports with this Court's recognition 
that an order of reinstatement is appropriate absent evidence of impossibility of 
reinstatement or excessive hostility between the parties.   
     Go Daddy's assertion that Bouamama should be denied the opportunity to be 
reinstated because he found another job is wrongheaded and understandably finds 
no support in Title VII or the law of this Court or the Supreme Court, for such an 
approach would undermine Congress' clear intent to provide make-whole relief to 
victims of discrimination.  First, precluding an award of reinstatement to victims of 
discrimination who find other work, rather than sitting idly by throughout the 
course of the litigation, would effectively eliminate reinstatement as a remedy in 
the vast majority of cases.  There are few, if any, individuals who would, should, 
or could afford to endure voluntary unemployment for years, while their claim of 
unlawful termination winds its way (very possibly unsuccessfully) through 
administrative and judicial fora.  In addition to having the obviously undesirable 
effect of promoting unemployment, Go Daddy's approach would effectively 
transform reinstatement from the "preferred remedy" to the rarest of remedies for 
an illegal termination.  This is clearly contrary to Congress' intent, as reflected in 
Title VII's express provision for reinstatement as a remedy, and sound public 
policy.
     Moreover, the result urged by Go Daddy would essentially corrupt Title 
VII's remedial scheme by converting reinstatement and back pay from measures 
that are both available to a victim, to remedies that are mutually exclusive if the 
victim, like Bouamama, finds a job during the pendency of his litigation.  As these 
remedies address different harms caused by the illegal acts of the employer-back 
pay looking backward, to compensate the plaintiff for the harm already suffered 
from the termination, and reinstatement looking forward, to return the person to his 
rightful place in the workforce after prevailing-these remedies exist, and should 
be available, independently of each other, because they play different roles in 
satisfying Congress's intent to provide make whole relief.  Go Daddy's approach 
would eliminate one or the other of these remedies in almost every case, plainly 
frustrating Congress' intent.<1>
	For the same reasons, this approach would also place a victim of 
discriminatory termination in a "catch-22," as it would create a system whereby the 
victim would be forced to choose between reinstatement or back pay, but not both.  
Victims of discrimination bear a duty to mitigate their damages "by seeking 
alternative employment with 'reasonable diligence.'"  Caudle v. Bristol Optical 
Co., 224 F.3d 1014, 1020 (9th Cir. 2000) (citation omitted).  Accordingly, a victim 
of discrimination who fails to mitigate his damages risks forfeiting back pay.  
Under Go Daddy's approach, a victim of discrimination who would seek 
reinstatement must fail to mitigate his damages through other employment, and 
thereby forego any entitlement to back pay.  This result is plainly at odds with the 
statute's remedial scheme, would serve to limit the make-whole remedies 
available, and, needless to say, would place individuals who invoke their statutory 
rights and protections in an untenable position.
     Go Daddy's approach would also undermine the "primary purpose" of Title 
VII's antiretaliation provision-"[m]aintaining unfettered access to statutory 
remedial mechanisms."  Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997).  Go 
Daddy's position would create a clear disincentive to employees' accessing the 
remedial mechanisms of Title VII, as to do so would put them at risk of suffering 
retaliatory termination with no real possibility of reinstatement, unless they happen 
to possess the independent wealth necessary to wait out the litigation without 
securing other employment, as well as to forego back pay.  Not only would this 
potential disruption to one's life and livelihood create a strong disincentive to 
complaining of discrimination or participating in the Commission's investigation 
of such complaints, it would have the practical effect of permitting the purging 
from every employer's ranks those employees who oppose its practices as unlawful 
under Title VII or participate in Commission investigations of such practices.  This 
result exemplifies yet another critical flaw in Go Daddy's approach, as it is plainly 
at odds with the statute and Supreme Court precedent, and would frustrate the 
Commission's enforcement efforts.
     In support of its extremely problematic position, Go Daddy points to no 
authority whatsoever from this Court, instead relying on a select few decisions 
from other circuits.  That extra-circuit authority is neither binding on this Court, 
nor consistent with this Court's controlling precedent regarding the conditions 
under which an award of reinstatement may properly be denied.  See supra, at 1-3; 
Comm'n Br.50-52 (citing cases).  Nor does any of that precedent address or 
otherwise take into account the aforementioned conflicts with congressional intent, 
Supreme Court precedent, or the other public policy problems inherent in Go 
Daddy's position.
     For example, Go Daddy cites to a line of cases from the Sixth Circuit, but 
those decisions all stem from a cursory, unsupported statement in Brito, et al. v. 
Zia Co., 478 F.2d 1200, 1204 (10th Cir. 1973), that denying reinstatement where 
the plaintiffs either had, or could have, found other work was not reversible error.<2>
See R.46 (citing cases); see also Rousch v. KFC Nat'l Mgmt. Co., 10 F.3d 392, 
398 (6th Cir. 1993) (citing Henry v. Lennox Indus., Inc., 768 F.2d 746, 753 (6th 
Cir. 1985) (citing Brito, 478 F.2d at 1204)).  None of these decisions offer any 
explanation whatsoever as to why a victim who finds post-discrimination 
employment should be precluded from an award of reinstatement to the job he 
would have occupied but for the employer's unlawful actions.  Nor do any of these 
decisions address the substantial problems discussed above caused by limiting 
reinstatement to those exceedingly rare situations where the victim did not secure 
other employment during the course of the litigation. 
     Go Daddy also cites two decisions from the Seventh Circuit, McKnight v. 
General Motors Corp., 973 F.2d 1366, 1372 (7th Cir. 1992), and Fine v. Ryan 
International Airlines, 305 F.3d 746, 756 (2002), but these decisions similarly fail 
to provide any meaningful support for Go Daddy's position.  First, McKnight is 
distinguishable from the instant case.  McKnight was denied reinstatement because 
he had changed careers after his termination, and sought reinstatement to a 
"completely new job [other than that from which he was terminated] and to be 
relocated to a different city."  McKnight, 973 F.2d at 1370.  The district court 
concluded that there was no evidence that McKnight was qualified to perform the 
new job he now sought, and, in light of his express new career interests, putting 
him back in the position he would have occupied "but for" the discrimination 
would not have served Title VII's remedial purposes.  Id. at 1370-71.  However, in 
the case at bar, the job which Bouamama was entitled to occupy-the Sales 
Representative position-was not some new position he would not have occupied 
if Go Daddy had not illegally terminated him, and he was qualified to perform it as 
he had already done so.  See Albemarle, 422 U.S. at 418-19 ("The injured party is 
to be placed, as near as may be, in the situation he would have occupied if the 
wrong had not been committed.") (citation omitted).  
     Nor does Fine support Go Daddy's position, or the district court's decision.  
In Fine, the plaintiff took a new job after her discriminatory discharge, but left that 
employer before her discrimination case went to trial.  305 F.3d at 756.  In order to 
prevent any inquiry by the defendant into her departure from that subsequent job, 
Fine stipulated that her claim for damages had ceased at a date before trial.  Id.  
The Seventh Circuit concluded that reinstatement was not warranted based on that 
stipulation, and the court's assertion that "Fine herself created the endpoint for 
Ryan's responsibility when she took the new job."  Id.  Expressing clear concern 
over Fine's attempt to come back to the defendant after she had stipulated that she 
had no ongoing damages and had left another job under perhaps suspicious 
circumstances, the court noted that "[i]t makes no sense to make [the defendant] 
her employer of last resort for life, if it bears no responsibility for the actions of 
later employers."  Id.   
     Nothing in Fine, even if applied to this case, would warrant denying 
Bouamama reinstatement.  There has not, of course, been any stipulation or other 
concession that Bouamama's damages terminated at some earlier date, such that 
any claim for reinstatement has been effectively abandoned. Furthermore, just as 
with the Sixth and Tenth Circuit decisions cited by Go Daddy, the Seventh 
Circuit's decision to deny reinstatement simply because the victim of 
discrimination had the gumption to find other work is offered without any analysis 
or supporting authority, and creates all the practical problems for the effective  
enforcement of Title VII described above-without analyzing any of those issues.  
As with McKnight, Fine provides no support for Go Daddy's position, and 
provides no answer to the aforementioned strong policy reasons for not adopting 
Go Daddy's position.
	Go Daddy next contends that because Bouamama had been promoted at Go 
Daddy, and applied for one of the Sales Supervisor positions, he did not truly want 
the Sales Representative job and therefore reinstatement was properly denied.  
R.Br.47-48.  Go Daddy is again incorrect.  As discussed in the Commission's 
opening brief, it is uncontested that Bouamama was, just like all the other 
unsuccessful candidates for the Sales Supervisor position, entitled to return to an 
entry-level Sales Representative position in lieu of leaving the company.  See 
Comm'n Br.55 (citing Supp.ER.99).  Go Daddy completely ignores the fact that 
Bouamama specifically testified that he would have taken the Sales Representative 
position had it been offered to him as it should have been, stating "I'm not a 
quitter.  I will go back to the floor and I will prove myself again and I will [prove] 
them wrong."  Supp.ER.76.  This simple fact is enough to show that the district 
court was incorrect in asserting that Bouamama did not really want the Sales 
representative position.  
	Go Daddy attempts to obscure the issue by discussing Bouamama's 
promotions throughout his history with the company, and company officials' 
testimony regarding his interview for the Sales Supervisor position.  R.Br.47-48.  
Bouamama's history of promotions or interview performances, however, have no 
bearing on whether he was entitled to the Sales Representative position.  Again, the 
evidence showed that he and others whose management positions Franklin 
eliminated were all entitled to take Sales Representative positions if they did not 
get a Sales Supervisor position.  See Comm'n Br.55-56.  In addition, while Go 
Daddy asserts that Bouamama "sought the Analyst position," the Commission 
disputed this contention at trial and the district court properly recognized the jury 
"could reasonably have chosen to disbelieve" Go Daddy's assertion that it 
"genuinely" offered Bouamama a chance to remain in the undefined "Analyst" 
position, given the fact that the jury rejected Go Daddy's assertion that it did not 
even terminate Bouamama.  ER.7 n.1.  Nor did Go Daddy present any evidence 
showing that Bouamama was not entitled to reinstatement to a Sales 
Representative position based on the highly contested claim that it actually, and not 
disingenuously, "offered" him an "Analyst" position. 
     In support of its argument that Bouamama did not seek the Sales 
Representative job, Go Daddy also mentions Slezak's and Franklin's testimony 
that Bouamama rejected their offer to return him to the Sales Representative 
position.  R.Br.48.  As the jury plainly rejected this testimony in concluding that 
Bouamama was terminated by Go Daddy when it failed to permit him to stay in the 
Sales Representative position, see ER.8, and Go Daddy makes no argument that 
the jury finding is wholly lacking in evidentiary support, Go Daddy cannot rely 
upon this rejected testimony to support its position.  In addition, the district court 
did not rely on this evidence to deny reinstatement, and there is abundant evidence 
that Bouamama wanted the Sales Representative job.  See Supp.ER.76 
(Bouamama's trial testimony that he was ready, willing, and able to return to the 
Sales Representative job).  
     Go Daddy attempts to make much of Bouamama's reaction after Franklin 
called him the "F" word, saying that at the time Franklin called him that name, he 
felt relief not having to work with "these people" anymore.  Supp.ER.68.  Such a 
contemporaneous reaction to being verbally assaulted, demeaned, and disparaged 
by one's manager (who is himself no longer with the company) is completely 
understandable and perfectly normal, and does not suggest the continued existence 
of excessive hostility between Bouamama and managers still working at Go 
Daddy.  Nor does such a response mandate the conclusion that Bouamama later 
decided he did not want the Sales Representative position he was discriminatorily 
denied.   Moreover, Bouamama's testimony does not alter the fact that he testified 
that he nevertheless was ready, willing, and able to take the Sales Representative 
position.  Supp.ER.76.  
     Go Daddy next contends that the district court correctly concluded that 
reinstatement was inappropriate because Bouamama had leveled accusations of 
discrimination at managers still employed by Go Daddy, had been in litigation 
against Go Daddy for several years, and would recover substantial actual and 
punitive damages.  R.Br.49.  This, Go Daddy contends, is because the court 
applied the proper legal standard in its "hostility" analysis-that mere litigation 
itself is sufficient to preclude reinstatement.  Id.  Go Daddy further argues that 
even if the court applied an incorrect standard, the evidence still supports its 
decision.  Id. at 49, 52.  Go Daddy is wrong on both counts.
     As described in the Commission's opening brief, the district court applied an 
incorrect legal standard when it suggested that the mere fact that Bouamama 
leveled charges of discrimination at Go Daddy, and the Commission litigated the 
complaint and secured for Bouamama a substantial damages award, warranted 
denial of reinstatement.  See Comm'n Br.50-54.  If the mere fact of litigation can 
preclude reinstatement, reinstatement would effectively be unavailable in every 
discrimination suit, a result plainly at odds with the statute.  See, e.g., Century 
Broad. Co., 957 F.2d at 1462 ("If 'hostility common to litigation' would justify a 
denial of reinstatement, reinstatement would cease to be a remedy except in cases 
where the defendant felt like reinstating the plaintiff.").  There must be, as this 
Court has recognized, "excessive hostility" in order for "hostility between the 
parties" to serve as a reason to preclude reinstatement.  Thorne, 802 F.2d at 1137.  
Moreover, there must be evidence of such hostility, and not just the suggestion or 
supposition that it exists.  See Comm'n Br.51-52 (citing cases).
     The district court made no distinction between hostility common to 
litigation, such as the bad feelings that may arise when a plaintiff successfully 
litigates a discrimination claim and secures an award of damages, and the sort of 
"excessive hostility" that this Court has recognized is needed to preclude 
reinstatement as a remedy.  ER.15.  Instead, the court simply identified and relied 
on basic, general characteristics of this litigation that are no doubt common to 
unlawful termination cases in which the plaintiff wins.  Id.  This was error, and Go 
Daddy's arguments to the contrary are flawed.<3>
     Tellingly, Go Daddy makes no attempt on appeal to directly challenge the 
broad array of evidence identified by the Commission in its opening brief that 
amply shows there was no "excessive" hostility between the parties.  See R.Br.52-
55; see also Comm'n Br.53-54 (identifying evidence).  Every Go Daddy official 
who expressed an opinion about Bouamama said either neutral or positive things 
about him.  Parsons, CEO of the company, stated that he liked Bouamama before, 
and still liked him.  Supp.ER.47-48.  Villeneuve testified that he and Bouamama 
"got along okay" at Go Daddy, that it was "cool" that Bouamama bought him a 
Christmas gift in 2002, and that he still had the gift.  Supp.ER.40, 1010-02.  There 
was no evidence offered that Villeneuve's feelings had soured, or any evidence 
whatsoever regarding Slezak's feelings toward Bouamama.  On this record, where 
the allegations of discrimination and retaliation were not unique or out of the 
ordinary, and there was no evidence offered indicating that there was any 
excessive, unusual hostility between the parties, there simply is no evidentiary 
basis for the denial of reinstatement.
     Go Daddy is clearly reaching when it argues that "[j]ust looking at the 
litigation brought by the Commission" provides all the evidence needed to support 
the denial of reinstatement, and then presents a skewed and incorrect recitation of 
the evidence-lacking any citation to the record.  R.Br.50.  Go Daddy's assertions 
are without merit.  For example, Bouamama never testified that "management at 
Go Daddy were racists to the core" as Go Daddy asserts, see R.Br.50, and there is 
no evidentiary support for this assertion.  Go Daddy further contends, in essence, 
that because the Commission asserted that its version of the facts was correct, it 
was alleging that Go Daddy officials "lie[d] in federal court" and that this supports 
denying reinstatement.<4> Of course, challenges to credibility and differing versions 
of events are all characteristics common to litigation, and do not themselves 
indicate that excessive hostility-hostility beyond that commonly engendered in 
litigation-exists between Bouamama and Go Daddy.<5>
     Go Daddy further argues that, should this Court agree with the Commission 
that there must be a showing of excessive hostility between the parties, and not 
merely that level of hostility common to litigation, the record supports such a 
finding.  R.Br.52.  Again, Go Daddy is simply incorrect.  Go Daddy erroneously 
contends that during this litigation the Commission referred to Go Daddy's 
management staff as "racists, religious bigots, retaliators, and liars," and speculates 
that such a situation "would result in 'excessive hostility.'"  R.Br.52.  Of course, 
the Commission never made any such comments at trial or otherwise, and Go 
Daddy cites to no evidence supporting its misleading statement.  While the 
Commission appropriately asserted, pursuant to its theory of the case, that Go 
Daddy officials violated Title VII's prohibitions on national origin and religious 
discrimination, and retaliation, and argued that its version of the contested facts 
should be believed rather than Go Daddy's, such an approach is not only entirely 
common and appropriate in discrimination cases, it is the standard litigation model 
under our adversary system.  This Court should disregard Go Daddy's baseless 
attempt to make this litigation more hostile than the typical case by resorting to 
highly volatile terms such as "racists," "bigots," and "liars"-terms the 
Commission did not use in its litigation.  Go Daddy's spin efforts notwithstanding, 
if anything, far from establishing excessive hostility, the record suggests the 
opposite is true-that managers still at Go Daddy (i.e. not Franklin) maintained a 
favorable opinion of Bouamama despite the litigation.  
     Go Daddy further asserts that Bouamama's testimony about certain 
experiences he had at Go Daddy and how he felt about those experiences at the 
time they occurred, the testimony of Go Daddy officials about the weaknesses in 
his performance of the Team Lead position in 2002, and those officials' 
"endur[ing]" Bouamama's suspicions of discrimination, is evidence of excessive 
hostility between the parties.  R.Br.53.  This is simply incorrect.  Again, this 
evidence is largely the type of evidence that one would expect to encounter in a 
typical retaliatory discharge case-that the employee reasonably believed that he 
had been subjected to unlawful discrimination by the employer, and the employer 
reacted to the employee's voicing those suspicions by firing him-and none of it 
suggests the existence of excessive hostility sufficient to preclude reinstatement.  
Any hostility caused by these circumstances is therefore simply the type of 
hostility common to litigation of such cases, and not unusual, excessive hostility 
that would warrant denying reinstatement.  Even if Franklin's particularly hostile 
treatment of Bouamama in this case, calling him the "F" word in front of other 
managers, suggests that an increased level of hostility was present at the time of 
Franklin's comment, Franklin is no longer with the company and any residual 
hostility relating to that event apparently left the company with him because no 
current Go Daddy manager admitted to feeling any ill will toward Bouamama.<6>
     Go Daddy also introduces a new argument on appeal in support of the 
district court's decision, based on a factor the court did not even consider-that 
because Bouamama would be placed in a position of customer contact, 
reinstatement was inappropriate because he was "seething with suspicions of 
discrimination and unfair treatment."  R.Br.53 (citing EEOC v. Kallir, Philips, 
Ross Inc., 420 F. Supp. 919, 926 (S.D.N.Y. Oct. 8, 1976)).  Go Daddy never 
argued this to the district court.  Accordingly, as this is the first time Go Daddy has 
advanced this argument, it is waived for purposes of appeal.  Smith v. Marsh, 194 
F.3d 1045, 1052 (9th Cir. 1999).  Moreover, the company's assertion is without 
any legal or factual support.  In Kallir the plaintiff held a position requiring "a 
close working relationship between plaintiff and top executives of defendant," and 
the court justified denying reinstatement based on that fact and the several years of 
"bitter litigation" that had led to the plaintiff's victory.  420 F. Supp. at 926-27.  As 
such, the court essentially concluded that there existed sufficient excessive hostility 
between the parties to make reinstatement inappropriate under the circumstances.  
     Kallir is completely distinguishable from the case at bar.  Go Daddy's Sales 
Representative position is an entry-level position that does not involve the close 
contact with management that was required of the position at issue in Kallir.  In 
addition, there is no evidence whatsoever-and Go Daddy cites to none-of the 
kind of "lack of complete trust and confidence" by Go Daddy officials in 
Bouamama that would, under Go Daddy's analysis, justify not reinstating him to 
the Sales Representative position.  See R.Br.53.  Moreover, in Kallir the court 
expressly recognized the unusual circumstance presented in that case as "quite 
unlike that presented when reinstatement is sought for an assembly line job or 
clerical worker, or even for an executive whose job is not as sensitive for his 
employer's interests as is plaintiff's job here."  420 F. Supp. at 927.  In so doing, 
the court made perfectly clear that the reasoning behind its decision to deny 
reinstatement would not be applicable to entry-level, nonsensitive jobs such as Go 
Daddy's Sales Representative position.  
     Go Daddy further contends that Bouamama's displeasure with Franklin's 
calling him the "F" word, his relief in believing at the time that he would not have 
to work with Franklin and Slezak again, and his testimony that he suffered harm 
because of Go Daddy's unlawful conduct, amounted to evidence of excessive 
hostility precluding reinstatement.  R.Br.53-54.  Yet again, Go Daddy 
misunderstands the difference between hostility common to ordinary litigation in 
discrimination cases, and excessive hostility-and the evidence here only indicates 
the former, not the latter.  Go Daddy also alleges that reinstating Bouamama would 
be inappropriate given the fact that he complained about the conduct of Go Daddy 
officials as discriminatory.  R.Br.53.  Again, however, to preclude Bouamama's 
reinstatement on the grounds that he lawfully and appropriately complained 
previously about what he perceived to be unlawful discrimination is to frustrate
both the enforcement and remedial goals of the statute.  If this were the rule, 
reinstatement would never be available as a remedy in retaliation cases.

                                Conclusion

	For the aforementioned reasons, the Commission respectfully requests that 
this Court reverse the district court's denial of reinstatement.
     Respectfully submitted,

RONALD S. COOPER	 
     General Counsel
     
CAROLYN L. WHEELER
Acting Associate General Counsel
			
LORRAINE C. DAVIS
     Assistant General Counsel
     
____________________

     JAMES M. TUCKER
     Attorney

U.S. EQUAL EMPLOYMENT
  OPPORTUNITY COMMISSION
     1801 L St. NW, Rm. 7024
     Washington, D.C.  20507
     (202) 663-4870
     James.Tucker@EEOC.gov

                     CERTIFICATE OF COMPLIANCE

     I hereby certify that the foregoing reply brief complies with the type-
volume limitations set forth in Federal Rules of Appellate Procedure Rule 
28.1(e)(2)(C).  The foregoing reply brief contains 6,611 words, from the 
Argument through the Conclusion, as determined by the Microsoft Word 
2003 word processing program, with 14-point proportionally spaced type for 
text and 14-point proportionally spaced type for footnotes.
 

						____________________
							
James M. Tucker
						Attorney
     U.S. EQUAL EMPLOYMENT
  OPPORTUNITY COMMISSION
     1801 L St. NW, Rm. 7024
     Washington, D.C.  20507
     (202) 663-4870
James.Tucker@EEOC.gov 

                         CERTIFICATE OF SERVICE

     I hereby certify that the original and fifteen (15) copies of the 
foregoing reply brief were sent this 4th day of March, 2008, by FedEx Next 
Day Air delivery, to Cathy Catterson, Clerk of Court, United States Court of 
Appeals for the Ninth Circuit, 95 Seventh Street, San Francisco, CA, 94103-
1518.
       
     I further certify that two (2) copies of the foregoing reply brief were 
sent this 4th day of March, 2008, by FedEx Next Day Air delivery, to 
counsel of record for Defendant/Appellant/Cross-Appellee Go Daddy 
Software, Inc., at the following address:
     
     Fred W. Alvarez, Esq.
     Michael J. Nader, Esq.
     Wilson Sonsini Goodrich & Rosati, P.C.
     650 Page Mill Rd.
     Palo Alto, CA  94304-1050

						____________________
							
                                                James M. Tucker
						Attorney
						U.S. EQUAL EMPLOYMENT
                                                OPPORTUNITY COMMISSION
                                                1801 L St. NW, Rm. 7024
                                                Washington, D.C.  20507
                                                (202) 663-4870
                                                James.Tucker@EEOC.gov
     
***********************************************************************
<<FOOTNOTES>>

<1> Similarly, Go Daddy argues that the district court properly recognized that the 
money damages awarded to Bouamama should factor against reinstatement.  See 
R.Br.55-56.  Go Daddy is again in error.  For the same reasons that a victim of 
discrimination who prevails at trial need not choose between an award of 
reinstatement or back pay, he should not be concerned that an award of damages, 
expressly permitted under the statute, would also serve to make reinstatement 
unavailable.  Just as with back pay, a money damages award does not preclude an 
award of reinstatement under the statute, see 42 U.S.C.  2000e-5(g)(1), and 
providing both remedies is completely consistent with the statute's goal of 
awarding make-whole relief, see Albemarle, 422 U.S. at 418-19.  Awards of 
compensatory and punitive damages address the nonmonetary impact of the 
unlawful conduct on the employee and punish the employer for its behavior and 
discourage similar behavior, respectively, while reinstatement returns the 
individual to the workforce in the position he would have occupied but for the 
employer's unlawful conduct.  Go Daddy cites a single nonprecedential decision as 
support for its proposition, but that decision provides no explanation whatsoever as 
to why a damages award may have a bearing on whether reinstatement is available.  
See R.Br.56 (citing McIntosh v. Jones Truck Lines, Inc., 767 F.2d 433 (8th Cir. 
1985)).  In fact, McIntosh did not even involve an award of damages because at the 
time that case was decided, a Title VII plaintiff could not recover compensatory or 
punitive damages, as Congress did not amend the statute to provide for recovery of 
such damages until 1991.  See 42 U.S.C.  1981a.  McIntosh is flatly inconsistent 
with the statute and Albemarle, and accordingly provides no proper support for Go 
Daddy's position.

<2> Go Daddy also cites Brito as support for its proposition.  R.46.

<3> In its opening brief, the Commission cites authorities which establish that only 
evidence of excessive hostility, and not simply hostility common to litigation, can 
justify denying reinstatement.  See Comm'n Br.50-52 (citing cases).  Unable to 
rebut the clear legal import of these decisions, Go Daddy argues that these cases 
are factually distinguishable from the matter at bar. R.Br.54-55.  We concede the 
point.  The cases are significant not because they are on all fours factually with the 
present case, but because despite varying factual scenarios, they clearly establish 
the legal standard to be applied by courts in deciding whether sufficient hostility 
exists to warrant denying reinstatement. 

<4> Again without any citation to the record, Go Daddy asserts that the Commission 
brazenly and virulently called Go Daddy officials "all a bunch of liars."  R.Br. 51.  
Of course, the Commission made no such coarse accusation.  The Commission did, 
obviously (and appropriately, we might add), question during closing argument the 
credibility of Go Daddy's witnesses as compared to the Commission's witnesses.
 
<5> Go Daddy further displays its misunderstanding of the difference between actual 
evidence of excessive hostility and mere supposition when it states that under the 
circumstances of this litigation, Go Daddy CEO Parson's "hostility would be 
completely justified."  R.Br.51 (emphasis added).  In fact, Parsons never testified 
to feeling hostility toward Bouamama.  To the contrary, he stated that he still likes 
Bouamama.  Supp.ER.47-48. 

<6> Apparently in an attempt to imply that some hostile feelings lingered between 
Bouamama, on the one hand, and Villeneuve and Slezak, after Franklin left, Go 
Daddy asserts, without explanation or citation to any evidence, that Bouamama 
testified that Villeneuve and Slezak were "silent accomplices" to Franklin's 
namecalling.  R.Br.53.  Go Daddy misrepresents the record.  There is no evidence 
to support this assertion and Bouamama did not so testify.