EEOC v. PVNF, 10th Cir.
Reply Brief 
Filed September 5, 2006
          ________________________________________
                    ORAL ARGUMENT REQUESTED
                       Appeal No. 06-2011
          ________________________________________                                
             IN THE UNITED STATES COURT OF APPEALS
                     FOR THE TENTH CIRCUIT
          ________________________________________                                
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, 
               Plaintiff-Appellant,
v.
PVNF, L.L.C. d/b/a Chuck Daggett Motors and Big Valley Auto,
               Defendant-Appellee.
   _________________________________________________________
        On Appeal from the United States District Court 
        for the District of New Mexico (No. 03-cv-00991)
            The Honorable John E. Conway, Presiding 
   _________________________________________________________
             REPLY BRIEF OF THE PLAINTIFF-APPELLANT
          U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
   _________________________________________________________
RONALD S. COOPER     
General Counsel     
CAROLYN L. WHEELER
Acting Associate General Counsel
                    
LORRAINE C. DAVIS
Assistant General Counsel
DANIEL T. VAIL
Attorney
U.S. EQUAL EMPLOYMENT 
OPPORTUNITY COMMISSION
Office of General Counsel
1801 L Street, N.W., Room 7020
Washington, D.C.  20507
(202) 663-4571
daniel.vail@eeoc.gov 
                       TABLE OF CONTENTS
     TABLE OF AUTHORITIES                                            iii
ARGUMENT                                                               1
I.   JUDGMENT AS A MATTER OF LAW WAS IMPROPER BECAUSE
     THERE ARE GENUINE ISSUES OF MATERIAL FACT AS TO EACH
     OF THE EEOC'S CLAIMS.                                             1 
     A.   A Reasonable Jury Could Have Concluded That Segovia Was
          Subjected to a Sex-Based Hostile Work Environment.           1
          
     B.   A Reasonable Jury Could Have Concluded That Segovia Was
          Subjected to Sex-Based Disparate Treatment and Retaliation.  10
          
     C.   A Reasonable Jury Could Have Concluded That Segovia Was
          Constructively Discharged.                                   21
          
II.       THE EEOC'S CASE WAS NOT FRIVOLOUS, UNREASONABLE, OR
     WITHOUT FOUNDATION.           25
CONCLUSION                         28
CERTIFICATE OF COMPLIANCE          C-1
CERTIFICATE OF SERVICE             C-2
CERTIFICATE OF DIGITAL SUBMISSION  C-3
TABLE OF AUTHORITIES
Cases
Argo v. Blue Cross & Blue Shield of Kan., Inc., 
	452 F.3d 1193 (10th Cir. 2006)	17
Burrus v. United Tel. of Kan., Inc.,
	683 F.2d 339 (10th Cir. 1982)	17
Chavez v. N.M.,
	397 F.3d 826 (10th Cir. 2005)	2
Christiansburg Garment Co. v. EEOC,
	434 U.S. 412 (1978)	25, 28
Daemi v. Church's Fried Chicken, Inc.,
	931 F.2d 1379 (10th Cir. 1991)	8
Derr v. Gulf Oil Corp.,
	796 F.2d 340 (10th Cir. 1986)	21, 22
Deters v. Equifax Credit Info. Servs., Inc.,
	202 F.3d 1262 (10th Cir. 2000)	9
Diaz v. Pan Am. World Airways,
	442 F.2d 385 (5th Cir. 1971)	5
Duncan v. Manager, Dep't of Safety,
	397 F.3d 1300 (10th Cir. 2005)	9
Grynberg v. Praxair, Inc., 
	389 F.3d 1038 (10th Cir. 2004)	28
Hertz v. Luzenac Am., Inc., 
	370 F.3d 1014 (10th Cir. 2004)	14
Hirase-Doi v. U.S. West Commc'ns, Inc., 
	61 F.3d 777 (10th Cir. 1995)	6-7
TABLE OF AUTHORITIES (con't)
Irving v. Dubuque Packing Co., 
	689 F.2d 170 (10th Cir. 1972)	21
Katz v. Dole,
	709 F.2d 251 (4th Cir. 1983)	2
McCowan v. All Star Maint., Inc.,
	273 F.3d 917 (10th Cir. 2001)	6, 9
Meritor Sav. Bank, F.S.B. v. Vinson,
	477 U.S. 57 (1986)	6
Mickelson v. N.Y. Life Ins. Co.,
	 ___ F.3d ___ (10th Cir. 2006),
         2006 WL 2468302                   8
Miller v. Auto. Club of N.M., Inc.,
	420 F.3d 1098 (10th Cir. 2005)	12
Nieto v. Kapoor,
	268 F.3d 1208 (10th Cir. 2001) 	8
O'Shea v. Yellow Tech. Servs., Inc.,
	185 F.3d 1093 (10th Cir. 1999)	3, 9
Pa. State Police v. Suders, 
	542 U.S. 129 (2004)	21
Ramsey v. Denver, 
	907 F.2d 1004 (10th Cir. 1990)	22
Riske v. King Soopers, 
	366 F.3d 1085 (10th Cir. 2004)	1, 2
Robbins v. Jefferson County Sch. Dist. R-1, 
	186 F.3d 1253 (10th Cir. 1999)	14
Smith v. N.W. Fin. Acceptance, Inc., 
	129 F.3d 1408 (10th Cir. 1997)	9
TABLE OF AUTHORITIES (con't)
Stover v. Martinez,
	382 F.3d 1064 (10th Cir. 2004)	15
Tran v. Trs. of State Colls.,
	355 F.3d 1263 (10th Cir. 2004)	21
Turnbull v. Topeka State Hosp.,
	255 F.3d 1238 (10th Cir. 2001)	8-9
Winsor v. Hinckley Dodge, Inc., 
	79 F.3d 996 (10th Cir. 1996)	2, 3
Statutes
42 U.S.C.  2000e-3(a)	15
Rules
Fed. R. App. P. 32(a)(5)	        C-1
Fed. R. App. P. 32(a)(6)	        C-1
Fed. R. App. P. 32(a)(7)(B)             C-1
Fed. R. App. P. 32(a)(7)(B)(iii)	C-1
Fed. R. Civ. P. 50	              1, 28
Miscellaneous
EEOC Compl. Man., Section 8:  Retaliation (1998), 
	available at 
       ttp://www.eeoc.gov/policy/docs/retal.html   12, 15
                           ARGUMENT
I.	JUDGMENT AS A MATTER OF LAW WAS IMPROPER BECAUSE 
THERE ARE GENUINE ISSUES OF MATERIAL FACT AS TO 
EACH OF THE EEOC'S CLAIMS.
     
     Throughout its brief, CDM<1> urges this Court to adopt CDM's 
characterization of the evidence - an interpretation of trial testimony vastly 
different from that of the EEOC.  This alone demonstrates that there were genuine 
issues of material fact as to each of the EEOC's claims that the impaneled jury 
should have been allowed to resolve.  Because the evidence plainly was not so one-
sided as to point only one way with respect to any of the EEOC's claims, Riske v. 
King Soopers, 366 F.3d 1085, 1088-89 (10th Cir. 2004), the district court's 
decision granting CDM's Rule 50 motion was error and should be reversed.
A.	A Reasonable Jury Could Have Concluded That Segovia Was 
	Subjected to a Sex-Based Hostile Work Environment.	 
     With respect to the EEOC's harassment claim, CDM contends that "much of 
the conduct about which EEOC complains was not gender-based."  CDM Br. 29.  
While this is how CDM would have this Court see this case, there is another view.  
All of the conduct that contributed to the hostile work environment was, on its 
face, related in some manner to Segovia's gender.  Under this Court's precedent, 
this is sufficient to allow a reasonable jury to find that the treatment was "because 
of" her sex.  See, e.g., Riske, 366 F.3d at 1091 ("We consider evidence of all 
conduct that is either gender-based or has 'gender-related implications.'")
     CDM claims, incredibly, that even though Griffin, Belden, Ennis, and Smith 
all called Segovia a "bitch," there is no possibility that a reasonable jury could 
conclude this was gender-based because "most" courts have recognized "that the 
use of the word 'bitch' is not inevitably gender related."  CDM Br. 30 (citing only 
one out-of-circuit case and one district court precedent for this proposition).  
However, as the EEOC pointed out in our opening brief, EEOC Br. 33, this Court 
has consistently held that the use of "bitch" is a particularly repugnant sex-based 
epithet.  See Winsor v. Hinckley Dodge, Inc., 79 F.3d 996, 1000 (10th Cir. 1996) 
(terms like "bitch" are "intensely degrading to women" and "deriv[e] their power 
to wound not only from their meaning but also from 'the disgust and violence they 
express phonetically'" (quoting Katz v. Dole, 709 F.2d 251, 254 (4th Cir. 1983))); 
Chavez v. N.M., 397 F.3d 826, 836 (10th Cir. 2005) (calling someone a "f...ing 
bitch" contributed to "severe" sex-based harassment).  
     CDM contends that Segovia's male co-workers only used this particular 
term because they were angry at Segovia and/or did not like her.  CDM Br. 12,29-
31.  We need not disagree.  Indeed, it may well be that Griffin, Belden, Ennis, and 
Smith detested Segovia and specifically decided to refer to her using terminology 
they believed to be particularly degrading because she is a woman.  These men 
chose sex-specific terms to express their animosity.  That is the very definition of 
sex-based harassment.  See, e.g., Winsor, 79 F.3d at 1000-01 (involving the use of 
the word "bitch" and other sex-based epithets and conduct; explaining that "even if 
the motivation behind plaintiff's mistreatment was gender neutral . . . the manner 
in which her coworkers expressed their anger and jealousy was not.  Rather, 
plaintiff's coworkers often chose sexually harassing behavior to express their 
dislike of plaintiff, conduct which would not have occurred if she were not a 
woman.").
     Ultimately, CDM's struggle to convince this Court that the use of "bitch" 
was not gender-based is belied by its own acknowledgment that "bitch" may be 
gender-related "depending on context."  CDM Br. 30.  Here, the jury should have 
been allowed to decide whether, in the context of this case, the repeated use of this 
term was gender-related and contributed to a sex-based hostile work environment.  
See, e.g., O'Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093, 1097 (10th Cir. 1999) 
(ruling "if it reasonably could be inferred that the conduct was related to gender or 
arose out of a context in which admittedly sex and gender-related conduct 
occurred, then it is for the fact finder to decide whether such an inference should 
be drawn." (internal citations and quotation marks omitted)).
     CDM next argues that, even if the comments and conduct at issue were sex-
based, they were not severe or pervasive enough to constitute actionable 
harassment.  CDM claims that the comment Carter made during a sales managers' 
meeting about Segovia needing a book on "women in management" and Carter's 
reference to Segovia's sexual relationship with her husband were simply 
"innocuous."  CDM Br. 31.  CDM argues that Carter's remark about "nipples" was 
not "severe or humiliating."  CDM Br. 31.  CDM discounts Carter's rant about 
how "men like to dicker with men" because Segovia had encountered one 
customer expressing this view.  CDM Br. 10,31.  And CDM concedes the 
Smith/Ennis e-mail exchange is "vulgar and offensive" but then faults the EEOC 
for "sensationalizing" it.  CDM Br. 31.  CDM concludes that "the dealership took 
prompt corrective action" and "it is difficult to show that this incident resulted in 
any discriminatory treatment of Segovia whatsoever."  CDM Br. 32.
     This, of course, is how CDM interprets the evidence.  A reasonable 
factfinder could find differently.  While CDM dismisses as "innocuous" Carter's 
comments about Segovia needing a book on women in management, Segovia 
testified that the remark was "offensive." AA530.  Segovia said Carter made the 
statement while she was the only woman in a room filled with male sales 
managers, and thus made her feel "like I was being spotlighted because of my 
gender."  AA530-31.  Segovia also testified that Carter's public quip about her 
sexual relationship with her husband "made me feel like . . . I had to go home and 
perform a sexual act to get [the good deal on the vehicle]."  AA533.  In addition, 
Segovia stated that Carter's exposition on the nipples of Mexican women - uttered 
in front of two of Segovia's visiting friends - was "offensive" in part because her 
daughter is "half Spanish."  AA532.
     CDM also argues that Carter's "men like to dicker with men" comments 
could not have affected Segovia's work environment because she "admitted that 
she had experience with customers who preferred salespeople of the same gender."  
CDM Br. 31.  Although an isolated customer may have expressed this sort of sexist 
view, it is Carter's penchant for perpetuating gender stereotypes in the workplace 
that is at issue here.  Cf. Diaz v. Pan Am. World Airways, 442 F.2d 385, 389 (5th 
Cir. 1971) ("While we recognize that the public's expectation of finding one sex in 
a particular role may cause some initial difficulty, it would be totally anomalous if 
we were to allow the preferences and prejudices of the customers to determine 
whether sex discrimination was valid" - indeed "it was, to a large extent, these 
very prejudices that [Title VII] was meant to overcome.").  In fact, Carter also 
declared "I don't want a whole bunch of damn women working here" and "men 
don't like to work with women."  AA527-28.  A reasonable fact finder could find 
that Carter's unabashed endorsement of a sex-segregated sales approach - and his 
misogynistic comments generally - reveal an anti-female bias that pervaded the 
CDM workplace.
     With respect to the Smith/Ennis e-mail exchange, CDM opines that "'no 
evidence of discrimination or harassment . . . can be inferred from mail she was 
never intended to see.'"  CDM Br. 32 (quoting the district court).  However, even 
if Smith and Ennis never anticipated Segovia would see their e-mail exchange, she 
did, and it affected her significantly.  She testified that she was "shocked and 
surprised" by it.  AA547.  She said she struggled to find a way to "drive home to 
[Daggett] how offended I was by that e-mail.  I wanted him to know that I was 
very offended."   AA551.  She testified she could not even "figure out how I was 
supposed to show my husband this."  AA552.  A reasonable jury could easily 
conclude that these e-mails contributed to severe and/or pervasive harassment.  
See, e.g., Meritor Sav. Bank, F.S.B. v. Vinson, 477 U.S. 57, 65 (1986) (sex-based 
conduct is actionable if it has the "purpose or effect" of creating a hostile work 
environment) (emphasis added)); McCowan v. All Star Maint., Inc., 273 F.3d 917, 
925-26 (10th Cir. 2001) (when examining a Title VII claim "we look at both 
specific hostility targeting Plaintiffs as well as the general work atmosphere"; thus, 
comments not directed specifically at a plaintiff nevertheless should be considered 
in determining whether a work environment has become hostile); Hirase-Doi v. 
U.S. West Commc'ns, Inc., 61 F.3d 777, 782 (10th Cir. 1995) (any harassing 
conduct "of which [the victim] was aware" should be considered).
     CDM also alleges that the EEOC "mischaracterizes the testimony" by 
suggesting that Daggett fostered a working environment in which male employees 
felt free to forward such degrading e-mails around the office - indeed, to the very 
owners of the company.  CDM Br. 32.  CDM argues that Ennis's "uncontradicted 
testimony was that he forwarded the emails to Daggett, because he was 'throwing 
Smith under the bus.'"  CDM Br. 32-33.  Yet it is CDM that contorts the record on 
this point.  The EEOC did not believe, as CDM's brief suggests, that the e-mails 
were "pretty creative."  Rather, it was Ennis who thought they were.  Furthermore, 
Ennis admitted to testifying in his deposition that he actually forwarded the e-mails 
to Daggett not because he thought Daggett would reprimand Smith for them, but 
rather because he thought Daggett would find them amusing.  EEOC Br. 16.
     CDM also blatantly misrepresents the evidence by stating that Segovia 
believed CDM took  "prompt corrective action" about the e-mail exchange.  To the 
contrary, Segovia testified that Carter and Daggett "didn't do anything about it" at 
all.  EEOC Br. 17.  Neither Ennis nor Smith ever offered any meaningful apology 
to Segovia, and Daggett never bothered to ensure that they had.  EEOC Br. 15-17.
     Finally, CDM would have this Court completely overlook the abundant 
evidence the EEOC presented at trial indicating that other female employees 
experienced similar sex-based harassment.  CDM dismisses the testimony of 
Richmond, Reid, and Wood because these women did not themselves bring 
complaints of discrimination.  CDM Br. 35.  Whether they complained is 
irrelevant.  As we pointed out in our opening brief, EEOC Br. 34-35, a reasonable 
jury could conclude that the sex-based harassment these women endured 
contributed to the gender-related hostility permeating Segovia's work environment.  
See, e.g., Nieto v. Kapoor, 268 F.3d 1208, 1219 n.7 (10th Cir. 2001 ("A finding of 
pervasiveness or severity need not rest solely on actions aimed directly at a 
plaintiff, however, but may also consider harassment of others in the workplace." 
(collecting cases)); cf. Mickelson v. N.Y. Life Ins. Co., ___ F.3d ___ (10th Cir. 
2006), 2006 WL 2468302 at *8 (providing "the testimony of other employees is 
relevant to the issue of the employer's discriminatory intent"); Daemi v. Church's 
Fried Chicken, Inc., 931 F.2d 1379, 1385 (10th Cir. 1991) (noting this Court has 
"held that even a woman who was never herself the object of sexual harassment 
might have a Title VII claim if she were forced to work in an atmosphere where 
such harassment was pervasive").<2>
     In short, the jury quite plausibly could have concluded that the challenged 
comments and conduct combined to create a sex-based hostile work environment.  
See, e.g., Duncan v. Manager, Dep't of Safety, 397 F.3d 1300, 1310 (10th Cir. 
2005) (genuine issue as to whether sex-based hostile work environment existed 
where a harasser openly discussed plaintiff's sex life in a public restaurant, made a 
comment about plaintiff's ability to engage in oral sex, and undermined plaintiff's 
authority and questioned her competence); Deters v. Equifax Credit Info. Servs., 
Inc., 202 F.3d 1262, 1266 n.1 (10th Cir. 2000) ("Repeated use of . . . epithets [such 
as bitch] in the workplace can contribute to a finding of sexual harassment."); 
Smith v. N.W. Fin. Acceptance, Inc., 129 F.3d 1408, 1413-14 (10th Cir. 1997) (six 
comments made by a supervisor over a twenty-three month period, some of which 
were made publicly and overhead by co-workers, were sufficient to sustain verdict 
that sex-based harassment of subordinate was severe or pervasive).  The district 
court thus erred in granting judgment as a matter of law on this inherently fact-
based determination.  See, e.g., McCowan, 273 F.3d at 923 (noting "'the severity 
and pervasiveness evaluation is particularly unsuited for [judgment as a matter of 
law] because it is quintessentially a question of fact'" (quoting O'Shea, 185 F.3d at 
1098)).
B.	A Reasonable Jury Could Have Concluded That Segovia Was 
	Subjected to Sex-Based Disparate Treatment and Retaliation.	 
     Having explicitly agreed that the Employee Warning Notice and the New 
Pay Plan were "adverse actions," CDM Br. 43, CDM contends that the EEOC did 
not create a prima facie case because it did not present facts sufficient to raise an 
inference of sex-based disparate treatment or retaliation.  CDM Br. 36,39,42.  As 
we explained in our opening brief, EEOC Br. 37-40, the evidence suggests 
otherwise.
     CDM alleges that Ennis cannot properly be compared to Segovia for 
purposes of establishing a prima facie case with respect to the Employee Warning 
Notice because he did not "talk[] on the phone excessively" and his "tardiness was 
[not] affecting his work."  CDM Br. 37.  However, Segovia denied that she was 
talking on the phone excessively.  EEOC Br. 19.  In addition, Segovia and 
Richmond both testified that Ennis was late as frequently as (or more frequently 
than) Segovia was.  EEOC Br. 18.  Contrary to CDM's insinuation that Daggett 
wrote Ennis up for being late, CDM Br. 37, all of the testimony - including 
Ennis's and Daggett's - clearly established that Daggett never wrote Ennis up for 
being late.  EEOC Br. 18-19.  Indeed, Daggett admitted that Segovia was the only 
sales manager he had ever written up for being late.  EEOC Br. 19.  A reasonable 
jury thus also could conclude that CDM treated its male sales manager more 
favorably than its female sales manager - enough to create an inference of sex 
discrimination.
     Similarly, CDM claims the EEOC could not create a prima facie case with 
respect to the New Pay Plan because it "was issued to both a male and a female."  
CDM Br. 39.  This is irrelevant.  The evidence strongly suggests that under the 
New Pay Plan, Segovia would be paid less than she had been making under her old 
pay plan and Ennis would be making more.  EEOC Br. 21-22,38.  A reasonable 
factfinder thus could find that the purpose and effect of the New Pay Plan were to 
treat CDM's male sales manager more favorably than its female sales manager - 
facts which give rise to an inference of sex discrimination.
     The EEOC also presented sufficient evidence to raise an inference of 
retaliation.  CDM argues that Segovia did not engage in protected activity.  CDM 
Br. 42-43.  CDM is clearly wrong.  Segovia testified she made "five verbal 
complaints" to Daggett and Carter about the sex-based discrimination and 
retaliation she was experiencing at the dealership.  AA628-30,578,580,672-
73,725.<3>  She complained to Daggett after Carter made several sexist comments 
about women in the workplace, and informed Daggett she was considering going 
to the EEOC about Carter's conduct.  EEOC Br. 11; AA528-29.  She complained 
to Daggett about the sexually explicit and degrading Smith/Ennis e-mail exchange.  
EEOC Br. 15; AA553-55.  She told Daggett the Employee Warning Notice and 
New Pay Plan were discriminatory and retaliatory.  EEOC Br. 23; AA578,580,629-
30,672-73,725.  She complained to Carter after Ennis said "F...k You Bitch" and 
"flipped her off."  EEOC Br. 13; AA368-69,536-37,597,628.  And she also 
complained to Carter about the Smith/Ennis e-mail exchange.  EEOC Br. 17; 
AA554-55,592-93.  
     As we explained in our opening brief, EEOC Br. 39, this is classic protected 
"opposition" activity.  See, e.g., Miller v. Auto. Club of N.M., Inc., 420 F.3d 1098, 
1120 (10th Cir. 2005) (complaining about discrimination to supervisors is 
protected oppositional activity); see also EEOC Compl. Man., Section 8:  
Retaliation (1998), available at http://www.eeoc.gov/policy/docs/retal.html 
("EEOC Compl. Man."),  8-II(B) at 8-4 (protected "opposition" includes 
announcing intentions to report discrimination to the EEOC and complaining about 
alleged employment discrimination to managers).  CDM's argument to the 
contrary is patently flawed.
     For instance, CDM contends that Segovia did not engage in any protected 
activity because she did not "avail herself of any internal procedure for 
complaining."  CDM Br. 42.  This assertion is perplexing.  In its brief, CDM 
explained that CDM's "no harassment policy" provided that "complaints of 
harassment could be made to an employee's supervisor, or to Daggett, Carter, 
Kathy Franson . . . or [Joanne] Richmond."  CDM Br. 6; SA130.  Segovia 
complained to Daggett and Carter repeatedly.  Thus, she did "avail herself of [the] 
internal procedure[s] for complaining" - she complained (to no avail) to the very 
people listed in CDM's "no harassment policy."  AA710-11.<4>
     CDM also asserts that Segovia should have filed some sort of "formal 
complaint" or written some sort of "letters complaining about discrimination."  
CDM Br. 11,14,42,46.  Segovia acknowledged she never put any complaints to 
CDM in writing, but stated that complaints of harassment or discrimination "didn't 
have to be" - that she "was never told that" a complaint had to be in writing.  
AA594.  Indeed, nothing in CDM's "no harassment policy" required Segovia (or 
any employee) to file a formal complaint of any kind.  SA130-31; AA707-709.  
Daggett clearly understood this to be the policy.  When he was asked at trial 
whether employees were required to make a complaint of discrimination in 
writing, Daggett testified that "[a]ll that they [i.e., employees reporting 
discrimination] were supposed to do is whatever it says on that policy."  AA909.  
Daggett was asked "Which is to bring the matter to your attention?"  AA909.  
Daggett answered "Right."  AA909.
     Moreover, nothing in the law requires an employee to make any sort of 
"formal complaint" to be deemed to have engaged in protected activity.  To the 
contrary, this Court has clearly held that mere informal complaints to supervisors 
qualify as protected "oppositional" activity.  See, e.g., Hertz v. Luzenac Am., Inc., 
370 F.3d 1014, 1015 (10th Cir. 2004) ("Protected opposition can range from filing 
formal charges to voicing informal complaints to superiors." (citing Robbins v. 
Jefferson County Sch. Dist. R-1, 186 F.3d 1253, 1258 (10th Cir. 1999)).  Segovia 
obviously satisfied this legal standard by complaining repeatedly to Daggett and 
Carter.
     CDM similarly chastises Segovia for not going directly to the EEOC with 
her complaints, contending that "despite [Segovia's] testimony that Daggett urged 
her to go to EEOC during the course of her employment, she never did so."  CDM 
Br. 42; id. at 44 (observing that "when Segovia told Daggett she was going to go to 
EEOC, he allegedly encouraged her to do [so]").  To the extent CDM is arguing 
that Segovia had to actually report discrimination at the EEOC to engage in 
protected activity, CDM misunderstands the EEOC's retaliation claim and the 
applicable law.  Filing a charge with the EEOC is protected "participation" 
activity.  See 42 U.S.C.  2000e-3(a) (providing it is unlawful to retaliate against 
an employee who has "participated" in the EEO process by, among other things, 
filing an EEOC charge); see also EEOC Compl. Man. at  8-II(C) 8-9 
("participation" includes filing a charge of discrimination).  The EEOC has never 
argued, and we do not need to argue, that Segovia was retaliated against for 
engaging in such protected "participation."  Rather, we have consistently claimed 
that Segovia was retaliated agaed "opposition."  EEOC Br. 38-39.  See 42 U.S.C.  
2000e-3(a) (providing it is unlawful to retaliate against an employee who has 
"participated" in the EEO process or "opposed any practice made an unlawful 
employment practice" under Title VII); Stover v. Martinez, 382 F.3d 1064, 1070 
(10th Cir. 2004) (same).
     Moreover, while Daggett's testimony about Segovia going to the EEOC is 
irrelevant to the determination of whether she engaged in protected activity, it is 
probative of Daggett's retaliatory motive.  Specifically, Daggett's admission that 
he knew Segovia was thinking of going to the EEOC establishes that he also knew 
she was attempting to report some sort of employment discrimination.<5>
Accordingly, CDM's contention that "Daggett never understood that Segovia was 
complaining about discrimination in the workplace," CDM Br. 43, is untenable.<6>
     CDM argues that if Daggett "encouraged" Segovia to go to the EEOC, the 
EEOC "cannot establish that Daggett intended to retaliate."  CDM Br. 44.  
However, Daggett did not "encourage" Segovia to go to the EEOC at all.  He 
testified that "if she wanted to go to the EEOC, there was nothing I could tell her 
that would stop it." AA909.  The fact that Daggett believed he could not prevent 
Segovia from reporting discrimination to the EEOC does not at all preclude a 
finding that he later took adverse actions against her because she had "threatened" 
(to use Daggett's words) to do so, AA784-86,909-10, and/or because Segovia had 
complained repeatedly to Daggett and Carter about discrimination in the CDM 
workplace.  CDM's contention that Daggett could not have intended to retaliate 
because he told her to go to the EEOC is a non-sequitur.
     CDM next argues that, even assuming Segovia engaged in protected activity, 
the EEOC had to show more than temporal proximity between the protected 
activity and the adverse action to raise an inference of retaliation.  CDM Br. 41,43-
44 (claiming "EEOC failed to offer any other evidence, as it was required to do, to 
demonstrate a causal link between any complaint and the alleged retaliation" 
(emphasis added)).  This misstates the law.  As CDM itself concedes, undermining 
its own argument, "Plaintiff can establish the causal connection 'by evidence of 
circumstances that justify an inference of retaliatory motive, such as protected 
conduct closely followed by adverse action.'"  CDM Br. 41-42 (citing Burrus v. 
United Tel. of Kan., Inc., 683 F.2d 339, 343 (10th Cir. 1982)).  Very recently, this 
Court reiterated that nothing more than temporal proximity is required to raise an 
inference of retaliation.  See Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 
F.3d 1193, 1202 (10th Cir. 2006) ("The close temporal proximity between the 
complaint and the termination - just 24 days - is sufficient to allow an inference 
that a causal connection existed between the [protected activity] and the [adverse 
action].").  The evidence adduced at trial showed that Segovia complained to 
Daggett and Carter about the sexually graphic and vulgar Smith/Ennis e-mail 
exchange and was written-up and given a pay cut only approximately one month 
later.  This is obviously sufficient to raise an inference that CDM subjected 
Segovia to adverse actions because she had complained about discrimination.  
     On the issue of pretext, CDM asserts that it took adverse actions against 
Segovia because it "wanted to correct Segovia's performance and make her 
available to her subordinates."  CDM Br. 38; id. at 15.  CDM also claims that, 
"[i]ndisputably, the [New] [P]ay [P]lan was designed to reduce the compensation 
of both managers regardless of gender by 15-20%."  CDM Br. 39,40; id. at 16.  
CDM also alleges that the "EEOC did not produce any witness who testified that 
the [N]ew [P]ay [P]lan would not have accomplished the objective of reducing 
conflict between the two managers over the value of trade-ins."  CDM Br. 41; id. 
at 16.
     CDM's assertions that the record contains "uncontradicted evidence" and 
"conclusive proof" of Daggett's motives, CDM Br. 38-39,41, are merely 
conclusory and misleading.  For instance, CDM claims Segovia's salespeople often 
could not find her.  However, Segovia testified that none of her salespeople 
complained to her about her being "unavailable."  AA665.  She testified that while 
she may not always have been "glued to my chair" (and there "were times I would 
go into the title office and work on loans back there," would "check the inventory," 
would be in the service department, etc.), she never "just disappear[ed] for long 
periods of time."  A502,570,574.<7>
     CDM's contention that the EEOC did not produce any evidence that the 
New Pay Plan would not have reduced the conflict between Segovia and Ennis, 
PNVF Br. at 40-41, does not comport with the record.  At trial, Segovia 
vehemently disputed Daggett's explanation for issuing the Employee Warning 
Notice and imposing the New Pay Plan - including contesting that the New Pay 
Plan would have reduced their conflict.  EEOC Br. 18-23,40.  CDM claims that 
"Ennis also testified that the New Pay Plan was designed to eliminate competition 
between Ennis and Segovia."  CDM Br. 40.  However, Ennis conceded at trial that 
when he was asked in his deposition why Daggett devised the new compensation 
arrangement, Ennis had given a different answer.  In his deposition, Ennis testified 
that he did not "know why" and could not "say for sure" why Daggett imposed the 
New Pay Plan.  AA399.  At trial, Ennis said that he was going to "stand by [his] 
answer in the deposition."  AA400-401.  Therefore, contrary to CDM's claim, a 
reasonable factfinder would not be required to credit Ennis's belated decision to 
corroborate Daggett's purported rationale for imposing the New Pay Plan.
     Further, CDM insists over and over that there is no evidence that Segovia's 
compensation actually would have declined relative to Ennis's under the New Pay 
Plan.  CDM Br. 17n.8,39,40,44,47.  However, the "evidence" that the New Pay 
Plan would reduce Segovia's compensation lies partly in CDM's own explanation 
as to how the new arrangement would work.  CDM emphasizes repeatedly that 
Segovia was the second-highest paid employee at CDM.  CDM Br. 6,33,38,47.  
Obviously, if, as CDM admits, Segovia was making more money than Ennis before 
the New Pay Plan and if, as CDM contends, the New Pay Plan would essentially 
"equalize" their salaries, then the New Pay Plan would, at least, reduce her 
compensation relative to his.<8> Segovia did not need to "put pen to paper" to figure 
out that under the New Pay Plan she would experience a reduction in compensation 
relative to Ennis.  It was apparent from the face of the document that she would.  
EEOC Br. 7,21.  A reasonable jury would certainly be permitted to conclude as 
much.<9> Moreover, CDM's argument that there is no evidence as to the actual 
impact of the New Pay Plan is belied by CDM's own concession on appeal that the 
New Pay Plan adversely affected Segovia.  CDM Br. 43.	 
	In short, the EEOC proffered an abundance of evidence suggesting that 
Daggett's asserted rationale for issuing the Employee Warning Notice and 
imposing the New Pay Plan is internally inconsistent, contradictory, implausible, 
and unworthy of credence.  EEOC Br. 40-43.  The jury should have been allowed 
to assess the evidence and decide whether CDM's purported non-discriminatory 
explanation was a pretext for sex-based discrimination and/or retaliation.
C.	A Reasonable Jury Could Have Concluded That Segovia Was 
Constructively Discharged.	 
	
     CDM's argument that the EEOC's constructive discharge claim fails rests on 
a mistaken view of applicable legal standards and a distortion of the record.  We 
explained in our opening brief, EEOC Br. 45-46, that the test for constructive 
discharge is whether "the abusive working environment became so intolerable that 
[the victim's] resignation qualified as a fitting response."  Pa. State Police v. 
Suders, 542 U.S. 129, 134 (2004).  This is a purely objective standard.  As this 
Court has recognized, "neither the employee's subjective views of the situation, 
nor her employer's subjective intent with regard to discharging her, are relevant."  
Tran v. Trs. of State Colls., 355 F.3d 1263, 1270 (10th Cir. 2004).
     CDM argues exactly the opposite.  It contends, citing Irving v. Dubuque 
Packing Co., 689 F.2d 170, 172 (10th Cir. 1972), that for a constructive discharge 
claim to prevail the "employer's actions must be intended by the employer as an 
effort to force the employee to quit."  CDM Br. 45.  However, in Derr v. Gulf Oil 
Corp., 796 F.2d 340 (10th Cir. 1986), this Court specifically repudiated the portion 
of the Irving case cited by CDM providing that the employer has to have intended 
its actions to cause the employee to resign.<10> Derr, 796 F.2d at 343-44; see also 
Ramsey v. Denver, 907 F.2d 1004, 1010 (10th Cir. 1990) (noting "we have held 
that a plaintiff need not prove that the employer's intention was to force the 
employee to quit") (citing Derr)).  CDM thus misstates the law in suggesting that 
the EEOC had to prove Daggett and/or Carter intended to cause Segovia to resign 
to establish constructive discharge.<11>
     CDM also claims that because Segovia inquired about the possibility of 
returning to the dealership in some capacity after she quit, she could not have 
thought that the workplace there had become intolerable.  CDM Br. 47,48.  While 
CDM clearly is free to argue this, a factfinder is by no means required to reach this 
conclusion based on the evidence.  As we explained in our opening brief, EEOC 
Br. 46-48, a reasonable jury could find that the working conditions had become so 
intolerable that Segovia had no other choice but to quit - even though she also may 
have lamented having to do so and hoped at one point to be able to return to a 
discrimination-free dealership.  CDM's argument should be rejected in any event 
because its premise, that a victim's subjective beliefs are dispositive, contravenes 
the well established principle that whether one has been constructively discharged 
is determined using an objective standard. <12>
     CDM also argues that the EEOC cannot establish constructive discharge 
because Segovia did not take adequate steps short of resignation to resolve her 
situation.  CDM Br. 46-48.  The testimony suggests otherwise.  For example, CDM 
contends that "Segovia made no attempt to discuss or negotiate the disciplinary 
notice or pay plan with Daggett, let alone to present the issues to Teague, Franson, 
Carter or the EEOC before quitting in a rage."  CDM Br. 46-47.  However, 
Segovia specifically testified that she told Daggett the New Pay Plan was 
discriminatory.  AA672-73,725.  She also complained about the Employee 
Warning Notice and New Pay Plan to Richmond who also was listed in CDM's 
"no harassment policy" as someone to whom complaints of discrimination could 
be directed.  AA241,270-71,710-11; SA130.  Segovia thus complained about the 
Employee Warning Notice and New Pay Plan to two of the four people listed in 
CDM's "no harassment policy."
     CDM similarly misrepresents the evidence by alleging generally that 
"Segovia made no attempt to bring matters of discrimination to her manager's 
attention."  CDM Br. 46.  As already discussed, the evidence demonstrates that 
Segovia complained about discrimination repeatedly to Daggett and Carter - to no 
avail.  Neither owner took any steps to remedy the discrimination Segovia suffered 
or to ensure that such discrimination would cease.  Quite the contrary, the evidence 
would support a finding that at every turn Daggett and Carter dismissed her 
complaints, condoned or even encouraged mistreatment by co-workers, and 
disciplined her and cut her compensation instead.  
     In addition, Segovia tried one last time to resolve the situation by asking 
about returning to the dealership in a different capacity (i.e., in a new job where 
she would no longer be "targeted" for discrimination).  AA583.  While CDM 
suggests this must mean Segovia never believed the workplace was intolerable in 
the first place, CDM Br. 47, it instead confirms that she had sought every 
resolution short of permanent resignation.  Daggett rejected her last-ditch efforts to 
find a solution by refusing to rehire her.
     Based on the evidence presented at trial, the factfinder could have found that 
Segovia had been the victim of unremedied sex-based harassment, sex-based 
disparate treatment, and/or retaliation, and that her resignation was reasonable 
under the circumstances.  The district court's decision to grant judgment as a 
matter of law against the EEOC on its constructive discharge claim was reversible 
error.
II.	THE EEOC'S CASE WAS NOT FRIVOLOUS, UNREASONABLE, 
OR WITHOUT FOUNDATION.
     
     Prevailing Title VII defendants are only entitled to attorney's fees in the 
rarest of cases.  In Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), the 
Supreme Court made clear that "a plaintiff should not be assessed his opponent's 
attorney's fees unless a court finds that his claim was frivolous, unreasonable, or 
groundless, or that the plaintiff continued to litigate after it clearly became so."  Id. 
at 422 (emphasis added).  Neither ground for assessing attorney's fees to a 
prevailing Title VII defendant exists here.  The district court committed reversible 
error in ruling otherwise.<13>
     As we explained in our opening brief, EEOC Br. 51-53, the EEOC's case 
obviously cannot be deemed frivolous from the outset as the district court denied 
CDM's motion for summary judgment.<14> Nothing in even the district court's 
opinion allowing fees suggests that our case was frivolous from the outset or 
before the summary judgment stage.  CDM's view that "this case has always been 
frivolous and a bureaucratic mistake," CDM Br. 57, is pure hyperbole. <15>
     The only way attorney's fees could properly be assessed against the EEOC 
is if our case somehow became frivolous after the denial of summary judgment.  
This appears to be the basis for the district court's finding of frivolousness.  
AA210 (stating the EEOC "offered insufficient evidence to supports its claims at 
trial").  Yet nothing changed between summary judgment and trial - and nothing 
happened at trial - to suggest that the EEOC should have abandoned its case.  
EEOC Br. 53-54.
     CDM argues that because there were "a number of 'facts' presented in 
opposition to CDM's summary judgment motion which were not presented at 
trial," CDM Br. 55-56, the EEOC's case somehow became frivolous.<16>
Specifically, CDM notes that we proffered evidence at summary judgment, but did 
not show at trial, that Carter told Segovia he "wore the pants in the family," that 
Segovia "didn't love her husband and used him," that "he preferred blonds and got 
along with them better," that "he and his wife had sex before marriage," and that 
"he was superior and would never be her equal."  CDM Br. 2-3.  Yet CDM never 
really explains how the omission of evidence of Carter's additional sexist 
comments from trial testimony rendered our entire case frivolous.  The district 
court never suggested, let alone concluded, that these "missing facts" were critical 
to its assessment of the merits of any of our claims or dispositive on the attorney's 
fees issue.  In its opinion denying CDM's motion for summary judgment, the 
district court did not specifically refer to, much less rely on, any of the comments 
by Carter CDM highlights.  AA93-94.  More importantly, nothing in the district 
court's fees ruling remotely suggests that the "missing facts" formed the 
foundation for its finding that our case was frivolous.
	CDM also claims it is entitled to attorney's fees because it is the "rare 
litigant who will put principles above costs," CDM Br. 51, and because it "had the 
courage and resources to stand fast" against the "sheer power of the EEOC."  CDM 
Br. 57.  However, Christiansburg already reflects the Supreme Court's careful 
balancing of the relative interests of Title VII plaintiffs and defendants.  This 
rigorous standard simply cannot be met in this case.  See Grynberg v. Praxair, Inc., 
389 F.3d 1038, 1058 n.22, 1059 (10th Cir. 2004) (Christiansburg provides a 
"stringent test" and is such "a difficult standard to meet" that "rarely will a case be 
sufficiently frivolous to justify imposing attorney fees on the plaintiff" (internal 
citations and quotation marks omitted)).  CDM is not entitled to attorney's fees and 
the district court's finding that the EEOC's case was frivolous should be reversed.
                                 CONCLUSION
     For all these reasons, the EEOC's respectfully requests that this Court 
reverse the district court's grant of CDM's Rule 50 motion (on liability and 
damages - including punitive damages<17>), vacate the district court's adverse 
Findings of Fact and Conclusions of Law, vacate the district court's ruling that the 
EEOC's case was frivolous and its order awarding costs, vacate the final judgment 
entered against the EEOC, and remand this case for a new trial on all issues.	
     
                                       Respectfully submitted,
                                       RONALD S. COOPER
                                       General Counsel
                                       CAROLYN L. WHEELER
                                       Acting Associate General Counsel
                                       LORRAINE C. DAVIS
                                       Assistant General Counsel
                                       _____________________________
                                       DANIEL T. VAIL
                                       Attorney
                                       U.S. EQUAL EMPLOYMENT 
                                       OPPORTUNITY COMMISSION
                                       Office of General Counsel
                                       1801 L Street, N.W., Room 7020
                                       Washington, D.C.  20507
                                       (202) 663-4571
                                       daniel.vail@eeoc.gov
                         CERTIFICATE OF COMPLIANCE
     I certify that this brief complies with the type-volume limitation of Fed. R. 
App. P. 32(a)(7)(B) because it contains 7,000 words, excluding the parts of the 
brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
     I certify that 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 in Times New Roman 14 point.
						
                                       ______________________________
                                       DANIEL T. VAIL
                                       Attorney
                                       U.S. EQUAL EMPLOYMENT 
                                       OPPORTUNITY COMMISSION
                                       Office of General Counsel
                                       1801 L Street, N.W., Room 7020
                                       Washington, D.C.  20507
                                       (202) 663-4571
                                       daniel.vail@eeoc.gov
                           CERTIFICATE OF SERVICE
	I certify that on September 5, 2006, I served the requisite number of 
originals/copies of this brief by mailing them first-class, postage prepaid, to:
Patrick J. Fisher, Jr.
Clerk of Court
U.S. Court of Appeals for the Tenth Circuit
Byron White U.S. Courthouse
1823 Stout Street
Denver, CO  80257
Linda G. Hemphill
Stephanie A. Fuchs
Linda G. Hemphill, P.C.
834 Dunlap Street
Santa Fe, NM  87501
	I further certify that on September 5, 2006, I will e-mail a version of this 
brief in Digital Form to the following:
esubmission@ca10.uscourts.gov  (E-mail for Clerk of the Court)
lindaghemphill@aol.com  (E-mail for Opposing Counsel)
                                  ______________________________
                                  DANIEL T. VAIL
                                  Attorney
                                  U.S. EQUAL EMPLOYMENT 
                                  OPPORTUNITY COMMISSION
                                  Office of General Counsel
                                  1801 L Street, N.W., Room 7020
                                  Washington, D.C.  20507
                                  (202) 663-4571
                                  daniel.vail@eeoc.gov
            CERTIFICATE OF DIGITAL SUBMISSION
I certify that:
1. All required privacy redactions (NONE) have been made.
2. The version of this brief submitted in Digital Form will be an exact copy of 
the written document filed with the Clerk of the U.S. Court of Appeals for the 
Tenth Circuit.
3. This digital submission has been scanned for viruses by the EEOC's virus 
scanning software, and, according to this program, is free of viruses.  The EEOC 
uses Symantec AntiVirus Version 9.03.  The software was updated at least as 
recently as May 2006.	
______________________________
DANIEL T. VAIL
Attorney
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office of General Counsel
1801 L Street, N.W., Room 7020
Washington, D.C.  20507
(202) 663-4571
daniel.vail@eeoc.gov
***************************************************************************
<<FOOTNOTES>>
<1> Defendant-Appellee refers to itself in its response brief as "PVNF."  The EEOC 
referred to the Defendant-Appellee in our opening brief as "CDM" (an 
abbreviation for "Chuck Daggett Motors") and we therefore use this designation in 
this reply brief as well.
<2> CDM suggests that even if Richmond, Reid, and Wood were all "victimized by 
Carter's harsh remarks, so were male employees."  CDM Br. 35.  That is beside the 
point.  The fact that Carter might have treated both male and female employees 
harshly at times (e.g., by threatening to replace them with farmhands) does not 
vitiate the specific gender-based harassment Carter aimed at female employees 
only.  Cf. Turnbull v. Topeka State Hosp., 255 F.3d 1238, 1244 (10th Cir. 2001) 
("[C]onduct that affects both sexes may constitute sexual harassment if it 
disproportionately affects female staff.").
<3> She testified she complained to Daggett and Carter, specifically, because she 
believed that "going directly to the owner[s]" was "going directly to the top to 
<4> In fact, Segovia also complained about Smith/Ennis e-mail exchange and the 
Employee Warning Notice and the New Pay Plan to Richmond.  AA241,270-
71,710-11.  Richmond said she did not do anything about these complaints - even 
though she was listed in CDM's "no harassment" policy as one to whom 
complaints could be directed - because "I didn't think I could."  AA241.  She 
explained that, given the work environment, complaining would have been futile.  
AA241-44.  She testified that she had complained to Daggett in the past about an 
offensive, sexually explicit e-mail she had received and Daggett did nothing about 
it.  AA241-42.  Richmond said she never complained to Carter either because "[i]t 
wouldn't have done any good."  AA243.
<5> In addition, Daggett testified that he knew Segovia was upset over the 
Smith/Ennis e-mail exchange, and that these e-mails contained "offensive sexual 
language," were "wrong," were "not appropriate for the workplace," and were a 
violation of CDM's own "no harassment" policy.  AA787,790-91.
<6> Segovia specifically testified that when she went to Daggett and told him she was 
going to the EEOC "it was very clear it was based on discrimination."  AA629.
<7> By contrast, Segovia testified that Ennis "wasn't there attentively like I was."  
AA725.
<8> Perhaps that is why Ennis testified that he was not at all upset by the New Pay 
Plan.  AA428.
<9> CDM's assertion that "Segovia did not and could not contradict Ennis's 
testimony that he continued to earn less after the [N]ew [P]ay [P]lan was in effect," 
CDM Br. 39, is also unavailing.  This is comparing the proverbial apples to 
oranges.  The relevant inquiry in this case is whether Daggett imposed the New 
Pay Plan to punish Segovia - i.e., whether Segovia would have made less relative 
to Ennis while Segovia was the New Car Manager.  What Ennis made after 
Segovia resigned, when a different person was New Car Manager, is immaterial.
<10> CDM similarly misstates the law by arguing to this Court that the EEOC's 
constructive discharge claim must fail because Segovia "fail[ed] to go to EEOC" 
and "never brought a formal complaint to the attention of the dealership."  CDM 
Br. 46.  Nothing in the law requires Segovia to first go to the EEOC or file any 
"formal complaint" with CDM to establish constructive discharge.  
<11> Interestingly, however, CDM never actually asserts that Daggett and/or Carter 
did not want Segovia to quit.  The evidence strongly suggests that they did.  After 
Segovia resigned, Carter said it was "good" she was "at home with her kids" 
because "that's where she should be."  AA587.  When Segovia inquired about 
coming back to work at the dealership, Daggett testified he "never got back to her, 
so I guess I didn't want to [hire her back]."  AA801-02.
<12> CDM similarly misconstrues the record when it asserts that Segovia quit her job 
"rashly" because of "PMS."  CDM Br. 18,47.  Segovia never said that she quit 
because she had PMS - she simply stated she might have told a friend she was 
"suffering from PMS" that day.  AA584.  She also testified that nobody "would 
just walk away from a job like that unless they just had enough, regardless of their 
PMS."  AA584.  More importantly, even if Segovia believed she was "rash" in 
resigning, a reasonable fact finder could find that her decision to quit actually was 
reasonable under the circumstances.
<13> CDM claims that any de novo review is "not necessary" because the district 
court "clearly applied the correct legal standard."  CDM Br. 49.  We disagree.  The 
district court cited the Christiansburg standard but misunderstood and misapplied 
it.  EEOC Br. 50-57.  This Court clearly reviews such legal issues de novo.  EEOC 
Br. 50.  However, given the obvious factual and legal errors in the district court's 
opinion, its decision must be reversed whether the standard of review is de novo or 
abuse of discretion.  EEOC Br. 50 n.18.
<14> Even the claim we brought on behalf of Richmond was not frivolous.  EEOC Br. 
55-56.  CDM disputes that the district court indicated we established a prima facie 
case of sex-based discrimination with respect to Richmond.  CDM Br. 2 n.1; id. at 
51 n.16.  We stand by our reading of the district court's opinion.  The district court 
recited the facts comprising our prima facie case, recognized "the discrepancy in 
insurance premium payments" between Richmond and male employees, and then 
ruled only that we had not proffered enough evidence of pretext to survive 
summary judgment on this claim.  AA96-97.  The district court's opinion thus does 
"indicate" that the district court found that the EEOC had created a prima facie 
case with respect to Richmond.
<15> CDM makes much of the fact that it warned the EEOC during litigation that our 
claims were frivolous.  CDM Br. at 49-50,53-54.  However, simply because CDM 
told the EEOC it believed our claims were frivolous does not somehow make them 
so or entitle CDM to attorney's fees.  We are aware of no case from this Circuit 
even remotely suggesting otherwise.  In addition, as CDM itself notes, CDM Br. at 
49, CDM "warned" the EEOC about its ostensibly frivolous case before summary 
judgment.  Because the EEOC prevailed at summary judgment, CDM's letter 
hardly demonstrates (as CDM would have this Court believe) "the extent of 
EEOC's folly in continuing to pursue [its] claims."  CDM Br. at 49.
<16> Although CDM now claims that the EEOC's trial evidence was somehow 
materially different from our summary judgment proof, it has previously argued 
just the opposite.  AA148,150.
<17> Contrary to CDM's assertion, the EEOC has not conceded that the district 
court's decision on punitive damages was correct.  CDM Br. 25.  In our opening 
brief, we specifically asked this Court to reverse the district court's grant of 
judgment as a matter of law on liability and punitive damages.  EEOC Br. 57.