EEOC v. Asplundh Tree Expert Co., 11th Cir.
Petition for Rehearing
Filed October 3, 2003
                                

             IN THE UNITED STATES COURT OF APPEALS
                    FOR THE ELEVENTH CIRCUIT
                 ______________________________
                                
                 Nos. 02-12386-EE & 02-13571-EE
                _______________________________

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

          Plaintiff-Appellant,     
v. 

ASPLUNDH TREE EXPERT COMPANY,

          Defendant-Appellee. 
    _______________________________________________________
                                
      On Appeal from the United States District Court for 
     the Northern District of Florida, Gainesville Division
                District Court No. 1:99cv121 MMP
     _______________________________________________________     

                PETITION OF THE EQUAL EMPLOYMENT
              OPPORTUNITY COMMISSION FOR REHEARING
             WITH SUGGESTION FOR REHEARING EN BANC
    _______________________________________________________

                                   ERIC S. DREIBAND         
                                   General Counsel               

EQUAL EMPLOYMENT                   CAROLYN L. WHEELER  
  OPPORTUNITY COMM.                Acting Associate General Counsel
1801 L Street, N.W.
Washington, D.C.   20507           LORRAINE C. DAVIS   
Tel. (202) 663-4791                Assistant General Counsel
Fax  (202) 663-7090                               
                                   SUSAN R. OXFORD
                                   Attorney

EEOC v. Asplundh Tree Expert Co., No. 02-12386-EE                C-1 of 1
                              & 02-13571-EE
                                
             CERTIFICATE OF INTERESTED PERSONS AND
                 CORPORATE DISCLOSURE STATEMENT

     Pursuant to 11th Cir. R. 26.1-1, I hereby certify that the following
persons or entities have an interest in the outcome of this case:
Asplundh Tree Expert Co., Defendant
Lorraine C. Davis, Assistant General Counsel, EEOC
Eric S. Dreiband, General Counsel, EEOC
Equal Employment Opportunity Commission, Plaintiff
Delner Franklin-Thomas, Regional Attorney, EEOC
Robert E. Larkin, III, Co-Counsel for Defendant
Robert B. Lewis, Charging Party
Michael Mattimore, Esq., Co-Counsel for Defendant
Susan R. Oxford, Attorney, EEOC
Hon. Maurice M. Paul, Senior U.S. District Judge, N.D.Fla.
Gwendolyn Young Reams, Associate General Counsel, EEOC
Carolyn L. Wheeler, Acting Associate General Counsel, EEOC

                                   _____________________________
                                   Susan R. Oxford

      STATEMENT OF COUNSEL IN SUPPORT OF REHEARING EN BANC

     I express a belief, based on a reasoned and studied professional judgment, that
this appeal involves the following questions of exceptional importance:
1.  Does EEOC satisfy its statutory duty under 42 U.S.C.  2000e-5(f)(1) to conciliate
claims of employment discrimination prior to filing a lawsuit to vindicate the public
interest when EEOC implements an efficient administrative process that includes
reasonable opening proposals for relief and reasonable timeframes for response?
2.  Does a district court exceed its authority under either Title VII of the Civil Rights
Act of 1964, 42 U.S.C.  2000e et seq., or the court's inherent powers when it
dismisses an EEOC lawsuit and imposes attorney's fees and costs where EEOC
initiated conciliation on the claims in the lawsuit, but the court concluded that EEOC
terminated conciliation prematurely?
3.  Where this issue came before the district court on EEOC's motion for partial
summary judgment to establish the adequacy of conciliation, and the district court
effectively granted summary judgment to Asplundh, did the panel err when it
reviewed the district court's action under an "abuse of discretion" standard instead
of applying a de novo standard of review?

     I further express a belief, based on a reasoned and studied professional
judgment, that the panel decision is contrary to the following precedents of this
circuit and that consideration by the full Court is necessary to secure and maintain
uniformity of decisions in this Court:
1.  EEOC v. Klingler Electric Corp., 636 F.2d 104 (5th Cir. Feb. 1981)  
2.  Byrne v. Nezhat, 261 F.3d 1075 (11th Cir. 2001)
3.  Jones v. Firestone Tire & Rubber Co., 977 F.2d 527 (11th Cir. 1992)

                                                                                                 
               Susan R. Oxford, Attorney of Record for Petitioner
               U.S. Equal Employment Opportunity Commission

                       TABLE OF CONTENTS
                                                            page

CERTIFICATE OF INTERESTED PERSONS  . . . . . . . . . . . . . . . . . . . .       C-1

STATEMENT OF COUNSEL IN SUPPORT OF
  REHEARING EN BANC

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .           1

STATEMENT OF THE ISSUES  . . . . . . . . . . . . . . . . . . . . . . . .           2

COURSE OF PROCEEDINGS AND 
   DISPOSITION OF THE CASE  . . . . . . . . . . . . . . . . . . . . . .            2

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . .           2

ARGUMENT  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          6   

          THE PANEL DECISION IS CONTRARY TO THE
          RECORD AND MISAPPREHENDS EEOC'S
          STATUTORY RESPONSIBILITY TO ATTEMPT
          CONCILIATION BEFORE FILING SUIT.

A.  EEOC Satisfied Title VII's Conciliation Requirements. . . . . . . . .          6

B.  The Panel's Decision is Based on a Number of Errors . . . . . . . . .          8

C.  A Sanction of Dismissal and Fees is Extreme and Unwarranted. . . . .           13

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .         15

CERTIFICATE OF SERVICE    

ADDENDUM:      PANEL DECISION

               New York Times Article (7/10/00): "Nooses, Symbols
               of Race Hatred, At Center of Workplace Lawsuits"

                      TABLE OF AUTHORITIES
                                
                             CASES
                                                            page

  Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) . . . . . . . . . .        6

* Barnes v. Dalton, 158 F.3d 1212 (11th Cir. 1998)  . . . . . . . . . . .       14

  Bonner v. City of Prichard, 661 F.2d 1206 
     (11th Cir. 1981) (en banc)   . . . . . . . . . . . . . . . . . . . .        2   

* Byrne v. Nezhat, 261 F.3d 1075 (11th Cir. 2001) . . . . . . . . . . . . . 14, 15

* Chambers v. NASCO, Inc., 501 U.S. 32 (1991)     . . . . . . . . . . . .       14

  Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978)  . . . . . . . .   7, 15

* EEOC v. Keco Industries, Inc., 
     748 F.2d 1097 (6th Cir. 1984). . . . . . . . . . . . . . . . . . . .     1, 7  

* EEOC v. Klingler Electric Corp., 
     636 F.2d 104 (5th Cir. Feb. 1981)   . . . . . . . . . . . . . . . . . 1, 6, 7

  EEOC v. Liberty Trucking Co., 695 F.2d 1038 (7th Cir. 1982)   . . . . .        7
 
  EEOC v. North Central Airlines, 475 F.Supp. 667 (D. Minn. 1979)  . . . .      12 

  EEOC v. Pierce Packing Co., 669 F.2d 605 (9th Cir. 1982) . . . . . . . .      13

  EEOC v. Sears, Roebuck & Co., 650 F.2d 14 (2d Cir. 1981)  . . . . . . .       13

* EEOC v. Zia Co., 582 F.2d 527 (10th Cir. 1978)  . . . . . . . . . . . .    1, 13

  Jackson v. Seaboard Coast Line RR Co., 678 F.2d 992 (11th Cir. 1982)   . . .   6

                         CASES (cont'd)
                                                            page

* Jones v. Firestone Tire & Rubber Co., 977 F.2d 527 
     (11th Cir. 1992)  . . . . . . . . . . . . . . . . . . . . . . . . . .   1, 14

  Kilgo v. Ricks, 983 F.2d 189 (11th Cir. 1993)  . . . . . . . . . . . . .      15 

* Massey v. Congress Life Ins. Co., 116 F.3d 1414 (11th Cir. 1997) . . . .   1, 14

                            STATUTES

Title VII of the Civil Rights Act of 1964, 42 U.S.C.  2000e et seq  . .        2
     
42 U.S.C.  2000e-5(b)   . . . . . . . . . . . . . . . . . . . . . . . .         6    

42 U.S.C.  2000e-5(f)(1). . . . . . . . . . . . . . . . . . . . . . . .     6, 13

42 U.S.C.  2000e-8(e). . . . . . . . . . . . . . . . . . . . . . . .            6

42 U.S.C.  2000e-10. . . . . . . . . . . . . . . . . . . . . . . . .           11

                          REGULATIONS

29 C.F.R.  1601.30 . . . . . . . . . . . . . . . . . . . . . . . . . .         10

29 C.F.R.  1604.11(e) . . . . . . . . . . . . . . . . . . . . . . . .           9

                         MISCELLANEOUS

 EEOC Compliance Manual  615.7(b) . . . . . . . . . . . . . . . . . .           9

                          INTRODUCTION
     This case presents an issue of exceptional importance for the enforcement of
federal employment discrimination laws.  The panel's decision, concluding that
EEOC did not engage in good-faith efforts to conciliate, threatens to undermine Title
VII's well-balanced enforcement scheme by depriving EEOC of the ability to
implement a fair but efficient administrative process for attempting conciliation prior
to filing suit.  The panel erroneously applied an "abuse of discretion" standard instead
of the proper "de novo" review where the district court essentially granted summary
judgment to Asplundh, sua sponte and without notice to EEOC, on EEOC's motion
for partial summary judgment.  See Jones v. Firestone Tire & Rubber Co., 977 F.2d
527, 535-36 (11th Cir. 1992);  Massey v. Congress Life Ins. Co., 116 F.3d 1414, 1417
(11th Cir. 1997).  Under either standard, however, the panel's decision conflicts
directly with EEOC v. Klingler Electric Co., 636 F.2d 104 (5th Cir. Feb. 1981),  as
well as case law in other circuits.  See, e.g., EEOC v. Keco Indus., Inc., 748 F.2d
1097, 1102 (6th Cir. 1984); EEOC v. Zia Co., 582 F.2d 527, 533 (10th Cir. 1978). 
Moreover, dismissal of this race-harassment lawsuit and imposition of attorney's fees
as a "sanction" for EEOC's failure to reopen conciliation is unprecedented and
threatens to chill EEOC enforcement efforts and to discourage respondents from
cooperating fully with the administrative process.  Reconsideration by the panel or,
in the alternative, by the full Court is necessary to clarify EEOC's enforcement
authority and to secure uniformity with prior decisions of this Court.<1>

                    STATEMENT OF THE ISSUES
1.  Whether conciliation was adequate in these circumstances under Title VII of the
Civil Rights Act of 1964, 42 U.S.C.  2000e et seq.
2.  Assuming arguendo that EEOC ended conciliation prematurely, whether on these
facts it was improper to dismiss EEOC's lawsuit and impose attorney's fees.
       COURSE OF PROCEEDINGS AND DISPOSITION OF THE CASE
     EEOC filed this lawsuit alleging, among other things, that Asplundh failed to
prevent and promptly remedy severe and pervasive racial harassment.  R.1.  In
response to EEOC's motion for partial summary judgment on the adequacy of
conciliation, R.67, the district court dismissed EEOC's suit and imposed $231,266
in attorney's fees.  R.90; R.91; R.99; R.100.  The panel affirmed. 

                       STATEMENT OF FACTS
     In November 1995 Asplundh Tree Expert Company hired Robert Lewis, who
is African American, as a laborer on a time-limited contract to install underground
cable for the Gainesville Regional Utilities (GRU).  Slip op. at 2.   GRU assigned
utility inspectors to conduct regular site visits.  On April 1, 1996, GRU Inspector Pete
Evans inspected Lewis's work site.  Evans made offensive racial jokes (as he had
done before, see R.90 (district court slip op.) at 3) and, in front of several witnesses,
fashioned a noose from a piece of rope and placed it around Lewis's neck from
behind.  Evans then pointed to a nearby tree with branches that Lewis described as
resembling monkeys and suggested he would hang Lewis up there "with the rest of
your family."  Slip op. at 2-3.  Around the same time, Evans made similar noose-
related comments to other African American employees of Asplundh.  R.90 at 4. 
Lewis alleged several earlier incidents of race harassment in his statement to EEOC. 
Id. at 3 n.2.       
     Lewis complained to his general foreman who arranged a meeting at which
Evans apologized.  R.90 at 4.  Lewis claims that after he complained, Asplundh's
general foreman told Lewis he was "f---- himself out of a job" and asked Lewis's
supervisor to fire him.  Id.  Shortly thereafter, Asplundh began reducing its crews, and
Lewis was terminated in June, along with other Gainesville staff.  Slip op. at 3. 
     Lewis filed a charge against Asplundh alleging, among other things, racial
harassment "from Pete Evens [sic], GRU Inspector" and retaliation.  Slip op. at 4. 
EEOC investigated the charge, conducted a pre-determination interview (PDI) with
Asplundh by telephone on March 4, 1999, and then issued a Letter of Determination
(LOD) on March 31, 1999, finding reasonable cause to believe Asplundh was liable
for race discrimination and retaliation.  R.90 at 5.  The LOD invited the parties to
begin conciliation and asked them to return a form indicating willingness to
conciliate.  R.67, West Decl. Ex.#3.  Asplundh never returned the form.  A week
later, EEOC faxed Asplundh a proposed conciliation agreement seeking individual
relief for Lewis, anti-discrimination training for Asplundh's employees, and posting
of notices.  The cover letter explained that a response was required by April 23, 1999. 
     At some point Asplundh retained local counsel, Peter Sampo.  On April 28th,
five days beyond the timeframe for Asplundh's response, Sampo faxed a letter to
EEOC investigator Deborah West asking her to call him to discuss the case and
requesting additional time to respond to the conciliation proposal.  Slip op. at 5. 
Unaware of the letter, the District Director mailed a notice to the parties on April 29th 
stating conciliation was determined unsuccessful because "the Commission has not
received . . . a reply to the conciliation proposal."  Slip op. at 6.  The District
Director's letter did not announce EEOC's intent to sue, as the panel erroneously
stated.  See slip op. at 9.  West received Sampo's faxed letter later that day.  R.67,
West Decl.  11-12; R.78, Ex.3 (West's corresp. log for Lewis charge) at 4.
     Contrary to the panel's statement that EEOC "refus[ed] to confer with
Asplundh's counsel," slip op. at 7, West telephoned Sampo on April 29, the same day
she received his letter.  R.78, Ex.3 at 4.  Sampo and West thereafter exchanged
telephone messages over the next ten days.  Id.  After attempting unsuccessfully to
contact Sampo, in her last message to him West advised him the case was now "out
of her hands" and he should "contact the Regional Attorney."  Id.  He never did.  
     On May 12, 1999, EEOC filed this lawsuit.  R.1.  Following discovery, EEOC
moved for partial summary judgment on the adequacy of conciliation.  R.67. 
Asplundh opposed the motion but did not cross-move for relief.  R.77.  Ignoring
EEOC's statement that it was unaware of Sampo's letter until after conciliation
ended, and accepting as true Asplundh's misrepresentation that no one from EEOC
ever contacted Sampo after he sent the letter, see p.9 n.3 infra, the court concluded
that EEOC's actions were "grossly arbitrary."  On this basis, the court dismissed
EEOC's lawsuit and imposed attorney's fees.  R.90 at 5-6, 9-11; R.91; R.99; R.100. 
     The panel affirmed.  Slip op. at 8, 12.  The panel considered EEOC's findings
too vague and the relief sought in the proposed agreement too broad.  The panel
further concluded that EEOC's sixteen-day response time was "arbitrary" and that
Asplundh's reply - five days after the deadline, with no explanation for the delay nor
any offer to conciliate but only a request for information to assess the claim - was
both "prompt" and clear evidence of Asplundh's intent to resolve the matter outside
the courtroom.  Slip op. at 7-8, 10.  The panel concluded that even if EEOC did not
receive Sampo's letter until after conciliation ended, EEOC was obligated to reopen
conciliation once it learned of Sampo's involvement.  Id. at 9-11.

                            ARGUMENT
     THE PANEL DECISION IS CONTRARY TO THE RECORD AND
     MISAPPREHENDS EEOC'S STATUTORY RESPONSIBILITY TO
     ATTEMPT CONCILIATION BEFORE FILING SUIT.

A.   EEOC Satisfied Title VII's Conciliation Requirements.

     In assigning EEOC to investigate and resolve charges of employment
discrimination, Congress expressed a clear preference for informal methods of
resolution, like conciliation, to eliminate discrimination from the workplace. 
Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974).  Congress provided
incentives for respondents to cooperate with EEOC's conciliation process by
authorizing employees (and later EEOC) to sue if a charge is not resolved informally
and by making charge information confidential unless and until suit is filed.  Jackson
v. Seaboard Coast Line R.R. Co., 678 F.2d 992, 1002 n.14 (11th Cir. 1982); 42 U.S.C.
 2000e-5(b), 2000e-5(f)(1), 2000e-8(e).  
     While this Court has stated that EEOC is required, during conciliation, to
"respond[] in a reasonable and flexible manner to the reasonable attitudes of the
employer," EEOC v. Klingler Elec. Co., 636 F.2d at 107, conciliation is not the time
for an employer to test the soundness of EEOC's findings by engaging in a mini-trial
of EEOC's claims.  Rather, conciliation provides an opportunity for the parties to
avoid the risks and costs of litigation by agreeing to sufficient relief to resolve the
claim.  See 42 U.S.C.  2000e-5(f)(1) (EEOC authorized to bring suit if unable to
secure conciliation agreement acceptable to EEOC); EEOC v. Liberty Trucking Co.,
695 F.2d 1038, 1041 (7th Cir. 1982) (employer who believes he has not discriminated
or that terms proposed by EEOC are unfair is free to refuse to agree); cf. EEOC v.
Keco Indus., 748 F.2d at 1100 (discussing pitfalls of allowing a defendant to
challenge the sufficiency of an EEOC investigation leading to a reasonable cause
determination).  The panel's decision threatens to disrupt this well-balanced process
and spawn collateral litigation respecting the adequacy of conciliation which will
only serve to further clog the courts' dockets.<2>
     The panel held that EEOC's conciliation efforts in this case were insufficient,
notwithstanding that EEOC fully met the requirements set out by this Court in
Klingler, 636 F.2d at 107.  EEOC's Letter of Determination identified the portions
of the charge on which "cause" was found and invited the parties to return a form
indicating their willingness to begin conciliation.  Despite receiving no response from
Asplundh to this first invitation to conciliate, EEOC sent a proposed Conciliation
Agreement a week later expressly inviting Asplundh to make a counter-offer and
providing more than two weeks for Asplundh's response.  When EEOC received
Asplundh's belated response, almost a month after the first invitation to conciliate,
Investigator West called Asplundh's counsel the same day, as he had requested.  
     In affirming the district court's dismissal for EEOC's alleged failure to act in
good faith, the panel wrongly applied an "abuse of discretion" standard to this
summary judgment ruling, and misconstrued the underlying facts as well as Title
VII's requirements.  The panel decision will have a significant negative impact on
enforcement of the statute.  The panel's decision penalizes EEOC's efforts to
implement an orderly and fair administrative process and sends the message to
respondents that they can flout that process by simply refusing to respond to
reasonable offers to conciliate, ignoring reasonable time frames and questioning the
legal basis of the claim.  The considerable uncertainty the decision injects into the
enforcement process disserves respondents, charging parties and EEOC alike.

B.   The Panel's Decision is Based on a Number of Errors.

1.  The panel's most serious factual error is its totally unfounded assertion that EEOC
refused to confer with Asplundh's counsel following Sampo's belated response
(which the panel curiously characterized as "prompt").  Slip op. at 7.  Upon receipt
of Sampo's letter on April 29, 1999, West did exactly what Sampo asked - she called
him the very same day to discuss the case - and left him a message when he did not
answer.  Six days later Sampo called West back, leaving a message on her voice mail. 
When West returned the call, she told him he should contact the regional attorney
because the case was now out of her hands.  R.78, Ex.#3 at 4 (REI 67).  Sampo never
called the regional attorney.  Thus, the panel's conclusion that EEOC "refus[ed]" to
confer with Asplundh's counsel is wholly unsupported by and contrary to the record.<3>

2.  The panel's decision wrongly suggests EEOC was obligated to identify a "theory"
on which Asplundh could be held liable for the conduct of a GRU employee.  Slip op.
at 8-9.  The assertion of a violation in this case rests on no novel theory of
employment law.  EEOC's longstanding regulations and policy guidelines make clear
that employers are obligated to maintain a harassment-free workplace, regardless of
whether the harassment is generated by a manager, co-worker, or non-employee third
party.  See 29 C.F.R.  1604.11(e) (sexual harassment by non-employee); EEOC
Compliance Manual  615.7(b) (harassment by non-employee on basis of race,
religion and national origin).  Lewis's charge identified for Asplundh the harasser
(Pete Evans), and the company addressed the April 1 incident when it responded to
the charge.  EEOC was not obligated to provide any additional explanation when it
found "reasonable cause" on the race discrimination claim.  Likewise, there is no
basis for the panel's conclusion that EEOC's issuance of this cause finding created
a sudden need for Asplundh to retain local Gainesville counsel to investigate the
allegations, slip op. at 8, and Asplundh never argued this.  Asplundh was fully
apprised, during the course of the investigation, of the nature of Lewis's race
harassment charge and Asplundh had more than adequate time to "apprehend" that
this charge could result in a cause finding.

3.  EEOC's proposed conciliation agreement was not "far-reaching," as the panel
believed.  Slip op. at 7.  It was an appropriate opening proposal, seeking individual
relief for Lewis and standard posting of civil rights notices and anti-discrimination
training for Asplundh's employees.  R.67, West Decl. Ex.#4 (REI 50-52, 55).  EEOC
did not ask Asplundh to post notice of Lewis's allegations, as the panel erroneously
stated, slip op. at 5, but proposed only that Asplundh post notices stating its general
commitment to nondiscrimination and nonretaliation in the workplace, R.67, West
Decl. Ex.#4  III & Appx A (REI 52, 55), similar to the "equal employment" notices
employers are already required by statute to post in their workplaces.  42 U.S.C. 
2000e-10; 29 C.F.R.  1601.30.  Recognizing that reinstatement might not be
possible if Asplundh had ceased its Gainesville operations, the proposed agreement
offered alternatively (in Section II,  1.a) that Asplundh could agree to notify Lewis
if an opening in his job classification became available during the term of the
agreement.  REI 50.  If Asplundh had responded within the designated timeframe or
had pursued the matter further in response to West's phone calls, negotiations could
have commenced.  At that point, if Asplundh (a nationwide employer) objected to
posting a civil rights notice in all its worksites or to training all its employees in non-
discrimination, or if it was no longer conducting any business in the area, it could
have counter-offered a narrower form of relief.  EEOC's proposal, however, was
neither overbroad nor overbearing.

4.  The panel mischaracterized the designated response time as "arbitrary."  Slip op.
at 11.  To the contrary, EEOC's timeframe bore a rational relationship to what needed
to be done at that stage - Asplundh needed only to advise EEOC whether it wanted
to engage in conciliation and, if so, make some offer to start the process.  Given
Asplundh's familiarity with the charges after more than two years of investigation
and the fact that it already had notice that EEOC had found cause, a response time of
16 calendar days was not unreasonable and certainly not arbitrary.  In any event,
Asplundh never contacted EEOC before April 23rd to indicate it needed more time,
and never offered any explanation or reason, afterward, for its delay in responding. 

5.  The panel erroneously stated that there is no record establishing that EEOC
determined conciliation had failed prior to receipt of Sampo's faxed letter.  Slip op.
at 9 n.2.  Asplundh conceded that the Commission received Sampo's faxed letter after
the District Director sent his conciliation failure letter on April 29, 1999.  Compare
R.67, EEOC's Statement of Material Facts Not in Dispute  9-10 (REI 30) with
R.78, Aspl's Resp.  9-10 (REI 60); see also R.67, West Decl  11-12 (REI 40). 
 
6.  The panel mischaracterized Sampo's letter as "evidencing Asplundh's clear intent
to resolve the matter outside the courtroom."  Slip op. at 10.  The letter did not offer
to resolve the claim; it asked to discuss the case with the investigator "to understand
the basis" for EEOC's determination and sought an after-the-fact extension of time
to respond.  At most, Sampo's letter indicated Asplundh might offer to conciliate in
the future; it was not an offer to conciliate at that time.  See EEOC v. North Central
Airlines, 475 F.Supp. 667, 669-70 (D. Minn. 1979) (counsel's "ambiguous response,"
asserting agreement to conciliate along with continued questioning of the charge and
a subsequent failure to submit a settlement offer, "could reasonably be interpreted as
a continuing refusal to negotiate").

7.  Finally, the panel speculated, based on an erroneous premise, that EEOC rushed
into litigation in May 1999 in order to publicize the facts in this case, pointing to a
New York Times article published on July 10, 2000.  Slip op. at 12 n.3.  That this
lawsuit became public reflects EEOC's standard practice, as a public agency, of
issuing a press release upon filing a complaint.  A news article published more than
a year after suit was filed hardly establishes that publicity motivated EEOC's decision
to file this litigation.<4>

C.   A Sanction of Dismissal and Fees is Extreme and Unwarranted.

     Even if EEOC's conciliation was inadequate, dismissal was not warranted.  The
panel cites no cases where a court dismissed an EEOC lawsuit and awarded fees and
costs as a sanction for a finding that EEOC ended conciliation prematurely, and
EEOC has found none.  The only circumstances where courts have dismissed an
EEOC lawsuit for failure to conciliate is where EEOC did not initiate any conciliation
before filing suit, as was the case in EEOC v. Pierce Packing Co., 669 F.2d 605 (9th
Cir. 1982).  See slip op. at 12.  Where attempted conciliation has been deemed
inadequate, courts have stayed suit to permit additional conciliation.  42 U.S.C. 
2000e-5(f)(1).<5> Dismissal is wholly unprecedented under circumstances such as this. 
     Furthermore, the panel erroneously reviewed the dismissal of EEOC's lawsuit
under an "abuse of discretion" standard.  The district court essentially treated EEOC's
motion for partial summary judgment as a summary judgment motion by Asplundh,
albeit without giving EEOC the requisite notice or opportunity to supplement the
factual record on this very fact-sensitive question.  See Massey v. Congress Life Ins.
Co., 116 F.3d at 1417-18.  The panel was, therefore, required to review de novo the
district court's dismissal of EEOC's lawsuit.  Jones v. Firestone Tire & Rubber Co.,
977 F.2d 527, 535-36 (11th Cir. 1992).       
     Under either standard of review, however, the panel erred in holding that such
a drastic sanction was warranted here.  EEOC reasonably believed, under existing
case law, that its pre-suit conciliation was adequate.  In particular, EEOC reasonably
concluded that Asplundh did not wish to pursue conciliation further after West called
Sampo back twice and Sampo failed to follow up further.  Thus, dismissal and fees
are not justified under a court's inherent power to impose sanctions.  Such power is
properly exercised "with restraint and discretion," Chambers v. NASCO, Inc., 501
U.S. 32, 44, 50 (1991); Byrne v. Nezhat, 261 F.3d 1075, 1106 (11th Cir. 2001), and
only on a finding of "bad faith."  See Barnes v. Dalton, 158 F.3d 1212, 1214 (11th Cir.
1998).  The panel's finding that EEOC did not act in good faith here is premised on
a number of critical errors, see pp 8-13, supra, including the court's mistaken beliefs
that EEOC was aware of the Sampo letter before conciliation ended and that EEOC
refused to confer with Asplundh after receiving Sampo's letter.  The record clearly
shows otherwise.  Any inference of "bad faith" thus has no factual foundation, and
the panel erred in affirming these sanctions.  See Kilgo v. Ricks, 983 F.2d 189, 193
(11th Cir. 1993) (sanction of dismissal reversed where based on clearly erroneous
factual determination); Byrne, 261 F.3d at 1123-27 (sanction against plaintiff
reversed because finding of bad faith unsupported by record).<6>

                           CONCLUSION
     For these reasons, the panel erred when it affirmed dismissal of EEOC's
lawsuit and imposition of fees.  The panel or, in the alternative, the full Court should
re-hear this matter to correct these mistakes.
Respectfully Submitted,

ERIC S. DREIBAND                                                                        
General Counsel                    SUSAN R. OXFORD, Attorney
                                   (202) 663-4791
CAROLYN L. WHEELER                 U.S. EEOC
Acting Assoc. General Counsel      1801 L Street, N.W.
                                   Washington, D.C. 20507
LORRAINE C. DAVIS                  October 3, 2003
Assistant General Counsel                         
                                   
                              
                     CERTIFICATE OF SERVICE
                                
     I hereby certify that on this 3rd day of October, 2003, I sent an original and 15 
copies of the attached Rehearing Petition to the Clerk of the Court for the U.S. Court
of Appeals for the Eleventh Circuit by United Parcel Service (UPS) and, on the same
date, sent two copies of the same, by the same means, to the following counsel of
record:
               Robert E. Larkin, III, Esq.
               Michael Mattimore, Esq.
               ALLEN, NORTON & BLUE, P.A.
               906 North Monroe Street
               Tallahassee, Florida   32303

                                                                                                
                                Susan R. Oxford

                             ADDENDUM

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

<1> This Court has adopted as binding precedent all decisions of the former Fifth 
Circuit handed down prior to close of business on September 30, 1981.  See Bonner v. 
City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc).

<2> Of course, EEOCs claims must have a reasonable basis in law and fact and the 
relief it seeks must be obtainable.  Respondents are protected under the statute 
from unfounded claims inasmuch as EEOC is subject to the imposition of fees if a 
court determines that an EEOC lawsuit is frivolous, unreasonable or groundless.  
Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978).

<3> In his affidavit, Sampo misrepresented that after he sent his letter to EEOC I 
never received any communication from Ms. West, or from anyone with the EEOC.  R.81 
9.  Asplundh relied heavily on this misstatement below, R.77 at 3, 5, 6, 9, 10, and 
the district courts finding of bad faith was based, largely, on this misinformation. 
See, e.g., R.90 at 6.  Although this is clearly incorrect and Asplundh abandoned 
this position on appeal, Aspl.Brf.II at 13; Aspl.Brf.I at 9, the panel nonetheless 
appears to have relied on this misrepresentation.  The panel acknowledged that Sampo 
called West sometime after sending his letter and that she returned the call on May 
10, slip op. at 6, but totally ignored Wests first telephone call to Sampo on April 
29, the same day she received his letter.  The omission is puzzling, since the only 
record evidence of Sampo and Wests exchange of telephone messages on May 5 and May 
10 is Wests case log, R.78, Ex.3 at 4, which also establishes her initial attempt 
to reach Sampo by telephone on April 29.  Had the panel engaged in the proper de 
novo review, it would have recognized Wests efforts to reach Sampo on April 29 in 
response to his April 28 letter. 

<4> In his affidavit, Sampo misrepresented that after he sent his letter to EEOC I 
never received any communication from Ms. West, or from anyone with the EEOC.  R.81 
9.  Asplundh relied heavily on this misstatement below, R.77 at 3, 5, 6, 9, 10, and 
the district courts finding of bad faith was based, largely, on this misinformation.
See, e.g., R.90 at 6.  Although this is clearly incorrect and Asplundh abandoned 
this position on appeal, Aspl.Brf.II at 13; Aspl.Brf.I at 9, the panel nonetheless 
appears to have relied on this misrepresentation.  The panel acknowledged that Sampo 
called West sometime after sending his letter and that she returned the call on May 
10, slip op. at 6, but totally ignored Wests first telephone call to Sampo on April 
29, the same day she received his letter.  The omission is puzzling, since the only 
record evidence of Sampo and Wests exchange of telephone messages on May 5 and May 
10 is Wests case log, R.78, Ex.3 at 4, which also establishes her initial attempt 
to reach Sampo by telephone on April 29.  Had the panel engaged in the proper de 
novo review, it would have recognized Wests efforts to reach Sampo on April 29 in 
response to his April 28 letter. 

<5> The panel misreads  2000e-5(f)(1) of Title VII.  This section does not give the 
trial court discretion to dismiss an action, slip op. at 6 n.1; it gives the 
district court discretion to stay further proceedings for not more than sixty days 
pending ... further efforts of the Commission to obtain voluntary compliance.  Cf. 
EEOC v. Zia Co., 582 F.2d at 533 (courts inquiry into EEOCs duty of good faith 
conciliation is relevant to whether the court should entertain the claim, or stay 
the proceedings for further conciliation efforts).  Likewise, EEOC v. Sears, 
Roebuck & Co., 650 F.2d 14, 19 (2d Cir. 1981), slip op. at 6 n.1, is also inapposite.  
There the court found that EEOCs pre-suit conciliation addressed a different set of 
claims than those in EEOCs lawsuit, so the issue was not whether conciliation ended 
prematurely, but that it was never initiated on the claims in the suit.  

<6> For the same reason, imposition of fees cannot be justified under the frivolous, 
unreasonable or groundless standard of Christiansburg Garment Co., 434 U.S. at 422. 
Moreover, Christiansburg does not apply in circumstances like this where a defendant 
has not prevailed on the merits.  See EEOC Brf.II at 21-24.