EEOC v. PVNF, L.L.C. (10th Cir.)
Brief as appellant
May 22, 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/ 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 
        _______________________________________________
                         OPENING BRIEF 
                  OF THE PLAINTIFF-APPELLANT
           U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
        _______________________________________________




JAMES L. LEE				
Deputy General Counsel	
						
LORRAINE C. DAVIS
Acting Associate 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	iv

STATEMENT OF RELATED CASES	1

STATEMENT OF JURISDICTION	1

STATEMENT OF THE ISSUES	2

STATEMENT OF THE CASE	2

STATEMENT OF FACTS	5

SUMMARY OF ARGUMENT	25

ARGUMENT	28

I.  	THE DISTRICT COURT ERRED IN GRANTING CDM'S  
MOTION FOR JUDGMENT AS A MATTER OF LAW.	28

A.	The EEOC Proffered Sufficient Evidence at Trial to Allow a 
Reasonable Fact Finder to Conclude that CDM Is Liable for 
Subjecting Segovia to a Sex-Based Hostile Work Environment.	29

B.	The EEOC Proffered Sufficient Evidence at Trial to Allow a 
Reasonable Fact Finder to Conclude that CDM Disciplined Segovia 
and Reduce Her Compensation Because of Her Sex and/or Because 
She Complained about Discrimination at CDM.	36

C.	The EEOC Proffered Sufficient Evidence at Trial to Allow a 
Reasonable Fact Finder to Conclude that Segovia Was Constructively 
Discharged.	45

II.  	THE DISTRICT COURT ERRED IN RULING THAT THE EEOC'S 
CASE WAS "FRIVOLOUS, UNREASONABLE, OR WITHOUT 
FOUNDATION."	49




TABLE OF CONTENTS (con't)

CONCLUSION	57

STATEMENT REGARDING ORAL ARGUMENT	58

ADDENDUM	A-1

	Unpublished Opinions Cited in Appellant's Opening Brief	A-2

	Dalal v. Alliant Techsys., Inc., 
	72 F.3d 137 (10th Cir. 1995) (Table), 1995 WL 747442

	Pascouau v. Martin Marietta Corp., 
	185 F.3d 874 (10th Cir. 1999) (Table), 1999 WL 495621

	Twilley v. Integris Baptist Med. Ctr., Inc., 
	16 Fed.Appx. 923 (10th Cir. 2001), 2001 WL 901102

	District Court's Summary Judgment Decision	A-3

	District Court's Oral Grant of Rule 50 Motion at Trial 	A-4

	District Court's Findings of Fact and Conclusions of Law	A-5

	District Court's Denial of EEOC's Motion to Amend or for New Trial	A-6

	District Court's Finding of Frivolousness	A-7

CERTIFICATE OF COMPLIANCE	C-1

CERTIFICATE OF SERVICE	C-2

CERTIFICATE OF DIGITAL SUBMISSION	C-3



TABLE OF AUTHORITIES
Cases

Anderson v. Coors Brewing Co.,
	181 F.3d 1171 (10th Cir. 1999)	40

Annett v. Univ. of Kan.,
	371 F.3d 1233 (10th Cir. 2004)	38

Berry v. Stevinson Chevrolet, 
	74 F.3d 980 (10th Cir. 1996)	38

Bristol v. Bd. of County Commr's, 
	312 F.3d 1213 (10th Cir. 2002)	28

Burlington N. & Santa Fe Ry. Co. v. White, 
	126 S. Ct. 797 (No. 05-259, Dec. 5, 2005)	39

Campbell v. Cook, 
	706 F.2d 1084 (10th Cir. 1983)	52

Chavez v. N.M., 
	397 F.3d 826 (10th Cir. 2005)	30, 33

Chavez v. Thomas & Betts Corp., 
	396 F.3d 1088 (10th Cir. 2005)	30, 49

Christiansburg Garment Co. v. EEOC,
	434 U.S. 412 (1978)	4, 49, 51, 52, 56, 57, 58

Dalal v. Alliant Techsys., Inc., 
	72 F.3d 137 (10th Cir. 1995) (Table), 1995 WL 747442	56

Davis v. U.S. Postal Serv., 
	142 F.3d 1334 (10th Cir. 1998)	28, 48

Derr v. Gulf Oil Corp., 
	796 F.2d 340 (10th Cir. 1986) 	46, 47

TABLE OF AUTHORITIES (con't)

Dick v. Phone Directories Co., Inc., 
	397 F.3d 1256 (10th Cir. 2005)	39

Doebele v. Sprint/United Mgmt. Co., 
	342 F.3d 1117 (10th Cir. 2003)	37

EEOC v. Fruehauf Corp., 
	609 F.2d 434 (10th Cir. 1979)	52, 54

EEOC v. St. Louis-San Francisco Ry. Co., 
	743 F.2d 739 (10th Cir. 1984)	50, 53

Elzour v. Ashcroft, 
	378 F.3d 1143 (10th Cir. 2004)	50

English v. Colo. Dep't of Corr., 
	248 F.3d 1002 (10th Cir. 2001)	50

Exum v. U.S. Olympic Cmte., 
	389 F.3d 1130 (10th Cir. 2004)	45

Ferroni v. Teamsters, Chauffeurs, & Warehousemen Local No. 222, 
	297 F.3d 1146 (10th Cir. 2002)	50, 55

Garrison v. Gambro, Inc., 
	428 F.3d 933 (10th Cir. 2005)	36-37

Gross v. Burggraf Constr. Co., 
	53 F.3d 1531 (10th Cir. 1995)	36

Harris v. Forklift Sys., Inc., 
	510 U.S. 17 (1993)	29, 30, 34

Head v. Medford,
	62 F.3d 351 (11th Cir. 1995)	56

Hertz v. Luzenac Am., Inc., 
	370 F.3d 1014 (10th Cir. 2004)	39
TABLE OF AUTHORITIES (con't)

Hicks v. Gates Rubber Co., 
	833 F.2d 1406 (10th Cir. 1987)	35

Hillig v. Rumsfeld, 
	381 F.3d 1028 (10th Cir. 2004)	38, 39

Homeward Bound, Inc., v. Hissom Mem'l Ctr., 
	963 F.2d 1352 (10th Cir. 1992)	50

Hughes v. Rowe, 
	449 U.S. 5 (1980)	49-50, 52, 55

Jane L. v. Bangerter, 
	61 F.3d 1505 (10th Cir. 1995) 	55

Maldonado v. City of Altus, 
	433 F.3d 1294 (10th Cir. 2006)	39

Marx v. Schnuck Markets, Inc., 
	76 F.3d 324 (10th Cir. 1996)	38

McDonnell Douglas Corp. v. Green, 
	411 U.S. 792 (1973)	36, 43

Medina v. Inc. Support Div.,
	413 F.3d 1131 (10th Cir. 2005)	38

Meiners v. Univ. of Kan., 
	359 F.3d 1222 (10th Cir. 2004)	40

Meritor Sav. Bank, FSB, v. Vinson, 
	477 U.S. 57 (1986)	29, 34

Miller v. Eby Realty Group LLC, 
	396 F.3d 1105 (10th Cir. 2005)	29, 37, 40

Montgomery v. Yellow Freight Sys., Inc., 
	671 F.2d 412 (10th Cir. 1982)	52-53, 57
TABLE OF AUTHORITIES (con't)

Morgan v. Hilti, Inc., 
	108 F.3d 1319 (10th Cir. 1997)	40

Nulf v. Int'l Paper Co., 
	656 F.2d 553 (10th Cir. 1981)	52, 54

Olitsky v. O'Malley, 
	597 F.2d 303 (1st Cir. 1979)	56

Oncale v. Sundowner Offshore Servs., Inc., 
	523 U.S. 75 (1998)	29-30, 33, 35

Orr v. City of Albuquerque, 
	417 F.3d 1144 (10th Cir. 2005)	37, 38, 39

Pa. State Police v. Suders, 
	542 U.S. 129 (2004)	30, 35, 45

Pascouau v. Martin Marietta Corp., 
	185 F.3d 874 (10th Cir. 1999) (Table), 1999 WL 495621	54

Penry v. Fed. Home Loan Bank, 
	155 F.3d 1257 (10th Cir. 1998)	30, 33, 35

Plotke v. White, 
	405 F.3d 1092 (10th Cir. 2005)	40

Prochaska v. Marcoux, 
	632 F.2d 848 (10th Cir. 1980)	52

Reeves v. Sanderson Plumbing Prods., Inc., 
	530 U.S. 133 (2000)	28, 29, 35, 37

Riske v. King Soopers, 
	366 F.3d 1085 (10th Cir. 2004)	28, 33

Roberts v. Roadway Express, Inc., 
	149 F.3d 1098 (10th Cir. 1998)	38
TABLE OF AUTHORITIES (con't)

Roe v. Cheyenne Mountain Conference Resort, Inc., 
	124 F.3d 1221 (10th Cir. 1997)	50

Sanchez v. Denver Pub. Schs., 
	164 F.3d 527 (10th Cir. 1998)	38

Sandoval v. City of Boulder, 
	388 F.3d 1312 (10th Cir. 2004)	30, 45

Smith v. Josten's Am. Yearbook Co., 
	624 F.2d 125 (10th Cir. 1980)	55-56

Smith v. N.W. Fin. Acceptance, Inc., 
	129 F.3d 1408 (10th Cir. 1997)	34

Smith v. Smythe-Cramer Co., 
	754 F.2d 180 (6th Cir. 1985)	56

Sorbo v. United Parcel Serv., 
	432 F.3d 1169 (10th Cir. 2005)	50

St. Mary's Honor Ctr. v. Hicks, 
	509 U.S. 502 (1993)	36

Stahl v. Sun Microsys., Inc., 
	19 F.3d 533 (10th Cir. 1994)	35

Stewart v. Adolph Coors Co., 
	217 F.3d 1285 (10th Cir. 2000)	29

Supre v. Ricketts, 
	792 F.2d 958 (10th Cir. 1986)	50

Tex. Dep't of Cmty. Affairs v. Burdine, 
	450 U.S. 248 (1981)	36

Thompson v. State Farm Fire & Cas. Co., 
	34 F.3d 932 (10th Cir. 1994)	28
TABLE OF AUTHORITIES (con't)

Tran v. Trs. of State Colls., 
	355 F.3d 1263 (10th Cir. 2004)	37, 45-46, 47

Trujillo v. Univ. of Colo. Health Sciences Ctr., 
	157 F.3d 1211 (10th Cir. 1998)	37

Turnbull v. Topeka State Hosp., 
	255 F.3d 1238 (10th Cir. 2001)	28

Twilley v. Integris Baptist Med. Ctr., Inc., 
	16 Fed.Appx. 923 (10th Cir. 2001), 2001 WL 901102	56

Winsor v. Hinckley Dodge, Inc., 
	79 F.3d 996 (10th Cir. 1996)	33, 35-36

Statutes

28 U.S.C.  1291	1

28 U.S.C.  1331	1

28 U.S.C.  1337	1

28 U.S.C.  1343	1

28 U.S.C.  1345	1

42 U.S.C.  2000e et seq.	1

42 U.S.C.  2000e-2(a)(1)	29

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

42 U.S.C.  2000e-5(f)(3)	1





TABLE OF AUTHORITIES (con't)

Regulations

29 C.F.R.  1604.11(a)	29

29 C.F.R.  1604.11(a)(3)	30

Rules

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

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

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	passim

Fed. R. Civ. P. 50(a)	28

Fed. R. Civ. P. 52(b)	4

Fed. R. Civ. P. 59	4




STATEMENT OF RELATED CASES
     There are no prior or related appeals.

STATEMENT OF JURISDICTION
     Plaintiff-Appellant the U.S. Equal Employment Opportunity Commission 
(the "EEOC" or "Commission") filed this lawsuit against Defendant-Appellee 
PVNF, L.L.C., d/b/a Chuck Daggett Motors and Big Valley Auto ("CDM") under 
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.  2000e et seq. 
("Title VII").  R.1 at 1,3; AA27,29.<1> This action is authorized and was initiated 
under 42 U.S.C.  2000e-5(f)(1).  AA28-29.  The district court had jurisdiction 
over the EEOC's suit under 42 U.S.C.  2000e-5(f)(3) and 28 U.S.C.  1331, 
1337, 1343, and 1345.  On June 30, 2005, the district court entered final judgment 
against the EEOC disposing of all claims.  R.136; AA107-09.  The EEOC filed a 
timely motion to amend the district court's final judgment or, alternatively, for a 
new trial.  R.137; AA110-134.  On November 2, 2005, the district court denied this 
motion.  R.162; AA194-204.  The EEOC then filed a timely notice of appeal.  
R.170; AA213-15.  See Fed. R. App. P. 4(a)(4)(A); Fed. R. App. P. 4(a)(1)(B).  
This Court now has appellate jurisdiction under 28 U.S.C.  1291.
STATEMENT OF THE ISSUES 

1.	Whether the district court erred in granting CDM's motion for judgment as a 
matter of law.
2.	Whether the district court erred in ruling that the Commission's case was 
"frivolous, unreasonable, or without foundation."

STATEMENT OF THE CASE
     On August 25, 2003, the EEOC filed this lawsuit alleging that CDM violated 
Title VII by subjecting employee Marla Segovia to sex-based harassment, and by 
disciplining her and reducing her compensation because of her sex and/or because 
she complained about sex discrimination in the CDM workplace.  R.1; AA27-35.  
The Commission also contended that this harassment and discrimination resulted 
in Segovia's constructive discharge.  AA27-31.  In addition, the EEOC's complaint 
alleged that CDM violated Title VII by subjecting Segovia's coworker Joanne 
Richmond to sex-based harassment and by refusing to give Richmond the same 
health insurance benefits that CDM provided to some of its male employees.  
AA27-31.<2> In its complaint, the EEOC requested injunctive relief, back pay, 
reinstatement or front pay, compensatory and punitive damages, other necessary 
and appropriate relief, costs, and a jury trial.  AA31-33.
     The EEOC later voluntarily dismissed the portion of its complaint alleging 
that CDM subjected Richmond to sex-based harassment.  R.49.  CDM moved for 
summary judgment with respect to all of the EEOC's remaining claims.  R.50; 
R.51; R.74.  The EEOC opposed this motion.  R.61; R.62.
     On March 17, 2005, the district court granted CDM's motion for summary 
judgment in part and denied it in part.  R.94; AA89-100.  The district court 
dismissed the EEOC's claim that CDM denied Richmond health insurance benefits 
on the basis of her sex.  AA97.  However, the district court denied CDM's motion 
as to all of the claims the Commission brought on behalf of Segovia.  AA91-99.  
On May 5, 2005, the case went to trial.  The evidence the EEOC presented during 
its case-in-chief consisted largely of the same evidence the Commission proffered 
at summary judgment.  Compare AA41-58 with AA222-950.
     On May 9, 2005, at the close of the EEOC's case, CDM moved for 
Judgment as a Matter of Law under Rule 50 of the Federal Rules of Civil 
Procedure.  AA951.  The EEOC opposed this motion.  AA966-76.  The district 
court granted CDM's Rule 50 orally at trial.<3> AA978-80.  On June 29, 2005, the 
district court entered written Findings of Fact and Conclusions of Law reiterating 
its decision to grant CDM's Rule 50 motion.  R.135; AA101-06.  On June 30, 
2005, the district court entered final judgment against the EEOC on all claims with 
prejudice.  R.136; AA107-09.
     On July 14, 2005, the EEOC filed a timely Motion to Amend the Court's 
Findings of Fact and Conclusions of Law and Final Judgment and Motion for New 
Trial under Federal Rules 52(b) and 59.  R.137; R.146; AA110-134,160-71.  On 
July 29, 2005, CDM filed a Motion to Determine that Claims Brought or 
Maintained by EEOC Were Frivolous, Unreasonable or Without Foundation.  
R.141; R.142; R.155; AA143-59,186-93.  The EEOC opposed this motion.  R.154; 
AA172-85.
     On November 2, 2005, the district court denied the EEOC's motion to 
amend or for a new trial.  AA194-204.  That same day, the district court ruled that 
the EEOC's claims were "frivolous, reasonable, or without foundation" within the 
meaning of Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), and 
awarded CDM attorney's fees (in an amount to be determined later).<4> R.163; 
AA205-12.  This appeal followed.  R.170; AA213-15.

STATEMENT OF FACTS <5> 
     Teague-Strebeck Motors operated a car dealership in Portales, New Mexico.  
AA746,752.  Around June 2000, the owners of Teague-Strebeck Motors sold the 
dealership to Alva Carter and Chuck Daggett.  AA746-47.  After this transaction, 
the dealership began operating under the name of Chuck Daggett Motors 
("CDM").  AA473,752.  Carter owned fifty-one percent of CDM and Daggett (who 
had previously owned twenty-five percent of Teague Strebeck Motors) owned the 
other forty-nine percent of CDM.  AA473.  Daggett was the General Manager, but 
Carter was often present at the dealership as well.  AA479,523-24,754-55.  Daggett 
and Carter were "equal bosses" of all CDM employees.  AA343,473,478,710,754.
     Teague-Strebeck Motors hired Marla Segovia in November 1996 to be a car 
salesperson.  AA469.  When Segovia first went to work for Teague-Strebeck 
Motors, she signed a "No Harassment Policy/Procedure."  AA619.  After Teague-
Strebeck Motors ceased to exist, CDM redistributed a similar policy under CDM 
letterhead to new hires, but did not redistribute the new corporation's policy to 
current employees, as well.  AA225-26,251,770.  Under this policy, employees 
could report harassment to their supervisor, or to Daggett, Carter, Kathy Franson 
(the controller of the dealership), or Joanne Richmond (the office manager and 
systems administrator).  AA223,225,249,710.  However, CDM never provided any 
manager or employee with any training on harassment, retaliation, or any type of 
discrimination.  AA225-26,295,321-22,394,473-74,727,768,771-72.  CDM never 
provided Segovia with any written policies or procedures on harassment, 
retaliation, or discrimination.  AA474.
     In January 2000, Daggett promoted Segovia to the position of Finance 
Manager.  AA470-71,772.  In June 2001, Daggett promoted Segovia to New Car 
Manager.  AA476,478,775.<6> Randy Van Lueven, a male, preceded Segovia as 
New Car Manager.  AA347.  At this time, Rodney Ennis was CDM's Used Car 
Manager.  AA347.  Ennis testified he was Daggett's "right-hand man."  AA348.
     Daggett testified that a conflict between Segovia and Ennis started right 
"when she took that job" (i.e., became New Car Manager).  AA870.  Segovia was 
paid commissions based on the sale of new cars and Ennis was paid commissions 
based on the sale of used cars.  AA371-72.  Segovia, as New Car Manager, earned 
more money on the sale of a new car if the vehicle the buyer traded-in as part of 
the new-car deal was valued at a higher amount (since a buyer would be more 
likely to buy a new car from CDM if the buyer was given an attractive price for 
their trade-in).  By contrast, Ennis, as Used Car Manager, earned more money if 
the trade-in was valued at a lesser amount (since Ennis could then sell the trade-in 
at a greater profit).  This sometimes created tension between Segovia and Ennis 
over how a particular trade-in vehicle should be valued.  AA422.  Ennis testified 
that Daggett purposely fostered this tension because he thought it was good for the 
two of them to compete "used cars against new cars" to increase overall sales.  
AA373.
     Segovia routinely generated more revenue than Ennis and made more in 
commissions than he did.  AA566.  Segovia testified that she was definitely 
making "a lot more" than Ennis.  AA566.  Ennis agreed that "she was making 
more money."  AA373.  Daggett testified that while Segovia was New Car 
Manager, she was the highest paid person (besides Daggett) at the dealership.  
AA855.  Daggett later stated that their relative compensation varied from month-
to-month, but Segovia "was probably making more" than Ennis.  AA931-32.  
     Carter - CDM's principal owner - made numerous sexist and sexual 
comments to Segovia and other female employees.  Segovia testified that the 
harassment "just started up, and it became kind of haunting over us."  AA516.  For 
example, Mandi Wood worked for CDM as a cashier.  AA318.  At one point, after 
Wood sought a promotion, Carter told her that "as far as being a woman that I 
should sit behind the computer and that would be . . . fitting for me" and "as a 
woman, I should [just] sit and count money."  AA320-21.  She resigned in July 
2001.  AA319.  When asked why, she said "I felt that it was kind of hostile" and "I 
didn't want to work there anymore."  AA320.  She said Carter was "intimidating" 
and made her "nervous."  AA335-36.
     Michelle Reid worked for CDM from 2000 to 2001 as a title clerk.  AA288.  
Reid said she also resigned "[i]n part because of the comments that Mr. Carter 
made."  Tr.289,309.  Reid said Carter made "sexual comments regarding women in 
the workplace" and that she heard these comments personally while at work.  
AA289.  Reid said that women complained to each other about Carter's comments.  
AA292.  For instance, Reid said Carter told her that women "belong at home 
barefoot and pregnant."  AA290,301.  Reid said Carter also said that women "take 
too much time off of work because they have medical reasons" and said women 
"belong at home and not in the workplace."  AA293,294,301.  Another time, when 
Reid was pregnant and stood up and rubbed her belly, Carter said "What would the 
customers think if they saw that?"  AA290,291.  Reid said she complained about 
this remark, but nothing ever happened.  AA292,298.  When asked why not, Reid 
opined that "[p]eople fear for their job."  AA292.  Reid testified she never heard 
Carter make similar comments and/or threats to male employees.  AA306.
     Joanne Richmond worked for CDM as the office manager and systems 
administrator from June 2000 until she was discharged in February 2002.  AA223.  
Richmond stated that after Carter bought into the dealership the working 
conditions for women there became "very stressful" because "I don't think he likes 
women.  Women are not as revered as men."  AA228-29.  She testified that she 
based this assessment on "[t]hings he said to women."  AA229.  Richmond said 
that she felt like she had to "walk on eggshells" around Carter and that she 
discussed this with other women who felt that way, too.  AA267.  She said she was 
"sure" the men who worked at Daggett did not feel this way because Carter "didn't 
treat them the way he treated us."  AA267.  She said she "never saw him act like 
that [the way he interacted with women] with men."  AA284.  Richmond also 
testified that she heard Carter tell Reid that "women didn't belong in the workplace 
because they had child care issues."  AA230.  Another time, Richmond was 
interviewing a female in her office and Carter opened the door and "said he wanted 
to see how old [the female applicant] was" and "wanted to know if she had 
children because of the child care issues."  AA232.
     From roughly July 2000 to September 2001, Segovia was the object of 
similar and more severe sex-based remarks and negative treatment.  For example, 
when Segovia was the Finance Manager, Carter told Segovia that he liked having 
her in that role "because of my protective motherly instincts."  AA524.  Segovia 
testified that because this comment was "based on my gender" it was not a 
compliment.  AA638.<7>
     In April 2001, while Segovia was still Finance Manager, she had an 
argument with a used car salesperson named Forest Griffin.  AA348,516-520,588.  
Griffin worked for Ennis.  AA355.  Segovia testified that Griffin told her one day, 
after she had asked him to do some follow-up work on one of Griffin's loans, that 
"I reminded him of his F'ing ex-wife and that he used to beat her."  AA517,352.  
Segovia said "he reacted really kind of wildly" and "stood up and he just cleared 
his desk and he called me a bitch.  And a plate shattered against the wall, and then 
he left the dealership.  He left the used car department, quitting."  AA518.  Segovia 
testified that "he was physically moving, and I was threatened and very scared."  
AA519.  Segovia complained about this to Ennis, Griffin's boss, and to Daggett.  
AA519.  One CDM manager, Chris Wood, thought that Griffin should be fired for 
treating Segovia that way.  AA412.  However, Ennis testified that Daggett "asked 
me to talk to him because Forest sold a lot of cars" and to "see if [I] c[ould] get 
him to come back to work."  AA353.  Griffin returned to work the next day.  
AA354,520.  Griffin was never disciplined in any way.  AA356.<8> 
     Segovia testified that the harassment became "more haunting" when she 
became the New Car Manager.  AA516.  In June 2001, Segovia hired a new female 
salesperson named Jeannie Shackleford to work in the New Car department.  
AA527,589.  When she informed Carter about it, he said "I don't want a whole 
bunch of damn women working here.  Men don't like to work with women.  Men 
like to dicker with men.  They don't like to dicker with women."  AA527-28.  
Carter also told Segovia he thought that women brought their "emotional baggage 
and problems to the dealership."  AA528.
     During a sales managers meeting, Carter also told Segovia that there was a 
book on "women in management" that he was going to buy for her.  AA530.  
Segovia testified that this was "offensive" to her because she "was the only woman 
in the room."  AA530.  She testified that she has a degree in business and still "I 
had to be spotlighted for being a woman."  AA531.  She said that "[w]hen you 
walk into a meeting and there is one woman sitting there and all the rest of them 
are men and he's singling me out, I felt it to be discriminatory."  AA650.  After the 
sales meeting, Carter "told me that 'the difference between men and women is that 
women have to take more of a bitch approach.'"  AA531.
     On another occasion, Carter talked about how "Mexican women's nipples 
turn black - brown after they had babies."  AA532.  Segovia said this bothered her 
because her daughter is "half Spanish" and "it was offensive for her."  AA532.  A 
different day, Segovia said, her husband visited the dealership and Carter told him 
that he could get a good deal on a car because "he was sleeping with me."  AA533.
     Segovia complained about Carter's comments to Daggett.  AA528.  Daggett 
"told me to just start documenting things."  AA529.  However, Daggett then told 
Segovia "we never had this conversation."  AA529.  Thus, Segovia testified, "I 
knew he wasn't going to support me."  AA529.  Daggett testified he remembered 
Segovia "threatening" to go the EEOC.  AA784-85,908-11.  However, Daggett 
said he could not remember what she was complaining about.  AA784-85.  He 
stated that "she was cranky some days, and she'd show up and say, 'I'll go to the 
EEOC,' or something.  And I said, "'Well, if I felt that way, I'd do the same thing.  
Go back to work.'  I mean, just more drama."  AA784-85.<9> 
     Shaun Belden, another used car salesperson who worked for Ennis, also 
called Segovia a "bitch" to her face after she required him to split a commission 
with one of her new car salespeople.  AA521-22.  Segovia recommended to Ennis 
that Belden be disciplined for this behavior.  AA521-22.  Ennis refused, and 
Belden ended up receiving the entire commission.  AA522.  Segovia testified that 
this "overrode my authority."  She also said she had "never seen Mr. Ennis do that 
to [i.e., override the authority of] a male employee."  AA523.
     In early September 2001, Ennis and Segovia got into an argument over the 
wholesaling of a particular trade-in.  AA364,534-38,591.  Carter was present 
during this altercation, which took place outside the main showroom where anyone 
at the dealership could see it.  AA363-64,369-70,596-97.  During the 
disagreement, Ennis indicated that he was tired and Segovia responded by telling 
him that perhaps he should take a nap and/or go to sleep.  AA365,535.  Ennis then 
"flipped off" Segovia and said "F..k you bitch."  AA536.  Segovia got upset and 
started to cry and walk away from the dispute.  AA368-69,536-37,597.  Carter told 
Segovia "if you want to keep your job, you will get your butt back here and finish 
this conversation."  AA536.  Segovia told Carter she did not want to stay in the 
conversation, but stayed anyway.  AA628,537.
     Ennis testified that he was never "written up" for the incident by either 
Daggett or Carter.  AA370-71.  Daggett testified that he "didn't know all of the 
particulars" of the incident "[b]ut it didn't sound like a big deal to me."  AA875.<10> 
     Later on in the evening, after this heated exchange, Segovia decided to talk 
to Ennis to try to resolve their conflict.  AA542.  Ennis was busy drinking beer 
with other employees on the dealership premises.  AA542.  Segovia thus went back 
to her office and composed and sent an e-mail to Daggett expressing frustration 
about the situation.  AA543.  Segovia later thought better of it and decided to 
retrieve the message before Daggett could read it.  AA544.  She accessed his 
password-protected work e-mail account (without his permission)<11> and erased the 
message she had sent to him.  AA544.
     While she was in Daggett's e-mail, another e-mail "popped up."  
AA544,547.  It was an e-mail exchange that occurred during work hours between 
Ennis and one of Segovia's subordinates named Jim Smith.  AA383-85,548.  Smith 
had been hired by Daggett and the two of them were very close; in fact Segovia 
even testified that Daggett never consulted her before hiring Smith and she felt she 
had no real authority over him at all.  AA485-86.  Ennis had forwarded this 
particular e-mail discussion to Daggett.  AA385-86, 548.  It was about Segovia.  
     In the e-mail exchange, Ennis asked Smith why he could not leave work to 
buy beer.  AA383,986.  Ennis asked "Marla [Segovia] got you by the Balls?"  
AA384,986.  Smith replied to Ennis, writing:
I wouldn't let that bitch hold my balls if she was the last woman on 
earth.  If she had balls they would be hanging lower tha[n] that nasty 
fucking skirt she is wearing.  At least she wore panties today.  And I 
know that for a fact and I wasn't looking.  Just walking in the front 
door. . . .  I got to thinking about that today, every c[u]stomer that 
walked in this place today saw her nasty crotch.  Gotta go fucking 
throw-up now. . . .

AA385,547,987.
     
     Segovia testified she was "shocked and surprised" when she saw this e-mail.  
AA547.  She "sat in the dealership for a little while trying to figure out what I 
should do about this."  AA551.  Finally, she wrote Daggett an e-mail stating that 
she would not be at work the next day because she was going to go shopping for 
"dresses that covered my so-called balls."  AA551.  She said she "wanted to drive 
home to him how offended I was by that e-mail."  AA551.
     Segovia did not come to work the next day.  AA553.  She waited all day for 
Daggett to call and apologize for the incident.  AA553-54.  He never called.  
AA553-54.  When she finally called him, Daggett told her that he had "verbally 
reprimanded" Smith and Ennis.  AA554-55.  Daggett testified that he told Smith 
and Ennis to apologize, and "I thought they did.  I guess come to find out, they 
might not have.  I'm not sure."  AA788.  Daggett stated that he just assumed Ennis 
had apologized and never followed up with Smith to see if Smith had apologized.  
AA790.  Segovia testified that Smith wrote her a sarcastic e-mail later stating "I 
have been told I have to apologize to you about the e-mail, but I don't understand, 
Marla, why you just can't take a joke."  AA556.  Segovia never received any sort 
of apology from Ennis.  AA556,558-59.  Ennis testified that Daggett did ask him to 
send a written apology to Segovia but he "refused to do it."  AA386,391-92.  
     Ennis claimed he forwarded the e-mail to Daggett because he was "throwing 
Smith under the bus" - that is, even though Ennis and Smith were friends Ennis 
thought Daggett should and would reprimand Smith for sending such an e-mail.  
AA386,389-90.  However, Ennis admitted that in his deposition he had explained 
simply that he forwarded the exchange to Daggett because Smith "has a history of 
kind of being a comedian sort of, and I just sent it over there as a stupid story.  I 
mean, just because [Smith] appeared to have gotten pretty creative - pretty creative 
of this vulgar stuff and I just sent it over there."  AA388.  Daggett testified that "I 
think those two guys . . . were just joking around with each other, e-mailing each 
other back and forth, just messing around, is what it looks like to me."  AA880-81.
     A few days later, Segovia mentioned the e-mail to Carter.  AA554,592-93.  
Carter said "I know about the e-mail" but "You need to go - just go back to work.  
That can't stop production."  AA554-55.
     Segovia testified she did not personally write Smith (her subordinate) up 
because "they would have laughed at that."  AA557.  She also testified that "I was 
really powerless over [Smith]" because of his close relationship with Daggett.  
AA558,660.  She stated "I mean, I really felt they [i.e., Daggett and Carter] needed 
to be the ones responsible for reprimanding them for that."  AA557.  However, 
Segovia testified, Daggett and Carter "didn't do anything about it" at all.  AA555.
     Less than one month later, on October 4, 2001, Daggett issued to Segovia an 
"Employee Warning Notice" and a "New Pay Plan."  AA593,982-83,984.  Both 
documents were delivered to Segovia at the same time in the same envelope, 
"folded together" and sealed with a "sticky note" from Daggett stating "Marla, sign 
and return."  AA562-63,982.  Neither Daggett nor Carter had ever mentioned to 
Segovia that they were considering changing her pay plan.  AA580,721,732-
33,873.
     The warning chastised Segovia for "lateness," "working on personal 
matters," and "unsatisfactory work quality."  AA983.  The notice stated that 
Segovia was late "nearly every morning."  AA983.  It also indicated that 
"[s]alespeople are complaining that you are not available to work deals because of 
personal calls and leaving for hours at a time."  AA983.
     Segovia adamantly denied all of the allegations in this Employee Warning 
Notice.  She stated there was "nothing in there that was accurate about me."  
AA630,578,706.  She admitted being late to work, but testified that many other 
managers like Finance Manager Chris Wood and Fleet Manager Wade Rutter were 
often late, too.  AA494,571.  She testified that after Smith joined the management 
staff as Assistant Finance Manager "there were times we would actually call him 
and wake him up."  AA576.  Ennis also testified that other male managers were 
sometimes late.  AA377.  Ennis admitted to being late to work himself, but said he 
thought Segovia was late more often than he was.  AA438,445.  Segovia testified 
just the opposite - that Ennis "and I were equally late, if he wasn't even more late 
than I was."  AA494-95,576.<12> Segovia also said that Daggett would "just make a 
joke or comment" whenever Ennis was late, and "that's it."  AA495.  Ennis 
testified that Daggett was "pretty laid back, and he might have said something to 
me" about being late, "but I didn't receive a written warning for being late from 
him."  AA376,378,446.  Daggett acknowledged he never wrote Ennis up for being 
late.  AA805,810,799.  Daggett also testified that others were late to work and 
admitted that Segovia was the only sales manager he had ever written up for being 
late.  AA799.
     Segovia denied that she would "just disappear for long periods of time."  
AA570.  She indicated that none of her salespeople ever complained to her about 
being unavailable.  AA665.  She testified that there could have been occasions 
when people perceived that she was not available because she was not physically 
in her office.  AA502.  She stated "I wasn't glued to my chair" and there "were 
times I would go into the title office and work on loans back there, check the 
inventory."  AA574.  She said she generally had her cell phone with her.  AA500.  
She also said that Ennis, by contrast, "wasn't there attentively like I was."  AA725.
     Segovia stated CDM never gave her any guidelines or instructions on what 
calls she could or could not make.  AA498.  She said she was "authorized to make 
any calls."  AA498.  She acknowledged using her cell phone to "call customers, 
look for dealer trades, child care arrangements, working with [other car 
dealerships], food, order out."  AA498-99.  However, she denied that she was 
talking on the phone a lot during the period in question.  AA664.
     Similarly, Segovia denied "working on personal matters" excessively.  She 
said "I mean, working until 7:00 or 8:00 at night, you check on your kids.  You 
might call the bank.  You might order lunch.  You could do a lot of things that - 
that working on personal matters, I mean, it was brief."  AA572.  She testified that 
other sales managers routinely took care of personal matters at work and/or let 
personal matters interfere with their work.  For example, she said that one of the 
managers used to leave the dealership practically every day at 3:00 to pick his kids 
up from school and drop them off at their babysitter's house.  AA577.  She also 
said that other managers would go to sporting events and various male employees 
would sometimes drink beer behind the dealership.  AA577.<13> She said "I don't 
feel that my [working on] personal matters w[as] any more [severe], and I was 
being productive.  I was making money for the dealership."  AA578.  Daggett 
testified that Segovia was the only sales manager he wrote up during this period for 
taking care of personal matters at work.  AA804.
     Ennis admitted he and other employees - including Daggett - drank beer on 
company premises.  AA379-80.  Ennis also testified he had never been written up 
for consuming alcoholic beverages at the dealership.  AA380-81.  In fact, Ennis 
admitted that there were no disciplinary write-ups whatsoever in his personnel file.  
AA377,446.  Daggett admitted he drank beer with salespeople at the dealership 
and testified he never wrote anyone up for doing so, even though he knew CDM's 
insurance company would not have approved of it and Carter had banned alcohol 
from company functions.  AA805-06,866,926-27.
     Segovia testified that she had "absolutely no idea" why Daggett would have 
indicated on the Employee Warning Notice that her "work quality" was 
"unsatisfactory."  AA571.  She stated that she was "making great sales in the new 
car department."  AA571.  Daggett even testified that "she did fine" as New Car 
Manager.  AA874.  He could not recall a single time when Segovia had missed her 
sales goals.  AA945.
     The New Pay Plan required both Ennis and Segovia to start sharing sixty 
percent of their combined commissions.  AA566,984.  Since Segovia had routinely 
generated greater revenue than Ennis had, it appeared to Segovia that the New Pay 
Plan effectively reduced her compensation and increased his.  AA566.  Segovia 
testified that she "never put the pencil to test that day" to ascertain for sure that her 
compensation would decrease under the New Pay Plan.  AA730.  However, she 
stated, "I knew my old pay plan" and "if you compare the two, you would see - it's 
just immediate looking at it, you would know the difference."  AA730.  She said 
that "I felt like I was giving up half my income to Mr. Ennis, and I was working 
hard" and "I didn't see any reason for this."  AA566,725.  Ennis testified that the 
New Pay Plan "equaled" their salaries and there would be "no more instances" of 
Segovia making more money than he was making.  AA397,428.
     According to Daggett, a purpose of the New Pay Plan was to reduce salaries 
dealership-wide because CDM had allegedly been paying its salespeople about 
fifteen to twenty percent over-market.  AA815,819-20,873,893,895.  Daggett 
indicated that Segovia and Ennis were the only ones who received a New Pay Plan 
at that time.  AA818-19,825.  Daggett stated that the New Pay Plan represented a 
"reduction in pay" for "both of them."  AA895,946.  However, Daggett also 
testified that CDM "ran the numbers" to "make sure that it wouldn't be something 
that would absolutely lower their pay or whatever."  AA817.  Daggett said that 
"we figured it came out to about the same thing.  [Segovia] might have construed it 
was lower or whatever, but it might have raised her pay, for all she knew."  
AA826-27.
     Another reason for the New Pay Plan, Daggett testified, was to eliminate the 
conflict between Segovia and Ennis over trade-in values.  AA815,870-71,893.  
Daggett stated that by making sixty percent of their pay the same for each of them 
there would be "no incentive for anybody to under-value or over-value or 
whatever."  AA716.  However, Segovia testified that there "could have been so 
many other ways of eliminating the competition between Mr. Ennis and myself."  
AA645,579.
     Segovia testified that "[t]here was a message in that envelope that day."  
AA723,732-33.  She said "I just felt that the write-up is discriminatory" because it 
was "in the same envelope as the new pay plan, and it was a message given to me 
that, you know, we are reprimanding you and not Mr. Ennis, not Mr. Smith.  We 
are reprimanding you for stuff that you haven't done."  AA579,673,732-33.  She 
said having to give "half of my income" to Ennis "after the e-mail, after the vulgar 
gestures and verbiage, I felt that it was another way of, 'Marla, shut up.  Marla, just 
work.'"  AA579-80,725.  She said "it seemed to me as if they were - they were 
like driving me out."  AA579,725.
     She said she also thought the Employee Warning Notice and the New Pay 
Plan were "retaliatory" and that Daggett was "trying to build a case in my 
personnel file against me going to EEOC about the behaviors at the dealership."  
AA629-30.  Segovia immediately informed Daggett that the Employee Warning 
Notice and New Pay Plan were "unacceptable" and "unfair."  AA578.  She also 
told Daggett that the New Pay Plan was discriminatory, and that Daggett should be 
writing up Ennis instead.  AA672-73,725.  She testified that she threw the 
documents down on Daggett's desk and told him "I felt as if they were trying to 
drive me out of the dealership."  AA580.  Daggett told her she was being 
"emotional."  AA578.
     Segovia then resigned that same day.  AA593.  She testified that while she 
had been "excited" and "proud" when she first became New Car Manager, 
"slowly, but surely" her feelings turned to "humiliation."  AA596.  Segovia had 
come to the realization that she "wasn't regarded as a manager anymore, that I was 
more a powerless woman."  AA596.  She also stated that she "didn't feel any 
respect" and "didn't feel any authority" and felt "degraded."  AA599.  She said "I 
was given this position, and I had no way of making things work.  I was wanting to 
find a solution, and I couldn't make this work.  And then the e-mails started, and 
when the vulgarities started, it was just, 'Why isn't somebody stopping this?'"  
AA596.  She said "after a certain point it bec[a]me so pervasive" and "I would 
reach out this way and that way, and there was no solution."  AA597-98.  At that 
point she concluded that "that job was not life anymore, and especially if this is the 
way it's going to be.  If it wasn't going to change, this is not life anymore."  
AA599.  She stated "I couldn't do it anymore.  I couldn't give up my children's 
life for this anymore."  AA599,729.
     She told Daggett "I'm done.  I can't do this position anymore.  I can't be in 
this target position anymore."  AA583.<14> She said she suggested to Daggett that 
maybe she could do something else at the dealership (e.g., serve as a "fill-in") 
instead.  AA583.  She testified that she made this suggestion because "I wasn't 
sure financially if I could handle it at that point.  That was going to wipe my family 
out financially."  AA583.  She testified that she only considered this possibility "on 
the day I left."  AA610.
     Segovia testified that Carter once told her specifically that he would not fire 
anyone.  AA720.  He said simply "I will make their life a living hell until they 
leave."  AA720.  After Segovia left CDM, Carter told Chris Wood that it was 
"good" that Segovia was now "at home with her kids" because "that's where she 
should be."  AA587.  Fleet Manager Wade Rutter then took Segovia's place as 
New Car Manager.  AA429.  He was subject to the same New Pay Plan.  AA429.
     Segovia filed a charge with the EEOC on May 30, 2002.  R.48 Exh.A.  This 
suit followed.
SUMMARY OF ARGUMENT
	The district court erred in granting CDM's motion for judgment as a matter 
of law on each of the claims the Commission brought on behalf of Segovia.  First, 
the EEOC introduced enough evidence at trial to enable a reasonable fact finder to 
determine that CDM subjected Segovia to a hostile work environment because of 
her sex.  The cumulative sex-based and sex-related comments and conduct Segovia 
suffered while working at CDM were sufficiently severe and/or pervasive to 
constitute actionable harassment.  In ruling that no reasonable jury could reach this 
conclusion, the district court violated Rule 50 principles and ignored the 
substantive legal standards governing hostile work environment claims (e.g., by 
failing to consider the totality of the record evidence and making other legal errors, 
such as requiring the EEOC to show severe and pervasive harassment).
     Second, the Commission also proffered sufficient proof at trial to allow a 
reasonable jury to find that CDM discriminated against Segovia unlawfully 
because of her sex and/or retaliated against her because she complained about sex-
based discrimination at the dealership by issuing the Employee Warning Notice 
and imposing the New Pay Plan.  The Supreme Court has ruled that a plaintiff may 
survive judgment as a matter of law on claims such as these by proving a prima 
facie case of discrimination and showing that the defendant's alleged non-
discriminatory explanation for its actions is pretextual.  Given the abundant 
evidence amassed by the Commission, a reasonable jury could easily find that the 
EEOC had met this burden.  In concluding otherwise, the district court 
inappropriately found facts in CDM's favor.
     Third, the district court also wrongly ruled that the EEOC had not proffered 
sufficient evidence to support the Commission's claim of constructive discharge.  
Under Supreme Court and this Court's precedent the standard for constructive 
discharge is an objective one.  The proper inquiry is whether a reasonable person in 
the victim's situation would have felt compelled to reason - whether the 
discrimination suffered on-the-job was of such a magnitude that resignation would 
qualify as a "fitting response" to it.  Here, given the unrelenting and unremedied 
barrage of sex-based epithets, cruel jokes, humiliating treatment, and even veiled 
threats Segovia endured - and/or given that CDM disciplined Segovia on trumped 
up charges and cut her pay while rewarding one of her male harassers with an 
increase in pay - a reasonable jury could quite plausibly conclude that she had no 
other choice but to quit.  In ruling for CDM, the district court misconstrued the 
pertinent record evidence on this claim.
     Finally, the district court erred in ruling that the EEOC's case was 
"frivolous, unreasonable, or without foundation" and that CDM was thus entitled 
to an unspecified amount of attorney's fees.  The district court apparently reached 
this conclusion simply because the EEOC did not prevail at trial and because the 
district court did not want to "penalize" CDM with the costs of defending against 
this action.  However, in awarding attorney's fees here, the district court 
discounted the abundant evidence the EEOC proffered at summary judgment and 
introduced at trial supporting the Commission's claims - evidence that easily 
should have foreclosed any finding that its case was frivolous.  The district court 
clearly contravened the Supreme Court's carefully-crafted and long-standing 
standard for determining when a prevailing Title VII defendant is entitled to 
attorney's fees.

ARGUMENT
I.	THE DISTRICT COURT ERRED IN GRANTING CDM'S MOTION 
FOR JUDGMENT AS A MATTER OF LAW.
     
     This Court reviews the district court's grant of CDM's Rule 50 motion de 
novo and applies the same standard the district court should have used to evaluate 
the evidence.  Riske v. King Soopers, 366 F.3d 1085, 1088 (10th Cir. 2004) (citing 
Thompson v. State Farm Fire & Cas. Co., 34 F.3d 932, 941 (10th Cir. 1994)). 
When a defendant seeks judgment as a matter of law, "the controlling question 'is 
whether the plaintiff has arguably proven a legally sufficient claim.'"  Bristol v. 
Bd. of County Commr's, 312 F.3d 1213, 1216-17 (10th Cir. 2002) (quoting 
Turnbull v. Topeka State Hosp., 255 F.3d 1238, 1241 (10th Cir. 2001)).  Dismissal 
under Rule 50(a) is proper "only if the evidence points but one way and is 
susceptible to no reasonable inferences which may support the opposing party's 
position."  Id. at 1088 (quoting Davis v. U.S. Postal Serv., 142 F.3d 1334, 1339 
(10th Cir. 1998)); see also Fed. R. Civ. Proc. 50(a).
     In entertaining a Rule 50 motion, the court must "review all of the evidence 
in the record."  Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 
(2000).  However, it must "disregard all evidence favorable to the moving party 
that the jury is not required to believe" and "give credence to the evidence favoring 
the nonmovant."  Id. at 151.  When resolving the motion, the court must draw all 
reasonable inferences in favor of the nomoving party, may not make credibility 
determinations, and cannot weigh the evidence.  Id. at 150; see also Miller v. Eby 
Realty Group LLC, 396 F.3d 1105, 1110-11 (10th Cir. 2005) (same); Stewart v. 
Adolph Coors Co., 217 F.3d 1285, 1288 (10th Cir. 2000) (same).
     The district court erred under this standard when it granted CDM's motion 
for judgment as a matter of law with respect to the hostile work environment, 
disparate treatment, retaliation, and constructive discharge claims the EEOC 
brought on behalf of Segovia.  The evidence the Commission proffered at trial was 
sufficient to allow a reasonable jury to find for the EEOC on any of these claims.  
Accordingly, this Court must reverse the district court's ruling on the merits.
A. 	The EEOC Proffered Sufficient Evidence at Trial to Allow a  
Reasonable Fact Finder to Conclude that CDM Is Liable for 
Subjecting Segovia to a Sex-Based Hostile Work Environment.

     Unlawful discrimination under Title VII includes harassment on the basis of 
sex.  See 42 U.S.C.  2000e-2(a)(1); 29 C.F.R.  1604.11(a).  As the Supreme 
Court and this Court have repeatedly held, an employer violates Title VII if it 
subjects an employee, because of the employee's sex, to a workplace permeated 
with unwelcome "discriminatory intimidation, ridicule, and insult" that is 
"sufficiently severe or pervasive to alter the conditions of [the victim's] 
employment and create a[] [hostile or] abusive working environment."  Meritor 
Sav. Bank, FSB, v. Vinson, 477 U.S. 57, 65-67 (1986); Harris v. Forklift Sys., Inc., 
510 U.S. 17, 21 (1993) (same); Oncale v. Sundowner Offshore Servs., Inc., 523 
U.S. 75, 78 (1998) (same); Pa. State Police v. Suders, 542 U.S. 129, 146-47 (2004) 
(same); Chavez v. Thomas & Betts Corp., 396 F.3d 1088, 1096 (10th Cir. 2005) 
(same); Sandoval v. City of Boulder, 388 F.3d 1312, 1327 (10th Cir. 2004) (same); 
see also 29 C.F.R.  1604.11(a)(3).  According to the Supreme Court:
This is not, and by its nature cannot be, a mathematically precise 
test. . . .  [W]hether an environment is "hostile" or "abusive" can be 
determined only by looking at all the circumstances.  These may 
include the frequency of the discriminatory conduct; its severity; 
whether it is physically threatening or humiliating, or a mere offensive 
utterance; and whether it unreasonably interferes with an employee's 
work performance. . . .  [N]o single factor is required.

Harris, 510 U.S. at 22-23; see also Oncale, 523 U.S. at 81-82 (similarly stressing 
the need to look at "all the circumstances"); Chavez v. N.M., 397 F.3d 826, 832-33 
(10th Cir. 2005) (same); Penry v. Fed. Home Loan Bank, 155 F.3d 1257, 1262 
(10th Cir. 1998) (same).
     Here, a reasonable jury easily could have concluded that Segovia was 
subjected to severe or pervasive harassment because of her sex.  Carter - CDM's 
majority owner - made numerous sex-based comments to Segovia.  He commented 
on her "motherly" instincts.  He talked about women's nipples.  He insinuated that 
Segovia's husband could get a good deal on a CDM vehicle because she was 
performing sexual acts with him.  He singled Segovia out, in front of a roomful of 
male managers, by telling her she needed a book on "women in management" (and 
he later highlighted the differences between women and men, telling her that 
"women have to take more of a bitch approach").  He told Segovia "I don't want a 
whole bunch of damn women working here," that "men don't like to work with 
women," that "men like to dicker with men," and that women brought "emotional 
baggage and problems" to the workplace.  He refused to discipline Ennis even after 
he personally witnessed Ennis call Segovia a "bitch" and tell her to "f..k off" (and 
instead ordered her to stay in the conversation with Ennis if she wanted to keep her 
job).  He completely dismissed Segovia's complaint about the Smith/Ennis "nasty 
crotch" e-mail exchange by telling her not to let it "stop production."  After 
Segovia resigned, he stated that it was "good" she was "at home with her kids" 
because "that's where she should be."
     Daggett - CDM's other owner - also subjected Segovia to sex-based 
harassment.  He failed to reprimand Belden for calling Segovia a "bitch."  He also 
refused to discipline Griffin, even though Griffin also called Segovia a "bitch," 
told Segovia she "reminded him of his F'ing ex-wife," and implicitly threatened 
Segovia by indicating that he "used to beat" his ex-wife.  Daggett focused instead 
on making sure Griffin returned to work because he "sold a lot of cars."  He said 
the fact that Ennis told Segovia "F..k you Bitch" and "flipped her off" "didn't 
sound like a big deal to me" and he did nothing to reprimand Ennis for it.  Daggett 
also declined to "write up" Smith or Ennis for their e-mails - an exchange 
containing three separate references to "balls," again referring to Segovia as a 
"bitch," and commenting on her "nasty f...ing skirt," her "panties," and her "nasty 
crotch."  To the contrary, Daggett apparently fostered a working environment in 
which male employees felt free to forward such degrading e-mails about Segovia 
among themselves and to Daggett himself, and gave his male employees the 
impression that even though he was the General Manager of the dealership he 
would entertain such vulgarities, finding them to be "pretty creative" and "funny."  
By contrast, Daggett disciplined Segovia allegedly for committing infractions 
Segovia testified she never committed and/or for pursuing personal business at 
work while male employees admitted to engaging in such conduct and worse - like 
being consistently late to meetings, drinking beer on company property, calling 
Segovia "bitch," "flipping her off," making veiled physical threats, and sending 
explicit and derogatory e-mails referencing her genitalia - with impunity.
     In determining at trial and in post-trial rulings that this was not actionable 
harassment, the district court misapplied governing law and failed to properly 
evaluate the EEOC's evidence.  For example, the district court rendered a 
"conclusion of law" stating that "the fact that Mr. Ennis was not formally 
reprimanded for calling Segovia a 'bitch' is insufficient to establish gender bias" 
and "Segovia failed to establish that she was the object of harassment because of 
her gender."  AA104.  If, by this, the district court meant that Carter and/or 
Daggett had not harassed Segovia specifically because of her sex, this conclusion 
is not sustainable.  All of the comments and conduct the EEOC emphasized at trial 
were sex-specific or sex-related.  See, e.g., Oncale, 523 U.S. at 80 (recognizing 
that "harassing conduct need not be motivated by sexual desire to support an 
inference of discrimination on the basis of sex" and finding that a "trier of fact 
might reasonably find such discrimination, for example, if a female victim is 
harassed in such sex-specific and derogatory terms . . . as to make it clear that the 
harasser is motivated by general hostility to the presence of women in the 
workplace"); Riske, 366 F.3d at 1091 ("We consider evidence of all conduct that is 
either gender-based or has 'gender-related implications.'" (quoting Penry, 155 
F.3d at 1263)); Winsor v. Hinckley Dodge, Inc., 79 F.3d 996, 1000 (10th Cir. 1996) 
("Sexual epithets" such as "bitch" are "intensely degrading to women" (collecting 
cases)); see also Chavez v. N.M., 397 F.3d 826, 836 (10th Cir. 2005) (calling 
plaintiff a "f...ing bitch" was "severe" sex-based harassment).
     The district court's view that "[t]aking any comments made by Mr. Carter in 
the context of Ms. Segovia having been consistently promoted" it "cannot be 
inferred that any of the comments Segovia attributes to Alva Carter interfered with 
her work performance," AA104, similarly reflects the district court's flawed 
analysis.  Carter had nothing to do with Daggett's decisions to promote Segovia to 
Finance Manager or New Car Sales Manager.  Moreover, the EEOC was not 
obligated to show that Segovia's work performance was affected by the 
harassment - only that her working conditions had become abusive or hostile.  See, 
e.g., Harris, 510 U.S. at 22-23 (clearly indicating that whether harassment 
interferes with an employee's work performance is but one, non-dispositive factor 
to consider in determining whether a work environment has become sufficiently 
abusive or hostile).
     The district court similarly erred in ruling that the Smith/Ennis e-mail 
exchange was "insufficient to establish the requisite severity and pervasiveness 
sufficient to support a hostile work environment claim."  AA104.  This "legal 
conclusion" misstates the law.  The EEOC did not have to establish, as the district 
court explicitly held, that the harassment was "severe and pervasive" - only that it 
was severe or pervasive.  See Meritor, 477 U.S. at 67; Smith v. N.W. Fin. 
Acceptance, Inc., 129 F.3d 1408, 1413 (10th Cir. 1997) ("The Meritor test is a 
disjunctive one, requiring that the harassing conduct be sufficiently severe or 
sufficiently pervasive.").
     Further, contrary to the district court's conclusion, the EEOC never argued 
that Segovia suffered a hostile work environment because of this e-mail exchange 
alone.  Rather we pointed to a plethora of harassing comments and conduct.  The 
district court erred in singling out this one (albeit serious) incident and ignoring the 
need to consider the totality of the EEOC's evidence - including evidence that 
numerous other female employees (Mandi Wood, Michelle Reid, and Joanne 
Richmond) were also subjected to sex-based harassment - in evaluating whether 
Segovia was subjected to severe or pervasive harassment.  See, e.g., Oncale, 523 
U.S. at 81-82 (emphasizing the need to consider the "constellation of surrounding 
circumstances" in these cases); Reeves, 530 U.S. at 150 (on a Rule 50 motion the 
court must review the record "taken as a whole"); Penry, 155 F.3d at 1262 
("Indeed, the very term 'environment' indicates that allegedly discriminatory 
incidents should not be examined in isolation."); Stahl v. Sun Microsys., Inc., 19 
F.3d 533, 538 (10th Cir. 1994) (holding that incidents of sexual harassment 
directed at employees other than the plaintiff may be used as proof that the 
plaintiff's work environment was hostile (citing Hicks v. Gates Rubber Co., 833 
F.2d 1406, 1415-16 (10th Cir. 1987))).
     Given the totality of the evidence the EEOC introduced at trial, a reasonable 
fact finder could have concluded that Segovia's supervisors subjected her to 
demeaning, degrading, intimidating, and insulting harassment precisely because 
she is a woman, and that this harassment was sufficiently severe or pervasive to 
have created an abusive or hostile working environment.  See, e.g., Suders, 542 
U.S. at 145 (finding that a supervisor's "power and authority invests his or her 
harassing conduct with a particularly threatening character" (internal citation 
omitted)); Winsor, 79 F.3d at 1000 ("It is beyond dispute that evidence that a 
woman was subjected to a steady stream of vulgar and offensive epithets because 
of her gender would be sufficient to establish a claim under Title VII." (quoting 
Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1539 (10th Cir. 1995))).  In fact, the 
district court concluded as much at summary judgment.  AA94 (ruling that "a 
reasonable jury could conclude, given the totality of the circumstances, that 
Segovia was subjected to a hostile work environment").
     For this reason, the district court's ruling granting CDM's motion for 
judgment as a matter of law on the EEOC's harassment claim must be reversed.
B.	The EEOC Proffered Sufficient Evidence at Trial to Allow a 
Reasonable Fact Finder to Conclude that CDM Disciplined 
Segovia and Reduced Her Compensation Because of Her Sex 
and/or Because She Complained about Discrimination at CDM.

     The EEOC also presented enough evidence at trial to enable a jury to find 
that CDM issued the Employee Warning Notice and instituted the New Pay Plan 
because of Segovia's sex and/or to retaliate against her for opposing practices 
made unlawful by Title VII.  The district court committed legal error in concluding 
otherwise.
     The Commission can prove its claim of disparate treatment and retaliation 
through circumstantial evidence using the burden-shifting framework formulated 
by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), 
and routinely applied by this Court.  See id.; see also Tex. Dep't of Cmty. Affairs v. 
Burdine, 450 U.S. 248 (1981); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 
(1993); Garrison v. Gambro, Inc., 428 F.3d 933, 936-37 (10th Cir. 2005) (sex 
discrimination); Tran v. Trs. of State Colls., 355 F.3d 1263, 1266-67 (10th Cir. 
2004) (retaliation).  Under this evidentiary scheme, a district court generally should 
not grant a defendant's Rule 50 motion if the plaintiff proffers sufficient evidence 
to create a genuine issue of fact as to the prima facie case and as to whether the 
defendant's explanation for its actions is pretextual.  See Reeves, 530 U.S. at 148-
49 (ruling that this combination of evidence enables a fact finder to conclude that 
discrimination was motivating the employer and thus renders judgment as a matter 
of law inappropriate); see also Miller, 396 F.3d at 1111-12 (same); Doebele v. 
Sprint/United Mgmt. Co., 342 F.3d 1117, 1135-36 (10th Cir. 2003) (same).
     The EEOC made this showing in this case.  A plaintiff may establish a prima 
facie case of sex discrimination by showing that (1) the charging party was a 
member of a protected class; (2) the charging party suffered an adverse 
employment action; and (3) the employer treated similarly situated employees 
outside the protected class differently or more favorably.  See, e.g., Orr v. City of 
Albuquerque, 417 F.3d 1144, 1149 (10th Cir. 2005); Trujillo v. Univ. of Colo. 
Health Sciences Ctr., 157 F.3d 1211, 1215 (10th Cir. 1998).  The EEOC met this 
burden at trial.  The evidence introduced by the EEOC established that Segovia 
was clearly a member of a protected class (i.e., she was female).  The evidence also 
showed that Segovia suffered an adverse employment action (i.e., as part of one 
punitive measure, CDM issued the Employee Warning Notice and imposed the 
New Pay Plan, effectively reducing her pay).  See, e.g., Medina v. Inc. Support 
Div., 413 F.3d 1131, 1137 (10th Cir. 2005) (finding that "[d]isciplinary 
proceedings, such as warning letters and reprimands, can constitute an adverse 
employment action") (citing Roberts v. Roadway Express, Inc., 149 F.3d 1098, 
1104 (10th Cir. 1998); Marx v. Schnuck Markets, Inc., 76 F.3d 324, 329 (10th Cir. 
1996)); see also Orr, 417 F.3d at 1150 (actions which deprive a plaintiff of 
compensation she otherwise would have earned "clearly constitute adverse actions 
for purposes of Title VII") (internal citation omitted); Annett v. Univ. of Kan., 371 
F.3d 1233, 1239 (10th Cir. 2004) (the concept of "adverse employment action" 
certainly encompasses monetary losses in the form of decreased wages or 
diminished benefits).<15> Finally, the evidence revealed that a similarly situated male 
employee - Ennis - was treated more favorably (i.e., CDM never disciplined Ennis 
for any of his workplace infractions and actually increased his pay at the same 
time it decreased Segovia's pay).  The EEOC thus established a prima facie case of 
sex discrimination.
     A plaintiff can create a prima facie case of retaliation by demonstrating that 
(1) the charging party engaged in protected opposition to discrimination; (2) the 
charging party suffered an adverse employment action; and (3) there is a causal 
connection between the protected opposition and the adverse action.  See, e.g., 
Maldonado v. City of Altus, 433 F.3d 1294, 1308-09 (10th Cir. 2006); Dick v. 
Phone Directories Co., Inc., 397 F.3d 1256, 1267 (10th Cir. 2005) (same).  Here 
again, the EEOC satisfied this standard.  Segovia engaged in protected opposition 
to discrimination (i.e., she complained to Carter and Daggett on multiple occasions 
about the sex discrimination she was experiencing at the dealership).  See Orr, 413 
F.3d at 1136 (protected "opposition" includes complaining informally to 
supervisors); Hertz v. Luzenac Am., Inc., 370 F.3d 1014, 1015 (10th Cir. 2004) 
(same).  As already noted, Segovia suffered an adverse employment action.  See, 
e.g., Hillig v. Rumsfeld, 381 F.3d 1028, 1031-33 (10th Cir. 2004) (the standard for 
an "adverse action" in a retaliation case is the same in this Circuit as the standard 
for other (e.g., sex) discrimination claims).<16> Finally, the EEOC established the 
necessary causal connection between the protected activity and the adverse action 
(i.e., the evidence showed that Daggett issued the Employee Warning Notice and 
imposed the New Pay Plan less than one month after Segovia made her final 
complaint to Daggett and Carter about the Smith/Ennis e-mail exchange).  See, 
e.g., Meiners v. Univ. of Kan., 359 F.3d 1222, 1231 (10th Cir. 2004) (the requisite 
causal connection can be established by showing that the adverse action was taken 
six weeks after the protected opposition); Anderson v. Coors Brewing Co., 181 
F.3d 1171, 1179 (10th Cir. 1999) (assuming a lapse of over two months is even 
enough to support an inference of retaliation).  The Commission thus also created a 
prima facie case of retaliation.
     A plaintiff can show pretext by revealing "'such weaknesses, 
implausibilities, inconsistencies, incoherencies, or contradictions in the employer's 
proffered legitimate reasons for its action that a reasonable factfinder could 
rationally find them unworthy of credence.'"  Plotke v. White, 405 F.3d 1092, 1102 
(10th Cir. 2005) (quoting Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 
1997)); see also Miller, 396 F.3d at 1111 (explaining that "[p]retext exists when an 
employer does not honestly represent its reasons").  At trial, the EEOC presented 
enough evidence to enable the jury to find that the reasons CDM gave for issuing 
the Employee Warning Notice and imposing the New Pay Plan were pretextual.
     CDM contended that Daggett gave Segovia a written warning because she 
was repeatedly late, talked on the phone too much, and disappeared for hours at a 
time.  Segovia's testimony directly contradicted these claims.  Further, it is 
undisputed that Daggett never wrote Ennis up for being late - even though he was 
late as or more often than Segovia was.  Daggett never issued written reprimands 
to any male subordinates for similar or more egregious workplace violations (such 
as drinking beer on CDM premises, leaving in the middle of most days to take kids 
to babysitters, attending sporting events, sending derogatory and sexually explicit 
e-mails, calling Segovia a "bitch" on multiple occasions, "flipping her off," 
making veiled physical threats, erupting violently and smashing plates against the 
workplace walls, etc.).  Given that Daggett did not deem it necessary to correct or 
discipline male employees who committed arguably more serious infractions, his 
purported concern with correcting Segovia's alleged shortcomings seems 
implausible.  In addition, since Daggett testified that Segovia always met her sales 
goals and was performing fine as New Car Manager (indeed, she was working 
diligently enough to be making more money than anyone at the dealership except 
Daggett), his supposed concern with her "unsatisfactory work quality" seems 
particularly suspect.
     Daggett claimed he devised the New Pay Plan to eliminate the conflict 
between Segovia and Ennis.  Yet, the New Pay Plan affected only sixty percent of 
their commissions and the conflict would still have persisted with respect to the 
remaining forty percent.  Moreover, Ennis himself testified that Daggett fostered 
this competition on purpose since he thought their conflict was good for business.  
In addition, Daggett never discussed the New Pay Plan with Segovia before issuing 
it.  He thus had no way of knowing whether the new arrangement would placate 
his sales managers or how they would react to it.  In fact, given that the New Pay 
Plan would have required Segovia to relinquish much of her hard-earned 
commissions to Ennis - a man who had belittled and berated her - it seems 
implausible that Daggett really could have believed this "solution" would resolve 
their conflict (indeed, it would have been much more likely to intensify it).
     Daggett also claimed he initiated the New Pay Plan as part of a larger effort 
to reduce salaries dealership-wide.  However, only Segovia's compensation was 
negatively affected as a result (i.e., no other salespeople were given pay cuts at that 
time).  In addition, Daggett testified both that the plan was designed to reduce 
Segovia's and Ennis's salaries by fifteen to twenty percent and that they "ran the 
numbers" to "make sure that it wouldn't be something that would absolutely lower 
their pay" and "we figured it came out to about the same thing."  This conflicting 
testimony simply cannot be reconciled.
     In short, CDM's explanation for its actions is internally inconsistent, 
contradictory, implausible, and unworthy of credence.  A reasonable jury could 
thus find CDM's purportedly non-discriminatory rationale pretextual and find that 
the real reason that Daggett disciplined Segovia and reduced her compensation was 
sex-based discrimination and/or retaliation.  That is, a fact finder could conclude 
that the Employee Warning Notice and New Pay Plan were imposed on Segovia 
because she was a woman (e.g., and Daggett wanted to treat his "right hand man" 
Ennis more favorably) and/or because Segovia had complained (per Daggett, 
Segovia had "threatened" to go to the EEOC).  These claims should have gone to 
the jury.  Indeed, the district court concluded as much at summary judgment.  
AA96,98 (ruling that "the EEOC has sufficient evidence to make a prima facie 
case under the [McDonnell Douglas] analysis" and "from which a reasonably jury 
could find Defendant's justification pretextual"; also finding that "a reasonable 
jury could find that Segovia was retaliated against because of her opposition to 
workplace discrimination").
     The district court further erred by weighing the evidence, determining 
credibility, and/or drawing inferences in the light most favorable to CDM.  Despite 
evidence suggesting the contrary, the district court issued a "finding of fact" that 
"[a]s part of an overall salary reduction effort, and in order to equalize the pay 
between the New and Used Car Manager, Ms. Segovia and Mr. Ennis received a 
new pay plan."  AA103.  Thus, the district court essentially resolved the 
conflicting evidence by finding as fact that Daggett issued the New Pay Plan for 
the reasons Daggett gave.  In doing so, the district court clearly usurped the role of 
the jury.<17>
     In addition, the district court provided a "conclusion of law" that "[n]either 
the New Pay Plan nor the Warning notice was shown to have a discriminatory 
purpose or effect, nor did the evidence pertaining to either document support a 
retaliation claim."  AA105.  This conclusion cannot be sustained.  As explained 
above, if the district court had properly interpreted and applied the relevant 
substantive law, it should have concluded that the EEOC presented enough 
evidence at trial to create a prima facie case of sex discrimination and retaliation, 
and to show that CDM's rationale was pretextual - and thus to enable a reasonable 
fact finder to conclude that CDM discriminated against Segovia on the basis of her 
sex and/or retaliated against her.  For these reasons, the district court's decision 
granting CDM's Rule 50 motion should be reversed.


C.	The EEOC Proffered Sufficient Evidence at Trial to Allow a 
Reasonable Fact Finder to Conclude that Segovia Was 
Constructively Discharged.	 

     Similarly, the district court should not have granted judgment as a matter of 
law on the Commission's constructive discharge claim.  The Supreme Court 
recently enunciated the standard for determining whether an employer has 
constructively discharged an employee for Title VII purposes.  In Pennsylvania 
State Police v. Suders, 542 U.S. 129 (2004), the Supreme Court explained that:
Under the constructive discharge doctrine, an employee's reasonable 
decision to resign because of unendurable working conditions is 
assimilated to a formal discharge for remedial purposes. . . .  The 
inquiry is objective:  Did working conditions become so intolerable 
that a reasonable person in the employee's position would have felt 
compelled to resign?

Suders, 542 U.S. at 141; id. at 134 (similarly holding that to establish constructive 
discharge, the plaintiff must "show that the abusive working environment became 
so intolerable that her resignation qualified as a fitting response"); Exum v. U.S. 
Olympic Cmte., 389 F.3d 1130, 1135 (10th Cir. 2004) (same (citing Suders)); 
Sandoval, 388 F.3d at 1325 (applying essentially the same objective standard pre-
Suders and requiring that the employee have "no other choice but to quit" 
(emphasis in original)).  This Court has held that, "[i]n determining whether an 
employee's working conditions would cause such feelings, we apply an objective 
test under which neither the employee's subjective views of the situation, nor her 
employer's subjective intent with regard to discharging her, are relevant."  Tran, 
355 F.3d at 1270; see also Derr v. Gulf Oil Corp., 796 F.2d 340, 343-44 (10th Cir. 
1986) (same).
     A reasonable jury could find that Carter's and Daggett's harassment and/or 
the discriminatory and/or retaliatory issuance of the Employee Warning Notice and 
imposition of the New Pay Plan were sufficient to compel a reasonable person in 
Segovia's position to resign.  Segovia was subjected to an unrelenting and 
humiliating barrage of sex-based and/or sexual epithets.  Her co-workers and even 
subordinates were effectively encouraged by CDM's top management to, and did, 
treat her with utter disrespect (e.g., called her "bitch," told her to "f..k off" in 
public, made veiled physical threats, sent degrading e-mails to the dealership's 
General Manager about her genitalia, etc.).  Company owners clearly ensured that 
she was a manager in name only, stripped her of any real authority, disciplined her 
on trumped-up charges while allowing male coworkers to commit similar or worse 
infractions without consequence, forced her to relinquish her hard-earned 
commissions to a man who had harassed her, and ignored her repeated complaints 
of discrimination.  Under the totality of these circumstances, a reasonable jury 
could have found that Segovia's decision to quit was a "fitting response" to this 
relentless discrimination.
	The district court, once again, inappropriately granted judgment as a matter 
of law for CDM on the Commission's constructive discharge claim applying 
erroneous legal analysis and inaccurate assessments of the record evidence.  For 
example, the district found as fact that Segovia "left her employment with 
Defendant because she realized her children were her first priority and that her job 
'wasn't worth it' anymore.'"  AA104.  In a "conclusion of law," the district court 
similarly stressed that "Segovia's own statement that she quit her job because it 
wasn't worth it anymore and her children came first further undermines any 
contention that she was constructively discharged" and "Segovia's admitted desire 
to return to work for Defendant eviscerates her contention that the workplace was 
intolerable."  AA105.  The district court also stated at trial that Segovia "said, if 
you recall, in her testimony, that she was quitting so that she could see her kids 
more.  She didn't say, 'I'm quitting because this place is bad.'  So she's just out of 
luck in my court."  AA979. 
     However, because Segovia's subjective views of the situation are not 
dispositive on the legal determination of whether constructive discharge occurred, 
the district court committed legal error in treating it as such, even if true.  See, e.g., 
Tran, 355 F.3d at 1270; Derr, 796 F.2d at 343-44.  But most importantly, the 
district court's characterization of the evidence misrepresents the actual testimony.  
Segovia did not testify that she quit because she wanted to spend time with her 
children - she stated she resigned because no reasonable person would continue to 
make the personal sacrifices she had been making to advance her professional 
career in the face of unrelenting discrimination.  And she did not say she 
definitively wanted to return to CDM - she testified she merely momentarily 
questioned her decision to resign upon contemplating the harsh financial 
consequences that accompanied her constructive discharge, and simply wondered 
whether returning to CDM in a less high-profile position might help mitigate the 
discrimination she had endured.  In any event, professing a desire to return to work 
one enjoys (with the hope and expectation that one would return to a harassment-
free environment) does not preclude a finding that an employee was nevertheless 
forced to quit because of intolerable conditions.  Cf. Davis, 142 F.3d at 1341 
("Title VII does not presume that the reasonable employee is incapable of 
separating the deleterious effects of a hostile environment from the aspects of the 
job which she enjoys and finds fulfilling, and it is in part intended to provide her 
with means to put an end to the hostile or abusive behavior so she can continue in 
otherwise desirable employment.")
     Viewed properly, therefore, the record evidence supports, and in no way 
eviscerates, the EEOC's constructive discharge claim.  The district court, in ruling 
to the contrary, made impermissible factual findings and failed to draw evidentiary 
inferences in the light most favorable to the EEOC.  Its "conclusion of law" that 
the EEOC presented insufficient evidence to support its claim of constructive 
discharge, AA104, simply cannot be sustained.
     In sum, the district court committed substantive legal errors and ignored 
well-established Rule 50 constraints in disposing of the EEOC's harassment, 
disparate treatment, retaliation, and constructive discharge claims.  For the same 
reasons, the district court also abused its discretion in denying the EEOC's timely 
motion to amend the district court's finding of facts and conclusions of law, to alter 
or amend its judgment and/or for a new trial.  See Chavez v. Thomas & Betts 
Corp., 396 F.3d 1088, 1095 (10th Cir. 2005).
II. 	THE DISTRICT COURT ERRED IN RULING THAT THE EEOC'S 
CASE WAS "FRIVOLOUS, UNREASONABLE, OR WITHOUT 
FOUNDATION."

     If this Court concludes that the district court erred in granting CDM's Rule 
50 motion and remands this case for a new trial, whether the district court also 
erred in ruling that CDM was entitled to attorney's fees will be mooted.  However, 
even if this Court does not reverse the district court's ruling on liability, it should 
still overturn the district court's attorney's fees finding.  Prevailing Title VII 
defendants may only recover attorney's fees in the most extraordinary of cases.  
This is not one of them.
     Under the Supreme Court's decision in Christiansburg Garment Co. v. 
EEOC, 434 U.S. 412 (1978), a district court can only award attorney's fees to a 
prevailing Title VII defendant if the plaintiff's cause of action was "frivolous, 
unreasonable, or without foundation."  See id. at 421; see also Hughes v. Rowe, 
449 U.S. 5, 14-15 (1980) ("The plaintiff's action must be meritless in the sense that 
it is groundless or without foundation."); Sorbo v. United Parcel Serv., 432 F.3d 
1169, 1181 (10th Cir. 2005) (same); Ferroni v. Teamsters, Chauffeurs, & 
Warehousemen Local No. 222, 297 F.3d 1146, 1153 (10th Cir. 2002) (same); 
English v. Colo. Dep't of Corr., 248 F.3d 1002, 1012 (10th Cir. 2001) (same).  The 
district court's decision to award attorney's fees is reviewed for abuse of 
discretion, but the district court's legal analysis on this issue is reviewed de novo.  
See, e.g., Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221, 1231 
(10th Cir. 1997) (holding that "'a district court's statutory interpretation or legal 
analysis which provides the basis for [a] fee award is reviewable de novo'" 
(quoting Homeward Bound, Inc., v. Hissom Mem'l Ctr., 963 F.2d 1352, 1355 (10th 
Cir. 1992))); Supre v. Ricketts, 792 F.2d 958, 961 (10th Cir. 1986) (same).<18>
     Here, the district court held that the EEOC's case met this high legal 
threshold.  In its attorney's fees ruling, the district court pointed out that it 
"allowed the claims brought on half of Segovia to proceed to trial because, viewing 
all evidence in the most favorable light to Plaintiff, summary judgment did not 
appear appropriate."  AA206.  However, the district court noted, a "plaintiff's 
obligation to avoid frivolous litigation is a continuing one" and "advocacy of a 
claim after it is clearly no longer tenable may subject the plaintiff to attorney's fees 
even if the complaint was not initially frivolous."  AA207-08.  The district court 
found that the "EEOC is charged with evaluating claims prior to filing suit and 
throughout the litigation process and the evidence marshaled in this case does not 
support the claims asserted."  AA209.  According to the district court, the EEOC 
"continued to wield its administrative authority and expend its time, money and 
efforts to pursue these claims even after it was apparent that they lacked merit."  
AA210.  The district court ruled that the EEOC "not only offered insufficient 
evidence to support its claims at trial, but was forced to concede many points that 
undermined and defeated those claims."  AA210.  Finally, the district court 
observed that CDM should not "be penalized for the Court's decision to allow the 
claims to proceed to trial."  AA208.  Consequently, the district court concluded, an 
award of attorney's fees to CDM was proper.  AA210.
     This ruling is untenable, for multiple reasons.  The mere fact that the EEOC 
did not actually prevail at trial does not mean the Commission's case was ever 
frivolous.  In Christiansburg, the Supreme Court explicitly cautioned that:
. . . [I]t is important that a district court resist the understandable 
temptation to engage in post hoc reasoning by concluding that, 
because a plaintiff did not ultimately prevail, his action must have 
been unreasonable or without foundation.  This kind of hindsight logic 
could discourage all but the most airtight claims, for seldom can a 
prospective plaintiff be sure of ultimate success. . .   To . . . assess[] 
attorney's fees against plaintiffs simply because they do not finally 
prevail would substantially add to the risks inhering in most litigation 
and would undercut the efforts of Congress to promote the vigorous 
enforcement of the provisions of Title VII.  Hence, 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.
     
Christiansburg, 434 U.S. at 421-22; see also Hughes, 449 U.S. at 14 ("The fact 
that a plaintiff may ultimately lose his case is not in itself a sufficient justification 
for the assessment of fees."); Campbell v. Cook, 706 F.2d 1084, 1086 (10th Cir. 
1983) (same); Nulf v. Int'l Paper Co., 656 F.2d 553, 564 (10th Cir. 1981) (same); 
Prochaska v. Marcoux, 632 F.2d 848, 853-54 (10th Cir. 1980) (same); EEOC v. 
Fruehauf Corp., 609 F.2d 434, 436 (10th Cir. 1979) (same).
     As explained above (in analyzing why the district court committed 
reversible error in granting CDM's Rule 50 motion), a reasonable jury could have 
found for the EEOC on any or all of the claims we presented at trial.  The evidence 
of discrimination the EEOC produced at trial was a fortiori sufficient to preclude a 
finding that the Commission's case was "frivolous, unreasonable, or without 
foundation."  See, e.g., Montgomery v. Yellow Freight Sys., Inc., 671 F.2d 412, 414 
(10th Cir. 1982) (refusing to find that the plaintiff's action was "frivolous, 
unreasonable, or without foundation" because "[t]here was some evidence of 
disparate treatment in the record" and holding that to award fees to a prevailing 
defendant "we must be persuaded that the record is devoid of any evidence of 
discrimination"); EEOC v. St. Louis-San Francisco Ry. Co., 743 F.2d 739, 744 
(10th Cir. 1984) (reversing an award of fees to a prevailing defendant because the 
EEOC had created a prima facie case of discrimination).  The fact that the district 
court itself found at summary judgment that the EEOC's case was meritorious 
enough to warrant a trial bolsters this view of the evidence.
     The district court's subsequent conclusion that the EEOC's case became 
frivolous - and that the EEOC should be charged with CDM's attorney's fees for 
failing to recognize this and continuing to litigate it - has no basis in fact or law.  
The district court apparently concluded that at some point, the EEOC suddenly 
should have recognized that its claims had become baseless and voluntarily 
dismissed its case.  The district court gave no reason for this conclusion and we 
can discern none.  Its assessment is all the more puzzling given that it denied 
CDM's motion for summary judgment in all important respects, ruling that, with 
the exception of the single claim brought on behalf of Richmond, every aspect of 
the EEOC's case was meritorious enough to warrant a trial.  AA99.  Nothing 
changed between summary judgment and trial, and nothing occurred at trial that 
should somehow have convinced the Commission to abdicate its case.<19> The 
EEOC certainly had no reason or duty to voluntarily dismiss its own claims before 
all of the evidence was even in (e.g., before the Commission had had the chance to 
cross examine CDM's witnesses) - which is when the district court summarily 
truncated the trial.  Because the district court's fees ruling is premised on the 
erroneous assumption that the Commission was obligated to abandon its 
meritorious case (apparently mid-trial), its finding that the suit was frivolous is 
untenable.  See Nulf, 656 F.2d at 564 (reversing an award of attorney's fees 
because the plaintiff's claims were not "groundless at the outset" and there were 
"factual issues in dispute which only a trial could resolve"); Fruehauf Corp., 609 
F.2d at 436 (reversing an award of fees against the EEOC, stating that "[t]here is 
nothing in the record before us to support the trial court's finding that the action 
was frivolous from its inception, or that in prosecuting the action EEOC was 
motivated by something other than good faith"); see also Pascouau v. Martin 
Marietta Corp., 185 F.3d 874 (10th Cir. 1999) (Table), 1999 WL 495621, at *10 
(reversing a grant of fees to a prevailing defendant because "the issues and 
evidence presented in this case called for careful consideration of several questions 
at trial, especially with regard to the severity and pervasiveness of the alleged 
sexually-harassing conduct in the workplace").
     Even the claim the EEOC brought on behalf of Richmond, which the district 
court dismissed at summary judgment, was hardly groundless.  The mere fact that a 
claim is dismissed prior to trial does not compel a finding of frivolousness.  
Indeed, the Supreme Court and this Court have ruled repeatedly that even cases 
that are dismissed for failure to state a claim are not necessarily "frivolous, 
unreasonable, or without foundation."  See Hughes, 449 U.S. at 15-16 (even 
"allegations that were properly dismissed for failure to state a claim" which 
"deserved and received careful consideration" (e.g., as evidenced by detailed 
district court opinions analyzing the claims) are not necessarily "groundless" or 
"without foundation" simply because they prove "legally insufficient to require a 
trial"); Ferroni, 297 F.3d at 1153 ("Claims that are dismissed for failure to state a 
claim are not automatically frivolous." (citing Jane L. v. Bangerter, 61 F.3d 1505, 
1513 (10th Cir. 1995))).  Here, CDM never filed a motion to dismiss for failure to 
state a claim and the EEOC marshaled enough evidence through discovery to 
continue litigating the claim.  AA54-55.  Notably, at summary judgment, the 
district court indicated that we had created a prima facie case that CDM had 
discriminated against Richmond on the basis of her sex.  AA96-97.  Thus, the 
EEOC should not be required to pay CDM's attorney's fees simply because the 
Commission did not voluntarily dismiss this claim before summary judgment.  See, 
e.g., Smith v. Josten's Am. Yearbook Co., 624 F.2d 125, 127 (10th Cir. 1980) 
(rejecting a defendant's argument that it was entitled to fees because the plaintiff 
should have known its case was frivolous and voluntarily dismissed it after 
discovery, noting that such "voluntary dismissal is, except in unusual 
circumstances, almost alien to our adversary system" and that "[o]nce a lawsuit has 
been commenced, it is the rare attorney who will voluntarily throw in the towel") 
(citing Olitsky v. O'Malley, 597 F.2d 303, 306 (1st Cir. 1979))); see also Dalal v. 
Alliant Techsys., Inc., 72 F.3d 137 (10th Cir. 1995) (Table), 1995 WL 747442, at 
*5-6 (affirming a district court's refusal to award fees to a prevailing defendant 
even though the district court had granted the defendant's motion for summary 
judgment); Twilley v. Integris Baptist Med. Ctr., Inc., 16 Fed.Appx. 923, 296 (10th 
Cir. 2001), 2001 WL 901102, at **2 (holding that the Christiansburg standard "is 
met when a party utterly fails to produce any evidence in support of material issues 
necessary to withstand summary judgment" (citing Head v. Medford, 62 F.3d 351, 
355 (11th Cir. 1995), and Smith v. Smythe-Cramer Co., 754 F.2d 180, 183 (6th Cir. 
1985))).  Indeed, the fact that the EEOC did voluntarily dismiss the hostile work 
environment claim it had initially brought on behalf of Richmond before summary 
judgment, R.49, demonstrates that the EEOC takes seriously its obligation to 
ensure that the claims it pursues in litigation are well-grounded.
     The district court's reluctance to "penalize" CDM for the district court's 
decision to deny summary judgment here is unfounded.  The Supreme Court 
weighed the relative interests of litigants when it devised the Christiansburg 
standard and ruled that prevailing Title VII defendants cannot recover fees unless 
the plaintiff's case is meritless.  Inasmuch as the Christiansburg standard already 
encompasses any legitimate concern that employers not be unduly burdened in 
defending claims of discrimination, and that standard clearly is not met in this case, 
the district court's concern about "penalizing" CDM is misplaced.  See, e.g., 
Montgomery, 671 F.2d at 414 (recognizing that "to penalize the plaintiff with 
attorneys' fees, we must be persuaded that the record is devoid of any evidence of 
discrimination" (emphasis added)).  The district court's ruling that the EEOC's 
case was "frivolous, unreasonable, or without foundation" should be overturned.
CONCLUSION
     For all the foregoing reasons, the EEOC's respectfully requests that this 
Court reverse the district court's grant of CDM's Rule 50 motion (on liability and 
punitive damages), 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.


STATEMENT REGARDING ORAL ARGUMENT
     This appeal requires this Court to analyze numerous legal issues central to 
the interpretation and enforcement of Title VII (e.g., whether the district court 
properly observed Rule 50 principles, correctly applied the governing legal 
standards to the EEOC's substantive claims, and accurately interpreted the 
Supreme Court's Christiansburg rule for awarding attorney's fees to prevailing 
Title VII defendants).  Given the importance of these matters, we believe oral 
argument would significantly aid this Court in resolving this appeal.



Respectfully submitted,

JAMES L. LEE
Deputy General Counsel

LORRAINE C. DAVIS
Acting Associate 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





ADDENDUM

  
     
Unpublished Opinions Cited in Appellant's Opening Brief



Dalal v. Alliant Techsys., Inc.
72 F.3d 137 (10th Cir. 1995) (Table), 1995 WL 74744



NOTICE:  THIS IS AN UNPUBLISHED OPINION.(The Court's decision is referenced in a "Table of Decisions 
Without Reported Opinions" appearing in the Federal Reporter. Use FI CTA10 Rule 36.3 for rules regarding the 
citation of unpublished opinions.)
United States Court of Appeals, Tenth Circuit.
Samir DALAL, Plaintiff-Appellee,
v.
ALLIANT TECHSYSTEMS, INC., doing business as Metrum Information Storage;  and Honeywell Inc., 
Defendants-Appellants.
No. 94-1483.
(D.C.No. 92-C-1065)

Dec. 18, 1995.


Before HENRY, HOLLOWAY, and MURPHY, Circuit Judges.

ORDER AND JUDGMENT FN1


FN1. This order and judgment is not binding precedent, except under the doctrines of law of the case, res 
judicata, and collateral estoppel.   The court generally disfavors the citation of orders and judgments;  
nevertheless, an order and judgment may be cited under the terms and conditions of the court's General 
Order.  151 F.R.D. 470 (10th Cir.1993).

*1 Alliant Techsystems, Inc. (Alliant) appeals the district court's order granting postjudgment relief to the plaintiff, 
Samir Dalal, and denying Alliant's motion for attorney's fees and costs.   We affirm in part, vacate in part, and 
remand the case for reconsideration by the district court.


BACKGROUND 

Mr. Dalal is a former employee of the defendant corporation.FN2  He was discharged in 1990 and thereafter filed a 
complaint against Alliant alleging age and national origin discrimination under Title VII, ERISA, the ADEA, and 
state law.   Prior to trial, the district court granted partial summary judgment in favor of Alliant on Mr. Dalal's Title 
VII claim and on his claim that Alliant breached the duty of good faith and fair dealing, and public policy under 
Colorado law (state law claim).   At that time, the district court denied Alliant's request for attorney's fees incurred in 
defending the dismissed claims.   Alliant subsequently made a comprehensive offer of judgment pursuant to 
Fed.R.Civ.P. 68 in the amount of $150,000.00, which was rejected by Mr. Dalal.


FN2. Although Mr. Dalal was actually an employee of Honeywell, Inc., Alliant Techsystems, Inc. is 
Honeywell's successor.   Thus, for the sake of efficiency we refer to Mr. Dalal's employer as "Alliant" 
throughout the opinion.

The case then proceeded to trial, where Mr. Dalal succeeded on his ADEA claim.   Although Mr. Dalal argued 
during trial that he had lost $159,300.00 due to his inability to find comparable work subsequent to his discharge, 
the jury returned a judgment in the amount of $36,075.00 for back pay damages.   The district court also awarded 
costs to Mr. Dalal.

Both parties filed post-trial motions.   Mr. Dalal's motions requested various forms of postjudgment relief including 
front pay or reinstatement, attorney's fees, and prejudgment interest.   Alliant's motion renewed its request for 
attorney's fees incurred in defending the claims that were dismissed and also requested costs.   After a hearing on 
these motions, the district court entered judgment in favor of Mr. Dalal and against Alliant.   Specifically, the district 
court determined that Mr. Dalal was entitled to $90,000.00 in front pay, $146,666.00 in attorney's fees-which 
included an award of $3,950.00 allowable to expert witness fees incurred by the plaintiff during trial, and $6,450.29 
in prejudgment interest.   The district court also denied Alliant's renewed request for attorney's fees and costs 
pursuant to Fed.R.Civ.P. 68.   Alliant now appeals that judgment in all respects.


DISCUSSION 

The ADEA provides a very liberal remedial scheme.   The pertinent provision reads:
In any action brought to enforce this chapter the court shall have jurisdiction to grant such legal or equitable relief as 
may be appropriate to effectuate the purposes of this chapter, including without limitation judgments compelling 
employment, reinstatement or promotion....

29 U.S.C. 626(b).  "The purpose of the equitable remedies under the ADEA is to make a plaintiff whole-to put the 
plaintiff, as nearly as possible, into the position he or she would have been in absent the discriminatory conduct."   
Sandlin v. Corporate Interiors, Inc., 972 F.2d 1212, 1215 (10th Cir.1992).   With these factors in mind, we discuss 
each portion of the district court's order separately below.


Front Pay

*2 In his motion for postjudgment relief, Mr. Dalal requested that he be reinstated or, in the alternative, that he be 
awarded front pay.   The district court made several findings in its judgment awarding front pay:
1.  That as concerns possible reinstatement for the Plaintiff, no local facilities of the defendant corporations now 
exist, although both defendant companies are doing business at locations outside of Colorado;
That the Court has received no indication from Plaintiff that he would be willing to move outside of the State of 
Colorado, to a job location where the defendant companies presently have operating facilities;
That testimony at the Trial established a great deal of evidence of hostile environment;  and
That, consequently, for all of the foregoing reasons, reinstatement of the Plaintiff appears not to be appropriate in 
this case.
2.  That a strong probability exists in the record that Mr. Dalal would have been laid off for legitimate business 
reasons at some date during the third year after his September 30, 1990 lay off.
3.  That the Plaintiff's annual net loss of future earnings, conservatively determined, is $35,000.00 per year (gross 
salary at Honeywell, Inc. of $55,000.00 per year less the sum of $20,000.00 which represents the Plaintiff's average 
annual earnings from part-time employment since his lay off).

Aplt.App. at 216-17.

During the hearing on this motion, the district court explained how it arrived at the $90,000.00 front pay award:
THE COURT:  Well, I find that there was a strong probability that Mr. Dalal would have been laid off for legitimate 
business reasons sometime before the time of the trial.   I can't exactly fix that, but the circumstances of the business 
indicate that.
....
I believe it would be excessive and unfair to award the plaintiff the amount that he's asking for front pay, but I 
believe it would also be improper to not award him any.
In these cases, the Court has to work on its best estimates.   If you take the difference as his $55,000 salary and total 
income at the time that he was laid off and subtract 20,000, the first year he would have lost $35,000, using rough 
figures.   If you assume that he would have continued in the job for two years, then he would have lost 70,000, for 
three years, 105,000.
My best estimate is that he would have been laid off sometime in that third year, judging by the circumstances of 
this company.
Therefore, I'm going to award him $90,000 in front pay.

Aplee. Supp.App. at 20-21.

Although reinstatement is the preferred remedy under the ADEA, this Court has recognized that front pay is 
available to compensate an ADEA plaintiff when reinstatement is not appropriate.   See EEOC v. Prudential Fed. 
Sav. & Loan Ass'n, 763 F.2d 1166, 1172 (10th Cir.), cert. denied, 474 U.S. 946 (1985).   "[A]n award of future 
damages in lieu of reinstatement furthers the remedial purposes of the ADEA by assuring that the aggrieved party is 
returned as nearly as possible to the economic situation he would have enjoyed but for the defendant's illegal 
conduct."  Id. at 1173.   However, this court has also held that "any award of front pay is limited by the estimated 
remaining tenure plaintiff would have enjoyed with his company absent the discriminatory conduct."  Sandlin, 972 
F.2d at 1215.   Thus, "When the defendant company has ceased to do business before judgment, plaintiff necessarily 
would have been discharged with the rest of the work force ... and front pay [is] inappropriate."  Id.

*3 Because front pay is an award of future damages, Alliant argues that the district court erred in awarding front pay 
because it also found a "strong probability" that Mr. Dalal would have been legitimately laid off prior to trial in any 
event.   Alliant also argues that because the jury only awarded Mr. Dalal $36,075.00 rather than the $159,300.00 he 
requested at trial, the jury must have determined that Mr. Dalal would have been legitimately terminated from his 
employment some time between his unlawful discharge and trial.   Thus, the Alliant argues, the district court's front 
pay award was in error and should be vacated.

After thoroughly reviewing the record in this case, we are unable to determine with certainty the basis of the district 
court's front pay award.   Although the district court repeatedly stated that it did not want to speculate as to why the 
jury awarded Mr. Dalal less than one-quarter of the amount he requested in back pay, the method the district court 
used to calculate the front pay award appeared to account for the probability that Mr. Dalal would have been laid off 
prior to trial.   Specifically, the court appeared to base the front pay award on what Mr. Dalal would have made 
during the three-year period before his trial, which was the period the court estimated Mr. Dalal would have worked 
prior to being legitimately laid off.

It therefore appears that the district court awarded Mr. Dalal front pay for the period after his discharge and prior to 
his trial.   As we have already stated, however, front pay is an alternative to the remedy of reinstatement, and thus it 
is an award of future damages.   Compensation for the period prior to trial constitutes back pay, a matter that was 
already submitted to the jury and that cannot be awarded again by the court as front pay.   Consequently, to the 
extent the district court intended the award to compensate Mr. Dalal for the period prior to trial, the district court 
was in error.   We therefore vacate the award of front pay and remand the case to the district court for 
reconsideration of its front pay award in light of these principles.   Any award of front pay by the district court on 
remand must be based on the amount the district court finds Mr. Dalal would have earned as an employee of Alliant 
after the trial if he could have been reinstated.FN3


FN3. We are mindful of the fact that the trial judge has resigned since this judgment was entered.   With 
respect to reconsideration which is required by this order and judgment, the judge assigned this case may 
on remand consider the present record or may have further proceedings that the judge feels advisable.

Plaintiff's Attorney's Fees 

Alliant also argues that the district court erred by awarding $146,666.00 to Mr. Dalal as reasonable attorney's fees.   
Alliant makes four general arguments, and we discuss each in turn.

First, Alliant argues that the district court erred by including $3,950.00 for expert witness fees incurred by Mr. Dalal 
at trial.   Mr. Dalal has conceded that the district court was in error on this point, and we agree.   See Gray v. Phillips 
Petroleum Co., 971 F.2d 591, 596-97 (10th Cir.1992) (holding that expert witness fees incurred by a plaintiff in an 
ADEA case are not recoverable as part of reasonable attorney's fees).   This portion of the district court's order must 
therefore be reversed.

*4 Second, Alliant argues that the amount of attorney's fees awarded to Mr. Dalal is unreasonable.  "The amount of 
an award of attorney's fees is within the discretion of the district court, and the appellate court reviews the award for 
abuse of discretion.   Even under this standard of review, great weight is given to the district court's determination of 
an appropriate fee."  Hall v. Western Prod. Co., 988 F.2d 1050, 1057 (10th Cir.1993) (citations omitted).   After 
thoroughly reviewing the record on appeal, we cannot say that the district court abused its discretion in this case.   In 
particular, we note that Mr. Dalal's motion was accompanied by an affidavit of a Denver attorney who attested that 
the customary rate in the Denver community is at least $10.00 an hour more than the rate charged by Mr. Dalal's 
attorney.   Additionally, Mr. Dalal has noted, and Alliant admitted at oral argument, that Alliant incurred an 
attorney's fee in excess of $200,000.00 in defending the action.   In light of these factors, we do not believe that the 
district court abused its discretion in this regard.

Third, Alliant argues that because it was granted summary judgment on Mr. Dalal's Title VII and state law claims, 
any award of attorney's fees should be discounted so that Mr. Dalal is not awarded fees for work performed pursuing 
those claims.   In his motion for attorney's fees, Mr. Dalal attached an affidavit of his attorney stating that, at most, 
ten percent of the total hours expended in this case were related to his Title VII claim.   He then reduced the 
requested amount of attorney's fees by ten percent, and the district court awarded the reduced figure.   We believe 
that the district court could have reasonably relied on this information to support an award of attorney's fees to Mr. 
Dalal.

Nevertheless, we note that Mr. Dalal's attorney apparently did not discount his fees for hours expended pursuing the 
state law claim.   This court has previously allowed a full fee award under the ADEA even though the award also 
reflected hours spent pursuing "unsuccessfully asserted state law claims."   See Spulak v. K Mart Corp., 894 F.2d 
1150, 1160 (10th Cir.1990).   In Spulak we recognized that a fee award "should not be reduced simply because the 
plaintiff failed to prevail on every contention raised in the lawsuit' " so long as the plaintiff's claims were based on 
"a common core of facts or on related legal theories" and the plaintiff obtained "excellent results."   Id. (quoting 
Hensley v. Eckerhart, 461 U.S. 424, 435 (1983)).   It is still unclear, however, how beneficial the results obtained in 
this case are to Mr. Dalal because the district court will be reconsidering the front pay award on remand.   We 
therefore direct the district court to reconsider whether Mr. Dalal is entitled to attorney's fees incurred in pursuing 
his Colorado state law claim.   In this regard, the court should determine whether Mr. Dalal's claims were based on 
"a common core of facts or on related legal theories" and whether he obtained "excellent results."  Id.

*5 Finally, Alliant argues that Mr. Dalal should not have been awarded attorney's fees that were incurred after 
Alliant made an offer of judgment in compliance with Fed.R.Civ.P. 68.   Under Rule 68, if a party rejects an offer of 
judgment and "the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must 
pay the costs incurred after the making of the offer."  Id.

Alliant relies on the Supreme Court case of Marek v. Chesny, 473 U.S. 1 (1985).   In that case, the Supreme Court 
held that "[a]bsent congressional expressions to the contrary, where the underlying statute defines costs' to include 
attorney's fees, we are satisfied such fees are to be included as costs for purposes of Rule 68."  Id. at 9. Thus, if the 
statute giving rise to the plaintiff's cause of action includes attorney's fees as "costs," the plaintiff may not recover 
attorney's fees if he has rejected a Rule 68 offer of judgment that exceeded his ultimate recovery.

We note, however, that the Marek Court specifically limited its holding to cases where the underlying statute defines 
"costs" to include attorney's fees.   The ADEA provides for an award of attorney's fees by reference to the Fair 
Labor Standards Act (FLSA), 29 U.S.C. 216(b).   See 29 U.S.C. 626(b).  The FLSA, in turn, does not describe 
attorney's fees as "costs."   See 29 U.S.C. 216(b) (stating that the district court shall "allow a reasonable attorney's 
fee to be paid by the defendant, and costs of the action").   Thus, "Rule 68 does not bar any award of attorney fees in 
an FLSA case for services rendered after a Rule 68 offer is made and a plaintiff recovers less than the amount 
offered in settlement."  Haworth v. State of Nevada, 56 F.3d 1048, 1052 (9th Cir.1995).   Because the ADEA 
provides for an award of attorney's fees by reference to the FLSA, this rule also applies in the context of the ADEA. 
Consequently, Rule 68 does not bar recovery of attorney's fees under these circumstances.

In sum, although we believe the district court did not abuse its discretion in determining the amount of a reasonable 
attorney's fee in this case, and the district court was not precluded from awarding such a fee under Rule 68, we must 
still vacate the attorney's fee award in this case because the district court erred to the extent it awarded the $3,950.00 
for expert witness fees.   On remand, the court should also determine whether Mr. Dalal received "excellent results" 
in this case so as to justify an award of attorney's fees incurred pursuing his state law claim.   Additionally, because 
we are remanding this case to the district court so that it may reconsider the front pay award, the district court should 
also reconsider its fee award in light of any effect our holding may have on Mr. Dalal's ultimate recovery in this 
case.



Defendant's Attorney's Fees 

Alliant argues that the district court abused its discretion by denying Alliant's motions for attorney's fees incurred in 
defending Mr. Dalal's Title VII claim and his state law claim.   As we previously noted, the district court granted 
summary judgment against Mr. Dalal on these claims.   When Alliant moved both before and after trial for attorney's 
fees incurred in defending these claims, the district court denied its motions without making specific findings.

*6 "[A] plaintiff [in a Title VII action] 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," or if the court finds that the plaintiff brought the claim in bad faith.  Christiansburg Garment Co. v. EEOC, 434 
U.S. 412, 422 (1978).   With regard to Mr. Dalal's state law claim, attorney's fees may be awarded only if the court 
finds that the claim "lacked substantial justification."  Colo.Rev.Stat. 13-17-102(4).   This means that Mr. Dalal's 
claim must have been "substantially frivolous, substantially groundless, or substantially vexatious."  Id. Given these 
stringent standards, and given the fact that in federal court "[f]indings of fact and conclusions of law are unnecessary 
on decisions of motions," Fed.R.Civ.P. 52(a), we do not find error in the district court's denial of Alliant's motions.


Costs 

Alliant also argues that the district court's award of costs should be remanded for reconsideration by the district 
court.   Specifically, Alliant argues that if on remand the district court reduces the amount of front pay, Mr. Dalal's 
total recovery may fall below the $150,000.00 offer of judgment made to Mr. Dalal prior to trial pursuant to 
Fed.R.Civ.P. 68.   We agree with Alliant that, if the ultimate outcome of this case is such that Mr. Dalal's recovery is 
less favorable than the $150,000.00 offer of judgment, Rule 68 would require Mr. Dalal to pay all costs incurred 
after the offer was made.   The district court's judgment awarding costs must therefore be vacated and reconsidered 
on remand of this case.


Prejudgment Interest 

Alliant makes many arguments that the district court erred by awarding prejudgment interest to Mr. Dalal.   We 
review the district court's award of prejudgment interest for an abuse of discretion.  U.S. Indus., Inc. v. Touche Ross 
& Co., 854 F.2d 1223, 1255 & n. 43 (10th Cir.1988).   Alliant provides no legal authority for these arguments, and 
we discuss only those arguments that have some merit.

Alliant first argues that Mr. Dalal waived his right to prejudgment interest because he did not request it in his 
complaint and a request was not included in the pretrial order.   We agree with Mr. Dalal, however, that under 
Fed.R.Civ.P. 54(c), his failure to request prejudgment interest earlier did not preclude the district court from making 
the award.   See id.  ("[E]very final judgment shall grant the relief to which the party in whose favor it is rendered is 
entitled, even if the party has not demanded such relief in the party's pleadings.").

Alliant also argues that the district court erred by awarding prejudgment interest on Mr. Dalal's back pay award 
without first discounting the award for taxes.   Alliant cites no authority for this proposition, and the relevant case 
law supports the district court's award of prejudgment interest on the gross back pay award.   See, e.g., Artis v. 
United States Indus.   & Int'l Ass'n of Machinists & Aerospace Workers, 822 F.Supp. 510, 511 (N.D.Ill.1993) 
(holding that prejudgment interest should be awarded on the entire back pay award in employment discrimination 
case because it is better to confer a windfall upon the claimant than the defendant in order to discourage future 
discrimination);  see also Johnston v. Harris County Flood Control Dist., 869 F.2d 1565, 1580 (5th Cir.1989), cert. 
denied, 493 U.S. 1019 (1990).   We accordingly hold that the district court did not abuse its discretion in its award of 
prejudgment interest to Mr. Dalal in this case.



CONCLUSION 

*7 The district court's judgment awarding front pay is VACATED.   The district court's judgment awarding 
attorney's fees to the plaintiff is VACATED.   The district court's judgment denying attorney's fees to the defendant 
is AFFIRMED.   The district court's judgment awarding costs to the plaintiff is VACATED.   The district court's 
judgment awarding prejudgment interest to the plaintiff is AFFIRMED.   The district court's judgment is 
AFFIRMED in all other respects.   The case is REMANDED for further proceedings consistent with this order and 
judgment.

C.A.10 (Colo.),1995.
Dalal v. Alliant Techsystems, Inc.
72 F.3d 137, 1995 WL 747442 (C.A.10 (Colo.))

END OF DOCUMENT




Pascouau v. Martin Marietta Corp.
185 F.3d 874 (10th Cir. 1999) (Table), 1999 WL 495621



NOTICE:  THIS IS AN UNPUBLISHED OPINION.(The Court's decision is referenced in a "Table of Decisions 
Without Reported Opinions" appearing in the Federal Reporter. Use FI CTA10 Rule 36.3 for rules regarding the 
citation of unpublished opinions.)
United States Court of Appeals, Tenth Circuit.
Renee L. PASCOUAU, Plaintiff-Appellant,
v.
MARTIN MARIETTA CORPORATION, d/b/a, Martin Marietta Aeronautics Group, a Maryland Corporation doing 
business in Colorado, Defendant-Appellee.
No. 98-1099.

July 14, 1999.


(D.Colo.) (D.Ct. No. 93-K-471).

Before BRORBY, HOLLOWAY, and BRISCOE, Circuit Judges.

ORDER AND JUDGMENT FN* 


FN* This order and judgment is not binding precedent except under the doctrines of law of the case, res 
judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; 
nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir.R. 
36.3.BRORBY.
*1 This case involves allegations of hostile work environment sexual harassment and retaliation under Title VII of 
the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C.   2000e et seq., and various common-law tort claims brought 
by Appellant Ms. Renee Pascouau against her former employer, Appellee Martin Marietta Corporation (Martin 
Marietta). She challenges the district court's award of partial summary judgment dismissing her tort claims, the 
court's adverse decisions on her remaining Title VII claims after a bench trial, and the court's subsequent decision to 
award attorney's fees and costs to Martin Marietta. We exercise jurisdiction under 28 U.S.C.   1291, and affirm in 
part and reverse in part.


I. Background

Ms. Pascouau began her employment as a word processor with Martin Marietta in November 1982. In 1988, Martin 
Marietta transfered her to a different position in Document Control/Defense Systems (Document Control), where 
she worked until March 1991. During this time in Document Control, Ms. Pascouau alleges various Martin Marietta 
co-workers and supervisors committed acts of sexual harassment against her that created a hostile work 
environment. She claims her male co-workers and supervisors frequently engaged in lewd discussions in the 
workplace about sex and their own sexual experiences. They also brought sexually suggestive materials into the 
office, including pornographic magazines and a novelty item called a "condom tree." In addition, she claims they 
used vulgar language and told dirty jokes in her presence, and called her nicknames like "bumper" and "bullets"-
names that ostensibly refer to her breast size. She also alleges her male co-workers verbally ridiculed and belittled 
her, speculated about her sexual preferences, inappropriately commented about the physical attributes of other 
women in her presence, and engaged in "farting contests" and other offensive behavior in the office. Ms. Pascouau 
contends her direct supervisors knew about and participated in some of these activities, and did nothing to prevent 
the alleged harassment.

In addition to this evidence of hostile work environment sexual harassment, Ms. Pascouau claims that after she 
complained about the situation in her workplace, Martin Marietta personnel failed to deal with the problem through 
investigation and discipline of the offending employees. Ms. Pascouau also alleges that her complaints to 
supervisors led to retaliation by other Martin Marietta employees in the form of verbal reprimands, poor work 
performance appraisals (id. at 26), offloading,FN1 and demotion.


FN1. "Offloading" is a term used by Martin Marietta to refer to the process of leaving a project or 
assignment.

Ms. Pascouau filed suit against Martin Marietta in 1992, bringing claims under federal law and Colorado common 
law. Her final amended complaint included allegations of hostile work environment sexual harassment, quid pro quo 
sexual harassment, retaliation, and Equal Pay Act violations under Title VII, as well as common-law claims for 
breach of contract, promissory estoppel, extreme and outrageous conduct, invasion of privacy, and negligent 
supervision. The district court granted Martin Marietta's subsequent motion for partial summary judgment on the tort 
claims, finding Title VII preempted her common-law claims that were based on the same conduct. The remaining 
claims were heard at a bench trial. Almost three years after the trial was completed, the court issued a Memoradum 
Opinion and Order deciding in favor of Martin Marietta. Following its decision, the district court awarded attorneys' 
fees and costs to Martin Marietta as the prevailing party.


II. Discussion

*2 Ms. Pascouau raises numerous issues for our consideration on appeal. First, she claims the district court erred in 
granting partial summary judgment for Martin Marietta because Title VII does not preempt or subsume her state law 
remedies. Second, she urges us to reverse the trial judgment because of the district court's unusually long delay in 
passing judgment, and the fact that it based its decision on a review of the trial record which did not contain portions 
of her direct testimony. Third, she claims we should reverse because, without the missing portions of her direct 
testimony, she cannot present a complete record to this court for review. Fourth, she challenges the district court's 
apparent reliance on a hostile work environment standard which, when assessing the severity and pervasiveness of 
the alleged hostile work environment, took into account her co-workers' experience and education level. Fifth, she 
claims the district court erred in ruling the conduct of Martin Marietta's employees did not constitute a hostile work 
environment. Sixth, she alleges the district court incorrectly concluded Martin Marietta did not subject her to 
retaliation for opposing its allegedly unlawful employment practices. Seventh, she claims the district court abused its 
discretion when it admitted illegally obtained evidence. Eighth, she asserts the district court should not have allowed 
Martin Marietta to introduce evidence of her sexual history. Finally, she contends the district court erred in awarding 
attorneys' fees to Martin Marietta because it did not find her testimony credible.  FN2 We ordinarily would begin by 
reviewing the district court's summary judgment rulings. However, because the district court's resolution of the Title 
VII issues at the bench trial has some impact on our analysis of the state tort claims, we leave our discussion of the 
court's partial summary judgment ruling on those state claims until the end.


FN2. Although considered by the district court in the proceedings below, Ms. Pascouau did not raise any of 
the following issues on appeal: quid pro quo theory of sexual harassment, discriminatory failure to promote 
based on gender, discriminatory unequal pay based on gender, breach of contract, and promissory estoppel. 
Therefore, we consider these issues waived. See State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n. 
7 (10th Cir.1994) (failure to raise an issue in the opening brief waives the issue).

A. Delay in Rendering Decision and Effect of the Incomplete Record

Ms. Pascouau claims we must automatically reverse the district court's decision because the court purposely and 
punitively delayed its decision for almost three years after the bench trial, and then decided the case by relying on a 
trial transcript which did not contain a portion of Ms. Pascouau's direct testimony. We disagree. Although the 
district court apparently requested the trial transcripts before issuing its final ruling, that does not mean the court 
derived all of its conclusions, especially those regarding the credibility of witnesses, solely from the incomplete 
record. The judge deciding this case presided over the bench trial, and presumably assessed the veracity of the 
witnesses and the weight of the evidence at that time. See Green v. Branson, 108 F.3d 1296, 1305 (10th Cir.1997) 
("We assume that the district court performed its review function properly in the absence of evidence to the 
contrary.") Ms. Pascouau offers no evidence to the contrary. Accordingly, we hold the district court did not err in 
rendering a decision without the benefit of having a portion of the transcript of Ms. Pascouau's direct testimony.

*3 Ms. Pascouau contends the extended period of deliberation reflects the judge's desire to punish her for 
underestimating the time needed for trial. The district court's order lends some credence to this claim. However, 
even assuming the court's long deliberation in this instance was punitive, Ms. Pascouau has produced no evidence 
showing this delay inherently prejudiced the judge's findings. Thus, while we are troubled by the length of time 
between trial and judgment, and encourage more efficient and speedy resolution of judicial matters whenever 
possible, in the absence of some showing of prejudice resulting from the delay, we find no reversible error. See, e.g., 
Petrilli v. Drechsel, 94 F.3d 325, 328-29 (7th Cir.1996) (refusing, in the absence of any affirmative evidence of 
prejudice beyond the fact of a three-year delay, to order a new trial).


B. Incomplete Record on Appeal

Focusing again on the incomplete record, Ms. Pascouau asserts we must reverse the district court's decision because, 
without the missing portions of her direct testimony, we cannot determine whether the district court erred in its 
findings and conclusions. We disagree with her assessment. Ms. Pascouau's argument ignores the clear instruction 
contained in Fed R.App.P. 10(c) which provides "[i]f the transcript of a hearing or trial is unavailable, the appellant 
may prepare a statement of the evidence or proceedings from the best available means, including the appellant's 
recollection." Under this rule, Ms. Pascouau could have prepared a statement reiterating her direct testimony and 
submitted it along with the Appellee's objections and proposed amendments to the district court for settlement and 
approval. The parties then could have included the statement in the record on appeal for our review. However, Ms. 
Pascouau did not avail herself of this remedy or show sufficient cause for her inability or failure to do so.FN3 
Consequently, we proceed based on the record before us, and we decline to reverse for a new trial because of the 
missing testimony.


FN3. Ms. Pascouau claims she could not reconstruct her missing testimony because she did not find out 
about the lost transcript until over two and a half years had gone by. However, we find it difficult to believe 
the passage of time caused her to completely forget the substance of her testimony at trial, and rendered her 
unable to assist her attorney in recapitulating her prior statements. In short, we do not find Ms. Pascouau's 
claimed loss of memory excuses her failure to utilize the remedy available under Fed.R.App.P. 10(c).

C. Hostile Work Environment

With regard to the resolution of her Title VII claims at the bench trial, Ms. Pascouau asserts the district court erred 
(1) when it found her co-workers conduct did not create a hostile work environment, and (2) when, in reaching this 
decision, the court relied on a standard which took into account the relative education and experience level of the 
perpetrators. We examine these issues separately.


1. Hostile Work Environment Standard

*4 As for Ms. Pascouau's dispute over the standard the district court used to assess her hostile work environment 
claim, we agree that if, in fact, the district court's decision hinged solely on consideration of the experience and 
education of her co-workers, the court committed error. The standard applicable to hostile work environment claims 
is well-settled. The plaintiff must show "the workplace is permeated with discriminatory intimidation, ridicule, and 
insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive 
working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) 
(citations and internal quotation marks omitted); Penry v. Federal Home Loan Bank, 155 F.3d 1257, 1261 (10th 
Cir.1998), cert. denied, 526 U.S. 1039, 119 S.Ct. 1334, 143 L.Ed.2d 498 (1999). The court must focus on both an 
objective and subjective analysis of the work environment with consideration given to "all the circumstances," 
Harris 510 U.S. at 23; Smith v. Northwest Fin. Acceptance, Inc., 129 F.3d 1408, 1413 (10th Cir.1997), and "the 
social context in which particular behavior occurs and is experienced by its target."  Oncale v. Sundowner Offshore 
Serv. Inc., 523 U.S. 75, ----, 118 S.Ct. 998, 1003, 140 L.Ed.2d 201 (1998).

The court's Memoradum Opinion and Order states in part that it found "in their totality, the speech, jokes and 
conduct of the employees in the Document Unit were consistent with their level of education and experience and, as 
such, constituted a work environment that was not so severe and pervasive as to alter Plaintiff's conditions of 
employment so as to violate Title VII." Although Ms. Pascouau asserts that the court's apparent reliance on 
education and experience level is impermissible, we do not believe the district court erroneously rested its decision 
solely on the education and experience level of the perpetrators. Instead, a review of the court's findings shows it 
merely considered the education and experience of the employees in Document Control as two of the many factors 
affecting the social context in which the allegedly offensive behavior occurred. Moreover, Ms. Pascouau ignores the 
fact that in the opening paragraph of its findings of fact and again in its conclusions of law, the district court stated 
the proper criteria for assessing a hostile work environment-complete with citations to appropriate Supreme Court 
authority. Given these repeated references to accepted legal standards and the court's overall analysis, we do not 
believe the district court relied on any improper criteria to assess the work environment.


2. Hostile Work Environment Findings

*5 Ms. Pascouau also claims the district court erred in concluding the evidence did not show hostile work 
environment sexual harassment. Because the Title VII claims in this case already have been fully tried, we review 
the district court's findings of fact only for clear error. David v. City & County of Denver, 101 F.3d 1344, 1359 (10th 
Cir.1996), cert. denied, 522 U.S. 858, 118 S.Ct. 157, 139 L.Ed.2d 102 (1997); Fed.R.Civ.P. 52(a). We accept the 
findings of the district court unless they are without support from the record, or unless, after reviewing all of the 
evidence, we are left with the definite and firm conviction that a mistake has been made.  See Hicks v. Gates Rubber 
Co., 928 F.2d 966, 971 (10th Cir.1991). Whether this court would have made the same decision is not the issue. "We 
cannot reverse simply because we might have decided the case differently." Id.

Ms. Pascouau raises several arguments contesting the district court's findings. She initially challenges the court's 
reliance on the testimony of other women employees to establish that the harassment was not sufficiently severe to 
constitute a hostile work environment. She claims the women's testimony contradicts the court's findings, and argues 
the court erred when it stated that one of the female witnesses testified that Ms. Pascouau openly joked about her 
own breast size with other employees, when, in fact, the witness only said joking occurred in the workplace on a 
daily basis and she could not specifically remember Ms. Pascouau joking about her own breasts. We disagree with 
Ms. Pascouau's assessment and find the other women's testimony, taken as a whole, supports the district court's 
conclusions. The other women co-workers, whose testimony Ms. Pascouau cites as contradicting the district court's 
findings, stated they did not find the Document Control working environment sexually harassing or offensive, nor 
did Ms. Pascouau ever express to them any complaints she had about sexual harassment. Even though the court may 
have mistakenly stated the substance of a portion of the testimony of one witness to support a point in its 
Memoradum Opinion and Order, that error alone does not merit reversal of a decision based on over a week of 
extensive evidence presented by the parties. See Nulf v. International Paper Co., 656 F.2d 553, 561 (10th Cir.1981) 
(holding defects and inconsistencies in individual findings by the trial court that are so minor that they could not 
have been relevant to the outcome do not merit reversal).

Ms. Pascouau further claims the district court did not adequately consider the fact that all of the women in 
Document Control complained about the "farting contests" that occurred, and found the conduct offensive. She 
admits the district court correctly decided the conduct is offensive irrespective of gender, but argues the court should 
not have refused to consider it as some evidence of generally offensive conduct and divisive behavior along gender 
lines. We conclude the district court properly refused to consider the "farting contests" as evidence of a hostile work 
environment. Although offensive, this conduct is clearly not harassment on the basis of gender-even when viewed in 
concert with other conduct Ms. Pascouau claims is sexually harassing. See Stahl v. Sun Microsystems, Inc., 19 F.3d 
533, 538 (10th Cir.1994) ("If the nature of an employee's environment, however unpleasant, is not due to her 
gender, she has not been the victim of sex discrimination as a result of that environment.").

*6 Ms. Pascouau also claims the district court improperly characterized her sexual harassment allegation as 
"secondary" to her equal pay and promotion complaint, and incorrectly found that she did not complain to the 
human resources supervisor about vulgar joking in the office. We agree with Ms. Pascouau that whether her sexual 
harassment complaint was secondary to other complaints is immaterial, and the record evidence appears to support 
her argument that she did make some complaint about the joking occurring in Document Control. Nevertheless, 
these arguments do not affect our evaluation of the district court's treatment of Ms. Pascouau's hostile work 
environment claim. The record shows the court thoroughly considered her sexual harassment claims and plainly 
acknowledged the fact that some vulgar joking occurred in the workplace, but not to a degree sufficient to create a 
sexually harassing hostile work environment. In light of the court's obvious consideration of her harassment claim 
and the vulgar joking, its characterization of her harassment claim as "secondary" and its failure to acknowledge that 
she complained about the joking to a supervisor does not render its overall hostile work environment decision 
infirm.

In another argument, Ms. Pascouau contends the district court made no specific findings about whether the lewd talk 
by the men in Document Control alone was sufficiently severe or pervasive to alter the working environment. This 
argument is also unavailing in light of the court's overall inquiry, which took into account "the coarse language, 
joking, and other inappropriate and immature behavior," in deciding her hostile work environment claim.

Ms. Pascouau also asserts the district court erred in discounting the significance of the presence of pornographic 
magazines in the workplace, because the evidence shows she knew about the magazines and expressed shock when 
she discovered them. Again, we are persuaded the district court fully considered this evidence and correctly found 
that, although inappropriate for the workplace, because the magazines were not openly displayed, nor were 
employees involuntarily subjected to viewing them, their presence did not contribute to the creation of a hostile 
work environment.

Finally, Ms. Pascouau faults the district court for concluding that because she may have joked with other employees 
about her breast size and used some vulgar language, she invited the use of sexually-suggestive nicknames, vulgar 
language, and derogatory remarks referring to her breast size by her male co-workers. We agree that a plaintiff's 
participation in some lewd joking and isolated use of vulgar language does not mean that others in the workplace 
may then freely engage in what would otherwise constitute sexually harassing behavior toward him or her. 
However, we again emphasize that the district court's analysis of hostile work environment claims does not turn 
exclusively on the nature of certain isolated incidents, but on the totality of the circumstances. Harris, 510 U.S. at 
23. The factfinder must assess the "real social impact of workplace behavior," based "on a constellation of 
surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the 
words used or the physical acts performed."  Oncale, 523 U.S. at ----, 118 S.Ct. at 1003. The analysis requires the 
exercise of "[c]ommon sense, and an appropriate sensitivity to social context ... to distinguish between simple 
teasing ... and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive." 
Id. Under this standard, even though some inappropriate comments and conduct occurred, the court could still find 
these acts did not create a sexually harassing hostile work environment.FN4


FN4. Ms. Pascouau also challenges the district court for failing to acknowledge Martin Marietta's negligent 
mishandling of her hostile work environment complaint, and mistakenly construing the company's offer of 
another position as a sufficient remedial measure. However, in light of the court's finding that Martin 
Marietta never subjected Ms. Pascouau to actionable hostile work environment sexual harassment, we need 
not reach the subsidiary issues of whether Martin Marietta negligently handled her complaint or failed to 
take adequate remedial steps.

*7 Having reviewed each of Ms. Pascouau's challenges, we find no meaningful instance where the district court's 
decision is unsupported in fact or merits reversal. The court's findings, although not comprehensive, are adequate to 
inform us of the factual basis for its decision, and we recognize no grounds for concluding that the court proceeded 
under an erroneous view of the law or failed to give Ms. Pascouau's evidence proper consideration. Although the 
behavior exhibited in Ms. Pascouau's workplace was plainly boorish, insensitive, and inappropriate, the district court 
permissibly found the conduct did not rise to the level of actionable hostile work environment sexual harassment 
under Title VII.


D. Retaliation

Ms. Pascouau also claims she suffered retaliation from her department supervisor and co-workers following repeated 
complaints she made to Martin Marietta personnel responsible for Equal Employment Opportunity compliance, and 
the district court improperly decided this claim by ignoring all of the adverse actions against her except Martin 
Marietta's decision to off-load her from Document Control. Again, we emphasize that when a Title VII case has 
been fully tried, we review the district court's ultimate finding of no retaliation for clear error. Curtis v. Oklahoma 
City Pub. Schls. Bd. of Educ., 147 F.3d 1200, 1217 (10th Cir.1998). "If there are two permissible views of the 
evidence, the fact-finder's choice between them cannot be clearly erroneous."  Id. (internal quotation marks and 
citation omitted). We must give due regard to the district court's firsthand opportunity to judge the credibility of the 
witnesses and weigh the evidence presented. Fed.R.Civ.P. 52(a); Ebert v. Lamar Truck Plaza, 878 F.2d 338, 338 
(10th Cir.1989).

Our review of the record establishes there was evidence supporting the court's finding of no retaliation. Martin 
Marietta presented evidence at trial to support its assertion that the decision to off-load Ms. Pascouau was based on 
the business necessity created by overall downsizing and budget cuts, not in retaliation for her complaints. The 
evidence also establishes that Martin Marietta made decisions about which employees to off-load based on non-
discriminatory factors like job performance, unit chemistry, and work history. We find the trial court reasonably 
inferred from the evidence that Martin Marietta's decision to off-load Ms. Pascouau was based on non-
discriminatory motives, not in retaliation for complaining to Martin Marietta supervisors.

Although Ms. Pascouau further claims retaliation based on "all of the other patently adverse incidents leading up to 
the off-load, and ... demotion 'offer,' " she cites nothing in the record to substantiate her claims. In the absence of 
essential record references in Ms. Pascouau's opening brief, we will not address her contentions or sift through the 
record to find support for her arguments. S.E.C. v. Thomas, 965 F.2d 825, 827 (10th Cir.1992). Consequently, we 
affirm the district court's ruling on Plaintiff's Title VII retaliation claim.


E. Evidentiary Rulings

*8 Ms. Pascouau contends the district court made two erroneous evidentiary rulings during the trial that merit 
reversal and remand for retrial. First, she claims the court erroneously permitted Martin Marietta to introduce 
prejudicial, illegally-obtained evidence from a confidential Personal Security Questionnaire. Martin Marietta sought 
to use the information from the questionnaire in support of an after-acquired evidence affirmative defense showing 
Ms. Pascouau submitted false information about her past use of illicit drugs during the process of obtaining security 
clearance from the government, and therefore would not have been retained in her position in Martin Marietta's 
classified or restricted access program in any event. Second, Ms. Pascouau contends the trial court erroneously 
refused to exclude prejudicial evidence of her past sexual history.

We review the district court's decision to exclude or admit evidence under an abuse of discretion standard. Sanjuan 
v. IBP, Inc., 160 F.3d 1291, 1296 (10th Cir.1998). The "trial court's decision will not be disturbed unless [we] [have] 
a definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of 
permissible choice in the circumstances." McEwen v. City of Norman, 926 F.2d 1539, 1553 (10th Cir.1991) (internal 
quotations omitted). In bench trials "questions raised relative to the admission or exclusion of evidence ... become 
relatively unimportant," because the rules of evidence relating to admission and exclusion of evidence are "intended 
primarily for the purpose of withdrawing from the jury matter which might improperly sway the verdict." United 
States v. Norman T., 129 F.3d 1099, 1107 (10th Cir.1997) (quotation marks and citations omitted), cert. denied, 523 
U.S. 1031, 118 S.Ct. 1322, 140 L.Ed.2d 485 (1998). In fact, we have held that "where a cause was tried before the 
court without a jury, it will be presumed on appeal that ... the court considered only competent evidence and 
disregarded that which was incompetent." Id.  (quotation marks and citation omitted).

Both Ms. Pascouau's arguments pertaining to the admission of evidence are unavailing. In her first claim, the 
evidence she alleges the district court erroneously admitted relates to Martin Marietta's after-acquired evidence 
affirmative defense. Because the district court found Martin Marietta did not retaliate against Ms. Pascouau or 
subject her to a hostile work environment, the trial court did not need to examine the merits of Martin Marietta's 
affirmative defense. Likewise, our decision to affirm the district court's conclusions on appeal makes it unnecessary 
for us to examine affirmative defenses or the court's treatment of evidence supporting those defenses.  See Cannon 
Oil & Gas Well Serv., Inc. v. Evertson, 836 F.2d 1252, 1257 (10th Cir.1987) (ruling that in light of the jury's finding 
for the defendant on the merits, and the court's finding of sufficient evidence to support the findings, the issue of the 
trial court's handling of the affirmative defenses is moot).

*9 As for the district court's decision to admit evidence of Ms. Pascouau's sexual history, we assume without 
deciding the district court erroneously allowed the introduction of evidence of her sexual history without requiring 
proper compliance with Fed.R.Evid. 412.FN5 Nevertheless, we find any error was harmless. "Evidence admitted in 
error can only be prejudicial if it can be reasonably concluded that ... without such evidence, there would have been 
a contrary result." Sanjuan 160 F.3d at 1296 (quotation marks and citations omitted). Ms. Pascouau points to no 
particular instances in the record where the district court admitted prejudicial sexual history testimony over her 
objection. An examination of the record and district court findings persuades us that excluding the evidence Ms. 
Pascouau challenges would not have changed the result. Indeed, the district court's findings reveal no meaningful 
reliance on any of the sexual history evidence Martin Marietta presented. The court's only reference to Ms. 
Pascouau's sexual history is a passing comment in its recapitulation of expert psychiatric testimony about the effect 
of her past unsuccessful intimate relationships. Accordingly, we decline to reverse on this basis.


FN5. Ms. Pascouau correctly notes the court may only admit evidence offered to prove the sexual behavior 
or predisposition of any alleged victim of sexual misconduct if its proponent satisfies the "balancing test" 
articulated in Fed.R.Evid. 412(b)(2). In addition, Fed.R.Evid. 412(c) requires the proponent to follow 
certain procedures in order to determine the admissibility of evidence proffered under the rule-including 
filing a written motion at least fourteen days before trial that specifically describes the evidence and states 
the purpose for which it is offered.  Fed.R.Evid. 412(c)(1)(A). The trial court must then conduct an in 
camera hearing and afford the victim and parties a right to attend and voice any objections. Fed.R.Evid. 
412(c)(2). In this case Martin Marietta admittedly failed to follow these procedures, yet the court still 
allowed the presentation of sexual history evidence.

F. Attorneys' Fees

Ms. Pascouau asserts the district court improperly awarded attorneys' and expert witness fees to Martin Marietta as 
the prevailing party. See 42 U.S.C.   2000e-5(k). We ordinarily review the court's decision regarding attorneys' fees 
for an abuse of discretion.  Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1201 (10th Cir.1986). In this case, 
however, our review is somewhat complicated by the fact the district court granted Martin Marietta's motion for 
attorneys' and expert witness fees, and its motion to amend the order granting the fees, without expressing reasons 
for its decision. We are left to presume the court agreed with and based its decision on the arguments set forth in 
Martin Marietta's original motion.

*10 The Supreme Court instructs that "a district court may in its discretion award attorney's fees to a prevailing 
defendant in a Title VII case upon a finding that the plaintiff's action was frivolous, unreasonable, or without 
foundation, even though not brought in subjective bad faith."  Christiansburg Garment Co. v. Equal Employment 
Opportunity Comm'n, 434 U.S. 412, 421, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978); see also, Jane L. v. Bangerter, 61 
F.3d 1505, 1513 (10th Cir.1995). Martin Marietta's primary contention in the original motion requesting attorneys' 
and expert witness fees was that because the court did not find Ms. Pascouau's testimony credible, the court should 
consider her claim frivolous. We do not agree. A review of the record persuades us that Ms. Pascouau's lawsuit was 
not frivolous, unreasonable or without foundation. Although the district court ultimately rejected her claims and 
discredited her testimony, such findings alone do not mean her lawsuit was devoid of any legitimacy. On the 
contrary, the issues and evidence presented in this case called for careful consideration of several questions at trial, 
especially with regard to the severity and pervasiveness of the alleged sexually-harassing conduct in the workplace. 
Consequently, we find the court abused its discretion in awarding attorney's and expert witness fees to Martin 
Marietta and revrse the award.FN6


FN6. Having decided to reverse the district court's award of attorney's fees on other grounds, we need not 
reach the issue raised by Ms. Pascouau regarding the retroactive application of the expert witness fees 
provision of 42 U.S.C.   2000e-5(k).

G. Partial Summary Judgment on State Law Claims

We review de novo the district court's decision to award partial summary judgment, employing the same legal 
standard as the district court and construing the factual record and the reasonable inferences therefrom in the light 
most favorable to the party opposing summary judgment. See Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir.1996). 
Summary judgment is appropriate if the record shows "there is no genuine issue as to any material fact and that the 
moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue of material fact is genuine 
only if a party presents facts sufficient to show that a reasonable jury could find in favor of the nonmovant. 
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In its order granting partial summary judgment for Martin Marietta on Ms. Pascouau's claims of outrageous conduct, 
negligent supervision, and invasion of privacy, the district court ruled that the federal statutory scheme under Title 
VII preempted these state tort law actions. The court reasoned that because the state claims were based on the same 
conduct as the alleged employment discrimination, permitting Ms. Pascouau to proceed on those claims would allow 
her to circumvent the "administrative and remedy restrictions of Title VII."

*11 We disagree with the district court's preemption analysis. Section 708 of Title VII, 42 U.S.C.   2000e-7, makes 
it plain Title VII does not "exempt or relieve" defendants from any "liability" or "duty" of state law unless such law 
requires or permits "the doing of any act which would be an unlawful employment practice" under Title VII. 
Accordingly, the test for determining if Title VII preempts state law is whether the state law permits employment 
practices that violate or contradict Title VII. See California Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 290-
91, 107 S.Ct. 683, 93 L.Ed.2d 613 (1987). Federal law generally preempts state law only in cases where 
"compliance with both federal and state regulations is a physical impossibility," Florida Lime & Avocado Growers, 
Inc. v. Paul, 373 U.S. 132, 142-43, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963), or the state law "stands as an obstacle to 
the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U.S. 
52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941). Guerra makes it plain that Title VII does not manifest Congress' intent to 
" 'occupy the field' of employment discrimination law," 479 U.S. at 281, especially in cases like this, where the 
state tort claims Ms. Pascouau made merely augment her federal claims and do not conflict with the provisions of 
Title VII or prevent the accomplishment of its purposes.  See Hirase-Doi v. U.S. West Communications, Inc. 61 F.3d 
777 (10th Cir.1995) (implicitly deciding Title VII does not preempt state tort claims by considering without 
objection both an employee's state tort and Title VII claims against her employer). Consequently, we hold the 
district court should not have granted summary judgment on this basis. See, e.g., Alexander v. Gardner-Denver Co., 
415 U.S. 36, 48-49, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974) ( "[T]he legislative history of Title VII manifests a 
congressional intent to allow an individual to pursue independently his rights under both Title VII and other 
applicable state and federal statutes.").

However, this conclusion does not end our analysis. "We are free to affirm a district court decision on any grounds 
for which there is a record sufficient to permit conclusions of law, even grounds not relied upon by the district 
court." United States v. Sandoval, 29 F.3d 537, 542 n. 6 (10th Cir.1994). In this instance, then, we may look beyond 
the preemptive effect of Title VII and examine the sufficiency of Ms. Pascouau's state tort claims in light of relevant 
findings and conclusions from the bench trial. Our analysis of the state tort claims may go beyond a de novo review 
of the record before the district court at the time it considered the motion for summary judgment and examine the 
potentially dispositive effects of the district court's ultimate Title VII factual findings on the previously dismissed 
state claims, because the state tort actions dismissed on summary judgment rely on essentially the same conduct as 
the federal Title VII claims adjudicated at the subsequent trial.FN7


FN7. Ms. Pascouau expressly admits she relies on the same evidence to support both her Title VII and state 
common-law claims.

1. Outrageous Conduct / Intentional Infliction of Emotional Distress

*12 Colorado law sets a high standard for outrageous conduct claims. In order to prove outrageous conduct or 
intentional infliction of emotional distress, the behavior must be "so extreme in degree, as to go beyond all possible 
bounds of decency, and ... be regarded as atrocious, and utterly intolerable in a civilized community." Coors 
Brewing Co. v. Floyd, 978 P.2d 663, 1999 WL 9769 *4 (Colo. Jan.11, 1999) (en banc) (quotation marks and citation 
omitted & emphasis added). The "defendant's conduct must be more than unreasonable, unkind or unfair; it must 
truly offend community notions of acceptable conduct." Grandchamp v. United Air Lines, Inc., 854 F.2d 381, 383 
(10th Cir.1988) (applying Colorado law), cert. denied, 489 U.S. 1080, 109 S.Ct. 1534, 103 L.Ed.2d 838 (1989). 
Simply stated, "liability ... does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or 
other trivialities." Restatement (Second) of Torts   46, cmt. d (1965).

Thus, as a threshold matter, we examine all the evidence before the district court in the light most favorable to Ms. 
Pascouau and determine whether any reasonable juror could find the conduct she complains of meets the high 
standard set forth in Coors. We conclude the comments made toward her and the conduct of her co-workers, 
although sexually explicit, immature, and rude, were not "egregious" enough for any reasonable juror to find they 
constitute outrageous conduct. Coors, 978 P.2d 663, 1999 WL 9769 *3. For this reason, we affirm summary 
judgment on Ms. Pascouau's outrageous conduct claim.


2. Negligent Supervision

Colorado law recognizes the tort of negligent supervision, holding "[a]n employer may ... be subject to liability for 
negligent supervision if he knows or should have known that an employee's conduct would subject third parties to an 
unreasonable risk of harm."  Moses v. Diocese of Colo., 863 P.2d 310, 329 (Colo.1993) (quotation marks and 
citation omitted)., cert. denied, 511 U.S. 1137, 114 S.Ct. 2153, 128 L.Ed.2d 880 (1994).

In support of her negligent-supervision claim, Ms. Pascouau argues that Martin Marietta has a duty under Title VII, 
Equal Employment Opportunity Commission rules, and its own internal policies and procedures to properly 
supervise its agents and investigate, remediate, and discipline instances of sexual harassment and retaliation. She 
contends Martin Marietta breached its duty by allowing her co-workers and various supervisors to engage in 
continuing acts of harassment and retaliation against her.

*13 We find these allegations insufficient to support a negligent-supervision claim in light of the district court's 
findings in this case. After having the opportunity to prove her Title VII claims at trial, Ms. Pascouau was unable to 
establish that Martin Marietta employees sexually harassed her, subjected her to a hostile work environment, or 
caused her harm or injury as a result of their conduct. Because an element of Ms. Pascouau's negligent supervision 
claim-having been subjected to an unreasonable risk of harm-was dependent on the proof of the same conduct and 
injury as she alleged in support of her Title VII claim, the failure of her Title VII claim renders her negligent 
supervision claim legally deficient as well. We therefore affirm summary judgment on this claim.


3. Invasion of Privacy

The final pre-trial order sets out Ms. Pascouau's claims for invasion of privacy, including: (1) "false light" based on 
Martin Marietta employees' alleged false statements about her mental stability and sexuality, and the retributive 
removal of her security access and clearance in a way that falsely indicated to others that she committed a security 
breach; and (2) "intrusion into seclusion" based on the same factual allegations of sexual harassment supporting her 
Title VII claims.FN8 We examine these claims in turn.


FN8. In a later Motion for Reconsideration-in which Ms. Pascouau requested the court's permission to 
amend her complaint-she attempted to bolster her invasion of privacy claim and separate it from the facts 
underlying her discrimination claims by asserting Martin Marietta collected and possessed inherently 
private information about her and other employees without their consent. The district court denied this 
motion for reconsideration and the request to amend. Thus, our consideration of those additional allegations 
on appeal is limited to a review of the district court's decision to deny the motion. Although Ms. Pascouau 
raised the issue of the court's refusal to grant her leave to amend in her Notice of Appeal, she waived the 
argument by not presenting or developing it in her opening brief.  See State Farm Fire & Cas. Co. v. 
Mhoon, 31 F.3d 979, 984 n. 7 (10th Cir.1994).

In order for Ms. Pascouau to prevail under Colorado law for false light invasion of privacy, she must show she "was 
placed before the public in a 'false-light' and that it was done with knowledge of its falsity or in reckless disregard 
of the truth." McCammon & Assoc., Inc. v. McGraw-Hill Broadcasting Co., 716 P.2d 490, 492 (Colo.Ct.App.1986) 
(emphasis added); see Restatement (Second) of Torts   652E (1977). The element of publicity is critical to this 
cause of action. See Restatement (Second) of Torts   652E cmt. a. Restatement (Second) of Torts   652D cmt. a, 
defines publicity as making a matter public "by communicating it to the public at large, or to so many persons that 
the matter must be regarded as substantially certain to become one of public knowledge."

*14 We hold as a matter of law Ms. Pascouau's allegations and supporting evidence presented to the district court 
prior to summary judgment do not fulfill this essential "publicity" element of false light invasion of privacy. Even if 
we assume Martin Marietta employees called her sexually suggestive names, ridiculed her, and implied Ms. 
Pascouau posed a security risk, she made no allegation and presented no evidence to show that Martin Marietta or its 
agents engaged in such conduct or disseminated private information that placed her in a false light before a public 
audience more extensive than her relatively small circle of co-workers in Document Control. See also Ozer v. 
Borquez, 940 P.2d 371, 377 (Colo.1997) (en banc) (publicity "requires communication to the public in general or to 
a large number of persons, as distinguished from one individual or a few"). Without some evidence showing the 
requisite publicity, her claim of false light invasion of privacy is deficient. Accordingly, we affirm summary 
judgment on this claim.

As for Ms. Pascouau's "intrusion into seclusion" invasion of privacy claim, Colorado law requires her to show that 
another person "has intentionally intruded, physically or otherwise, upon [her] seclusion or solitude," and that a 
reasonable person would consider such intrusion offensive. Doe v. High-Tech Inst., Inc., 972 P.2d 1060, 1065 
(Colo.Ct.App.1998) (citing Restatement (Second) of Torts   652B (1981)). In the usual case, intrusion into 
seclusion involves physical intrusion into a place where a plaintiff has secluded herself-such as a defendant forcing 
his way into the plaintiff's home. See Restatement (Second) of Torts   652B cmt. b. However, intrusion into 
seclusion may also occur by the use of the physical senses to oversee or eavesdrop on the plaintiff's private affairs. 
Id.

In the present case, Ms. Pascouau alleges no independent facts supporting her intrusion into seclusion claim. Instead, 
she merely includes by reference the conduct underlying her Title VII claims. A review of the allegations and 
evidence Ms. Pascouau proffers does not show Martin Marietta and its employees pried or intruded without consent 
into her private life and seclusion either physically or by other means. Even if we assume, as Ms. Pascouau argues, 
that her co-workers bothered her with inappropriate, prying questions about her sex life and sexual preferences, such 
conduct alone does not support a claim for intrusion into seclusion. The sexually suggestive questions were only 
requests for information. The tort of intrusion into seclusion requires more than a mere inquiry that reveals nothing; 
liability attaches only to an unconsented invasion through physical or other means that actually gleans private 
information. See High-Tech Inst., 972 P.2d at 1065 ("intrusion upon seclusion focuses on the manner in which 
information that a person has kept private has been obtained"). For these reasons, Ms. Pascouau fails to support an 
action for intrusion into seclusion invasion of privacy. Thus, we affirm summary judgment on this claim.


III. 

*15 For the foregoing reasons, we AFFIRM the district court's ruling in part. We REVERSE and REMAND with 
directions to vacate the order awarding attorney and expert witness fees to Martin Marietta.

C.A.10 (Colo.),1999.
Pascouau v. Martin Marietta Corp.
185 F.3d 874, 1999 WL 495621 (C.A.10 (Colo.)), 1999 CJ C.A.R. 4272

Briefs and Other Related Documents (Back to top)

 98-1099 (Docket) (Mar. 24, 1998)

END OF DOCUMENT




Twilley v. Integris Baptist Med. Ctr., Inc.
16 Fed.Appx. 923 (10th Cir. 2001), 2001 WL 901102



This case was not selected for publication in the Federal Reporter.Please use FIND to look at the applicable circuit 
court rule before citing this opinion. Tenth Circuit Rule 36.3. (FIND CTA10 Rule 36.3.)
United States Court of Appeals,Tenth Circuit.
E. Dale TWILLEY, an individual, Plaintiff-Appellant and Cross-Appellee,
v.
INTEGRIS BAPTIST MEDICAL CENTER, INC., an Oklahoma corporation, Defendant-Appellee and Cross-
Appellant.
Nos. 00-6091, 00-6173, 00-6196.

Aug. 10, 2001.

Terminated employee sued his former employer, alleging that he was terminated because of his disability in 
violation of the Americans with Disabilities Act (ADA) and in retaliation for exercising his rights under the Family 
and Medical Leave Act (FMLA). The United States District Court for the Western District of Oklahoma granted 
summary judgement to employer and granted part of employer's attorney's fee request. Employee appealed and 
employer cross-appealed. The Court of Appeals, Paul J. Kelly, Jr., Circuit Judge, held that: (1) employer showed it 
terminated employee for a non-discriminatory reason; (2) the district court did not abuse its discretion in awarding 
attorney's fees to employer; and (3) the district court did not err in reducing requested award.

Affirmed.

West Headnotes

[1] Civil Rights 78  1540

78 Civil Rights
     78IV Remedies Under Federal Employment Discrimination Statutes
          78k1534 Presumptions, Inferences, and Burden of Proof
               78k1540 k. Discrimination by Reason of Handicap, Disability, or Illness. Most Cited Cases
	(Formerly 78k240(2))

 Civil Rights 78  1541

78 Civil Rights
     78IV Remedies Under Federal Employment Discrimination Statutes
          78k1534 Presumptions, Inferences, and Burden of Proof
               78k1541 k. Retaliation Claims. Most Cited Cases

 Labor and Employment 231H  389(2)

231H Labor and Employment
     231HVI Time Off;  Leave
          231Hk381 Actions
               231Hk389 Evidence
                    231Hk389(2) k. Presumptions and Burden of Proof. Most Cited Cases
	(Formerly 255k40(1)  Master and Servant)
The analytical framework set forth in McDonnell Douglas governed review of a terminated employee's ADA 
discrimination and FMLA retaliation claims.  Family and Medical Leave Act of 1993,    2-404, 29 U.S.C.A.    
2601-2654; Americans with Disabilities Act of 1990,    2-103, 42 U.S.C.A.    12101-12213.

[2] Civil Rights 78  1552

78 Civil Rights
     78IV Remedies Under Federal Employment Discrimination Statutes
          78k1543 Weight and Sufficiency of Evidence
               78k1552 k. Discrimination by Reason of Handicap, Disability, or Illness. Most Cited Cases
	(Formerly 255k30(6.10)  Master and Servant)

 Labor and Employment 231H  368

231H Labor and Employment
     231HVI Time Off;  Leave
          231Hk361 Rights of Employee;  Violations
               231Hk368 k. Discharge or Layoff. Most Cited Cases
	(Formerly 78k1231, 78k173.1)
Terminated employee could not recover on his ADA discrimination and FMLA retaliation claims where employer 
presented evidence that employee was discharged because employer had evidence that he altered a medical release 
form to reflect that he was sick on days that he was actually on vacation, and there was ample evidence in the record 
to support employer's claim that it honestly believed that employee had committed the alteration.  Family and 
Medical Leave Act of 1993,    2-404, 29 U.S.C.A.    2601-2654; Americans with Disabilities Act of 1990,    
2-103, 42 U.S.C.A.    12101-12213.

[3] Civil Rights 78  1484

78 Civil Rights
     78III Federal Remedies in General
          78k1477 Attorney Fees
               78k1484 k. Awards to Defendants;  Frivolous, Vexatious, or Meritless Claims. Most Cited Cases
	(Formerly 78k299)
A prevailing defendant in an action under the ADA should ordinarily only recover attorney's fees if the district court 
finds that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in 
subjective bad faith.  Americans with Disabilities Act of 1990,   505, 42 U.S.C.A.   12205.

[4] Civil Rights 78  1592

78 Civil Rights
     78IV Remedies Under Federal Employment Discrimination Statutes
          78k1585 Attorney Fees
               78k1592 k. Awards to Defendants;  Frivolous, Vexatious, or Meritless Claims. Most Cited Cases
	(Formerly 78k299)
The district court did not abuse its discretion in awarding attorney's fees to defendant employer in an action under 
the ADA, where the employee failed to produce any evidence that employer's proffered explanation for his 
termination was pretextual and his claims were based on mere speculation and conjecture, and where employee 
continued to litigate after it became clear during discovery that his claims lacked evidentiary support, so that the 
claims were frivolous and unfounded.  Americans with Disabilities Act of 1990,   505, 42 U.S.C.A.   12205.

[5] Civil Rights 78  1594

78 Civil Rights
     78IV Remedies Under Federal Employment Discrimination Statutes
          78k1585 Attorney Fees
               78k1594 k. Amount and Computation. Most Cited Cases
	(Formerly 78k302)
In suit under the ADA, the district court did not err in reducing prevailing employer's attorney's fee award from the 
requested $52,796 to $20,000, where the court found that the total number of hours billed by employer's counsel was 
excessive given that the legal and factual issues were not complex and the litigation was decided at the summary 
judgment stage, and took into consideration employee's financial resources and the fact that he suffered from a life-
threatening illness.  Americans with Disabilities Act of 1990,   505, 42 U.S.C.A.   12205.


Before EBEL, PORFILIO, and KELLY, Circuit Judges.

ORDER AND JUDGMENT FN* 


FN* This order and judgment is not binding precedent, except under the doctrines of law of the case, res 
judicata, and collateral estoppel.   The court generally disfavors the citation of orders and judgments;  
nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir.R. 36.3.

PAUL KELLY, Jr., Circuit Judge.
**1 After examining the briefs and appellate record, this panel has determined unanimously to grant the parties' 
request for a decision on the briefs without oral argument.*925    See Fed.R.App.P. 34(f);  10th Cir.R. 34.1(G).   
These cases are therefore ordered submitted without oral argument.

Plaintiff E. Dale Twilley appeals the district court's grant of summary judgment to defendant, his former employer, 
on his complaint alleging that defendant terminated his employment because of his disability in violation of the 
Americans with Disabilities Act (ADA), 42 U.S.C.    12101-12213, and in retaliation for exercising his rights 
under the Family and Medical Leave Act (FMLA), 29 U.S.C.    2601-2654.   Plaintiff also appeals the district 
court's award of attorney's fees to defendant;  defendant cross-appeals the district court's denial of its full attorney's 
fee request.   We affirm.


I. ADA and FMLA Claims

The parties are familiar with the facts, which are set out and fully addressed by the district court in its order filed 
January 25, 2000.   We review a grant of summary judgment de novo, applying the same legal standard as used by 
the district court.  Anderson v. Coors Brewing Co., 181 F.3d 1171, 1175 (10th Cir.1999).

[1] The analytical framework set forth in McDonnell Douglas Corp. v.. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 
36 L.Ed.2d 668 (1973), governs our review of plaintiff's ADA and FMLA claims.  Morgan v. Hilti, Inc., 108 F.3d 
1319, 1323 (10th Cir.1997).   Once plaintiff has established a prima facie case of an ADA discrimination claim or a 
FMLA retaliation claim, the burden shifts to defendant to offer a legitimate, non-discriminatory or non-retaliatory 
motive for its employment decision.  Id. If defendant meets that burden, the burden then shifts to plaintiff to show 
that "there is a genuine dispute of material fact as to whether the employer's proffered reason for the challenged 
action is pretextual-i.e., unworthy of belief."  Id. (quotation omitted).   Pretext can be demonstrated by "showing 
such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered 
legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence."  Id. 
(quotations omitted).

[2] The district court concluded that plaintiff failed to establish the last element in the analysis-namely, an inference 
that defendant terminated his employment based on his disability or in retaliation for his taking leave under FMLA. 
Defendant presented evidence that plaintiff was discharged because it had evidence that he altered a medical release 
form to reflect that he was sick on days that he was actually on vacation.

We have carefully reviewed the parties' briefs and the entire record in the case.   There is ample evidence in the 
record to support defendant's claim that it honestly believed that plaintiff had committed the alteration.   We find no 
evidence in the record that creates a genuine issue of material fact suggesting that defendant's explanation was 
unworthy of belief.   Accordingly, we affirm the district court's grant of summary judgment in favor of defendant.


II. Attorney's Fee Award

**2 [3] Plaintiff argues the district court erred by awarding defendant attorney's fees under the ADA. On cross-
appeal, defendant argues the court erred by reducing its requested fees.   The ADA permits the district court, in its 
discretion, to award the prevailing party "a reasonable attorney's fee, including litigation expenses and costs."  42 
U.S.C.   12205.   The Supreme Court held in Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 
L.Ed.2d 648 (1978), that a prevailing defendant in an action brought under Title VII of the Civil Rights Act of 1964 
should ordinarily only recover attorney's *926 fees if the district court finds "that the plaintiff's action was frivolous, 
unreasonable, or without foundation, even though not brought in subjective bad faith."  Id. at 421, 98 S.Ct. 694.   
This standard applies as well to the recovery of attorney's fees by prevailing defendants in ADA actions.  Bruce v. 
City of Gainesville, Ga., 177 F.3d 949, 951-52 (11th Cir.1999).

[4] We review the decision to award attorney's fees, and the amount awarded, for abuse of discretion.  Case v. 
Unified Sch. Dist. No. 233, 157 F.3d 1243, 1249 (10th Cir.1998).   Under the abuse of discretion standard, we will 
not disturb the district court's decision unless we have "a definite and firm conviction that the lower court made a 
clear error of judgment or exceeded the bounds of permissible choice in the circumstances."  Moothart v. Bell, 21 
F.3d 1499, 1504 (10th Cir.1994) (quotation omitted).   After reviewing the briefs and the record, we cannot say that 
the district court abused its discretion in awarding attorney's fees to defendant.

The standard in Christiansburg Garment is met when a party utterly fails to produce any evidence in support of 
material issues necessary to withstand summary judgment.  Head v. Medford, 62 F.3d 351, 355 (11th Cir.1995);  
Smith v. Smythe-Cramer Co., 754 F.2d 180, 183 (6th Cir.1985) ("Courts have awarded attorneys fees to prevailing 
defendants where no evidence supports the plaintiff's position or the defects in the suit are of such magnitude that 
the plaintiff's ultimate failure is clearly apparent from the beginning or at some significant point in the proceedings 
after which the plaintiff continues to litigate.").   We are satisfied from our review of the record that plaintiff failed 
to produce any evidence that defendant's proffered explanation for the termination was pretextual and we agree that 
his claims were based on mere speculation and conjecture.   Of course, "mere conjecture that [the] employer's 
explanation is a pretext ... is an insufficient basis for denial of summary judgment."  Branson v. Price River Coal 
Co., 853 F.2d 768, 772 (10th Cir.1988).   Yet, plaintiff continued to litigate after it became clear during discovery 
that his claims lacked evidentiary support.   Thus, we agree with the district court's finding that plaintiff's claims 
were frivolous and unfounded.   The district court's award does not conflict with the standards articulated in 
Christiansberg Garment, nor does it exceed the bounds of its permissible choice.

**3 [5] The district court reduced defendant's attorney's fee request from more than $52,796 to $20,000.   The court 
found that the total number of hours billed by defendant's counsel was excessive given that the legal and factual 
issues were not complex and the litigation was decided at the summary judgment stage.   See Case, 157 F.3d at 1250 
(holding that court must ensure that counsel exercised "billing judgment" and that hours expended were reasonable).   
The court also took into consideration plaintiff's financial resources and the fact that he suffers from a life-
threatening illness.   See Gibbs v. Clements Food Co., 949 F.2d 344, 345 (10th Cir.1991) (holding that non-
prevailing civil rights plaintiff's financial condition and resources are relevant to amount of attorney's fees to be 
awarded to prevailing defendant).   We find no error in the district court's reduction of the fee request.   See Case, 
157 F.3d at 1250 (general reduction of attorney's fees to prevailing party not erroneous where sufficient reasons 
given).

For substantially the reasons stated by the district court in its orders filed January 25, 2000, and May 11, 2001, we 
AFFIRM.

C.A.10 (Okla.),2001.
Twilley v. Integris Baptist Medical Center, Inc.
16 Fed.Appx. 923, 2001 WL 901102 (C.A.10 (Okla.)), 2001 DJCAR 4087, 21 NDLR P 157

Briefs and Other Related Documents (Back to top)

 00-6196 (Docket) (Jun. 14, 2000)
 00-6173 (Docket) (May. 23, 2000)
 00-6091 (Docket) (Mar. 14, 2000)

END OF DOCUMENT	





District Court's Summary Judgment Decision




District Court's Oral Grant of Rule 50 Motion at Trial




District Court's Findings of Fact and Conclusions of Law




District Court's Denial of EEOC's Motion to Amend or for New Trial




District Court's Finding of Frivolousness




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 14,000 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 May 22, 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 May 22, 2006, I will e-mail a version of this brief in 
Digital Form (containing portions of the Addendum available 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 (with the exception of those portions of the Addendum to the brief 
that were not available in Digital Form).
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 most recently updated 
in 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> All references to R. are to the corresponding entry on the district courts 
docket sheet.  All references to AA are to the corresponding page in the 
Appellants Appendix.

<2> The complaint also contained pregnancy discrimination claims on behalf of 
Tammy Hulce and Michelle Reid.  AA27-31.  The EEOC and CDM settled these claims 
via a consent decree.  R.17.

<3> This apparently included a ruling denying EEOCs claim for punitive damages.  
When CDM moved for a directed verdict on the EEOCs claim for punitive damages, 
specifically, the district court said Oh, forget that  Forget that, punitive 
damages.  AA964.

<4> CDM also asked for taxable costs and other non-taxable expenses.  R.143; R.144.  
The EEOC opposed these motions.  R.152; R.153.  On November 16, 2005, the district 
court granted CDMs motion for costs in part.  R.164.  The next day, CDM filed an 
application for attorneys fees in the amount of $183,497.86, and additional 
non-taxable expenses.  R.165; R.166.  In a subsequent filing, CDM increased this 
request for attorneys fees and non-taxable expenses to a total of $188,850.62.  
R.168.  The EEOC opposed this application.  R.167.  The district court has not yet 
ruled on CDMs motion for non-taxable expenses or on its application for fees.

<5> Unless otherwise indicated, the facts below are based on trial testimony.

<6> Carter was not involved with the dealership when Daggett promoted Segovia 
to Finance Manager and had nothing to do with the decision to promote Segovia 
to New Car Manager.  AA776,850.

<7> Ironically, on another occasion while Segovia was still Finance Manager and 
was with a customer, Segovias daughter came to the dealership crying and ran to 
greet her mother.  Carter grabbed her up and pulled her into his office.  AA525.  
Segovia wanted to go to her daughter, but Carter told her to [j]ust get back to 
work and to finish that transaction and dont stop production.  AA526.  
Segovia testified that she never saw Carter stop the men, the males from bringing 
their children to work or restrain them from interacting with their children.  
AA526-27.

<8> Segovia testified that, as New Car Manager, she did not have the authority 
to discipline any CDM employees who worked outside the new car department (e.g., 
used car salespeople like Griffin).  AA487.

<9> Segovia testified that she did not go to the EEOC at that time because she 
did not want to get the dealership or Carter in trouble.  I just wanted this 
kind of behavior to stop.  AA529.

<10> Segovia did not complain directly to Daggett about the incident because 
Carter was technically Mr. Daggetts boss.  I mean, he had the final say as to 
what went on in that dealership.  AA538,718.  In addition, she said, I dont 
know that Mr. Daggett could have done anything, and after my incident with Jean 
Shackleford, I didnt know that Mr. Daggett would do anything.  AA538.

<11> Richmond said [e]verybody knew Daggetts e-mail password.  It was 
common knowledge.  AA239.

<12> Richmond testified Ennis was noticeably late to all manager meetings.  
AA233.  She said nothing would happen to him as a result, and everybody joked 
about it.  AA233-34.

<13> Richmond also observed Fleet Manager Wade Rutter taking care of personal 
matters at work.  AA234.  She said she never complained about things Rutter did 
because [i]t wouldnt do any good to complain since Wade is a good old boy 
and hes one of the men.  AA235.

<14> Segovia later told her friend (the Finance Manager) Chris Wood that she was
 suffering from PMS the day she quit.  AA584,688.  However, she testified, I 
had emotionally had enough.  I had physically had enough.  I was financially going 
to have enough, regardless  I dont think anybody would just walk away from a job 
like that unless they just had enough, regardless of their PMS.  AA584.

<15> This Court liberally defines adverse action in an effort to best effectuate 
Title VIIs remedial purposes.  See, e.g., Hillig v. Rumsfeld, 381 F.3d 1028, 
1031-32 (10th Cir. 2004); see also Sanchez v. Denver Pub. Schs., 164 F.3d 527, 532 
(10th Cir. 1998); Berry v. Stevinson Chevrolet, 74 F.3d 980, 986-87 (10th Cir. 1996) 
(same).

<16> The Supreme Court will soon decide the proper standard for adverse employment 
action in the context of Title VII retaliation claims.  See Burlington N. & Santa 
Fe Ry. Co. v. White, 126 S. Ct. 797 (No. 05-259, Dec. 5, 2005) (granting certiorari 
to resolve a circuit split on this issue).

<17> The district court made the same error more than once.  It also found as a 
fact that Segovia presumed that the new pay plan would affect her adversely, 
though she did not review the plan thoroughly before reaching her conclusion.  
AA104.  At trial, the judge also told the jury that [t]he male got his salary 
cut, too, or got the same treatment and [n]obody seems to be able to come up 
with whether their salaries were cut or not.  AA978-79.  However, the record 
evidence clearly indicates that Segovias assessment of the new arrangement was 
accurate.  Segovia testified that it was obvious from the face of the New Pay 
Plan that it would have reduced her commissions.  Ennis also testified that 
Segovia made more money than he did and that the New Pay Plan would have 
effectively equalized their salaries.  Daggett admitted that Segovia was the 
highest-paid manager at CDM (except for Daggett himself) before the New Pay Plan 
went into effect.  By discounting this testimony and drawing a contrary conclusion, 
the district court improperly weighed the evidence, resolved conflicting testimony, 
and/or failed to draw inferences in the light most favorable to the EEOC.

<18> In addition [c]ommitting a legal error or making a factual finding that is 
not supported by substantial record evidence is necessarily an abuse of discretion.  
Elzour v. Ashcroft, 378 F.3d 1143, 1150 n.9 (10th Cir. 2004); cf. EEOC v. St. 
Louis-San Francisco Ry. Co., 743 F.2d 739, 744 (10th Cir. 1984) (While the district 
court here recited the proper standard, we find that it abused its discretion by 
awarding attorneys fees.).

<19> In its attorneys fees ruling, the district court indicated that at trial the 
EEOC was forced to concede many points that undermined and defeated [its] claims. 
AA210.  The district court never elaborated upon this vague statement and failed to 
explain what specific points the Commission conceded at trial that suddenly rendered 
our case groundless.  We are aware of no such concessions.