Attorney Fees Awarded to Def

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I N TH E UNI TED STATES COURT OF APPEALS

FOR THE FI FTH CIRCUI T

No. 07-60447

EQUAL EMPLOYMENT OPPORTUNITY COMM ISSION

Plaintiff-Appellant

v.

AGRO DISTRIBUTION LLC

Defendant-Appellee

Appeal f rom t he Uni ted States Distr ict Cour tfor the Southern Dist r ict of Mississippi

Before JONES, Chief Judge, and GARWOOD and SMITH, Circuit Judges.

EDITH H. JONES, Chief Judge:

The Equal Employment Opport unity Commission brought suit against

AgroDist r ibut ion, LLC (Agro) for violat ing the Amer icans wi th Disabil it ies Act

(ADA) by fail ing to provide a reasonable accommodation t o Henry Velez

(Velez) and by terminating his employment on the basis of his disabili ty. The

distr ict cour t dismissed thesui t and awarded approximately $225,000 attorneys

fees and costs to the defendant. The EEOC appeals this dismissal and award.

Because Velez is not disabled within the meaning of the ADA, Agro did not

refuse to provide reasonable accommodati on, and this sui t lacked foundat ion

following Velezs deposition, we AFFIRM.

I . BACKGROUND

United States Court of Appeals

Fifth Circuit

F I L E DJanuary 15, 2009

Charles R. Fulbruge IIIClerk


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No. 07-60447

1 We assume for summary judgment purposes that Velez has anhidroti c ectodermaldysplasia and that he cannot perspir e at all . This medical syndrome is unusual. Had therebeen a genuine issue of fact on relevant ADA issues, it would have been necessary at tr ial forEEOC to establish the natur e and extent of Velezs condition thr ough admissible medicalevidence. Fed. R. Evid. 701. No such evidence was presented.

2

Henry Velez test i fied that he suffers f rom a medical condi t ion cal led

anhidrotic ectodermal dysplasia, a condition that may be accompanied by an

absence of sweat glands. Velez was born wi th t his condit ion and has never

sweated.1 Being unable to perspir e, in hot weather , he must cool himself with

water or a fan more frequent ly than the average individual.

Despite this condit ion, Velez has worked at manual labor in Mississippi

and Louisiana for his ent ir e li fe. He worked at an un-air -condit ioned body shop;

his duties included manually removing car parts and straightening them and

welding whi le wearing gloves and a hood. Whil e employed on offshore r igs in the

Gulf of Mexico, Velez was assigned 12-hour shi ft s of manual labor . I n another

posit ion, Velez cleaned diesel engines while weari ng a soli d rubber wetsuit . I f

he became too hot during these jobs, Velez would t ake a break, cool off, and

return t o work .

Eventually, Velez was hired at Agro Distr ibutions Hatt iesburg facil it y as

a truck dr iver i n February 2000. He stopped worki ng for Agro in Apr il but

returned to his posit ion as a truck driver in March 2001. His dut ies included

assisting wit h manual labor. Wesley Graham, the location manager who hir ed

Velez, testified that everyone knew of Velezs condition and knew that Velez

needed to take breaks to cool off. When working for Agro, Velez took breaks as

he needed them without requesting permissionno one at Agro ever told him

that he could not take a break.

On July 15, 2002, Will Gri ffin, whoreplaced Graham as facili ty manager,

scheduled all non-office personnel to load bar rels on a t rail er at 6:00 a.m. the


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No. 07-60447

2 Agro disputes the substanceof thi sconversati on, assert ing that Velez told Gri ffin thathe would not show up because it was unfai r that he had to load the barrels on this occasion.Velez had loaded barr els previously and other employees at the faci li ty had not.

In reviewing a grant of summary judgment, weview the disputed facts in the light mostfavorable to the non-movant.

3

next morni ng. Agro would r eceive drums full of catt le feed, deli ver them to

customers, pick them up empty, and retur n them to manufacturers for a deposit

refund. When empty, the barr els weigh between 15 and 20 pounds. Aft er being

used to feed cat t le, the bar rels are fi lt hy and smel lyloading them is an

unpleasant t ask.

On two previous occasions, Velez and another individual had loaded

barrels. Velez test i fied that the second t ime they loaded the bar rels, it was the

last stop in theafternoon, and they rushed to get through the task, so hebecame

nauseated.

Velez spoke wit h Gri ffin and informed him that he could not load the

bar rels in the morning because i t would be too hot and he would get sick .2

Gri ffin told Velez that if he did not part icipate in loading the drums, he would

suffer the consequences. Gr iffi n did not t ell Velez that he could not t ake

breaks, and Griff in did not tell Velez that he had to participate non-stop, only

that Velez had to be present to help. When Velez did not show up t o assist wit h

the loading, Agro terminated him.

Velez fi led a charge wi th the EEOC on July 19, 2002. By January 2003,

before investigating beyond speaking with Velez and Graham, the EEOC

classified the charge as A2. Ben Bradley, the EEOC Area Director for t he

Jackson Office, explained in his deposit ion that th is meanst heCommission was

leaning towards a cause determinati on and [the EEOC] probably could eit her

mediate or [t he EEOC] could put a cause out there.


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No. 07-60447

3 Smalls letter states that the temperature was 85 degrees on July 14 and July 15,

2002. The barrels were loaded start ing at 6:00 a.m. on Jul y 16. The temperatur e remainedaround 70 degrees until 8:00 a.m. and rose to 77 degrees over the next hour.

4 Velez supported this statement in his deposit ion, where he testif ied that he couldper form manual labor in 80 degree heat wi th suffi cient breaks.

5 The record doesnot reveal any basis for compensatory damages. In it s Complaint , theEEOC requested damages for emot ional pain, sufferi ng, loss of enjoyment of life, andhumil iat ion. At h is deposit ion, Velez descr ibed losing his job wi th Agro as a blessing in

4

LaOuida Small , an EEOC Invest igator , per formed an on-site invest igat ion

on May 22, 2003. The next day, Herbert Ehr hardt , Agros att orney, mailed a

let ter to the EEOC expressing concern about Small s invest igat ion. Ehr hardt

report ed that she made insult ing remarks during interviews; indicated disgust

for the statements of management witnesses; raised her voice; rephrased

wi tnesses statements to favor the charge; and select ively r ecorded port ions of

the statements. The EEOC never responded to this letter and left Small in

charge of the investigation.

On June 17, Small sent a lett er to Agro summari zing the evidence

obtained. The let ter includes factual i naccuracies, including statements that t he

work was performed on July 15, 2002; that the temperature exceeded 85

degrees;3 and that Agro made noeffort to accommodate Velez. Agro r esponded

to the letter on July 3, noting these errors and explaining that Velez routinely

performed manual labor in heat far worsethan what wasexpected to accompany

this assignment .4

Bradley issued a Lett er of Determinati on on July 22. He found that the

evidence obtained during the invest igati on establi shed a violat ion of t he ADA

and attached a conci l iati on agreement demanding t hat Agro reinstate Velez,

post a notice, submit to EEOC oversight, and pay Velez $25,629 in back pay,

$10,907 in out-of-pocket medical expenses, and $120,000 in compensatory

damages.5


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No. 07-60447

disguise and denied suffering any emot ional problems from the loss.

5

Small called and left a message for Agros counsel on Fr iday, August 15.

Agro retur ned the call on Monday, August 18, and left a message request ing a

meet ing. The next day, the EEOC sent a let ter t o Agro announcing that

conci l iati on had failed.

On August 22, Agro responded that it was fully prepared to meet with the

Commission and again requested a meeting. The EEOC agreed to reopen

concili ati on in an August 28 lett er but required that any sett lement must follow

it s Remedies Poli cy. On September 11, Agro requested clar if icat ion as to

whet her EEOC meant t hat i t would be unwil l ing t o set tle wi thout

reinstatement, full back pay, and compensatory damages. The EEOC did not

respond. Agro then offered $3,500 in set t lement . Nearl y ten months later, on

July 16, 2004, the EEOC replied to Agro, rejecti ng the offer and insisti ng upon

reinstatement or front pay, back pay, medical expenses, and compensatory

damages.

TheEEOC fil ed suit on September 27seeking $250,000in damages, which

included approximately $80,000 in puni t ive damages. Fol lowing Velezs

deposi t ion, the EEOC offered to set t le for $42,000. The dist r ict granted

summary judgment to Agro and awarded att orneys fees dated from Velezs

deposi t ion, the cut-of f date for which the EEOC could be given any

considerati on for act ing wit h any justi ficati on. The EEOC appeals.

I I . SUBJECT MATTER JURI SDI CTION

Alt hough neit her part y raises the issueof subject matt er juri sdicti on, thi s

cour t must consider jur isdict ion sua sponte. Howery v.All stateIns. Co., 243 F.3d912, 919 (5th Cir . 2001). The distr ict cour t concluded that the EEOC did not

attempt concil iati on wi th Agro in good faith. Several cases have held t hat t he

EEOCs fai lure to conci li ate in good fai th depr ives the federal cour ts of


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No. 07-60447

6 In contrast to our approach set forth in Klinger , the Sixth Circuit declined to examinethe substanceof theEEOCsconcil iation effort s. SeeEEOCv. KecoI ndus., Inc., 748 F.2d 1097,1102 (6th Cir . 1984) (refusing to evaluate the form and substance of concil iati on).

6

jurisdict ion to hear the EEOCs suit. See, e.g., EEOC v. Magnol ia Elec. Power

Assn, 635 F.2d 375, 378 (5th Cir . 1981) ([T]he EEOCs fail ure to follow t hese

procedures concerning a r espondent deprives a federal distr ict cour t of subject

matt er jur isdict ion in a sui t by the EEOC against t hat respondent .).

The EEOC has a statutory obl igat ion to attempt conci l iat ion with

employers: [T]he Commission shal l endeavor to el iminate any such all eged

unlawful employment practi ce by informal methods of conference, concil iati on,

and persuasion. 42 U.S.C. 2000e-5(b). The Commission may br ing a civi l

acti on only if the Commission has been unable to secure from the respondent

a conciliation agreement. I d. at 2000e-5(f)(1).

Concil iat ion is the prefer red means of achieving the object ives of

Tit le VII , EEOC v. Pierce Packi ng Co., 669 F.2d 605, 609 (5th Cir. 1982), and

is one of the most essenti al functi ons of the EEOC. EEOC v. Pet, Inc., Funsten

Nut Div., 612 F.2d 1001, 1002 (5th Ci r . 1980). A good-faith attempt at

concil iati on requir es that the EEOC: (1) outl ine to the employer the reasonable

cause for it s beli ef t hat Ti t le VI I has been violated; (2) offer an oppor tuni ty for

volunt ary compl iance; and (3) respond in a reasonable and flexible manner to the

reasonable att it udes of the employer . EEOC v. Kl inger Elec. Corp., 636 F.2d

104, 107 (5th Ci r . 1981).6

Thedistr ict court corr ectl y concluded that in dealing with Agro, the EEOC

did not att empt concil iation in good fait h. By r epeatedly faili ng to communicate

with Agro, the EEOC fai led to respond in a reasonable and f lexible manner to

the reasonable at t i tudes of the employer . The EEOC abandoned i ts role as aneutral invest igator and compounded i ts arbi t rary assessment that Agro


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No. 07-60447

7

violated the ADA with an insupport able demand for compensatory damages as

a weapon to force sett lement. The dist ri ct cour t concludes, I t appears that the

Commission dealt in an arbit rary manner based on preconceived not ions of i ts

invest igator and ignored the at tempts of Agros counsel to engage the

Commission in set t lement discussions. The EEOCs take-it -or-leave-it demand

for more than $150,000 represents the coercive, all-or-nothing approach

previously condemned by this cour t in Pet, I nc., 612 F.2d at 1002 (per cur iam).

The EEOCs failure to comply with it s statutory duty does not , however ,

depri ve this cour t of subject mat ter jur isdict ion. The Supreme Cour t r ecent ly

addressed whether the 15-or-more employee requirement for liabil it y under

Tit le VII is jurisdict ional. Arbaugh v. Y& H Corp., 546 U.S. 500, 503, 126 S. Ct.

1235, 1238 (2006). In holding that t he limit ation does not restr ict jur isdicti on,

the Cour t stated:

[N]eit her 1331, nor Ti t le VI I 's jur isdictional provision specifi es anythreshold ingredient akin to 28 U.S.C. 1332s monetary fl oor . . . .[W]e think it the sounder course to refrain from constr icting 1331or Title VII s jurisdicti onal provision and to leave the ball in

Congress court . I f the Legislature clearl y states that a thr esholdlimit ation on a statutes scope shall count as juri sdicti onal, thencourts and litigants will be duly instructed and will not be left towrestle with the issue. But when Congress does not rank astatutory limit ation on coverage as jurisdicti onal, court s shouldt reat t he rest r iction as nonjur isdict ional in character .

546 U.S. at 51516; 126 S. Ct. at 1245 (internal cit ati ons omitt ed). Following

this interpreti ve approach, we conclude that t he EEOCs concili ati on

requirement is a precondition to suit but not a juri sdicti onal prerequisit e. To theextent that older cases, such as Magnol ia El ectr ic Power Associati on, 635 F.2d

at 375, hold that failure to conciliate can deprive courts of subject matter

juri sdicti on, they have been implicit ly overt urned by Arbaugh, 546 U.S. at 500.


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No. 07-60447

7 Agro does not argue that (and thus we need not address whether) the distri ct courtabused i ts discret ion by only awar ding att orneys fees dated after Velezs deposit ion.

8

Holding that conci l iat ion is not jur isdict ional does not render this

requirement meaningless. Cour ts remain f ree to impose a stay for the EEOC to

conti nueprematur ely terminated negoti ati ons, and where the EEOC fail s to act

in good fait h, dismissal remains an appropriate sancti on. Klingler, 636 F.2d at

107. The EEOC acts unreasonably i n disregarding procedural r equirements for

suit , and attorneys fees may be awarded. See Pierce Packing, 669 F.2d at 609.

Under these facts, dismissing the case and awarding attorneys fees for the

failure to concil iate would not haveconsti tut ed an abuse of discreti on.7 Because

the distr ict court opted to rule on the merit s of the case, weproceed to review the

summary judgment .

I I I . SUMM ARY JUDGMENT

TheEEOCchallenges thegrant of summary judgment wi th it s content ions

that genui ne issues exist as to whether Velez is disabled under t he ADA and

whether Agro failed to provide reasonable accommodation for his disability.

This court reviews a grant of summary judgment de novo, applying the

same standards as the dist r ict court . Kirschbaum v. Reliant Energy, Inc.,

526 F.3d 243, 248 (5th Cir . 2008). Summary judgment is proper when the

movant can demonstr ate that there is nogenuinei ssueof materi al fact and that

he is ent i tl ed to judgment as a mat ter of law. I d.; FED R. CIV. P. 56(c). On

review of a grant of summary judgment , all facts and in ferences must be

constr ued in the li ght most favorable to the non-movant. Kirschbaum, 526 F.3d

at 248.

A. Disabi l i ty

Under EEOC r egulat ions, a disabi l i t y is a physical or ment al

impairment that substantially l imits one or more of the major l ife activit ies of


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No. 07-60447

8 Because the record creates no genuine factual dispute as to whether Velez wassubstantial ly l imited in his abil i ty to regulate his body temperature, we assume, withoutdeciding, that the regulation of body temperature consti tut es a major life acti vity under theADA.

The EEOC, however, alternatively phrases the major life acti vity as regulating bodytemperature thr ough perspir ation. Perspiration is one method, among many, of regulatingbody temperature. I f body temperature can be otherwise regulated, the inabili ty to perspireis not of cent ral importance to dail y li fe. See Toyota Motor Mfg. v. Wi l l iams, 534 U.S. 184,187, 122 S. Ct. 681, 686 (2002). Defini ng a major l ife acti vit y at t his level of specifi cit y wouldopen the door to claims such as seeing wit hout correcti ve lenses. Cf. Sutton v. United Air

Li nes, Inc., 527 U.S. 471, 475, 119 S. Ct. 2139, 2143 (1999). The EEOC cannot evadeSuttonsrequirement to consider mit igat ing measures by narrowly def ining a major l i fe act ivi ty asaccompl ished thr ough a part icular means.

Congress recently enacted the ADA Amendments Act of 2008, PUB. L . NO. 110-325,122 STAT. 3553 (2008), but these changes do not apply retroactively. SeeRivers v. RoadwayExpress, Inc., 511 U.S. 298, 313, 114 S. Ct. 1510, 1519 (1994) (Even when Congress intendsto supersede a rule of law embodied in one of our decisionswith what it views as a better ruleestablished in earlier decisions, its intent to reach conduct preceding the correctiveamendment must clearly appear.).

9

such individual. 29 C.F.R. 1630.2(g). Substant iall y l imi ts means a person

is [s]ignificantl y restr icted as to the condition, manner or durati on under which

an individual can perform a par t icular major li fe act ivi ty as compared to the

condit ion, manner , or duration under which the average person in the general

populati on can perform that same major li feacti vity. I d. 1630.2(j)(1)(ii). The

EEOC contends that Velezs ectodermal dysplasia is a physical impairment that

substant ial ly l imits his bodys abi l i ty to regulate its temperature, a major l i fe

activity.8

Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S. Ct. 2139 (1999),

di rect s t hat subst ant ial l imi tat ion anal ysi s must be an i ndi vi dual ized

assessment t hat considers the effects of any mi t igating measur es taken by the

individual. I d. at 482; 119 S. Ct. at 2146. A disabili ty exists only where an

impairment substant iall y limit s a major li fe act ivi ty, not where it might,

could, or would be substantially l imit ing if mit igating measures were not

taken. I d.; 119 S. Ct. at 2146. This court holds that whether an impair ment i s


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No. 07-60447

10

substanti ally limit ing is determined in light of (1) the nature and severit y of the

impairment; (2) its duration or expected duration; and (3) its permanent or

expected permanent or long-term impact. Dutcher v. Ingal ls Shipbui lding,

53 F.3d 723, 726 (5th Cir. 1995) (citing 29 C.F.R. 1630 app., 1630.2(j)).

Heiko v. Columbo Savings Bank, F.S.B., 434 F.3d 249 (4th Ci r . 2006),

concludes that kidney failure substantially impairs the ability to eliminate

bodil y waste. The Four th Cir cui t compared Heikos method of waste el iminat ion

to that of t he average person:

In order to accomplish the equivalent of urination, Heiko had to . . .

tether himself to a dialysis machine three afternoons per week, fora total of twelve hours. This did not include tr avel time to and fromthe dialysis center , or the t ime required to set up the dialysisequipment . Dialysis also unyieldingly set t he terms of his dail yschedule. While he was able to work a for ty-hour week, hiscondit ion required him to arr ive at work by 7:00 a.m. every otherday. And whereas ur inat ion does not have side effects, after dialysisHeiko fel t nauseous and depleted, unable even to stand in theshower.

I d. at 257. In cont rast , the Sixt h Circui t descr ibed relat ively simple t reatment

when finding that diabetes did not substanti ally impair major l ife act ivi t ies:

The fact that McPherson needed to check h is blood sugar regular ly and to

at tend medical appointments does not establ ish that he was substant ial ly

l imi ted in his abi l i ty to see or care for himself. McPherson v. Federal Expr ess

Corp., 241 Fed. Appx. 277, 28283 (6th Cir . 2007). The use of ar ti ficial means

to accomplish a major l ife acti vit y does not alone establish substant ial

impair ment . The cour t must examine the impact of t he mit igating measures onthe workers individual li fe.

Velez has over the years adopted a variety of st rategies to regulate his

body temperature, including dr ink ing cold l iquids, si t t ing in front of a fan,

spraying himself wi th water, resti ng when labor ing on hot days, and using air


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No. 07-60447

9 Q: AsI understand it, aslong asyouvegot an abilit y to hydrate yourself, to cool downwit h water

A: Yes, sir , and air .Q: and air , you can do manual work?A: Yes, sir .Q: Just l ik e anybody else?A: Yes, sir .

11

condi t ioning. These behaviors are common and, in some cases, essent ial i n

southern climates or during heat spell s even for indivi duals capable of sweating.

Velez does not require special measures to regulate his body temperatur ehe

simply usesroutine measureswi th greater frequency or longer duration than the

average person. Velez test i fi ed that wi th access to water and a fan, he can do

manual labor just l ike anybody else.9

This increased use of ordinary methods of temperature regulation

resembles the correct ive lenses in Sutton far more closely than it resembles the

onerousdialysisregimeinHeiko. Because Velez regulates his body temperatur e

without significant side effects and in essentially the same manner as the

average person, no genuine i ssue exi st s as to whether hi s impai rment

substantially l imits a major l ife activity. See Sutton, 527 U.S. at 48283; 119

S. Ct. at 214647.

B. Reasonabl e Accomm odat i on

Even if Velez suffered from a disabi l i ty as def ined by the ADA, no

reasonable jury could find that Agro failed to grant his request for a reasonable

accommodati on. When a qualifi ed indivi dual wit h a disabil it y requests a

reasonable accommodation, the employer and employee should engage in

flexible, interactive discussions to determine the appropriate accommodation.

29 C.F.R. pt. 1630, App., 1603.9. The ADA provides a r ight t o reasonable

accommodat ion, not to the employees prefer red accommodat ion. Hedrick v.


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No. 07-60447

10 Q: Did you t el l them that you needed some accommodation t o per form your job?A: Just fans and water . You know, air movement and clean water.

11 Velez would have a significantly str onger claim if he had attended the loading andAgro had terminated him for t aking too many breaks.

12

Western Reserve CareSystem, 355 F.3d 444, 457 (6th Cir . 2004). The Appendix

to the ADA regulat ions explains:

The accommodat ion, however, does not have to be the bestaccommodat ion possible, so long as i t is sufficient to meet the

job-related needs of the individual being accommodated. . . . [T]heemployer providing the accommodati on has the ult imate discretionto choose between effecti ve accommodati ons, and may choose theless expensive accommodati on or the accommodati on that is easierfor it to provide.

29 C.F.R. pt . 1630, App., 1630.9.

Dur ing his employment at Agro, Velez had loaded the feed barrels twice

before. Agro provided him wit h reasonable accommodat ion by allowing him to

take breaks as necessary to cool himself off. Duri ng his deposit ion, Velez

testi fied that the only accommodati on he needed was air movement and clean

water.10 Velez stated that he was capable of half-an-hour of hard, physical

labor at 80 degrees before needing to take a break. No evidence suggests that

Agro would have denied Velez this accommodati on on the day in quest ion.

Instead of accepting th is accommodati on, however , Velez demanded a different

accommodat ion: to be compl etely excused from the task.

The reasonable accommodat ion analysis is hindered becauseVelezdid not

show up for work. Any discussion of t he accommodat ions that might have been

provided or denied is mere speculation.11 The panel in Loul seged v. AkzoNobel

Inc., 178 F.3d 731 (5th Cir . 1999), confronted a simi lar issue:

I t is dif ficul t to judge the reasonableness of accommodat ions whenthe employee withdraws before wecan say with any authori ty what

these accommodat ions would havebeen. . . . Given t his t ime frame,


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No. 07-60447

13

we beli eve it is impossible to judge the offer [of accommodat ion] asbeing the beginning and end of Akzos subst it ute accommodat ions.Had she not quit, Akzo might haveprovided her with a squadron ofOlympic weightli fters and a Mercedes-Benz chemical tr ansportvehicle to aid her in her tasks. It also might have ordered her onpain of terminati on t o move fift y-pound containers unaided.Because of Loulsegeds decision to quit, we simply cannot know.

I d. at 73435. Agro might have allowed Velez to move a single bar rel and let

him rest while everyone else loaded barrels, or Agro might have ordered him to

load barr els for hours wit hout any breaks. Because Velez refused to show up,

as in Loul seged, we simply cannot know.

Velez cannot benefit from this uncert ainty by assuming that he would not

have been allowed sufficient cooli ng breaks, the same accommodati on that had

previously proven sufficient . Even if the par ti cular heat of that day required

Velez to take additi onal breaks, he was capable of assisting in the loading, at

least to some extent . The ADA does not require Agro to credit Velezs

unr easonable assert ion that no mat ter the number of cool ing breaks, he could

not part icipate in loading, to any degree, wit hout becoming il l. At his deposit ion,

Velez clearly stated that with sufficient opportunities to cool off, he was fully

capable of performing manual labor. Agro provided Velez wit h these

opport unit ies in the past, and Velezs unfounded assumption that Agro would

not provide him with sufficient opport unities on the morning of July 16 does not

obli ge Agro to excuse him fr om the task.

No evidence suggests that Agro would not have provided the same

accommodati on that Velez previously received, and no evidence suggests thatVelez could not have accompli shed the task wit h this accommodat ion. Even if

Velez was substantially limited in t he major l ife acti vity of regulating body

temperature, nogenui ne issueexistsastowhether Agro denied Velez reasonable

accommodation.


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No. 07-60447

12 Although the conclusion of the distr ict court s opinion states May 6, 2005, the opinionas a whole and the amount awarded clari fy t hat fees were awarded from May 6, 2006.

14

Because no genuine issue of material fact existed as to whether Agro

denied reasonable accommodati on to an individual substant iall y impaired in a

major l i fe act ivi ty, summary judgment in favor of Agro was appropriate.

I V. ATT ORNEYS FEES

The EEOC addit ionall y challenges the distr ict court s award of att orneys

fees to Agro. Granti ng summary judgment does not compel the award of t hese

fees. The distr ict cour t may, in i t s discret ion, award attorneys fees to a

prevail ing defendant in a Tit le VII case upon a finding that the plaintif f s claim

was frivolous, unreasonable, or groundless, or that the plaintiff continued to

l i t igate after i t clear ly became so. Christianburg Garment Co. v. EEOC,

434 U.S. 412, 42122 (1978). The Cour t expressly warns against using post hoc

reasoning to find that because the plaint i ff did not prevai l, his act ion was

unreasonable. I d. We review t he distr ict cour t s award of fees for an abuse of

discretion.

Alt hough the distr ict court noted deficiencies in the EEOCs investi gati on

and concil iation, in an effort to give the EEOC the benefit of every doubt, the

cour t awarded attorneys fees dated fr om M ay 6, 2006.12 On that date, counsel

for Agro telephoned the regional counsel for the EEOC and explained that

Velezs deposit ion testi mony revealed that he had no claim. The distr ict cour t

found that the EEOC was absolutely unjust i fi ed in proceeding past the

deposition of Velez.

At his depositi on, Velez testified that he was not substanti ally limit ed in

a major li feacti vit y becausehecould regulate his body temperaturewit h breaks,fans, and air condit ioning. Velez fur ther testi fied that he was not denied

reasonable accommodat ion because he was capable of per forming manual labor


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No. 07-60447

13 Q: [Mr. Griffin] didnt tell you you couldnt take a break if you needed one?A: No, sir . He didnt tell me that.

15

(at hott er temperatures than on the day in question) when given breaks to cool

off and that Agro had never denied him a break.13 Following the deposition,

there was no reason t o proceed. Even i f t he EEOC did not cont inue the sui t in

subjecti ve bad fait h, it s acti on obviously lacked foundati on at least on t he

quest ion of Agros denial of reasonable accommodat ion. The dist r ict cour t did

not abuse i ts discret ion by awarding attorneys fees to Agro.

The EEOC additi onall y challenges the amount of the award. This court

reviews the determinati on of reasonable hours and rates for clear err or and the

appli cation of the relevant factors for abuse of discret ion. No Bar r iers, Inc. v.

Brinker Chilis Tex., Inc., 262 F.3d 496 (5th Ci r . 2001). The factors relevant

when calculating att orneys fees are found i n Johnson v. Georgia Highway

Express, 488 F.2d 714, 71719 (5th Cir. 1974). The distr ict court need not

specifically discuss the Johnson factors where i t has appl ied the Johnson

framework. Cobb v. Mi l ler , 818 F.2d 1227, 1232 (5th Cir. 1987).

The distr ict courts award appli es the Johnson framework : [T]he rates

charged by the respect ive att orneys and staff members are adequately

documented and represent reasonable rates for the time and ski ll of t he

att orneys involved. The distr ict cour t did not abuse i ts discret ion in applyi ng

these factors, and the calculati ons of thereasonable hours and rates donot show

clear err or .

Because the action lacked any foundation after Velezs deposition, the

distr ict cour t did not abuse i ts discret ion by awarding attorneys fees against

EEOC.

V. CONCLUSION


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The EEOC must vigorously enforce the Ameri cans wit h Disabil it ies Act

and ensure it s protecti ons to affected workers, but in doing so, the EEOC owes

duties to employers as well: a duty reasonably to investigate charges, a duty to

concil iate in good fait h, and a duty to cease enforcement att empts after learning

that an acti on lacks meri t. I n thi s case, the EEOC abandoned its duti es and

pursued a groundless act ion with exorbitant demands. The distr ict court

appropriately granted summary judgment for and awarded att orneys fees t o

Agro, and it s judgment is AFFIRMED.

Documents

Attorney Fees Awarded to Def