IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 15, 2009
No. 07-60447 Charles R. Fulbruge III
Clerk
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Plaintiff-Appellant
v.
AGRO DISTRIBUTION LLC
Defendant-Appellee
Appeal from the United States District Court
for the Southern District of Mississippi
Before JONES, Chief Judge, and GARWOOD and SMITH, Circuit Judges.
EDITH H. JONES, Chief Judge:
The Equal Employment Opportunity Commission brought suit against
Agro Distribution, LLC (“Agro”) for violating the Americans with Disabilities Act
(“ADA”) by failing to provide a reasonable accommodation to Henry Velez
(“Velez”) and by terminating his employment on the basis of his disability. The
district court dismissed the suit 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 accommodation, and this suit lacked foundation
following Velez’s deposition, we AFFIRM.
I. BACKGROUND
No. 07-60447
Henry Velez testified that he suffers from a medical condition called
anhidrotic ectodermal dysplasia, a condition that may be accompanied by an
absence of sweat glands. Velez was born with this condition and has never
sweated.1 Being unable to perspire, in hot weather, he must cool himself with
water or a fan more frequently than the average individual.
Despite this condition, Velez has worked at manual labor in Mississippi
and Louisiana for his entire life. He worked at an un-air-conditioned body shop;
his duties included manually removing car parts and straightening them and
welding while wearing gloves and a hood. While employed on offshore rigs in the
Gulf of Mexico, Velez was assigned 12-hour shifts of manual labor. In another
position, Velez cleaned diesel engines while wearing a solid rubber “wetsuit.” If
he became too hot during these jobs, Velez would take a break, cool off, and
return to work.
Eventually, Velez was hired at Agro Distribution’s Hattiesburg facility as
a truck driver in February 2000. He stopped working for Agro in April but
returned to his position as a truck driver in March 2001. His duties included
assisting with manual labor. Wesley Graham, the location manager who hired
Velez, testified that everyone knew of Velez’s 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 permission—no one at Agro ever told him
that he could not take a break.
On July 15, 2002, Will Griffin, who replaced Graham as facility manager,
scheduled all non-office personnel to load barrels on a trailer at 6:00 a.m. the
1
We assume for summary judgment purposes that Velez has anhidrotic ectodermal
dysplasia and that he cannot perspire at all. This medical syndrome is unusual. Had there
been a genuine issue of fact on relevant ADA issues, it would have been necessary at trial for
EEOC to establish the nature and extent of Velez’s condition through admissible medical
evidence. Fed. R. Evid. 701. No such evidence was presented.
2
No. 07-60447
next morning. Agro would receive drums full of cattle feed, deliver them to
customers, pick them up empty, and return them to manufacturers for a deposit
refund. When empty, the barrels weigh between 15 and 20 pounds. After being
used to feed cattle, the barrels are filthy and smelly—loading them is an
unpleasant task.
On two previous occasions, Velez and another individual had loaded
barrels. Velez testified that the second time they loaded the barrels, it was the
last stop in the afternoon, and they rushed to get through the task, so he became
nauseated.
Velez spoke with Griffin and informed him that he could not load the
barrels in the morning because it would be too hot and he would get sick.2
Griffin told Velez that if he did not participate in loading the drums, he would
“suffer the consequences.” Griffin did not tell Velez that he could not take
breaks, and Griffin 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 to assist with
the loading, Agro terminated him.
Velez filed a charge with 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 the
Jackson Office, explained in his deposition that this means the Commission was
“leaning towards a cause determination” and “[the EEOC] probably could either
mediate or [the EEOC] could put a cause out there.”
2
Agro disputes the substance of this conversation, asserting that Velez told Griffin that
he would not show up because it was unfair that he had to load the barrels on this occasion.
Velez had loaded barrels previously and other employees at the facility had not.
In reviewing a grant of summary judgment, we view the disputed facts in the light most
favorable to the non-movant.
3
No. 07-60447
LaOuida Small, an EEOC Investigator, performed an on-site investigation
on May 22, 2003. The next day, Herbert Ehrhardt, Agro’s attorney, mailed a
letter to the EEOC expressing concern about Small’s investigation. Ehrhardt
reported that she made insulting remarks during interviews; indicated disgust
for the statements of management witnesses; raised her voice; rephrased
witnesses’ statements to favor the charge; and selectively recorded portions of
the statements. The EEOC never responded to this letter and left Small in
charge of the investigation.
On June 17, Small sent a letter to Agro summarizing the evidence
obtained. The letter includes factual inaccuracies, including statements that the
work was performed on July 15, 2002; that the temperature exceeded 85
degrees;3 and that Agro made “no effort” to accommodate Velez. Agro responded
to the letter on July 3, noting these errors and explaining that Velez “routinely
performed manual labor in heat far worse than what was expected to accompany
this assignment.”4
Bradley issued a Letter of Determination on July 22. He found that the
evidence obtained during the investigation established a violation of the ADA
and attached a “conciliation agreement” demanding that 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
3
Small’s letter states that the temperature was 85 degrees on July 14 and July 15,
2002. The barrels were loaded starting at 6:00 a.m. on July 16. The temperature remained
around 70 degrees until 8:00 a.m. and rose to 77 degrees over the next hour.
4
Velez supported this statement in his deposition, where he testified that he could
perform manual labor in 80 degree heat with sufficient breaks.
5
The record does not reveal any basis for compensatory damages. In its Complaint, the
EEOC requested damages for “emotional pain, suffering, loss of enjoyment of life, and
humiliation.” At his deposition, Velez described losing his job with Agro as “a blessing in
4
No. 07-60447
Small called and left a message for Agro’s counsel on Friday, August 15.
Agro returned the call on Monday, August 18, and left a message requesting a
meeting. The next day, the EEOC sent a letter to Agro announcing that
conciliation 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
conciliation in an August 28 letter but required that any settlement must follow
its “Remedies Policy.” On September 11, Agro requested clarification as to
whether EEOC meant that it would be unwilling to settle without
reinstatement, full back pay, and compensatory damages. The EEOC did not
respond. Agro then offered $3,500 in settlement. Nearly ten months later, on
July 16, 2004, the EEOC replied to Agro, rejecting the offer and insisting upon
reinstatement or front pay, back pay, medical expenses, and compensatory
damages.
The EEOC filed suit on September 27 seeking $250,000 in damages, which
included approximately $80,000 in punitive damages. Following Velez’s
deposition, the EEOC offered to settle for $42,000. The district granted
summary judgment to Agro and awarded attorneys’ fees dated from Velez’s
deposition, “the cut-off date for which the EEOC could be given any
consideration for acting with any justification.” The EEOC appeals.
II. SUBJECT MATTER JURISDICTION
Although neither party raises the issue of subject matter jurisdiction, this
court must consider jurisdiction sua sponte. Howery v. Allstate Ins. Co., 243 F.3d
912, 919 (5th Cir. 2001). The district court concluded that the EEOC did not
attempt conciliation with Agro in good faith. Several cases have held that the
EEOC’s failure to conciliate in good faith deprives the federal courts of
disguise” and denied suffering any emotional problems from the loss.
5
No. 07-60447
jurisdiction to hear the EEOC’s suit. See, e.g., EEOC v. Magnolia Elec. Power
Ass’n, 635 F.2d 375, 378 (5th Cir. 1981) (“[T]he EEOC’s failure to follow these
procedures concerning a respondent deprives a federal district court of subject
matter jurisdiction in a suit by the EEOC against that respondent.”).
The EEOC has a statutory obligation to attempt conciliation with
employers: “[T]he Commission shall endeavor to eliminate any such alleged
unlawful employment practice by informal methods of conference, conciliation,
and persuasion.” 42 U.S.C. § 2000e-5(b). The Commission may bring a civil
action only if “the Commission has been unable to secure from the respondent
a conciliation agreement.” Id. at § 2000e-5(f)(1).
Conciliation is “the preferred means of achieving the objectives of
Title VII,” EEOC v. Pierce Packing Co., 669 F.2d 605, 609 (5th Cir. 1982), and
is one of the “most essential functions” of the EEOC. EEOC v. Pet, Inc., Funsten
Nut Div., 612 F.2d 1001, 1002 (5th Cir. 1980). A good-faith attempt at
conciliation requires that the EEOC: (1) outline to the employer the reasonable
cause for its belief that Title VII has been violated; (2) offer an opportunity for
voluntary compliance; and (3) respond in a reasonable and flexible manner to the
reasonable attitudes of the employer. EEOC v. Klinger Elec. Corp., 636 F.2d
104, 107 (5th Cir. 1981).6
The district court correctly concluded that in dealing with Agro, the EEOC
did not attempt conciliation in good faith. By repeatedly failing to communicate
with Agro, the EEOC failed to respond in a reasonable and flexible manner to
the reasonable attitudes of the employer. The EEOC abandoned its role as a
neutral investigator and compounded its arbitrary assessment that Agro
6
In contrast to our approach set forth in Klinger, the Sixth Circuit declined to examine
the substance of the EEOC’s conciliation efforts. See EEOC v. Keco Indus., Inc., 748 F.2d 1097,
1102 (6th Cir. 1984) (refusing to evaluate the form and substance of conciliation).
6
No. 07-60447
violated the ADA with an insupportable demand for compensatory damages as
a weapon to force settlement. The district court concludes, “It appears that the
Commission dealt in an arbitrary manner based on preconceived notions of its
investigator and ignored the attempts of Agro’s counsel to engage the
Commission in settlement discussions.” The EEOC’s take-it-or-leave-it demand
for more than $150,000 represents the coercive, “all-or-nothing approach”
previously condemned by this court in Pet, Inc., 612 F.2d at 1002 (per curiam).
The EEOC’s failure to comply with its statutory duty does not, however,
deprive this court of subject matter jurisdiction. The Supreme Court recently
addressed whether the 15-or-more employee requirement for liability under
Title VII is jurisdictional. Arbaugh v. Y&H Corp., 546 U.S. 500, 503, 126 S. Ct.
1235, 1238 (2006). In holding that the limitation does not restrict jurisdiction,
the Court stated:
[N]either § 1331, nor Title VII's jurisdictional provision specifies any
threshold ingredient akin to 28 U.S.C. § 1332’s monetary floor. . . .
[W]e think it the sounder course to refrain from constricting § 1331
or Title VII’s jurisdictional provision and to leave the ball in
Congress’ court. If the Legislature clearly states that a threshold
limitation on a statute’s scope shall count as jurisdictional, then
courts and litigants will be duly instructed and will not be left to
wrestle with the issue. But when Congress does not rank a
statutory limitation on coverage as jurisdictional, courts should
treat the restriction as nonjurisdictional in character.
546 U.S. at 515–16; 126 S. Ct. at 1245 (internal citations omitted). Following
this interpretive approach, we conclude that the EEOC’s conciliation
requirement is a precondition to suit but not a jurisdictional prerequisite. To the
extent that older cases, such as Magnolia Electric Power Association, 635 F.2d
at 375, hold that failure to conciliate can deprive courts of subject matter
jurisdiction, they have been implicitly overturned by Arbaugh, 546 U.S. at 500.
7
No. 07-60447
Holding that conciliation is not jurisdictional does not render this
requirement meaningless. Courts remain free to impose a stay for the EEOC to
continue prematurely terminated negotiations, and where the EEOC fails to act
in good faith, dismissal remains an appropriate sanction. Klingler, 636 F.2d at
107. The EEOC acts unreasonably in disregarding procedural requirements 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 conciliate would not have constituted an abuse of discretion.7 Because
the district court opted to rule on the merits of the case, we proceed to review the
summary judgment.
III. SUMMARY JUDGMENT
The EEOC challenges the grant of summary judgment with its contentions
that genuine issues exist as to whether Velez is disabled under the 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 district court. Kirschbaum v. Reliant Energy, Inc.,
526 F.3d 243, 248 (5th Cir. 2008). Summary judgment is proper when the
movant can demonstrate that there is no genuine issue of material fact and that
he is entitled to judgment as a matter of law. Id.; FED R. CIV. P. 56(c). On
review of a grant of summary judgment, all facts and inferences must be
construed in the light most favorable to the non-movant. Kirschbaum, 526 F.3d
at 248.
A. Disability
Under EEOC regulations, a “disability” is “a physical or mental
impairment that substantially limits one or more of the major life activities of
7
Agro does not argue that (and thus we need not address whether) the district court
abused its discretion by only awarding attorneys’ fees dated after Velez’s deposition.
8
No. 07-60447
such individual.” 29 C.F.R. § 1630.2(g). “Substantially limits” means a person
is “[s]ignificantly restricted as to the condition, manner or duration under which
an individual can perform a particular major life activity as compared to the
condition, manner, or duration under which the average person in the general
population can perform that same major life activity.” Id. § 1630.2(j)(1)(ii). The
EEOC contends that Velez’s ectodermal dysplasia is a physical impairment that
substantially limits his body’s ability to regulate its temperature, a major life
activity.8
Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S. Ct. 2139 (1999),
directs that substantial limitation analysis must be an individualized
assessment that considers the effects of any mitigating measures taken by the
individual. Id. at 482; 119 S. Ct. at 2146. “A ‘disability’ exists only where an
impairment ‘substantially limits’ a major life activity, not where it ‘might,’
‘could,’ or ‘would’ be substantially limiting if mitigating measures were not
taken.” Id.; 119 S. Ct. at 2146. This court holds that whether an impairment is
8
Because the record creates no genuine factual dispute as to whether Velez was
substantially limited in his ability to regulate his body temperature, we assume, without
deciding, that the regulation of body temperature constitutes a major life activity under the
ADA.
The EEOC, however, alternatively phrases the major life activity as “regulating body
temperature through perspiration.” Perspiration is one method, among many, of regulating
body temperature. If body temperature can be otherwise regulated, the inability to perspire
is not “of central importance to daily life.” See Toyota Motor Mfg. v. Williams, 534 U.S. 184,
187, 122 S. Ct. 681, 686 (2002). Defining a major life activity at this level of specificity would
open the door to claims such as “seeing without corrective lenses.” Cf. Sutton v. United Air
Lines, Inc., 527 U.S. 471, 475, 119 S. Ct. 2139, 2143 (1999). The EEOC cannot evade Sutton’s
requirement to consider mitigating measures by narrowly defining a major life activity as
accomplished through a particular 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. See Rivers v. Roadway
Express, Inc., 511 U.S. 298, 313, 114 S. Ct. 1510, 1519 (1994) (“Even when Congress intends
to supersede a rule of law embodied in one of our decisions with what it views as a better rule
established in earlier decisions, its intent to reach conduct preceding the ‘corrective’
amendment must clearly appear.”).
9
No. 07-60447
substantially limiting “is determined in light of (1) the nature and severity of the
impairment; (2) its duration or expected duration; and (3) its permanent or
expected permanent or long-term impact.” Dutcher v. Ingalls Shipbuilding,
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 Cir. 2006),
concludes that kidney failure substantially impairs the ability to eliminate
bodily waste. The Fourth Circuit compared Heiko’s method of waste elimination
to that of the average person:
In order to accomplish the equivalent of urination, Heiko had to . . .
tether himself to a dialysis machine three afternoons per week, for
a total of twelve hours. This did not include travel time to and from
the dialysis center, or the time required to set up the dialysis
equipment. Dialysis also unyieldingly set the terms of his daily
schedule. While he was able to work a forty-hour week, his
condition required him to arrive at work by 7:00 a.m. every other
day. And whereas urination does not have side effects, after dialysis
Heiko felt nauseous and depleted, unable even to stand in the
shower.
Id. at 257. In contrast, the Sixth Circuit described relatively simple treatment
when finding that diabetes did not substantially impair major life activities:
“The fact that McPherson needed to check his blood sugar regularly and to
attend medical appointments does not establish that he was substantially
limited in his ability to see or care for himself.” McPherson v. Federal Express
Corp., 241 Fed. Appx. 277, 282–83 (6th Cir. 2007). The use of artificial means
to accomplish a major life activity does not alone establish substantial
impairment. The court must examine the impact of the mitigating measures on
the worker’s individual life.
Velez has over the years adopted a variety of strategies to regulate his
body temperature, including drinking cold liquids, sitting in front of a fan,
spraying himself with water, resting when laboring on hot days, and using air
10
No. 07-60447
conditioning. These behaviors are common and, in some cases, essential in
southern climates or during heat spells even for individuals capable of sweating.
Velez does not require special measures to regulate his body temperature—he
simply uses routine measures with greater frequency or longer duration than the
average person. Velez testified that with access to water and a fan, he can do
manual labor just like anybody else.9
This increased use of ordinary methods of temperature regulation
resembles the corrective lenses in Sutton far more closely than it resembles the
onerous dialysis regime in Heiko. Because Velez regulates his body temperature
without significant side effects and in essentially the same manner as the
average person, no genuine issue exists as to whether his impairment
“substantially limits” a major life activity. See Sutton, 527 U.S. at 482–83; 119
S. Ct. at 2146–47.
B. Reasonable Accommodation
Even if Velez suffered from a disability as defined by the ADA, no
reasonable jury could find that Agro failed to grant his request for a reasonable
accommodation. When a qualified individual with a disability 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 right to reasonable
accommodation, not to the employee’s preferred accommodation. Hedrick v.
9
Q: As I understand it, as long as you’ve got an ability to hydrate yourself, to cool down
with water –
A: Yes, sir, and air.
Q: – and air, you can do manual work?
A: Yes, sir.
Q: Just like anybody else?
A: Yes, sir.
11
No. 07-60447
Western Reserve Care System, 355 F.3d 444, 457 (6th Cir. 2004). The Appendix
to the ADA regulations explains:
The accommodation, however, does not have to be the “best”
accommodation possible, so long as it is sufficient to meet the
job-related needs of the individual being accommodated. . . . [T]he
employer providing the accommodation has the ultimate discretion
to choose between effective accommodations, and may choose the
less expensive accommodation or the accommodation that is easier
for it to provide.
29 C.F.R. pt. 1630, App., § 1630.9.
During his employment at Agro, Velez had loaded the feed barrels twice
before. Agro provided him with reasonable accommodation by allowing him to
take breaks as necessary to cool himself off. During his deposition, Velez
testified that the only accommodation 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 accommodation on the day in question.
Instead of accepting this accommodation, however, Velez demanded a different
accommodation: to be completely excused from the task.
The reasonable accommodation analysis is hindered because Velez did not
show up for work. Any discussion of the accommodations that might have been
provided or denied is mere speculation.11 The panel in Loulseged v. Akzo Nobel
Inc., 178 F.3d 731 (5th Cir. 1999), confronted a similar issue:
It is difficult to judge the reasonableness of accommodations when
the employee withdraws before we can say with any authority what
these accommodations would have been. . . . Given this time frame,
10
Q: Did you tell them that you needed some accommodation to perform your job?
A: Just fans and water. You know, air movement and clean water.
11
Velez would have a significantly stronger claim if he had attended the loading and
Agro had terminated him for taking too many breaks.
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No. 07-60447
we believe it is impossible to judge the offer [of accommodation] as
being the beginning and end of Akzo’s substitute accommodations.
Had she not quit, Akzo might have provided her with a squadron of
Olympic weightlifters and a Mercedes-Benz chemical transport
vehicle to aid her in her tasks. It also might have ordered her on
pain of termination to move fifty-pound containers unaided.
Because of Loulseged’s decision to quit, we simply cannot know.
Id. at 734–35. Agro might have allowed Velez to move a single barrel and let
him rest while everyone else loaded barrels, or Agro might have ordered him to
load barrels for hours without any breaks. Because Velez refused to show up,
as in Loulseged, we simply cannot know.
Velez cannot benefit from this uncertainty by assuming that he would not
have been allowed sufficient cooling breaks, the same accommodation that had
previously proven sufficient. Even if the particular heat of that day required
Velez to take additional breaks, he was capable of assisting in the loading, at
least to some extent. The ADA does not require Agro to credit Velez’s
unreasonable assertion that no matter the number of cooling breaks, he could
not participate in loading, to any degree, without becoming ill. At his deposition,
Velez clearly stated that with sufficient opportunities to cool off, he was fully
capable of performing manual labor. Agro provided Velez with these
opportunities in the past, and Velez’s unfounded assumption that Agro would
not provide him with sufficient opportunities on the morning of July 16 does not
oblige Agro to excuse him from the task.
No evidence suggests that Agro would not have provided the same
accommodation that Velez previously received, and no evidence suggests that
Velez could not have accomplished the task with this accommodation. Even if
Velez was substantially limited in the major life activity of regulating body
temperature, no genuine issue exists as to whether Agro denied Velez reasonable
accommodation.
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No. 07-60447
Because no genuine issue of material fact existed as to whether Agro
denied reasonable accommodation to an individual substantially impaired in a
major life activity, summary judgment in favor of Agro was appropriate.
IV. ATTORNEYS’ FEES
The EEOC additionally challenges the district court’s award of attorneys’
fees to Agro. Granting summary judgment does not compel the award of these
fees. The district court may, in its discretion, award attorneys’ fees to a
prevailing defendant in a Title VII case upon a finding that the plaintiff’s claim
was “frivolous, unreasonable, or groundless, or that the plaintiff continued to
litigate after it clearly became so.” Christianburg Garment Co. v. EEOC,
434 U.S. 412, 421–22 (1978). The Court expressly warns against using post hoc
reasoning to find that because the plaintiff did not prevail, his action was
unreasonable. Id. We review the district court’s award of fees for an abuse of
discretion.
Although the district court noted deficiencies in the EEOC’s investigation
and conciliation, “in an effort to give the EEOC the benefit of every doubt,” the
court awarded attorneys’ fees dated from May 6, 2006.12 On that date, counsel
for Agro telephoned the regional counsel for the EEOC and explained that
Velez’s deposition testimony revealed that he had no claim. The district court
found that “the EEOC was absolutely unjustified in proceeding past the
deposition of Velez.”
At his deposition, Velez testified that he was not substantially limited in
a major life activity because he could regulate his body temperature with breaks,
fans, and air conditioning. Velez further testified that he was not denied
reasonable accommodation because he was capable of performing manual labor
12
Although the conclusion of the district court’s opinion states May 6, 2005, the opinion
as a whole and the amount awarded clarify that fees were awarded from May 6, 2006.
14
No. 07-60447
(at hotter 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 to proceed. Even if the EEOC did not continue the suit in
subjective bad faith, its action obviously lacked foundation at least on the
question of Agro’s denial of reasonable accommodation. The district court did
not abuse its discretion by awarding attorneys’ fees to Agro.
The EEOC additionally challenges the amount of the award. This court
reviews the determination of reasonable hours and rates for clear error and the
application of the relevant factors for abuse of discretion. No Barriers, Inc. v.
Brinker Chili’s Tex., Inc., 262 F.3d 496 (5th Cir. 2001). The factors relevant
when calculating attorneys’ fees are found in Johnson v. Georgia Highway
Express, 488 F.2d 714, 717–19 (5th Cir. 1974). The district court need not
specifically discuss the Johnson factors where it has applied the Johnson
framework. Cobb v. Miller, 818 F.2d 1227, 1232 (5th Cir. 1987).
The district court’s award applies the Johnson framework: “[T]he rates
charged by the respective attorneys and staff members are adequately
documented and represent reasonable rates for the time and skill of the
attorneys involved.” The district court did not abuse its discretion in applying
these factors, and the calculations of the reasonable hours and rates do not show
clear error.
Because the action lacked any foundation after Velez’s deposition, the
district court did not abuse its discretion by awarding attorneys’ fees against
EEOC.
V. CONCLUSION
13
Q: [Mr. Griffin] didn’t tell you you couldn’t take a break if you needed one?
A: No, sir. He didn’t tell me that.
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No. 07-60447
The EEOC must vigorously enforce the Americans with Disabilities Act
and ensure its protections to affected workers, but in doing so, the EEOC owes
duties to employers as well: a duty reasonably to investigate charges, a duty to
conciliate in good faith, and a duty to cease enforcement attempts after learning
that an action lacks merit. In this case, the EEOC abandoned its duties and
pursued a groundless action with exorbitant demands. The district court
appropriately granted summary judgment for and awarded attorneys’ fees to
Agro, and its judgment is AFFIRMED.
16