Equal Employment Opportunity Commission v. Agro Distribution, LLC

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.

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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.

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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.”).

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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.

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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.

15

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