Garrett v. General Motors Corporation Respondent's Brief in Opposition

    No. 88-255

In The

Supreme Court of tije Itniteft States
October Term, 1988

Warren Garrett, 
Petitioner,

vs.

General Motors Corporation, 
Respondent.

On Petition for Writ of Certiorari to the 
United States Court of Appeals For the Eighth Circuit

RESPONDENT S BRIEF IN OPPOSITION

Lashly, Baer & Hamel 
A Professional Corporation 
James E. McDaniel*
Robert A. Kaiser 
714 Locust Street 
St. Louis, Missouri 63101 
(314) 621-2939

David M. Davis, Legal Staff 
General Motors Corporation 
3031 West Grand Boulevard 
Detroit, Michigan 48232
Attorneys fo r  Respondent

*Counsel of Record

St. Louis Law Printing Co., Inc., 13305 Manchester Road 63131 314-231-4477



QUESTION PRESENTED

1. Did the Court of Appeals for the Eighth Circuit 
correctly hold that a Title VII suit can be barred by 
the application of laches where the plaintiff does 
not exercise due diligence in filing suit and the 
defendant is thereby prejudiced.

PARTIES TO THE PROCEEDING

All parties are listed in the caption.



11

Rule 28.1: Statement

General Motors is not a subsidiary of a publicly owned corpora­
tion. All subsidiaries and affiliates of General Motors Corpora­
tion are wholly-owned except:

AeroVironment Inc. (USA)
Alambrados Automatrices, S.A. de C.Y. (Mexico) 
Alambrados y Circuitos Electricos, S.A. de C.Y. (Mexico) 
AMBRAKE Corporation (USA)
Applied Intelligence Systems, Inc. (USA)
Aralmex, S.A. de C.V. (Mexico)
Autos y Maquinas del Ecuador S.A. (AYMESA) (Ecuador) 
Cableados de Juarez, S.A. de C.V. (Mexico) 
CABLESA-Industria de Componentes Electricos Limitada 
(Portugal)

Calsonic Harrison Co., Ltd. (Japan)
Compagnie de Faisceaux Tunisian International S.A. (Tunisia) 
Compania Nacional de Direcciones Automotrices, S.A. de C.V. 
(Mexico)

Componentes Delfa, C.A. (Venezuela)
Componentes Mecanicos de Matamoros, S.A. de C.V. (Mexico) 
Compresores Delfa, C.A. (Venezuela)
Conductores y Componentes Electricos, de Juarez, S.A. de 
C.V. (Mexico)

Convesco Vehicle Sales GmbH (West Germany)
Daewoo Automotive Components, Ltd. (Korea)
Daewoo Motor Co., Ltd. (Korea)
Delco Electronics Corporation (USA)
Delkor Battery Company, Ltd. (Korea)
Delmex de Juarez, S.A. de C.V. (Mexico)
Delredo, S.A. de C.V. (Mexico)
Delta Industrial, C.A. (Venezuela)
Detroit Deere Corporation (USA)
Detroit Diesel Corporation (USA)
DHB - Componentes Automotivos S.A. (Brazil)
DHMS Industries, Ltd. (Korea)



Ill

Diffracto Limited (Canada)
DR DE CHIHUAHUA, S.A. de C.V. (Mexico)
Ensemble de Cables Y Componentes, S.A. de C.V. (Mexico) 
Fabrica Columbiana de Automotores S.A. (“ Colomotores” ) 
(Columbia)

General Motors de Brasil, Ltda. (Brasil)
General Motors de Colombia S.A. (Colombia)
General Motors del Ecuador S.A. (Ecuador)
General Motors Egypt, S.A.E. (Egypt)
General Motors Espana, S.A. (Spain)
General Motors (Europe) AG (Switzerland)
General Motors France (France)
General Motors Hellas, A.B.E.E. (Greece)
General Motors Iran Limited (Iran)
General Motors Kenya Limited (Kenya)
General Motors Korea Co., Ltd. (Korea)
General Motors del Peru S.A. (Peru)
General Motors de Portugal, Limitada (Portugal)
General Motors Terex do Brasil Ltda. (Brasil)
Genie Mecanique Zairose, S.A.R.L. (Zaire)
GM Allison Japan Limited (Japan)
GM Locomotivas Ltda. (Brazil)
GMFanuc Robotics Corporation (USA)
Hua Tung Automotive Corporation (Rep. of China)
IBC Vehicles Limited (England)
Ilmor Engineering, Ltd. (England)
Industries Mecaniques Maghrebines, S.A. (Tunisia)
Industrija Delova Automobila, Kikinda (Yugoslavia) 
INLAN-Industria de Componentes Mecanicos, Lda. (Portugal) 
Isuzu Motors Limited (Japan)
Isuzu Motors Overseas Distribution Corp. (Japan)
Kabelwerke Reinshagen GmbH (West Germany)
Kabelwerke Reinshagen Werk Berlin GmbH (West Germany) 
Kablewerke reinshagen Werk Neumarkt GmbH (West Ger­
many)
Koram Plastics Company, Ltd. (Korea)



IV

Metal Casting Technology, Inc. (USA)
Motor Enterprises, Inc. (USA)
New United Motor Manufacturing, Inc. (USA)
NHK Inland Corporation (Japan)
Omnibus BB Transportes, S.A. (Ecuador)
Packard Electric Ireland Limited (Ireland)
Philip Crosby Associates, Inc. (USA)
Promotora de Partes Electronicos Automotrices (Mexico) 
P.T. Mesin Isuzu Indonesia (Indonesia)
Rimir, S.A. de C.V. (Mexico)
Rio Bravo Electricos, S.A. de C.V. Mexico)
Robotic Vision Systems, Inc. (USA)
Senalizacion y Accesorios del Automovil Yorka, S.A. (Spain) 
Shinsung Packard Company, Ltd. (S. Korea)
Suzuki Motor Co., Ltd. (Japan)
Tactical Truck Corporation (USA)
Teknowledge, Inc. (USA)
TEREX Equipment Limited (Scotland)
Vauxhall Motors Limited (England)
Vestiduras Fronterizas, S.A. de C.V. (Mexico)
View Engineering (USA)
Volvo GM Heavy Truck Corporation (USA)

As of September 1, 1988



V

TABLE OF CONTENTS

Page

Question Presented ........................................................... i

Parties to the Proceeding ................................................  i

Rule 28.1: Statement.......................    ii

Table of Contents ............................................................  v

Table of Authorities ........................................................  vi

Citations to Opinions Below............................................  vii

Jurisdictional Statement...........................     1

Statement of the C ase ......................................................  2

Summary of Argument.................    9

A rgum ent.............................................    10

I. The Decision Below Applies Established
Precedent to the Specific Facts of this Case .. 10

II. There is no Genuine Conflict Among the Cir­
cuits ..................................................................  12

III. Review by this Court is Neither Appropriate
nor Necessary..................................................  15

Conclusion........................................................................ 16



TABLE OF AUTHORITIES

Page

Cases:

Albemarle Paper Company v. Moody, 422 U.S. 405
(1975).......................... .......................................... 10,11,12

Bernard v. Gulf Oil Co., 596 F.2d 1249 (5th Cir. 1979) 
Rehearing en banc, 619 F.2d 459 (5th Cir. 1980), 
a ff’d, 452 U.S. 89 (1981)...................................12,13,14,15

Boone v. Mechanical Specialties Co., 609 F.2d 956
(9th Cir. 1979)................. ................................... .. 13,14

Cleveland Newspaper Guild v. The Plain Dealer Pub­
lishing Co., 839 F.2d 1147 (6th Cir. 1988) {en 
banc), pet. for cert, filed, 56 U.S.L.W. 3806 (No. 
87-1864).............       13

EEOC v. Mistletoe Express Service,___ F.Supp.____ ,
45 FEP 777 (S.D. Tex. 1987)......................... .. 10

Gifford v. Atchison, Topeka & Santa Fe Railroad, 685
F.2d 1149 (9th Cir. 1982) ........................................12,13,14

Holsey v. Armour & Co., 743 F.2d 199 (4th Cir. 1984),
cert, den., 470 U.S. 1028 (1985)...............................  13

Howard v. Roadway Express, Inc., 726 F.2d 1529
(11th Cir. 1984) ....................................................... 12,13,14

Jeffries v. Chicago Transit Authority, 770 F.2d 676
(7th Cir.' 1985), cert, den., 475 U.S. 1050 (1986) . . .  13

Lacy v. Chrysler Corporation, 533 F.2d 353 (8th Cir.)
cert, den., 429 U.S. 959 (1976).................................  7

Mosely v. General Motors Corp., 497 F.Supp. 583 
(E.D. Mo. 1980) 2,3,8



vii

Occidental Life Insurance Co. of California v. EEOC,
432 U.S. 355 (1977)....................................................  8.11,12

Rozen v. District of Columbia, 702 F.2d 1202 (D.C.
Cir. 1983)................................................................. 12,13,15

Tuft v. McDonnell-Douglas Corp., 517 F.2d 1301 (8th
Cir. 1975), cert, den., 423 U.S. 1052 (1976)............ 7

Waddell v. Small Tube Products, Inc., 799 F.2d 67
(3rd Cir. 1986)..........................................................  13,16

Whitfield v. Anheuser-Busch, Inc., 820 F.2d 243 (8th
Cir. 1987) ....................................................    13

Statutes:

28 U.S.C. §1254(1)..................................    1

Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§2000e-5.............................................................   .passim

Age Discrimination Claims Assistance Act of 1988, P.L.
100-283 ..................................   16

Citations to Opinions Below

Respondent adopts the Petitioner’s recitation of opinions 
below.



No. 88-255
In The

Supreme (Enurt of tlf* Mnitzb ^tutzs
October Term, 1988

Warren Garrett, 
Petitioner,

vs.

General Motors Corporation, 
Respondent.

On Petition for Writ of Certiorari to the 
United States Court of Appeals For the Eighth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

JURISDICTIONAL STATEMENT

The judgment of the District Court of the Eastern District of 
Missouri, Eastern Division was filed on April 24, 1987. The 
judgment of the Eighth Circuit Court of Appeals was filed on 
April 14, 1988. A petition for rehearing was filed and subse­
quently denied on May 20, 1988. The Petition for a Writ of 
Certiorari was filed on August 8, 1988. Jurisdiction to review 
the judgment of the Court of Appeals by Writ of Certiorari is 
conferred upon this Court by 28 U.S.C. §1254(1).



2

STATEMENT OF THE CASE

This Title VII case is based on a race discrimination charge 
which Petitioner Warren Garrett filed with the EEOC in Oc­
tober 1970, almost eighteen years ago.' That charge alleged that 
certain terms and conditions of Garrett’s employment with 
Respondent General Motors Corporation, (hereinafter 
sometimes referred to as “ G.M.” ) were discriminatory. In 
1971, the year after the charge was filed, Garrett was discharged 
from his employment with G.M. for participation in a wildcat 
strike in contravention of the contract between G.M. and Gar­
rett’s Union, the United Auto Workers. Garrett never amended 
his EEOC charge to allege that his discharge was racially 
motivated.

Garrett alleged his discharge on March 29, 1971 was in viola­
tion of Title VII. G.M. has a progressive discipline policy, and 
because Garrett was already at the final step of that policy, he 
would have been discharged for any disciplinary violation. 
(T.276, 286). As was specifically found in Mosley v. General 
Motors Corporation, 497 F.Supp. 583, 589 (E.D. Mo. 1980), 1

1 The only record of the charge is the charge control ledger produc­
ed by the EEOC. The actual EEOC records were destroyed between 
March 1976 and March 1979, and G.M. did not retain its complete 
EEOC file regarding Garrett after being notified by the EEOC that 
Garrett’s file was closed. EEOC records do not indicate the filing of a 
second charge in March 1971, even though the purported charge was 
produced at trial. Garrett also filed a complaint of discrimination 
with the St. Louis Council on Human Relations on March 18, 1971. 
(T.63-65; and G.M. Exhibit Q). Garrett admitted receiving a letter 
from the St. Louis Council on Human Relations sometime in 1974 
stating that their investigation revealed no discrimination. (T.64-65; 
G.M. Exhibit R).



— 3 —

G.M. was free to discipline the employees who engaged in the 
wildcat strike.2

From June of 1970 through March of 1971, Garrett was tardy 
eleven times. (G.M. Exhibit N). Garrett was disciplined for be­
ing tardy the ninth time, on January 28, 1971. (G.M. Exhibit C; 
T.88). Garrett was unable to recall, because of the sixteen years 
that had elapsed from the date of these events and the date of 
trial the circumstances surrounding his tardiness or discipline 
imposed. (T.88-89).

Garrett also had a horrendous absentee record. According to 
Garrett’s absence record, he was absent ten times between June 
of 1970 and February of 1971. (G.M. Exhibit M). On March 
11, 1970, the eleventh (11th) time he was absent, Garrett was 
given a written reprimand for being absent from work without 
reasonable cause. (G.M. Exhibit C; T.92-95). On the following 
day, March 12, 1970, Garrett received a suspension for the 
balance of the shift plus one day for being late to work. (G.M. 
Exhibit C; T.93-94).

In June of 1970, Garrett was suspended for the balance of the 
shift plus three days for using abusive language to a supervisor. 
(G.M. Exhibt C). Garrett admitted that in this incident had had 
a knife in his hand and that he got upset with his foreman. 
(T.96-97). On December 22, 1970, Garrett was suspended for 
the balance of the shift plus one week for being under the in­
fluence of alcohol and for using vulgar language. (G.M. Ex­
hibit C; T.98-99). Garrett admitted that he drank alcohol dur­
ing his lunch period, and that he yelled at his foreman. 
(T.99-100).

2 The plaintiffs in Mosley had not similarly reached the last level in 
the disciplinary process. While the District Court did indicate that 
G.M. was collaterally estopped by Mosley, it is clear from the decision 
that the statement was used only in the context of discussing the sec­
ond element of laches, prejudice to the defendant. (App. p. 32a) 
(T.291-293; G.M. Exhibits HH-1 - HH-126).



— 4 —

On January 28, 1971, Garrett was suspended for the balance 
of the shift plus two weeks for being late to work. (G.M. Ex­
hibit C; T. 101-102). On March 17, 1971, Garrett was suspended 
for the balance of the shift plus thirty days for leaving the plant 
without permission. (G.M. Exhibit C; T. 103). Garrett admit­
ted that he left the plant without permission and was disciplin­
ed. (T. 103-104). Prior to leaving the plant, Garrett was stopped 
by a security guard and instructed to return to his job. (G.M. 
Exhibit C; T.105).

On March 29, 1971, Garrett was discharged for participating 
in an unauthorized work stoppage. (G.M. Exhibit C; T.107). 
Garrett admitted that he participated in the unauthorized work 
stoppage. (T. 107-108).

Garrett’s discipline record indicate that from June of 1970 
through March of 1971, he was disciplined six times in a pro­
gressive manner. (G.M. Exhibit C; T.284-285). Garrett’s 
discharge on March 29, 1971 was the seventh disciplinary action 
taken against him in a nine month period. (T.284-85). Further­
more, according to the progressive discipline policy, when an 
employee is at the sixth and final step of discipline, any rule 
violation can be the basis for the employee’s discharge. (T.286).

The District Court found that from the time of his discharge 
in 1971 until 1980, Garrett made no active inquiry into the status 
of his charge, though during most of this period he could have 
requested a right-to-sue letter from the EEOC and filed suit 
against G.M. He had even contacted several private attorneys 
about his case, and each instructed him to request a right-to-sue 
letter. (T.82-83). By 1979 at the latest, eight years after the 
charge had been filed, the EEOC destroyed Garrett’s charge file 
in accordance with its internal procedures. Garrett inquired 
about his charge in 1980 in response to a newspaper article; the 
EEOC told him that his file had been destroyed and there was 
nothing further the EEOC could do. (T.75). Sometime be­
tween September and October of 1982, after G.M. had been in­



formed by the EEOC that the case was closed and the file 
destroyed, G.M. decided not to retain closed records over ten 
years old. (T.346). Those files were purged to conserve space. 
(T.348). Included were records pertaining to Mr. Garrett, in­
cluding information in connection with each particular 
disciplinary matter. (T.346-47). The records would also have in­
cluded interviews with supervisors and anyone that might have 
had direct contact with the particular disciplinary matter, the 
notice of discipline, a fact sheet completed by the foreman, and 
notes from the disciplinary interview conducted by the labor 
relations representative with all the information he was able to 
obtain in the interview. (T.347).

Garrett did not contact the EEOC between 1980 and 1983. In 
late 1983, Garrett again contacted the EEOC, this time to deter­
mine whether he was covered by a national settlement agree­
ment negotiated by G.M. and the EEOC. After several years 
during which the EEOC attempted to determine whether Gar­
rett was covered by the settlement agreement and whether it had 
ever sent a right-to-sue letter to Garrett, a new right-to-sue letter 
was issued in July 1985. An earlier right-to-sue letter, however, 
may very well have been sent as early as 1972.

Two representative from the EEOC attempted to reconstruct 
at trial the EEOC handling of Garrett’s charge. The charge 
control ledger and the case control ledger were the only 
documents which the EEOC retained concerning Garrett’s 
charge. (See G.M. Exhibit T and U). The EEOC admitted that 
from 1976 through 1983, both the case control ledger and the 
charge control ledger indicated that there was absolutely no ac­
tivity on Garrett’s charge. (T.205). Furthermore, if Garrett had 
called the EEOC to find out the status of his charge from 1976 
through 1983 and the EEOC personnel checked the charge con­
trol ledger, they would know that the file was closed. 
(T.205-07). When G.M. inquired concerning the status of Gar­
rett’s charge on January 20, 1980, it was informed that the file 
was closed and destroyed. (T.209-11, 242-3; G.M. Exhibit W).

— 5 —



— 6 —

Once G.M. was notified of the closure of the file, it was no 
longer obligated to keep the documents relevant to Garrett’s 
charge. (T.242-43).

An EEOC representative from the Office of Congressional 
Affairs wrote a letter dated March 20, 1984, to Congressman 
William Clay informing him that there was an unsuccessful con­
ciliation of Garrett’s charge, and that Garrett had, in fact, been 
issued an earlier right-to-sue letter. (T.200; G.M. Exhibit Y).

The EEOC, in a letter addressed to Garrett dated June 21, 
1984, stated that due to the time elapsed, their research on 
whether he was issued a right-to-sue letter was inconclusive. 
(T.213-14; G.M. Exhibit Z). Because Garrett’s EEOC file was 
destroyed, the information concerning Garrett’s charge was 
based upon supposition. (T.218). The EEOC could not deter­
mine whether or not Garrett had been issued a right-to-sue let­
ter. (T.218).

Garrett’s file was sent to the EEOC records center in March 
of 1976. (T.204-04). According to the EEOC representative 
testifying before the District Court, it was the standard pro­
cedure of the EEOC to send a file to the records center only 
after the final EEOC actions have been taken. (T.204). More­
over, it was the general practice of the EEOC to notify the 
charging party that the final actions have been taken regarding 
the charge. (T.205).

Making matter more complex, another representative of the 
EEOC testified that the EEOC has used a two and three letter 
system for notifying charging parties concerning the status of 
their charges. (T. 146-57). The first letter is identical under both 
of these systems. (T.147). It informs the charging party that 
conciliation efforts by the commission have failed and that if 
180 days have expired, the charging party may request a right- 
to-sue letter. (T. 147). It was the standard practice of the EEOC 
to issue the first letter after conciliation efforts had failed. 
(T.148).



— 7

Under the procedure utilized in 1972 and 1973, Garrett 
should have been issued the first letter notifying him that con­
ciliation efforts had failed and that he could request a right-to- 
sue letter with 180 days of filing his charge. (T.149), 151). Gar­
rett acknowledged that he received this letter. (T.73). Garrett 
also admitted that he received “ quite a few letters from the 
EEOC,” but could not specifically say what they were. (T.73).

Prior to the 1972 amendment to Title VII, the EEOC did not 
have the power to file suit on behalf of a charging party. Conse­
quently, a notification by the commission that conciliation ef­
forts had failed constituted a right-to-sue letter.3 Neither 
representative from the EEOC knew under which procedure 
Garrett received his notice that conciliation efforts had failed. 
(T.202, 245-47). If Garrett had been issued that type of letter 
from the EEOC stating that conciliation efforts had failed, that 
letter would have been destroyed by the EEOC in 1979 when 
Garrett’s file was destroyed. (T.202-03).

It was also the normal practice for the EEOC, under the three 
letter system used after 1973 to issue a right-to-sue letter after a 
file had been rejected for litigation by the EEOC. (T. 151-52). 
It is undisputed, however, that the EEOC did not ultimately 
take Garrett’s case to litigation. If Garrett had been sent a letter 
rejecting his case for litigation and a right-to-sue letter, a copy 
of each letter would have been kept in the EEOC file until it was 
destroyed. (T.158). The receipt of the letter rejecting his case 
for litigation would begin the ninety day period for filing suit 
under Title VII. Lacy v. Chrysler Corporation, 533 F.2d 353, 
360-1 (8th Cir.), cert, denied, 429 U.S. 959 (1976). Thus, 
regardless of the system used, it was probable that an earlier 
right-to-sue letter had been sent. (App. at 25a).

3 Tuft v. McDonnell Douglas Corporation, 517 F.2d 1301, 1305 (8th 
Cir. 1975).



— 8 —

Garrett filed this suit on September 11, 1985, approximately 
fourteen years after his discharge and fifteen years after his 
charge had been filed with the EEOC. The complaint alleged, 
among other things, that Garrett had been discriminatorily 
discharged from G.M.’s employ; the District Court held that 
the unamended EEOC charge was broadly enough worded to 
support the discharge claim.

However, the District Court dismissed the action on the 
grounds of laches, holding that Garrett had unreasonably 
delayed filing suit, to the detriment of G.M. In particular, the 
court noted that Garrett might have been sent a right-to-sue let­
ter sometime in the 1970’s, that it was impossible to resolve this 
issue because of the passage of time, and that Garrett’s delay 
therefore prejudiced a probable statute of limitations defense. 
(App. at 25a-33a).

On appeal, the Eighth Circuit Court of Appeals unanimously 
affirmed the District Court’s decision. The panel considered 
and rejected Garrett’s argument that a Title VII plaintiff has the 
absolute right to await the administrative processing of this 
EEOC charge before filing suit, no matter how long that pro­
cessing takes and regardless of whether the plaintiff ever in­
vestigated the status of his charge. The panel also upheld the 
District Court’s finding that laches applied to the circumstances 
of Garrett’s case. Contrary to Petitioner’s suggestion, the 
Court of Appeals “ declined to reach” the question concerning 
collateral estoppel and the Mosley case. (App. at 14a)



9

SUMMARY OF ARGUMENT

It is well established that laches may be utilized as a defense in 
a Title VII suit brought by a private plaintiff. Petitioner’s sug­
gestions that laches never be applied when the delay is caused by 
the EEOC would, as a practical matter, destroy the use of 
laches. The only unregulated time period, and therefore the on­
ly time period amenable to laches analysis, is the time frame oc­
casioned by EEOC processes. Moreover, application of laches 
to private individuals would not, contrary to Petitioner’s 
claims, interfere with the legitimate investigative functioning of 
the EEOC, as the doctrine is applied only in cases of 
“ unreasonable” delay.

The application of laches is decidedly fact-based. It is the fact 
based nature of laches that is reflected in the divergent results 
reached by the various circuits. No circuit has adopted the ab­
solute rule suggested by Petitioner, and no true conflict among 
the circuits exist.

This question arises too infrequently for consideration by this 
court. Moreover, if delays caused by the EEOC causes a 
substantial burden and is truly considered a widespread con­
cern, it is more appropriately dealt with by congressional, not 
judicial, action.



— 10

ARGUMENT

I. The Decision Below Applies Established Precedent to 
the Specific Facts of this Case.

Petitioner suggests that review by this Court is required 
because certain Supreme Court cases are “ implicated.” While 
it is true that the goals of these cases are implicated , the decision 
of the Eighth Circuit is entirely consistent with those goals, 
while the result sought by Petitioner is inconsistent.

It is well settled that the doctrine of laches may be invoked as 
a defense in a Title VII action. See, Albemarle Paper Company 
v. Moody, 422 U.S. 405, 424-5 (1975); Occidental Life In­
surance Company o f  California v. EEOC, 432 U.S. 355, 373 
(1977). This is true even when the plaintiff is a private party. Id.

Adoption of Petitioner’s position would, as a practical mat­
ter, completely remove laches as a defense against private plain­
tiffs. Under Title VII, the time period during which the EEOC 
investigates and reviews a charge is not limited by the Act. Id. 
The three hundred day period in which a charge must be filed 
and the 90 day period following receipt of the right-to-sue letter 
during which suit must be brought are reviewed under tolling 
analysis. In addition, application of laches is not feasible when 
dealing with such short periods of time. As noted in EEOC v.
Mistletoe Express Service,____ F.Supp____ _ 45 FEP 777, n. 1
(S.D. Tex. 1987), there have been no reported cases in which 
laches was applied where the suit was commenced less than two 
years after filing of the charge. Thus, as a practical matter, 
adoption of Petitioner’s position is the functional equivalent of 
overruling this Court acceptance of laches in Albemarle and Oc­
cidental.

Petitioner argues that the goals of Title VII are thwarted by 
the application of laches to a private plaintiff who has waited 15 
years for the EEOC to complete processing his charge before br­
inging suit. These generalized goals, however, do not compel



11 —

review by this court. In Albemarle, this court recognized that, 
“on these issues of procedural regularity and prejudice, the 
‘broad aims of Title VII’ provide no ready solution.” Id. at 
425.

The particularized goal of protecting the EEOC as primary 
enforcer of Title VII does not warrant the establishment of an 
absolute right of a private plaintiff to await completion of 
EEOC processes before requesting a right-to-sue letter. In fact, 
that goal would seem to suggest the opposite. If the EEOC is 
the primary enforcer of Title VII and it is permissible to apply 
laches to it, it is equally permissible to apply laches to a private 
plaintiff, as a secondary enforcer, for the very same delay. The 
EEOC’s right to proceed, in any given matter, is certainly not 
less than private individuals. See, Occidental Life Insurance 
Co. o f  California v. EEOC, 432 U.S. 355, 373 (1977).

Moreover, this case does not factually present a situation in 
which the processes were continuing and any delay was at­
tributable to the EEOC’s workload. On the contrary, the 
EEOC had long since ceased investigating the claim, closed the 
matter, and destroyed the file. From the EEOC’s perspective, 
its role had been complete for almost ten years prior to suit 
being brought.

One recurrent principle found in this court’s pronouncements 
is the need to allow lower courts “ discretionary power ‘to locate 
a “ just result” in light of the circumstances peculiar to case’.” 
Occidental Life Insurance Co. o f  California v. EEOC, 432 U.S. 
355, 373 (1977), citing Albemarle Paper Co. v. Moody, 422 U.S. 
405, 424-425 (1975). The trial court in this case did just that. 
After a full trial, the judge concluded that the plaintiff had not 
exercised due diligence in following the status of his EEOC 
charge. Under normal circumstances he would already had 
been issued a right-to-sue letter as many as ten years before he 
brought suit, and the files were destroyed by the EEOC over six 
years before he brought suit. Thus, the existence of an earlier



12

right-to-sue letter could not be proven. Therefore, the decision 
in this case is quite unique. The question presented was not 
merely if plaintiff had the absolute right to not request a right- 
to-sue letter during the pendency of the EEOC process, but if 
this plaintiff had ever in fact received an earlier right-to-sue let­
ter.

Unlike the majority of cases cited by Petitioner, this case does 
not involve good faith reliance on continued assurances by the 
EEOC of an ongoing and active investigation4 or destruction of 
documents attributable to defendant.5 In fact, the District 
Court found that Petitioner’s contact with the EEOC during his 
15 year wait was minimal, and that it was the EEOC that 
destroyed the file. Respondent was told by the EEOC three (3) 
years prior to the suit that the matter had been closed, a right- 
to-sue letter issued, and that the file had been destroyed. This 
same information was also given by the EEOC to the 
Petitioner’s United States Congressman. This unique factual 
scenario was properly analyzed “ in light of the circumstances 
peculiar to the case” as suggested in Occidental and Albemarle. 
The writ should not be granted merely to review the District 
Court’s application of the mandate of Occidental and 
Albemarle to the specific and unique facts of this case.

II. There is no Genuine Conflict Among the Circuits.

Every Circuit reaching the question has held that the defense 
of laches is available in Title VII suits brought by private plain­

4 See, Rozen v. District o f  Columbia, 702 F.2d 1202 (D.C. Cir. 
1983); Gifford v. Atchison, Topeka and Santa Fe Railroad Co., 685 
F.2d 1149 (9th Cir. 1982).

5 See, Bernard v. Gulf Oil Co., 596 F.2d 1249 (5th Cir. 1979); 
Howard v. Roadway Express, Inc., 726 F.2d 1529 (11th Cir. 1984); 
Rozen v. District o f Columbia, 702 F.2d 1202 (D.C. Cir. 1983).



— 13

tiffs.6 Also universally accepted is the notion that the deter­
mination of laches is heavily fact based, reviewed according to 
the specific facts of each case. Gifford v. Atchison Topeka & 
Santa Fe Railroad Co., 685 F.2d 1149, 1152 (9th Cir. 1982).

Petitioner’s characterization of the holdings of the Fourth, 
Fifth, Ninth, Eleventh and District of Columbia Circuits as 
necessarily in conflict with those of the Sixth, Seventh and 
Eighth7 Circuits is incorrect. Petitioner has taken phrases used 
to characterize behavior in a given case and imbued them with 
universal applicability. In fact, the different results reached in 
these circuits are a reflection of specific facts and not the ap­
plication of different law.

The Fourth Circuit, in Holsey v. Armour & Co., 743 F.2d 
199, 211 (4th Cir. 1984) merely noted that the “ [The plaintiff’s] 
decision to rely on the Commission’s administrative process 
before initiating a private suit is not inexcusable delay.” The 
terse holding was limited by its very terms to the decision of that 
plaintiff.

6 See, Waddell v. Small Tube Products, Inc., 799 F.2d 69 (3rd Cir. 
1986); Holsey v. Armour & Co., 743 F.2d 199, 211 (4th Cir. 1984); 
Bernard v. Gulf Oil Co., 596 F.2d 1249, 1256 (5th Cir. 1979), aff’d on 
other grounds, 452 U.S. 89 (1981); Cleveland Newspaper Guild v. 
Plain Dealer Publishing Co., 839 F.2d 1147 (6th Cir. 1988) (en banc), 
pet. for cert, filed 56 U.S.L.W. 3806 (No. 87-1864); Jeffries v. 
Chicago Transit Authority, 770 F.2d 676 (7th Cir. 1985) cert. den. 475 
U.S. 1050 (1986); Whitfield v. Anheuser-Busch, Inc., 820 F.2d 243, 
244-5 (8th Cir. 1987); Boone v. Mechanical Specialties Co., 609 F.2d 
956 (9th Cir. 1979); Howard v. Roadway Express, Inc., 726 F.2d 
1529, 1532 (11th Cir. 1984); Rozen v. District o f Columbia, 702 F.2d 
1201, 1203 (D.C. Cir. 1983).

7 Petitioner failed to note the holding of the Third Circuit as consis­
tent with the Sixth, Seventh and Eighth Circuits. Waddell v. Small 
Tube Products, 799 F.2d 69 (3rd Cir. 1986).



— 14

The Fifth Circuit, in Bernard v. Gulf OH Co., 596 F.2d 1249 
(5th Cir. 1979), faced the issue in the context of ruling on a mo­
tion for summary judgment. The court refused to apply the 
doctrine of laches, “ because the facts as presented on this sum­
mary judgment motion, without more, do not allow a finding of 
laches.” The court nonetheless continued to discuss the second 
element of laches, prejudice to defendants, and reasoned that 
any prejudice to defendants was in fact, attributable to the 
defendants, not the plaintiff. The court closed discussion of the 
issue by stating:

“ We conclude that the present facts do not allow findings
of either unreasonable delay or prejudice.” Id.

The Ninth Circuit serves as an excellent example of the fact 
based nature of laches. In Boone v. Mechanical Specialties Co., 
609 F.2d 956 (9th Cir. 1979), the court held that a plaintiff does 
not have an absolute right to await completion of EEOC pro­
cesses before seeking a right-to-sue letter, and applied laches to 
a private plaintiff’s Title VII suit. In Gifford v. Atchison, 
Topeka and Santa Fe Railroad Co., 685 F.2d 1149 (9th Cir. 
1982), the court was faced with the denial of a summary judg­
ment motion. In sharp contrast to the facts of the instant case, 
the court noted that in opposing the motion for summary judg­
ment “ plaintiff’s attorney submitted an extensive affidavit . . . 
detailing repeated and continuous efforts of plaintiff and her at­
torneys to monitor the progress of her charge through the 
EEOC.” {Id. at 1152). The court concluded that “ there are 
material factual issues to be resolved.” {Id.). It can hardly be 
said that the Ninth Circuit recognizes, as Petitioners suggest, an 
absolute right to await completion of administrative processes.

The Eleventh Circuit, in Howard v. Roadway Express, Inc., 
726 F.2d 1529 (11th Cir. 1984), similarly refused to establish any 
such absolute right. The court noted that there were “ excep­
tions” to the rule that plaintiffs should normally be allowed to 
wait for termination of the EEOC’s process before filing suit,



— 15 —

but declined “ to make an exception in this case.” Id. In­
terestingly, just as in Bernard, the court proceeded to review the 
element of prejudice to the defendant, and concluded that any 
prejudice was attributable solely to defendant.

The last case Petitioner relies on is Rozen v. District o f  Co­
lumbia, 701 F.2d 1202 (D.C. Cir. 1983). In Rozen, the D.C. 
Circuit considered in detail the record of the plaintiff’s dealing 
with the EEOC, and held only that under the circumstances, the 
plaintiff was not unreasonable in waiting. The court concluded 
that the steps taken by the plaintiff to pursue his claim “ suffi­
ciently rebuts any inference that Rozen was content to ‘sleep on 
his rights’.” Id at 1204. In addition, the court noted defen­
dant’s failure to prove any prejudice. Such a detailed factual 
analysis does not indicate a view of the law different from that 
of the Eighth Circuit in the instant case.

Rather than an actual difference of opinion of the law of 
laches amongst the circuits, the different results appear to arise 
solely because of the facts of each case and the manner in which 
the case is presented. No true conflict exists.

III. Review by this Court is Neither Appropriate nor 
Necessary.

Petitioners seek to establish an absolute rule that a plaintiff 
may wait forever for the EEOC to complete its investigative 
processes prior to bringing suit. This position has not been 
adopted by any circuits. Respondent merely suggests that a 
plaintiff may not wait an unreasonable period of time and 
thereby fail to fulfill the duty to exercise due diligence. As the 
cases indicate, there are times when reliance on the EEOC is 
reasonable, and there are other times, admittedly more rare, 
when the wait is not reasonable. As the Third Circuit noted in 
reviewing all of the cases:

“ In sum, although plaintiffs have some obligation to 
monitor the progress of their charge and do not have the 
absolute right to await termination of EEOC proceedings



— 16 —

where it would appear to a reasonable person that no ad­
ministrative resolution will be forthcoming, whether the 
circumstances warranted the delay in a particular case re­
quires an ad hoc determination.” Waddell at p. 77

The attempt by Petitioners to remove the trier of fact’s discre­
tionary power to “ locate a just result” should be avoided. At 
the very least, the infrequency with which this question arises 
should indicate that review by this court is unnecessary.

Additionally, resolution of this matter should more ap­
propriately be made by Congress. Petitioner notes recent 
passage of an analogous law, the Age Discrimination Claims 
Assistance Act of 1988, P.L. 100-283, specifically aimed at 
relieving individuals of the burdens caused by delays in EEOC 
processing. Any similar burden imposed on Title VII plaintiffs 
because of EEOC delays could be similarly, and more ap­
propriately, addressed by Congress.

CONCLUSION

The Petition for A Writ of Certiorari should be denied.

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