Garrett v. General Motors Corporation Petition for Writ of Certiorari to the US Court of Appeals for the Eighth Circuit

    No. 88-___

In the

( ta r t of tljr Inttrfc States
October Term, 1988

General Motors Corporation,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT

Louis Gilden*
Norah J . R yan

317 North 11th Street 
Suite 1220
St. Louis, Missouri 63101 
(314) 241-6607

J ulius L eV onne Chambers 
Charles Stephen R alston 
R onald E llis

99 Hudson Street
New York, New York 10013
(212) 219-1900

Attorneys for Petitioner 

#Counsel of Record



1

QUESTIONS PRESENTED
1. Can a Title VII plaintiff's suit 

be barred by the application of laches, 
where there has been a prior judicial
finding that p 1 a int i f f 's discharge
violated Title VII, and any potential
prejudice suffered by the defendant
because of the delay is therefore
irrelevant?

2. Does a Title VII complainant's
decision to await the completion of the 
EEOC's administrative processing of his 
charge to request his Right to Sue letter 
constitute "lack of diligence" or
"inexcusable delay" that would support a
defense of laches?

3. Whether Albemarle Paper Co. v.
Moody. 422 U.S. 405 (1975) and Occidental
Life Insurance Co. v. EEOC. 432 U.S. 355 
(1977) mandate that the application of 
laches due to a Title VII plaintiff's



ii
delay in bringing suit should result in a 
limitation on relief rather than dismissal 
of the action, where there is no evidence 
that the plaintiff intentionally delayed 
the administrative process.

PARTIES TO THE PROCEEDING 
All the parties are listed in the 

caption.



1X1

TABLE OF CONTENTS
Page

QUESTIONS PRESENTED .................  i
PARTIES TO THE P R O C E E D I N G ............. ii
TABLE OF C O N T E N T S ..................... iii
TABLE OF AUTHORITIES.................  v
CITATIONS TO OPINIONS BELOW ......... 1
JURISDICTION .......................... 2
STATUTORY PROVISIONS INVOLVED . . . .  3
STATEMENT OF THE C A S E ...............  3
REASONS FOR GRANTING THE WRIT . . . .  16

I. THE DECISION BELOW THAT A 
TITLE VII COMPLAINANT'S 
TIMELY FILED SUIT CAN BE 
BARRED BY LACHES CONFLICTS 
WITH THE DECISIONS OF OTHER 
CIRCUITS AND APPEARS TO 
IMPLICATE PRIOR DECISIONS 
OF THIS COURT............... 16



XV

II. T H I S  C A S E  P R E S E N T S  
QUESTIONS OF NATIONAL 
IMPORTANCE REGARDING TITLE 
VII PLAINTIFFS' RIGHTS AND 
RESPONSIBILITIES AND AS TO 
THE ALLOCATION OF THE 
B U R D E N  O F  D E L A Y E D  
ENFORCEMENT OF TITLE VII BY 
THE EQUAL E M P L O Y M E N T  
OPPORTUNITY COMMISSION,
WHICH SHOULD BE RESOLVED BY 
THIS C O U R T ................. 3 3

Page

CONCLUSION 42



V

Cases

TABLE OF AUTHORITIES
Page

Albemarle Paper Co. v. Moody,
422 U.S. 405 (1975)...........i, 26

Bernard v. Gulf Oil Co.,
596 F .2d 1249 (5th 
Cir. 1979), on 
rehearing en banc,
619 F .2d 459 (5th Cir.
1980), aff'd, 452 U.S.
89 (1981)...................  17, 31

Bethel v. Jefferson, 589
F .2d 631 (D.C.
Cir. 1978)     26

Birge v. Delta Airlines, 597 
F. Supp. 448 (D.C.
Ga. 1 9 8 4 ) ........................ 27

Bishop v. District of
Columbia, 788 F.2d
781 (D.C. Cir. 1986)   27

Boone v. Mechanical Specialties 
Co., 609 F .2d 956 (9th 
Cir. 1979) ............. 17, 31, 39

Bratton v. Bethlehem Steel 
Corp., 649 F.2d 658
(9th Cir. 1 9 8 0 ) ..................  30

Breeding v. S. Louis & San 
Francisco Ry. Co., 33 
F.E.P. Cases 1514 
(D.C. Ala. 1977) . . 32



vi

Cases
Page

Brown v. Continental Can Co.,
765 F .2d 810 (9th Cir.
1 9 8 5 ) ........ .. 17, 27, 35

Cleveland Newspaper Guild v.
The Plain Dealer 
Publishing Co., 839 
F .2d 1147 (6th Cir.
1988)(en banc), 
petition for cert, 
filed, 56 U.S.L.W.
3806 (No. 87-1864) . 17, 35, 40, 41

E.E.O.C. v. Alioto Fish Co.,
Ltd., 623 F.2d 86
(9th Cir. 1 9 8 0 ) .................  24

E.E.O.C. v. American 
Petrofina Co. of 
Texas, 22 F.E.P.
Cases 1321 (D.C.
Tex. 1977)   25

E.E.O.C. v. Beaver Welding 
Supply Co., 21 F.E.P.
Cases 152 (D.C. Tenn.
1979) .    25

E.E.O.C. v. Bethlehem Steel 
Corp., 36 F.E.P. Cases 
1083 (D.C. Md. 1984)   23

E.E.O.C. v. Bray Lumber Co.,
478 F. Supp. 993 (D.C.
Ga. 1 9 7 9 ) ........................ 25

E.E.O.C. v. Celotex Corp., 27 
F.E.P. Cases 324 (D.C.
Tenn. 1 9 8 0 ) .....................  24



VX1

E.E.O.C. v. Commonwealth Oil 
Refining Co., 33 F.E.P.
Cases 764 (D.C. Tex. 1982),
reversed and remanded on
other grounds, 720 F.2d
1383 (5th Cir. 1983)............. 24

E.E.O.C. v. Dresser Industries,
Inc., 668 F.2d 1199
(11th Cir. 1982) ...............  24

E.E.O.C. v. Firestone Tire &
Rubber Co., 626 F.
Supp. 90 (D.C. Ga. 1985) . . . .  23

E.E.O.C. v. Great Atlantic &

PageCases

Pacific Tea Co., 735
F . 2d 69 (3rd Cir. 1 9 8 4 ) ........  23

E.E.O.C. v. Indiana Bell
Telephone Co., 641 F.
Supp. 115 (D.C. Ind.
1 9 8 6 ) ............................ 23

E.E.O.C. v. Kelley Manufacturing 
Co., 29 F.E.P. Cases 243
(D.C. Ala. 1979) ...............  25

E.E.O.C. v. K-Mart Corp.,
694 F.2d 1055 (6th
Cir. 1982) .....................  24

E.E.O.C. v. Local 638, Etc., 
Sheet Metal Workers' 
International Association, 
753 F .2d 1172 (2nd 
Cir. 1985) ............. 23



viii

Cases
Page

E.E.O.C. v. Martin Processing,
Inc., 533 F. Supp. 227
(D.C. Va. 1 9 8 2 ) .................  24

E.E.O.C. v. Massey-Ferguson,
Inc., 622 F .2d 271
(7th Cir. 1 9 8 0 ) .................  24

E.E.O.C. v. Pacific Press 
Publishing Assn., 34 
F.E.P. Cases 1165
(D.C. Calif. 1981)  24

E.E.O.C. v. Radiator Specialty 
Co., 610 F .2d 178
(4th Cir. 1 9 7 9 ) .................  25

E.E.O.C. v. Shell Oil Corp.,
466 U.S. 54 (1984) ........  18, 22

E.E.O.C. v. Star Tool & Die 
Works, 47 F.E.P. Cases
39 (E.D. MI 1 9 8 7 ) ...............  23

E.E.O.C. v. Times Mirror 
Magazine, Inc., 42 
F.E.P. Cases 499
(D.C.N.Y. 1986)   23

E.E.O.C. v. Wayside World 
Corp., 646 F. Supp.
86 (D.C. Va. 1986)   23

EEOC v. Shell Oil Co., 466
U.S. 54 (1984) ............... *, *

Fields v. Hoerner Waldorf
Corp., 33 F.E.P. Cases 
1471 (D.C. Ala. 1980) 30



ix

Cases Page

Fowler v. Blue Bell, Inc., 
596 F .2d 1276 (5th
Cir. 1979), cert, 
denied, 444 U.S.
1018 (1980).....................  31

Fridy v. Moultrie, 595 
F. Supp. 34 (D.C.
D.C. 1984) .....................  27

Gifford v. Atchinson, Topeka &
Santa Fe Ry., 685 F.2d
1149 (9th Cir. 1982) . . . .  17, 27

Harris v. Ford Motor Co., 487 
F. Supp. 429 (D.C. Mo.
1980), judgment for 
employer affirmed, 651
F .2d 609 (8th Cir. 1981) . . . .  30

Holden v. Burlington Northern,
Inc., 36 F.E.P. Cases
798 (D.C. Minn. 1984) ........... 28

Holsey v. Armour & Co., 743 
F .2d 199 (4th Cir.
1984), cert, denied,
470 U.S. 1028 (1985) . . . .  17, 28

Howard v. Roadway Express,
Inc., 726 F.2d 1529
(11th Cir. 1984) ...............  17

Jeffries v. Chicago Transit 
Authority, 770 F.2d 676 
(7th Cir. 1985), cert, 
denied, 475 U.S. 1050
(1986) ............. 17, 27, 34, 35



X

Page
Cases
Johnson v. Angelica Uniform 

Group, 36 F.E.P. Cases
85 (D.C. Mo. 1984)   28

Lacy v. Chrysler, 533 F.2d 
353 (8th Cir. 1976)
(en banc), cert.
denied, 429 U.S. 959   11

McLemore v. Interstate Motor 
Freight System, Inc.,
33 F.E.P. Cases 1384
(D.C. Ala. 1984)   28

Mosley v. General Motors
Corporation, 10 F.E.P.
Cases 1442 (E.D. Mo.
1 9 7 5 ) ................................8

Mosley v. General Motors 
Corporation, 497 
F.Supp. 583 (E.D.
Mo. 1980), aff'd,
691 F .2d 504 (8th
Cir. 1982) ......... 5, 7-9, 12, 13

Nickel v. Highway Industries,
Inc., 441 F. Supp. 477
(D.C. Wis. 1977) ...............  32

Nilsen v. City of Moss Point,
Mississippi, 621 F.2d 
117 (5th Cir. 1 9 8 2 ) ............. 29

Occidental Life Insurance Co.
V. EEOC, 432 U.S.
355 (1977) . . i, 18-21, 26, 36, 38



Cases
Pande v. Johns Hopkins 

University, 598 F.
Supp. 1084 (D.C.
Md. 1984) ...............

Patzer v. University o 
Wisconsin System,
Board of Regents, 577 
F. Supp. 1553 (D.C.
Wis. 1984) .............

Pegues v. Morehouse Parrish 
School Board, 706 F.2d 
735 (5th Cir. 1983) . . .

Richardson v. Delta Drayage 
Co., 433 F. Supp. 50
W.D. La. 1977) ........

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

Sangster v. United Airlines, 
633 F .2d 864 (9th Cir.
1980) ...................

Schwabenbauer v. Board of
Education, City School 
Dist., City of Olean,
25 F.E.P. Cases 767 
(D.C. N.Y. 1978), vacated 
& remanded, 667 F.2d 305 
(2nd Cir. 1981) ........

Stallworth v. Monsanto Co.,
21 F.E.P. Cases 364 
(D.C. Fla. 1979) . . . .



xii

Cases
Pace

Staples v. Avis-Rent-A-Car 
System, Inc., 537 F.
Supp. 1215 (D.C.N.Y.
1 9 8 2 ) ..................... .. . . 29

Stasney v. Southern Bell
Telephone & Telegraph 
Co., 458 F. Supp. 314 
(D.C. N.C. 1978), 
affirmed in part, 
remanded in part, 628 
F .2d 267 (4th Cir.
1 9 8 6 ) ..................... .. . . 31

Tipler v. E.I. duPont
deNemours and Co. ,
443 F .2d 125
(6th Cir. 1 9 7 1 ) ............. . . 26

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

Waddell v. Small Tube
Products, Inc., 799
F.2d 69 (3rd Cir. 1986) . . ,. 25, 27

White v. Washington Metropolitan 
Area Transit Authority,
32 F.E.P. Cases 1014
(D.C. D.C. 1981) ........ .

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

. . . 29 

. 17, 2717, 27



xiii

Worley v. Western Electric 
Co., 26 F.E.P. Cases
1708 (D.C. Ga. 1981) ...........30

Statutes
28 U.S.C. §1254(1) ...................... 2
42 U.S.C. § 2000e-5 ( a ) ............... 22
42 U.S.C. § 2000e-5 (f) (1) ...........40
Age Discrimination Claims 

Assistance Act of
1988, P.L. 100-283 ........ .. . 39

Age Discrimination In Employment 
Act, 29 U.S.C. § 621
et seq............................3 9

Page
Cases

Title VII of the Civil Rights 
Act of 1964, 42 U.S.C.
§2000e et seq. . 3, 5-7, 15-18, 21,

22, 25, 26, 32-34, 36, 38, 41

Other Authorities
19th Annnual Report of the

Equal Employment Oppor­
tunity Commission............... 39

118 Cong. Rec. 7168 (1972)........... 21
H.R. 1746, 92d Cong., 1st Sess., 

§8(j) (1971) reprinted in 
H.R. Rep. No. 92-338, 
p .12, Committee Report . . 20



NO. 88-

IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1988

WARREN GARRETT, 
Petitioner, 

vs.
GENERAL MOTORS CORPORATION, 

Respondent.

PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT

The petitioner, Warren Garrett, 
respectfully prays that a writ of 
certiorari issue to review the judgment 
and opinion of the United States Court of 
Appeals for the Eighth Circuit entered in 
this proceeding on April 14, 1988.

CITATIONS TO OPINIONS BELOW 
The opinion of the court of appeals 

is reported at 844 F.2d 559 (8th Cir.



2
1988) and is set out in the Appendix to 
this petition at pp. la-14a. The order 
of the court of appeals denying rehearing 
is set out in the Appendix at p. 15a. The 
opinion of the district court is reported 
at 657 F. Supp. 1273 (E.D. Mo. 1987) and 
is set out in the Appendix at pp. 16a- 
41a.

JURISDICTION
The judgment of the Court of Appeals 

was filed April 14, 1988. (A.la.) A 
petition for rehearing was filed and was 
denied May 20, 1988, and this petition 
for a writ of certiorari is filed within 
90 days of that date. (A. 15a.) 
Jurisdiction to review the judgment in 
question by writ of certiorari is 
conferred upon this Court by 2 8 U.S.C. 
§1254(1).



3
STATUTORY PROVISIONS INVOLVED 

This case arises under Title VII of 
the Civil Rights Act of 1964, 42 U.S.C.
§2000e et seq. , which is set out in 
relevant part in the Appendix at pp. 42a 
et seq.

STATEMENT OF THE CASE 
The petitioner, Warren Garrett, a 

black man, was employed by General Motors 
Corporation at its St. Louis, Missouri 
plant from May, 1967 until his discharge 
on March 29, 1971. On March 16, 1971,
plaintiff left the plant during his lunch 
hour to attend a Congress On Racial 
Equality (CORE) rally across the street 
from the plant. He returned to work 
late, and as a result, was suspended from 
work for 3 0 days. (Transcript of Trial 
("T.") 21-23) On March 23, 1971, while
on disciplinary suspension, Garrett 
participated in a wildcat strike at the



4
plant, led by CORE, to protest G.M.'s 
allegedly racially discriminatory work 
policies. Garrett, along with twenty- 
five other G.M. employees, was discharged 
because of his participation in the 
wildcat, and a total of one hundred 
twenty-five black G.M. employees were 
disciplined. After the settlement of 
union grievances, six employees remained 
discharged, including Garrett. Garrett 
testified at trial that he tried to file 
a union grievance on his discharge, but 
that the union refused to accept it. 
Shortly after his discharge Garrett left 
St. Louis because he was unable to find 
work. (T. 34-35)

Several other G.M. employees who 
were discharged because of their 
participation in the CORE demonstrations 
and rallies filed suit against General 
Motors in the federal district court in



5
St. Louis." In Mosley v. General Motors 
Corporation, 497 F.Supp. 583 (E.D. Mo.
1980), aff'd, 691 F.2d 504 (8th Cir. 
19 82) , the district court held that
G.M.'s discharge of the plaintiffs in 
Mosley violated Title VII because the 
black employees who participated in the 
March, 1971 wildcat strike protesting 
a l l e g e d  racially d i s c r i m i n a t o r y  
conditions at G.M.'s St. Louis plant were 
disciplined more harshly than white 
employees participating in other wildcat 
strikes. The facts of the Mosley case 
were the same as the facts in the present 
case; the Mosley plaintiffs were 
discharged at the same time that Garrett 
was discharged, and as a result of the 
same conduct. The district court in the 
present case held that "the Mosley case 
establishes as a matter of law that 
defendant's discharge of plaintiff on



6
March 29, 1971, was in violation of Title 
VII." (Appendix 32a.) The court of 
appeals acknowledged the district' 
court's finding that the discharge 
violated Title VII.

Prior to his discharge, in September 
1970, Garrett had filed a grievance with 
h i s  u n i o n  r e g a r d i n g  r a c i a l l y  
discriminatory conditions at G.M.'s St. 
Louis plant. On October 8, 197 0, his
charge of discrimination was received by 
the Kansas City District Office of the 
Equal Employment Opportunity Commission 
(EEOC). After deferment to the state 
agency, the charge was deemed filed with 
the EEOC on December 22, 1970. Shortly
after his discharge in March, 1971, 
Garrett returned to the EEOC and notified 
them of his discharge, which was made a 
part of his pending charge. (T. 33-34)



7
According to the EEOC’s ledger card 

on Garrett's charge, on May 25, 1971, the 
St. Louis district office issued a 
determination of "reasonable cause" on 
plaintiff's EEOC charge. On August 10, 
1972, conciliation efforts with G.M. 
failed. On February 2, 1973, Garrett's
EEOC file was forwarded to the EEOC's 
regional Litigation Center in Chicago, 
Illinois, to be considered for litigation 
by the EEOC, pursuant to the 1972 
amendments to Title VII. (T. 135, 174)
There was testimony at trial that there 
were delays between the effective date of 
the 1972 amendments and the opening of 
the litigation center in 1973. (T. 174,
185, 228).

In early 1974, counsel for the 
plaintiffs in the pending Mosley case 
requested that the EEOC release to 
plaintiffs' counsel the names of all



8
persons who had filed charges like and 
related to the charges filed by the named 
plaintiffs in Mosley1; a subpoena seeking 
the same information was later served on 
EEOC.1 2 (T. 122-123)

The files sought by subpoena were 
not located in the St. Louis District 
Office at the time the subpoena was 
served, however, because all EEOC files 
from all district offices on cases 
against General Motors had been shipped 
to EEOC headquarters in Washington, D.C, 
in 1973 or 1974 (T. 124-25, 135-36, 143, 
174), to be considered in connection with

1 The Mosley case was filed as a 
class action; the information sought by 
subpoena was intended to enable the named 
plaintiffs to identify other potential 
members of the class. Mosley v. General 
Motors Corporation, 10 F.E.P. Cases 1442 
(E.D. Mo. 1975).

2 The individual who was District 
Counsel for the St. Louis District Office 
of the EEOC at the time of the request 
and the subpoena, and who responded to 
both, testified at the trial of this matter.



9
an EEOC Commissioner's charge against 
G-M. nationwide. (T. 174.) Upon request 
of the St. Louis District Counsel, those 
files "like and related" to those of the 
Mosley plaintiffs were shipped to St. 
Louis and held in the District Counsel' s 
office (T. 127, 135-136), where they 
remained from some time in 1974 until the 
end of 1975, about six months after the 
district court in the Mosley case ordered 
that the EEOC was not required to produce
the files for Mosley counsel. See,
Mosley. 10 F.E.P. Cases 1442 (E.D. Mo.
1975) . (T. 224)

The Garrett file was among those 
that were shipped to the St. Louis 
District Counsel of the EEOC in 
connection with the Mosley subpoena and 
kept in her office (T. 127) ; the Garrett
file had previously been determined to be 
"unsuitable" for the EEOC Commissioner's



10
national charge against G.M. (T. 144) 
The EEOC's Litigation Center in Chicago 
did not determine whether or not the EEOC 
would file suit on the Garrett charge 
before the file was sent to Washington, 
D.C., nor was any such determination ever 
made on the charge. (T. 136, 137, 142, 
143, 153, 155-56.) The file was never 
sent back to Chicago.

In March, 1976, the Garrett files 
was sent to the Federal Records Center, 
for eventual disposal (T. 138), without 
ever being closed by the EEOC. (T. 156, 
173.) Witnesses from the EEOC testified 
at trial that based on their knowledge of 
the events and the EEOC procedures, and 
based on the EEOC ledger cards on the 
charge, the file was sent to the Federal 
Records Center in error. (T. 137-38, 
143, 153-54, 157.) They testified that 
they had concluded that Garrett was never



11
sent a Right to Sue letter prior to 
sending him a Right to Sue letter in 
July, 1985. (T. 128-40, 153-57, 223-24.)
Although the EEOC changed its procedures 
on Right to Sue letters after the 
decisions of the Eighth Circuit Court of 
Appeals in Lacy v. Chrysler. 533 F.2d 353 
(8th Cir. 1976) (en banc), cert. denied. 
429 U.S. 959 and Tuft v. McDonnell- 
Douqlas Corporation. 517 F.2d 1301 (8th 
Cir. 1975), cert, denied. 423 U.S. 1052 
(1976), the new procedures were 
prospective only, and the St. Louis 
District Counsel was specifically 
directed not to go back to prior 
"conciliation failure" charges, such as 
the Garrett charge, to issue Right To Sue 
letters. (T. 131-132, 140, 233-24.)
Garrett1s charge never went beyond the
first letter of the EEOC's two-letter
system (T. 149, 167 , 176-77) , and the



12
EEOC did not send charging parties notice 
that their files were being sent to the 
Federal Records Center for disposal. (T. 
186, 204.)

Garrett testified that after he 
moved to Decatur, Illinois in 1972, he 
contacted the EEOC through phone calls 
and visits to the EEOC office in St. 
Louis on at least a yearly basis. He did 
not know the names of anyone at the EEOC 
that he spoke with. He specifically 
testified that he contacted the EEOC 
about his charge in late 1980, after 
learning that the Mosley plaintiffs had 
won their case, and in 1983 after 
receiving a copy of a newspaper article 
about a National Conciliation Agreement 
settling the EEOC Commissioner's charge 
against General Motors. (See pp. 8-9 
supra.) A supervisory employee at the 
EEOC testified at trial that when he



13
first spoke with Garrett in 1983, and 
attempted to find out the status of 
Garrett's charge, he found a problem with 
the EEOC's records on the charge (T. 
182) ; the EEOC subsequently determined 
that no prior Right to Sue letter had 
been issued and issued one in July, 1985. 
Suit was timely filed within 90 days of 
Garrett's receipt of the Right to Sue 
letter.

The Mosley litigation was ongoing 
until 1982, when the Eighth Circuit 
affirmed the district court's judgment 
for the plaintiffs. Mosley, supra, 691
F.2d 504 (8th Cir. 1982). The EEOC's 
national programs case against General 
Motors, filed in 1973, was not resolved 
until 1983 (PI. Exh. 27), and the scope 
of the settlement was still being 
negotiated in the years 1983-85. (T.
184-85, 191.)



14
The district court held that 

Garrett's suit was barred by the 
application of laches, despite the fact 
that Garrett had not affirmatively caused 
any of the EEOC's delay in processing his 
charge, and despite the fact that there 
was overwhelming evidence at trial that 
the EEOC had destroyed Garrett's file 
without ever sending him a Notice of 
Right to Sue, and that the EEOC had 
misinformed Garrett about the status of 
his case. There was no evidence or 
finding that Garrett had affirmatively 
caused any of the delay, only a 
determination that although he had made 
some inguiry to the EEOC about his 
charge, it was insufficient.3

J The respondent here has agreed 
that the period of time from late 1983 
and until plaintiff filed suit in 
September, 1985 should not be counted for 
laches purposes. In late 1983, when the 
EEOC discovered that Garrett's file had

(continued...)



15
The court of appeals affirmed the 

district court's determination. The 
court of appeals did not address or rule 
on plaintiff's contention that the 
defense of laches should be held to be 
inapplicable where a defendant has been 
found to be collaterally estopped from 
contesting its liability under Title VII 
by a prior finding of discrimination. 
The court of appeals also failed to 
address or rule on plaintiff's contention 
that the application of laches in a Title 
VII action which has been filed within 
the 90 day statutory period should be 
limited to the question of backpay, 
rather than barring plaintiff's entire 3

3 (...continued)
been destroyed without being closed, the 
EEOC advised Garrett to wait to request a 
Right to Sue letter until it determined 
whether his case should be included in 
the National Conciliation Agreement being 
negotiated with G.M. in connection with 
the EEOC Commissioner's national charge 
against G.M. (T. 184-85).



16
cause of action.

REASONS FOR GRANTING THE WRIT
I. THE DECISION BELOW THAT A 

TITLE VII COMPLAINANT'S 
TIMELY FILED SUIT CAN BE 
BARRED BY LACHES CONFLICTS 
WITH THE DECISIONS OF 
OTHER CIRCUITS AND APPEARS 
TO I M P L I C A T E  P R I O R  
DECISIONS OF THIS COURT.

The Eighth Circuit's decision that a 
Title VII complainant's timely filed suit 
can be barred by laches places that court 
squarely amidst a conflict among the 
circuits on this issue. The Fourth, 
Fifth, Ninth, Eleventh, and District of 
Columbia Circuits have held that a Title 
VII complainant's decision to await the 
completion of the EEOC's processing of 
his charge prior to filing suit does not 
constitute lack of diligence or 
inexcusable delay that would support a



17
defense of laches.4 The Sixth, Seventh, 
and Eighth Circuits have held, to the 
contrary, that a Title VII complainant 
does not have an absolute right to await 
the completion of EEOC processing of his 
charge of discrimination.5 The circuits

4 Holsev v. Armour & Co., 743
F .2d 199, 211 (4th Cir. 1984), cert,
denied. 470 U.S. 1028 (1985). Bernard v. 
Gulf Oil Co. . 596 F . 2d 1249 (5th Cir.
1979), on rehearing en banc. 619 F.2d 459 
(5th Cir. 1980), aff'd. 452 U.S. 89
(1981). Howard v. Roadway Express, Inc. , 
726 F . 2d 1529 (11th Cir. 1984). Gifford
v. Atchinson. Topeka & Santa Fe Rv.. 685
F . 2d 1149 (9th Cir. 1982). Brown v . 
Continental Can Co.. 765 F.2d 810 (9th 
Cir. 1985) . Rozen v. District of
Columbia. 702 F.2d 1202 (D.C. Cir. 1983).

5 Cleveland Newspaper Guild v.
The Plain Dealer Publishing Co.. 839 F.2d 
1147 (6th Cir. 1988) (en banc) , petition 
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. denied. 475 U.S. 1050 (1986).
Whitfield v. Anheuser-Busch. Inc., 820 
F . 2d 243 (8th Cir. 1987). In Boone v. 
Mechanical Specialties Co.. 609 F.2d 956
(9th Cir. 1979) , the Ninth Circuit held 
that where a Title VII complainant 
knowingly declined the EEOC's offer to 
issue a Right to Sue letter and to help

(continued...)



18
holding that a complainant can await the 
completion of EEOC processing rely on 
both the legislative history of Title 
VII, and on this Court's decisions in 
Occidental Life Insurance Co. v. EEOC. 
432 U.S. 335 (1977), Albermarle Paper Co.
v. Moodv. 422 U.S. 405 (1975) , and
E . E . 0. C v . Shell oil Co. . 466 U.S. 54
(1984). The foregoing opinions of this 
Court are indeed implicated by the 
decision of the Eighth Circuit.

In Albermarle. supra, the Court 
considered the district court's denial of 
back pay relief in a Title VII case where 
the request for back pay relief was not 
made by the plaintiffs until five years 
after the suit was filed. The Court 
stated, "back pay should be denied only 
for reasons which, if applied generally, 5

5 (...continued)
the complainant find counsel, the suit 
could be barred by laches.



19
would not frustrate the central statutory 
purposes of eradicating discrimination 
throughout the economy and making persons 
whole for injuries suffered through past 
discrimination." 422 U.S. at 421. In 
discussing the balancing of equities on 
the award of back pay relief, the Court 
held that an employer's conduct need not 
have been in bad faith to justify an 
award of back pay, but that where there 
has been bad faith, the employer can 
"make no claims whatsoever on the 
Chancellor's conscience." Id., at 422. 
In the present case, G.M.'s liability has 
been proven, and G.M. can have no claim 
on the Chancellor's conscience for relief 
in the form of the application of laches.

In Occidental Life. supra. this 
Court considered whether the EEOC should 
be placed under judicially imposed time 
restraints in bringing enforcement suits,



20
and discussed the federal policy 
underlying the primary reliance on EEOC 
enforcement. The Court recognized both 
the "federal policy requiring employment 
discrimination claims to be investigated 
by the EEOC and whenever possible 
administratively resolved" and "the 
decision of Congress to delay judicial 
action while the EEOC performs its 
a d m i n i s t r a t i v e  responsibilities, " 
Occidental Life, supra. 432 U.S. at 368.
The Court held that judicially imposed 
time limits on EEOC enforcement suits 
were unwarranted. The Court discussed at 
length the amendments giving the EEOC 
enforcement power, Id. at 363 (citing
H.R. 1746, 92d Cong., 1st Sess. ,
§8 (j) (1971) reprinted in H.R. Rep. No. 
92-338, P-12, Committee Report), and
stated that the individual suit option
was necessary, because of the heavy case



21

load of the EEOC, to avoid lengthy delays 
to the aggrieved person, but was to be 
the exception and not the rule. 
Occidental. supra, at 365-66, citing 118 
Cong. Rec. 7168 (1972).

The Court also held in Occidental 
Life that a limitation on the relief 
available rather than dismissal of the 
action was the proper remedy for 
inordinate delay by the EEOC. The Court 
described the procedural protection for a 
Title VII respondent, under which a 
respondent has notice of a charge 10 days 
after it is filed, Occidental, supra, at 
372, and noted that a respondent is 
notified of the progress of a charge 
during its pendency. Id. at 372 . The 
court then stated:

It is, of course, possible that 
despite these procedural protections 
a defendant in a Title VII 
enforcement action might still be 
significantly handicapped in making 
his defense because of an inordinate



22
EEOC delay in filing the action 
after exhausting its conciliation 
efforts. If such cases arise, the 
federal courts do not lack the power 
to provide relief. This Court has 
said that when a Title VII defendant 
is in fact prejudiced by a private 
plaintiff's unexcused conduct of a 
particular case, the trial court may 
restrict or even deny back pay 
relief. Albemarle Paper Co. v. 
Moody. 422 U.S. 405, 424-425, 95
S.Ct. 2362, 2374-2375, 45 L.Ed.2d
280. The same discretionary power 
"to locate 'a just result' in light 
of the circumstances peculiar to the 
case," ibid.. can also be exercised 
when the EEOC is the plaintiff.

Id., at 373. In E.E.O.C, v. Shell Oil
Corn.. 466 U.S. 54 (1984) the Court
reiterated that "primary responsibility
for enforcing Title VII has been
entrusted to the EEOC." Id., at 61-62
(citing 42 U.S.C. § 2000e-5(a).

The decisions of this Court clearly
indicate that the remedy for EEOC delay
in bringing an EEOC enforcement action
that results in prejudice to the employer
should be a limitation on relief rather



23

than dismissal of the action.6 The same

Despite the clear import of 
this court's decisions, the lower courts 
have continued to analyze EEOC delay in 
terms of traditional laches analysis:
E. E.O.C. v. Star Tool & Die Works, 4 7
F. E.P. Cases 39 (E.D. MI 1987) (EEOC suit
barred by 7 1/2 year delay from filing of 
charges, although 4 1/2 years of the
delay was not unreasonable).
E.E.O.C. v. Indiana Bell Telephone Co. , 
641 F. Supp. 115 (D.C. Ind. 1986) (case
dismissed; 5 years, 4 month delay in 
f i l i n g  s u i t  a f t e r  f a i l u r e  of 
conciliation).
E.E.O.C. v. Times Mirror Magazine, Inc., 
42 F.E.P. Cases 499 (D.C.N.Y. 1986).
E.E.O.C. v. Wayside World Corp., 646 F.
Supp. 86 (D.C. Va. 1986).
E.E.O.C. v. Firestone Tire & Rubber Co., 
626 F. Supp. 90 (D.C. Ga. 1985).
E. E.O.C. v. Local 638, Etc., Sheet Metal 
Workers' International Association. 753
F. 2d 1172 (2nd Cir. 1985).
E. E.O.C. v. Bethlehem Steel Corp., 36
F. E.P. Cases 1083 (D.C. Md. 1984)(EEOC
enforcement suit barred due to 5 year 
delay).
E.E.O.C. v. Great Atlantic & Pacific Tea 
Co., 735 F .2d 69 (3rd Cir. 1984)(EEOC did 
not unreasonably delay).

(continued...)



24

6(...continued)
E.E.O.C. v. Commonwealth Oil Refining 
Co.. 33 F.E.P. Cases 764 (D.C. Tex.
1982)(employer permitted to raise the 
defense), reversed and remanded on other 
grounds. 720 F.2d 1383 (5th Cir. 1983).
E. E.O.C. v. Dresser Industries, Inc., 668
F . 2d 1199 (11th Cir. 1982)(5 year 8 month 
delay justifies dismissal on laches 
grounds, where employer demonstrated 
prejudice) .
E.E.O.C. v. K-Mart Coro.. 694 F.2d 1055 
(6th Cir. 1982)(EEOC not guilty of laches 
in a mandamus action).
E. E.O.C. v. Martin Processing, Inc., 533
F. Supp. 227 (D.C. Va. 1982) (delay of 4
years 5 months after filing of charge is 
unreasonable)[28 F.E.P. 1825].
E.E.O.C. v. Pacific Press Publishing 
Assn.. 34 F.E.P. Cases 1165 (D.C. Calif.
1981) (EEOC suit not barred by laches; 5 
1/1 year delay).
E. E.O.C. v. Alioto Fish Co., Ltd. , 623
F . 2d 86 (9th Cir. 1980) (suit barred by 
laches, 62 month delay).
E.E.O.C. v. Celotex Corp.. 27 F.E.P.
Cases 324 (D.C. Tenn. 1980)(EEOC suit not 
barred).
E. E.O.C. v. Massev-Ferguson. Inc.. 622
F . 2d 271 (7th Cir. 1980) (reversing and

(continued...)



25
rationale should apply to private Title 
VII actions as well. See, Waddell v. 
Small Tube Products, Inc.. 799 F.2d 69, 
81 (3rd Cir. 1986).

6 (...continued)
remanding determination that suit was 
barred by laches where district court did 
not make findings on prejudice to 
employer).
E. E.O.C. v. Beaver Welding Supply Co.. 21
F .  E.P. C a s e s  152 (D.C. Tenn.
1979)(employer not entitled to pre-trial 
dismissal on grounds of laches; 2 year 
delay).
E. E.O.C. v ■ Bray Lumber Co.. 478 F. Supp.
993 (D.C. Ga. 1979)(dismissal of EEOC
suit due to 4 year 5 month delay) [21
F. E.P. Cases 510].
E. E.O.C. v. Kelley Manufacturing Co., 29
F. E.P. Cases 243 (D.C. Ala. 1979)(EEOC 
suit barred; 7 year delay).
E. E.O.C. v. Radiator Specialty Co., 610
F . 2d 178 (4th Cir. 1979) (17 month delay 
between filing of charge and EEOC's 
notice to employer does not warrant 
dismissal of action).
E.E.O.C. v. American Petrofina Co. of 
Texas. 22 F.E.P. Cases 1321 (D.C. Tex. 
1977) (EEOC suit barred; 3/1/2 year delay 
after reasonable cause finding).



26
Where EEOC delay causes a private 

litigant to delay filing suit, the policy 
considerations discussed in Occidental 
Life and Albemarle are implicated even 
more strongly, because a Title VII 
complainant usually proceeds pro se at 
the administrative level. See. Bethel v, 
Jefferson. 589 F.2d 631, 642 (D.C. Cir.
1978) ; Tipler v. E.I. duPont deNemours 
and Co,. 443 F.2d 125, 129 (6th Cir. 
1971) . As has been noted, the circuit 
courts have been divided on the 
application of laches to bar a private 
Title VII action.7 The question of the 
application of laches in private Title 
VII actions has provoked a substantial 
amount of litigation, with a wide range 
of results8 indicating that this Court's

7 See notes 4 and 5, supra.
O ,The application of laches m  a 

Title VII action has been addressed in
(continued...)



27

8 (...continued)
the following cases, among others:
Whitfield v. Anheuser-Busch. Inc.. 820
F .2d 243 (8th Cir. 1987).
Bishop v. District of Columbia. 788 F.2d 
781 (D.C. Cir. 1986) (8 year delay not
unreasonable where employees were 
proceeding pro se).
Waddell v. Small Tube Products, Inc., 799 
F.2d 69 (3rd Cir. 1986)(laches barred 
back pay relief, but did not require 
dismissal of claim).
Brown v. Continental Can Corp.. 765 F.2d
810 (9th Cir. 1985).
Jeffries v. Chicago Transit Authority, 
770 F .2d 676 (7th Cir. 1985) cert. 
denied, 475 U.S. 1050 (1986).
Birge v. Delta Airlines. 597 F. Supp. 448 
(D.C. Ga. 1984).
Fridv v. Moultrie. 595 F. Supp. 34 
(D.C.D.C. 1984)(employee's suit filed 9 
years after denial of promotion barred by 
laches despite EEOC's inadequate and 
confused responses to her repeated 
inquiries where, among other factors, 
employer did not receive notice of the 
charge from EEOC for 6 years).
Gifford v. Atchison, Topeka & Santa Fe 
Rv. Co. . 685 F . 2d 1149 (9th Cir. 1982)
(suit not barred; 9 year delay).

(continued...)



28

8 (...continued)
Holden v. Burlington Northern, Inc. . 3 6 
F.E.P. Cases 798 (~D.C. Minn. 1984) (suit 
filed nearly 10 years after filing of 
charge not barred by laches, where 
employee was not aware she could bypass 
EEOC process and EEOC contacted her twice 
during the 10 year period to assure her 
it had not forgotten her).
Holsev v. Armour & co.. 743 F.2d 199 (4th 
Cir. 1984), cert, denied, 470 U.S. 1028 
(1985)(decision to rely on EEOC's 
administrative process; laches did not 
bar suit; 5 year delay).
Howard v. Roadway Express. Inc. 726 F.2d 
1529 (11th Cir. 1984) (complainant's 
failure to file suit until after 
completion of EEOC's administrative 
process was not inexcusable delay and 
cannot support application of laches).
Johnson v. Angelica Uniform Group. 36 
F.E.P. Cases 85 (D.C. Mo. 1984)(suit not 
barred by laches where EEOC caused any 
delay and employer was not prejudiced).
McLemore v. Interstate Motor Freight 
System, Inc.. 33 F.E.P. Cases 1384 (D.C. 
Ala. 1984)(8 year three month delay in 
filing suit resulted in suit being barred 
by laches, despite employee's claimed 
reliance on EEOC, where EEOC informed 
employee that she could pursue her claim 
independently in court).

(continued...)



29

8 (...continued)
Pande v. Johns Hopkins University. 598 F. 
Supp. 1084 (D.C. Md. 1984)(employee's
10 year delay inexcusable, despite 
claimed reliance on EEOC, where he was 
r e p r e s e n t e d  by c o u n s e l  d uring
administrative processing).
Patzer v. University of Wisconsin System. 
Board of Regents. 577 F. Supp. 1553 (D.C. 
Wis. 1984).
Pegues v. Morehouse Parrish School Board. 
706 F.2d 735 (5th Cir. 1983) (employee' s 
suit barred by laches; nine year delay in 
filing suit).
Rozen v. District of Columbia. 702 F.2d 
1202 (D.C. Cir. 1983)(21 month delay
between EEOC's no cause determination and 
issuance of notice of Right to Sue by 
Department of Justice did not support 
dismissal on basis of laches).
N i l se n  v. City of Moss Point. 
Mississippi. 621 F.2d 117 (5th Cir.
1982)(equitable part of mixed claim for 
equitable and legal relief can be barred 
by laches, but legal part can be barred 
only by statute of limitations).
Staples v. Avis-Rent-A-Car System. Inc. . 
537 F. Supp. 1215 (D.C.N.Y. 1982) (suit
not barred by 4 year delay between filing 
charge and filing suit, where employee is 
not required to litigate prior to 
termination of EEOC investigation and 
conciliation efforts).

(continued...)



30

8 (...continued)
White v. Washington Metropolitan Area 
Transit Authority, 32 F.E.P. Cases 1014 
(D.C. D.C. 1981) (employee1 s 4 year delay 
in requesting Right to Sue letter after 
receiving notice of EEOC's dismissal of 
charge, requires dismissal of suit).
Worley v. Western Electric Co.. 26 F.E.P. 
Cases 1708 (D.C. Ga. 1981) (employees not 
barred by laches for failing to intervene 
in another suit or to request Right to 
Sue letter immediately after decision 
adverse to employer in other suit was 
made known to them).
Bratton v. Bethlehem Steel Coro.. 649 
F.2d 658 (9th Cir. 1980)(reversing 
dismissal on laches grounds).
Fields v. Hoerner Waldorf Coro.. 33 
F.E.P. Cases 1471 (D.C. Ala. 1980)(9 year 
delay by EEOC not charged against 
plaintiff, but suit was barred by laches 
due to plaintiff's 2 year delay in filing 
suit after issuance of first Right to Sue 
letter, which employee did not receive).
Harris v. Ford Motor Co. . 4 87 F. Supp. 
429 (D.C. Mo. 1980)(employee not barred 
by laches despite fact that she had moved 
without informing the EEOC of new address 
and filed suit after second notice of 
Right to Sue was issued), [22 F.E.P. 
922], judgment for employer affirmed, 651 
F .2d 609 (8th Cir. 1981).

(continued...)



31

8 (...continued)
Sanaster v. United Airlines. 633 F.2d 864 
(9th Cir. 1980) (suit not barred due to 4 
1/2 year delay between reasonable cause 
finding and filing suit; EEOC did not 
inform employee of her right to sue).
Bernard v. Gulf Oil Co. , 596 F.2d 1249
(5th Cir. 1979) , reh. en banc granted. 
604 F . 2d 449 (5th Cir. 1979) . fen banc. . 
619 F .2d 459, 463 (5th Cir. 1980),,
affirmed.. 452 U.S. 89 (1981)(suit not
barred by laches).
Boone v. Mechanical specialties Co., 609 
F.2d 956 (9th Cir. 1979) (suit barred by 
laches due to 7 year delay, where 
employee refused EEOC's offers to issue 
him a Right to Sue letter).
Fowler v. Blue Bell, Inc.. 596 F.2d 1276 
(5th Cir. 1979), cert, denied. 444 U.S.
1018 (1980).
Stallworth v. Monsanto Co. , 21 F.E.P.
Cases 364 (D.C. Fla. 1979)(employee's
suit not barred by laches).
Schwabenbauer v. Board of Education, City 
School Dist., City of Olean, 25 F.E.P.
Cases 767 (D.C. N.Y. 1978)(suit not
barred where filed within statutory 
period and employee relief on EEOC), 
vacated & remanded. 667 F.2d 305 (2nd 
Cir. 1981).
Stasnev v. Southern Bell Telephone & 
Telegraph Co. . 458 F. Supp. 314 (D.C.

(continued...)



32
guidance would be of great benefit to the 
lower courts.

The Eighth Circuit's decision that a 
Title VII plaintiff may not rely on the 
EEOC's administrative processing of his 
charge, is therefore in conflict with the 
decisions of other circuits and is 
inconsistent with prior decisions of this

8 (...continued)
N.C. 1978) (4 year delay did not warrant 
dismissal), affirmed in part,, remanded 
in part. 628 F.2d 267 (4th Cir. 1986) [23 
F.E.P. 633].
Breeding v. S. Louis & San Francisco Rv. 
Co.. 33 F.E.P. Cases 1514 (D.C. Ala. 
1977)(suit brought more than 5 years 
after employee's discharge barred by 
laches, where EEOC's notice of charge to 
employer did not state employee's name).
Nickel v. Highway Industries, Inc.. 441 
F. Supp. 477 (D.C. Wis. 1977)(employees 
may litigate in 1977 action that related 
to events in 1969)[21 F.E.P. Cases 1088].
Richardson v. Delta Dravage Co. , 433 F. 
Supp. 50 (W.D. La. 1977) (suit not barred 
where 8 year delay, even though employee 
was entitled by EEOC regulations to 
demand notice of Right to Sue after 180 
days)[21 F.E.P. 893].



33
Court stating that primary reliance for 
enforcement of Title VII is to be placed 
on the EEOC. This Court should therefore 
grant the petition in order to review the 
conflict between the circuits and the 
inconsistency between the decisions of 
this Court and the decision of the lower 
courts.

II.
THIS CASE PRESENTS QUESTIONS OF 
NATIONAL IMPORTANCE REGARDING TITLE 
VII PLAINTIFFS' RIGHTS AND 
RESPONSIBILITIES AND AS TO THE 
ALLOCATION OF THE BURDEN OF DELAYED 
ENFORCEMENT OF TITLE VII BY THE 
E QU A L E M P L O Y M E N T  OPPORTUNITY 
COMMISSION, WHICH SHOULD BE RESOLVED 
BY THIS COURT
The present case raises important 

questions concerning the responsibilities 
of private Title VII plaintiffs and 
should bear the burden of EEOC delay and 
errors in processing discrimination 
charges. At issue is whether a Title VII 
claimant at some point in time has an



34
obligation to request his or her 
"optional" right to sue letter or face 
dismissal on laches grounds, and whether 
pro se claimants alleging discrimination 
in employment are to bear the burden of 
EEOC backlogs, delays and errors.

The Eighth Circuit here has in 
effect held that the complainant has an 
obligation to request a right to sue 
letter, and that mere inquiry by the 
complainant to the EEOC is not a 
sufficient showing of interest to 
preserve the complaint's Title VII claim.

The court in Jeffries v. Chicago 
Transit Authority. 770 F.2d 676 (7th Cir. 
1985) , cert. denied. 475 U.S. 1050 
(1986), in addressing a case in which no 
inquiry had been made by the complainant 
to the EEOC during a nine year period, 
stated that it "need not decide if one in 
Jeffries' position must necessarily



35
demand a right to sue letter. But see 
Brown v. Continental Can Corp.. 765 F.2d 
810, 814 (9th Cir. 1985)(complainants not 
required to request right to sue letter). 
Jeffries. supra. at 682. See also 
Cleveland Newspaper Guild v. Plain Dealer 
Pub. Co.. supra. at 1160 (dissenting 
opinion of Milburn, J.). However, in the 
present case, both the district court and 
the court of appeals found that although 
petitioner had made some inquiry about 
the status of his charge, it was not 
enough.9 (A. at 21a-24a; 5a-8a.)

y It should be noted that 
petitioner testified at trial that he had 
called or visited the EEOC on at least a 
yearly basis and was told his case was 
being handled. (T. 38-39) An official
of the EEOC testified at trial that 
Garrett may very well have been given 
incorrect information each time he called 
because the National Programs case 
against G.M. was pending during this 
entire period (T. 207-209), because the
EEOC's computer file locator record was 
frequently inaccurate, and because of the 
"disarray" at the Commission (T. 177,
180-182) .



36
The effect of the court of appeals' 

decision is to make the optional 
procedure of a private suit under Title 
VII mandatory for Title VII complainants, 
contrary to Congress1 determination that 
EEOC enforcement of Title VII was to be 
the primary method of enforcement. See. 
Occidental Life, supra. at 365-66, 368. 
This result, which is contrary both to 
Congressional intent and to the purposes 
of Title VII to eradicate discrimination 
in employment without imposing artificial 
barriers to enforcement of the law, calls 
for review by this Court.

In addition, the present case raises 
the question of who should bear the 
burden of EEOC delays and errors in 
processing discrimination charges. As 
has been suggested, the only "error" 
committed by the petitioner here was his 
failure to request a right to sue letter



37
at an earlier date. Petitioner did not 
affirmatively cause any of the delay in 
this case, but merely relied on the 
EEOC's statements to him that they were 
handling his case against G.M.

The EEOC, however, delayed over a 
year between its reasonable cause finding 
in May, 1971 and its determination that 
conciliation efforts had failed in 
August, 1972; delayed an additional six 
months before sending the file to the 
Chicago Litigation Center; did not make a 
determination whether the EEOC would file 
suit before sending the file to the 
national Programs Office in 1973 or 1974, 
or at any time thereafter; did not send 
Garrett a right to sue letter prior to 
1985; sent the file to the Federal 
Records Center in March, 1976 without 
notice to Garrett or G.M., without 
putting the file back on track for a



38
litigation decision, and without closing 
the file; delayed issuing a right to sue 
letter for an additional year and three 
quarters between late 1983 and July, 
1985; and gave Garrett incorrect 
information about whether his case 
against G.M. was still ongoing.

EEOC delays and errors are a long 
standing problem. Congress noted the 
EEOC's backlog of cases at the time of 
the 1972 amendments to Title VII, 
Occidental Life, supra, at 362-64, which 
was part of the rationale for 
establishing a private suit option. The 
EEOC's delays in bringing its own 
enforcement actions has been the subject 
of a host of lower court opinions.10

EEOC delays have been the cause of 
the great majority of cases in which 
dismissal of private Title VII suits has

10 See note 6, supra.



39
been sought on laches grounds.-1-1 The 
EEOC's delays in processing charges under 
the Age Discrimination In Employment Act, 
29 U.S.C. § 621 et. sea. . led to the
e n a c t m e n t  in 1988 of the Age 
Discrimination Claims Assistance Act of 
1988, P.L. 100-283, which extended the 
statute of limitations for employees 
whose age discrimination claims were 
jeopardized by the EEOC's failure to 
process cases filed after December 31, 
1983 before the two year statute of 
limitations for ADEA actions expired.

The EEOC's most recent annual report 
(for the year 1984) states that in fiscal 
year 1984, the total number of charges 
filed with the EEOC was 71,197, and the 
total number of closures was 55,034, 19th

-LJ- See cases cited in note 8, 
supra. But cf.. Boone v. Mechanical 
Specialties Co. , 609 F.2d 956 (9th Cir.
1979) .



40
Annual Report of the Equal Employment 
Opportunity Commission, at 18. In fiscal 
year 1983, the EEOC had 70,252 charges 
filed, and closed 74,441. Id. at 18. 
For the two years, 1983 and 1984, 
therefore a net total of 11,974 more 
cases were filed than were resolved. The 
EEOC's annual report does not include any 
figures on the backlog of unresolved 
charges.

The EEOC itself interprets § 
706(f)(1) of Title VII, 42 U.S.C. § 
2 00 0e -5 (f )(1), as authorizing the 
charging party to await the outcome of 
the EEOC's administrative process prior 
to filing suit unless the charging party 
intentionally delays the proceedings. 
Cleveland Newspaper Guild. supra, 839
F . 2d at 1159 (dissenting opinion of 
Milburn, J.)(referring to amicus brief of 
EEOC). Judge Milburn's dissenting



41
opinion in the Cleveland case notes the 
standard of deference due administrative 
agencies by the courts. Id., at 1159.

Petitioner submits that the long 
standing and growing backlog of EEOC 
charges can only mean that the question 
of the application of laches in Title VII 
cases will assume greater and greater 
importance in the coming years. The 
failure of the court of appeals to 
consider the possibility of a limitation 
on petitioner's back pay recovery rather 
than dismissal of his case left the whole 
burden of the EEOC's delay on the 
petitioner here, in a case in which the 
defendant's liability was established as 
a matter of law. (A. 32a, 9a.) A fair 
balancing of the equities in the present 
case would lead to the conclusion that 
dismissal of this action with consequent 
denial of all relief was unjustified.



42
CONCLUSION

Petitioner respectfully urges this 
Court to grant the petition for a writ of 
certiorari. There is a clear-cut split 
between the circuits on the issue, the 
questions presented here arise with great 
frequency in the lower courts, and 
matters of national importance are 
raised.

Respectfully submitted,

LOUIS GILDEN*
NORAH J. RYAN
317 North 11th Street
Suite 1220
St. Louis, Missouri 63101 
(314) 241-6607
JULIUS LeVONNNE CHAMBERS 
CHARLES STEPHEN RALSTON 
RONALD ELLIS 
99 Hudson Street 
New York, New York 10013 
(212) 219-1900
Attorneys for Petitioner 
^Counsel of Record



A P P E N D I X



la

UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT 

April 14 1988
JUDGMENT

No. 87-1626/1671
Warren Garrett, *

"k
Appellant, k

* Appeal fromvs. * the United* S t a t e sGeneral Motors * D i s t r i c tCorporation, * Court for* the Eastern
Appellee. * District of*

k
•k

Missouri

This appeal from the United States
District Court was submitted on the record
of the district court, briefs of the 
parties and was argued by counsel.

After consideration, it is ordered 
and adjudged that the judgment of the 
district court in this cause be affirmed 
in accordance with the opinion of this
Court.



2a
April 14, 1988

Order entered in accordance with opinion, 
/s/ Robert D. St. Vrain

Clerk, U.S. Court of Appeals, Eighth 
Circuit.



3a
UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT

No. 87-1626

Warren Garrett,
Appellant,

v.
General Motors 
Corporation,

Appellee,

No. 87-1671

Warren Garrett,
Appellee,

v.
General Motors 
Corporation,

Appellant.

*
*
*
*

*

*

*
*
*
*

Appeals from
the United 
S t a t e s  
D i s t r i c t

* Court for
* the Eastern
* District of
* Missouri
*
*
*
*
*
*

Submitted: January 11, 1988
Filed: April 14, 1988



4a
Before WOLLMAN, Circuit Judge, ROSS, 

Senior Circuit Judge, and BEAM, 
Circuit Judge.

ROSS, Senior Circuit Judge.
Warren Garrett appeals from a final 

judgment of the district court 1 entered 
in favor of General Motors Corporation 
(GMC). In 1985, Garrett brought this 
action against GMC under Title VII of the 
Civil Rights Act of 1964, 42 U.S.C. §
2 0 0 0 e e t s e q . . a l l e g i n g  r a c e  
discrimination in the terms and conditions 
of his employment and in his termination 
from the St. Louis GMC plant in 1971. The 
district court entered judgment in favor 
of GMC, holding that the equitable 
doctrine of laches barred Garrett's Title 
VII claims. We affirm.

1The Honorable George F. Gunn, Jr., 
United States District Judge for the 
Eastern District of Missouri.



5a
Garrett, a black man, was employed by 

GMC from May 18, 1967, until his
termination on March 29, 1971. While he
was employed, Garrett twice filed 
discrimination charges against GMC with 
the Equal E m p l o y m e n t  Opportunity 
Commission (EEOC) with respect to the 
terms and conditions of his employment. 
Later, in march of 1971, Garrett was 
terminated, along with twenty-six other 
black employees, for participating in a 
wildcat strike held in protest of GMC's 
alleged discriminatory practices. Within 
several days after his discharge, Garrett 
f i l e d  an a d d i t i o n a l  charge of 
discriminatory termination with the EEOC. 
He subsequently moved to Decatur, 
Illinois, where he awaited processing of 
his EEOC claims.

Garrett testified that between 1972 
and 1980 he made numerous visits and phone



6a
calls to the EEOC office in St. Louis to 
inquire about the status of his case, and 
that on each occasion he was told his case 
was still pending. In 1980, Garrett again 
contacted the EEOC office after learning 
that three GMC employees, who were also 
terminated as a result of the 1971 wildcat 
strike, had been awarded back pay in their 
Title VII suit against GMC. See Mosley v. 
General Motors Coro.. 497 F. Supp. 583
(E.D. Mo. 1980), affjd, 691 F.2d 504 (8th 
Cir. 1982). In late 1983, Garrett again 
called the EEOC, this time to inquire 
whether his case would be covered by a 
national conciliation agreement reached 
between the EEOC and GMC in settlement of 
a nationwide discrimination suit filed in 
1973. At that time he was informed by the 
EEOC that his file had been destroyed. He 
was advised, however, that he should wait 
to see if his case would be covered by the



7a
national agreement since the EEOC had 
reviewed his file for possible inclusion. 
Garrett later learned that his case would 
not be covered by the national agreement. 
Eventually, on July 22, 1985, the EEOC 
issued Garrett a right-to-sue letter, and 
this suit was filed in district court on 
September 11, 1985.

At trial, a considerable amount of 
evidence was offered to attempt to 
reconstruct the EEOC' s processing of 
Garrett's claims. However, because all of 
Garrett's EEOC records, except for the 
skeletal case control ledger, had been 
destroyed in either 1976 or 1979, the 
district court concluded that it was very 
difficult to determine how the case was 
actually processed. Nonetheless, the



8a

district court expressed its doubt that 
the July 1985 right-to-sue letter was the 
first and only letter received by Garrett.

In considering Garrett's testimony, 
the district court discredited the 
frequency with which Garrett claimed to 
have contacted the EEOC office in pursuing 
his claim. Specifically, the district 
court found that "[Garrett's] contact with 
the EEOC was minimal until 1980 when he 
learned of the successful litigation by 
other disciplined employees. Even then he 
did not actively pursue his rights until 
the beginning of 1984 when he learned of 
the National [Conciliation] Agreement." 
Garrett v. General Motors Corp.. No. 85- 
2219C(6), slip op. at 6 (E.D. Mo. Apr. 24, 
1987).

Based on its findings of fact, the 
district court held as a matter of law 
that Garrett's action was barred by the



9a
doctrine of laches. The district court 
concluded that the fourteen and one-half 
year delay in filing this suit was 
unreasonable and unexcused and that GMC's 
defense had been prejudiced as a result. 
The district court also held that, absent
the application of laches, GMC was
collaterally estopped on the issue of
liability by the decision in Mosley v.
General Motors Coro.. supra. 497 F. Supp.
at 590. The district court specifically 
stated, "the Mosley case establishes as a 
matter of law that defendant's discharge 
of plaintiff on March 29, 1971, was in
violation of Title VII." Garrett, supra. 
slip op. at 7.

Garrett now appeals the district 
court's application of laches in barring 
his suit, and GMC cross appeals the



10a
district court's finding of collateral 
estoppel with respect to the issue of 
liability.

Garrett argues that the application 
of laches by the district court was an 
abuse of discretion and based upon clearly 
erroneous findings of fact. Stressing 
that the "[p]rimary responsibility for 
enforcing Title VII has been entrusted to 
the EEOC," EEOC v. Shell Oil Co.. 466 U.S. 
54, 61-62 (1984), and that the legislature 
intended the individual suit option to be 
the exception and not the rule, Occidental 
Life Ins. Co. v. EEOC. 432 U.S. 355, 366 
(1977), Garrett argues that a plaintiff's 
failure to file a Title VII claim until 
completion of the EEOC process is not 
inexcusable delay and cannot support the 
application of laches. He contends that 
so long as the plaintiff has (1) made 
reasonable, periodic inquiry into the



11a
status of his claim, and (2) done nothing 
to affirmatively cause the delay, he has a 
right to indefinitely await completion of 
the EEOC's process before filing suit.

We disagree. This circuit has 
previously recognized that the doctrine of 
laches is a proper defense in a Title VII 
action, and may be used to bar a lawsuit 
where the plaintiff is guilty of (1) 
unreasonable and unexcused delay, (2) 
resulting in prejudice to the defendant. 
Whitfield v. Anheuser-Busch. Inc.. 820 
F.2d 243, 244 (8th Cir. 1987). See 
Cleveland Newspaper Guild v. Plain Dealer 
Publishing Co. . No. 86-3140, (6th Cir. 
Feb. 11, 1988) (en banc) (WESTLAW, 1988 WL 
8795) (to be reported at 839 F.2d 1147); 
Jeffries v. Chicago Transit Auth., 770 
F .2d 676, 679 (7th Cir. 1985), cert, 
denied. 475 U.S. 1050 (1986); Boone v. 
Mechanical Specialties Co.. 609 F.2d 956,



12a
958-59 (9th Cir. 1979) . We have also
recognized that "laches may apply either
when the delay in bringing suit was caused
by a private plaintiff or when the delay
is the fault of an administrative agency."
Whitfield. supra, 820 F.2d at 244-45
(footnote omitted). We agree with the
Sixth Circuit that:

[WJhether another party contributes 
to the delay is only one factor in 
assessing the reasonableness of a 
plaintiff's actions. The question is 
not purely one of assigning fault. 
As stated in Pomeroy's treatise: "A
court of equity * * * has always
refused its aid to stale demands, 
where the party has slept upon his 
rights, and acquiesced for a great 
length of time. * * *" J. Pomeroy,
11 Equity Jurisprudence, § 419 at 171 
(S. Symons 5th ed. 1941). Thus, even 
though another party may have 
contributed to the delay, the court 
still must determine whether 
plaintiff's own delay or inaction 
inexcusably caused prejudice to the 
defendant.

Cleveland Newspaper G u i l d . s u p r a , 
(WESTLAW, 1988 WL 8795 at 15 (to be
reported at 839 F.2d at _________).



13a
Whether laches should be applied depends 
upon the facts of the particular case and 
is a matter within the sound discretion of 
the trial court. Whitfield, supra. 820 
F .2d at 245.

It is undisputed that Garrett's file 
was improperly processed by the EEOC and 
that Garrett was misinformed, at least on 
one occasion, about the status of his 
case. The court must also consider, 
however, whether the plaintiff's own delay 
or inaction caused prejudice to the 
defendant. In this instance, the district 
court determined that Garrett's contact 
with the EEOC was minimal between 1972 and 
1980, and that he did not actively pursue 
his claim until 1984. We conclude that 
the district court's findings of fact in 
this regard are not clearly erroneous. 
Based on these findings, it was within the 
district court's discretion to find that



14a
Garrett had made insufficient inquiry 
between 1972 and 1984 and that GMC had 
been prejudiced as a result of the twelve 
year delay. We find no abuse of
discretion in the district court's 
application of laches under these 
circumstances.

We have also carefully considered 
each of the appellant's remaining 
arguments and find them to be without 
merit. Furthermore, because we affirm
the district court's application of laches 
in barring Garrett's Title VII claims, we 
decline to reach the issues raised in 
GMC's cross appeal.

Affirmed.
A true copy.

Attest:
CLERK, U. S. COURT OF 

APPEALS, EIGHTH CIRCUIT.



15a
UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT 
Nos. 87—1526/1671—EM

Warren Garrett, *
Appellant, * Appeals from* the United

vs. * S t a t e s* D i s t r i c t
General Motors * Court for
Corporation, * the Eastern* District of

Appellee. * Missouri
Petition for rehearing en banc filed 

by appellant/cross-appellee, Warren 
Garrett, has been considered by the Court 
and is denied.

Judge McMillian did not participate.
Petition for rehearing by the panel 

is also denied.
May 20, 1988

Order Entered at the Direction of the Court:
/s/ Robert D. St. Vrain
Clerk, United States Court of Appeals, 
Eighth Circuit



16a
UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MISSOURI 

EASTERN DIVISION
FILED 

Apr 24 1987 
Eyvon Mendenhall 

U. S. District Court 
E. District of Mo.

WARREN GARRET, )
)Plaintiff, )
)

V. ) No. 85—2219C(6)
)GENERAL MOTORS )

CORPORATION, )
)Defendant. )

MEMORANDUM OPINION
Plaintiff Warren Garrett brought this 

action pursuit to Title VII of the Civil 
Rights Act of 1964, 42 U.S.C. §2000e, et
see. . alleging that General Motors Corp. 
discriminated against him on the basis of 
race: (1) in the terms and conditions of
employment, and (2), in discharging him on 
March 29, 1971.

The case was tried to the Court. 
After consideration of the record, the



17a
parties' joint stipulation of facts, 
evidence and exhibits presented at trial, 
and the applicable law, the Court enters 
the following findings of fact and 
conclusions of law in accordance with Rule 
52, Fed. R. Civ. P. Judgement is in favor 
of defendant.

FINDINGS OF FACT
Defendant General Motors Corp. (GMC) 

is a Delaware corporation doing business 
in the State of Missouri and is an 
"employer" within the meaning of Title 
VII.

Plaintiff, a black male, was employed 
by GMC on May 18, 1967. In September 1970 
plaintiff filed a grievance with his union 
about racially discriminatory conditions 
at work, and on December 22, 1970 2 and

2This charge was received in the EEOC 
Kansas City District Office on October 8, 
1970. After deferment to the stage agency 
it was considered filed with the EEOC on 
December 22, 1970.



18a
March 18, 1971 he filed discrimination 
charges against GMC with the Equal 
Employment Opportunity Commission (EEOC).

On March 29, 1971 plaintiff was 
discharged for participating in a wildcat 
strike in protest of defendant's alleged 
racially discriminatory practices. A 
total of 125 black employees were 
disciplined as a result of the strike. 
Twenty-six of these employees were 
initially discharged; after settlement of 
grievances, six of those discharged, 
including plaintiff, remained discharged. 
Within several days plaintiff notified the 
EEOC in St. Louis of his discharge, and 
the discharge was made part of his pending 
charge.

Unable to find work in early 1972 
plaintiff left St. Louis and moved to 
Decatur, Illinois where he has since held 
several jobs and now resides.



19a
On May 25, 19 7 2 the St. Louis

district office of the EEOC reached a 
"reasonable cause" decision with respect 
to plaintiff's charge, and on August 10, 
1972, conciliation efforts with GMC 
failed.

On February 2, 1973 plaintiff's file
was forwarded to the EEOC's Regional 
Litigation Center in Chicago, Illinois to 
be considered for litigation by the EEOC. 
Sometime prior to November 1974 the file 
was transferred to the National Programs 
Division of the EEOC, for the probable 
purpose of determining if it was suitable 
for inclusion in a nationwide claim the 
EEOC was bringing against GMC. The file 
was designated as "Unsuitable" by the 
National Programs Division and in November 
1974 was sent from the National Programs 
Division to the St. Louis District Office. 
In March 1976 the file was sent from the



20a
St. Louis office to the Federal Record 
Center in Washington, D.C. where it was 
destroyed in accordance with EEOC 
procedures. It is unclear when the file 
was destroyed. There was evidence that it 
was destroyed in October 1976. Yet, other 
evidence indicated that it was destroyed 
in 1979.

On September 30, 1980 the U.S.
District Court for the Eastern District of 
Missouri held in Mosley v. General Motors 
Coro. . 497 F. Supp. 583 (E.D. Mo. 1980), 
aff'd. 691 F .2d 504 (8th Cir. 1982), that 
the discipline imposed by GMC following 
the March 1971 wildcat strike violated 
Title VII. The three plaintiffs in that 
suit were awarded back pay due to the 
discipline, plus costs and attorneys' 
fees.

Sometime in late 1980 plaintiff's 
stepfather sent plaintiff a newspaper



21a
article on the Mosley case. After 
receiving the article, plaintiff contacted 
the EEOC and was told that his file had 
been destroyed.

Plaintiff testified that between 1972 
when he left St. Louis and 1980 when he 
received the newspaper article, he had 
made personal visits to the EEOC in St. 
Louis on at least a yearly basis to 
inquire about his case and that each time 
the EEOC representative with whom he spoke 
told him that his case was still pending. 
The Court disbelieves this testimony. The 
testimony is undermined by the undisputed 
fact that plaintiff's EEOC file was closed 
in March 197 6 and sent to the Federal 
Record Center. The Court does not give 
credence to plaintiff's allegation that 
each time he contacted the EEOC 
thereafter— at least 10 times according to 
his count— he would have been given



22a
incorrect information.

In late 1983 plaintiff's aunt sent 
him a newspaper article dated October 19, 
1983 which reported that GMC and the EEOC 
had reached a National Settlement 
Agreement on a case stemming from 
discrimination charges brought against GMC 
in 1973 by the EEOC. After receiving the 
article plaintiff again contacted the EEOC 
and asked if he was covered by the 
Settlement Agreement. Plaintiff testified 
that one EEOC representative told him that 
plaintiff's records had been destroyed and 
that he did not know anything about his 
c a s e .  H o w e v e r ,  a n o t h e r  E E O C  
representative allegedly told him that his 
claim was still active.

In January 1984 plaintiff wrote a 
letter to his U.S. Congressman requesting 
information regarding the status of his 
claim against GMC and asking when he might



23a
expect to receive his share of the 
settlement. In response to inquiries, the 
Congressman received a letter from GMC and 
a letter from the EEOC, both of which were 
forwarded to plaintiff. The letter from 
the EEOC stated that plaintiff had been 
sent a right-to-sue letter in August 1972 
when conciliation efforts failed. The 
letter from GMC stated that the EEOC 
closed plaintiff's case in December 1974 
and destroyed his file in 198 0, and that 
plaintiff did not have a pending claim.

Upon receipt of these letters 
plaintiff wrote to the Chairman of the 
EEOC in May 1984 stating that he had never 
received a right-to-sue letter. In June 
1984 plaintiff received two letters in 
response. The first was from the EEOC's 
Washington, D.C. office stating that 
because the EEOC had no records indicating 
that plaintiff had previously been issued



24a
a right-to-sue letter, the Washington 
office had directed the St. Louis office 
to issue plaintiff a right-to-sue letter. 
The second letter was from the Acting 
District Director in St. Louis and stated 
that plaintiff may not have been issued a 
right-to-sue letter but that such a letter 
would not now be issued until it was 
determined whether plaintiff was covered 
by the National Settlement Agreement.

On July 22, 1985 plaintiff was issued 
a right-to-sue letter. This suit was 
filed on September 11, 1985, approximately 
15 years after the filing of plaintiff's 
original EEOC charge and 14-1/2 years 
after plaintiff's discharge from GMC.

The question of whether an earlier 
right-to-sue letter was received by 
plaintiff was a key factual dispute at 
trial. Clearly under EEOC procedures, as 
established by the evidence, plaintiff



25a
should have received a notice years 
earlier. Plaintiff tried to establish, 
based upon a reconstruction of what may 
have happened, that plaintiff's file was 
sidetracked from the normal EEOC process 
and that as a result a right-to-sue letter 
was never issued (i.e., until 1985). No 
explanation was offered as to why 
plaintiff would not have received a timely 
right-to-sue letter when the three Mosley 
plaintiffs did. Because all of
plaintiff's EEOC records, except for the 
skeletal Case Control Ledger, have been 
destroyed, it is impossible to know what 
actually happened. Based upon the 
evidence this Court cannot find that it is 
more likely than not that the July 198 5 
right-to-sue letter was the first and only 
received by plaintiff.

CONCLUSION OF LAW
The equitable doctrine of laches is



26a
applicable to Title VII actions brought 
by private plaintiffs. Boone v.
Mechanical Specialties Co.. 609 F.2d 956,
959 (9th Cir. 1979).

To establish an affirmative defense 
of laches the defendant has the burden of 
proof to show: (1) an unexcusable and
unreasonable delay by the plaintiff, and 
(2) prejudice to the defendant. Goodman 
v. McDonnell Douglas Corp.. 606 F.2d 800,
804 (8th Cir. 1979); Cleveland Newspaper 
Guild v. The Plain Dealer Publishing Co. . 
No. 86-3140, slip op. at 4 (6th Cir. March 
6, 1987) (private plaintiff Title VII
case). In considering whether to apply 
laches to defeat a suit the district court 
must look to the "peculiar equitable 
circumstances of that case" and "focus 
upon the length of the delay, the reasons 
therefore, how the delay affected the 
defendant, and the overall fairness of



27a
permitting the assertion of the claim." 
Goodman v. McDonnell Douglas Corp.. 606 
F.2d at 806.
Delay

There is some disagreement among the 
circuits as to whether EEOC delays in 
processing a claim should be attributable 
to a plaintiff in considering whether 
plaintiff's delay in bringing a Title VII 
suit is excusable. The Seventh Circuit 
has held that a "plaintiff does not have 
an absolute right to await termination of 
EEOC proceedings." Jeffries v. Chicago 
Transit Authority. 770 F.2d 676 (7th Cir. 
1985) (relying on administrative process 
cannot excuse 10 year delay between 
bringing charge and filing suit where 
plaintiff did nothing to prod agency or to 
seek a right-to-sue letter), cert. denied. 
469 U.S. 925 (1986). The D.C. Circuit
and the Ninth Circuit have taken a similar



28a
position. Rosen v. District of Columbia. 
702 F . 2d 1202, 1204 (D.C. Cir. 1983) 
holds that plaintiff's failure to secure a 
right-to-sue letter for four years does 
not constitute unexcusable delay where 
plaintiff did not sleep on his rights. The 
holding in Gifford v. Atchison, Topeka & 
Santa Fe Rv. . 685 F.2d 1149, 1152 (9th 
Cir. 1982) is that the EEOC delay of five 
years in issuing right-to-sue letter is 
not attributable to plaintiff because she 
repeatedly appealed to the EEOC for action 
and was assured by the agency that suit 
would be filed on her behalf.

The Eleventh Circuit, on the other 
hand, has held that the plaintiff's 
"failure to file his Title VII until 
completion of the EEOC process was not 
inexcusable delay and cannot support the
application of laches." No mention is
made of any action on the part of



29a
plaintiff during the five year delay in 
that case, or of any obligation upon the 
plaintiff to take any action. Howard v. 
Roadway Express. Inc,, 726 F.2d 1529, 1533 
(11th Cir. 1984). The Sixth Circuit 
follows this approach in Cleveland 
Newspaper Guild v. The Plain Dealer 
Publishing Co.. No. 86-3140, slip op., 
which involves a ten year EEOC process 
before a right-to-sue letter was finally 
issued. In that case, however, the 
plaintiff was affirmatively told by letter 
from the EEOC two years after the charge 
was filed that the EEOC was uncertain when 
it could begin to process the charge and 
that plaintiff could choose to keep the 
charge open until the EEOC could attend to 
it rather than bring suit in court at that 
time.

Under the finding of facts in this 
case, the Court concludes that the passage



30a
of 15 years from the filing of plaintiff's 
terms-and-conditions EEOC charge, and of 
14-1/2 years from the amendment of his 
charge to include his discharge constitute 
inexcusable and unreasonable delay. As 
stated, plaintiff's contact with the EEOC 
was minimal until 1980 when he learned of 
the successful litigation by other 
disciplined employees. Even then he did 
not actively pursue his rights until the 
beginning of 1984 when he learned of the 
National Settlement Agreement.
Prejudice

The issue of whether a defendant 
suffered prejudice from a delay is 
intertwined with the determination of 
whether a delay is unreasonable. "If only 
a short period of time has elapsed since 
the accrual of the claim, the magnitude of 
prejudice require[d] before the suit 
should be barred is great, whereas if the



31a
delay is lengthy, prejudice is more likely 
to have occurred and less proof of 
prejudice will be required." Goodman v. 
McDonnell Douglas Corp.. 606 F.2d at 800. 
EEOC v. Westinahouse Electric Coro.. 592 
F .2d 484, 486 (8th Cir. 1979) and EEOC v. 
Liberty Loan Corp.. 584 F.2d 853, 857 (8th 
Cir. 1978) enunciate a stricter standard 
for finding prejudicial effect when the 
EEOC itself delays in bringing a Title VII 
suit. In such a situation, a defendant 
must establish "with such clarity as to 
leave no room for controversy" that it has 
been substantially and unduly prejudiced 
because of the EEOC's delay.

Applying this stricter standard of 
prejudice to this private plaintiff case, 
the Court concludes that plaintiff's delay 
has caused GMC substantial and undue 
difficulties in defending the law suit. 
The prejudice to defendant as to



32a
plaintiff's claim of discriminatory terms 
and conditions of employment prior to his 
termination is clear. Records have been 
d e s t r o y e d ,  s u p e r v i s o r y  p e r s o n a l  
responsible for the alleged acts have 
died, memories have faded. It is
precisely these types of problems which 
the doctrine of laches addresses.

The prejudice to defendant as to 
plaintiff's claim of discriminatory 
termination is slightly different. The 
Court concludes that the Mosley case 
establishes as a matter of law that 
defendant's discharge of plaintiff on 
March 29, 1971 was in violation of Title
VII. Thus, the current unavailability of 
evidence on the circumstances surrounding 
the termination is not really relevant.

Defendant, however, has been 
seriously prejudiced by the 14-1/2 year 
delay in another way. If the EEOC had



33a
issued a right-to-sue letter prior to that 
issued on July 22, 1985, as defendant
tried to establish, this suit would be 
barred by the jurisdictional requirement 
that a Title VII suit be filed within 90 
days of receipt of a right-to-sue letter. 
See 42 U.S.C. §2000e-5(f). As the above 
findings of fact set forth, because 
plaintiff's EEOC records were destroyed, 
at the latest in 1979, it is impossible to 
determine whether a timely right-to-sue 
letter was received. Thus, the delay 
involved in the case precluded defendant 
from establishing a statute of limitations 
defense. The Court concludes that these 
circumstances support the application of 
laches in this case.

Another purpose underlying the 
doctrine of laches, other than the 
impairment of a defendant's ability to 
defend, is repose— the concept that at



34a
some point a party is entitled to assume 
that it is no longer subject to liability 
for a certain past event. Laches shares 
this purpose with statutes of limitations. 
In the present case the injury-causing 
event occurred 14-1/2 years before suit 
was initiated. This is not a case in
which plaintiff first became aware of his 
injury some time after the event. Every 
case wherein laches is to be applied 
involves a "delicate balance of equities." 
Goodman v. McDonnell Douglas Corp.. 606
F . 2d at 809. For the reasons set forth, 
the Court concludes that the circumstances 
of this case warrant barring plaintiff's 
suit on the basis of laches.

Judgment is accordingly entered in 
favor of defendant General Motors 
Corporation.

Dated this 24. day of April, 1987.
_________ /s/______________UNITED STATES DISTRICT JUDGE



35a
UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MISSOURI 

EASTERN DIVISION
FILED 

Jun 27 1987 
Eyvon Mendenhall 

U. S. District Court 
E- District of Mo.

WARREN GARRETT, 
Plaintiff, 
v.

GENERAL MOTORS 
CORPORATION,

Defendant.

)
)
)) No. 85-2219C(6)
)
)
)
)
)

ORDER AND MEMORANDUM 
IT IS HEREBY ORDERED that plaintiff's 

motion for partial summary judgment on the 
issue of defendant's liability is denied.

Plaintiff, a black male, filed this 
Title VII suit on September 11, 1985 for 
injunctive relief and damages against 
General Motors Corp. alleging that 
defendant terminated his employment on 
March 29, 1971 in violation of 42 U.S.C.
§§2000e-2(a) and 3(a), because of his



3 6a
participation in a work stoppage 
p r o t e s t i n g  d e f e n d a n t ' s  r a c i a l l y  
discriminatory practices.

It is undisputed that in March 1971 
defendant disciplined 125 black employees, 
one of w h o m  was plaintiff, for
participating in a wildcat strike in 
protest of defendant's alleged racially 
discriminatory practices. In Mosley v. 
General Motors Coro., 497 F. Supp. 583
(E.D. Mo. 1980) (Mosley), aff'd. 691 F.2d
504 (8th Cir. 1982) , a Title VII suit
brought by three suspended employees, the 
Court held that defendant's disciplinary 
measures were in violation of 42 U.S.C. 
§2000e-2(a) because they were more severe 
than those imposed on employees protesting 
non-racial concerns, and in violation of 
42 U.S.C. §2000e-3(a) because the measures 
were retaliatory. The Court held that 
defendant was liable to the plaintiff



37a
employees for the pay lost during their 
suspensions, plus costs and attorneys7 
fees.

Plaintiff was not a party in the 
Mosley action. He now argues that he is 
entitled to summary judgment on the issue 
of defendant's liability to him based on 
the collateral estoppel effect of the 
judgment against defendant in Mosley.

In opposition to this motion 
defendant argues that (1) there are 
factual issues concerning whether 
plaintiff's suit was timely filed and if 
so, whether the doctrine of laches should 
bar the suit, and (2) collateral estoppel 
is not applicable because plaintiff could 
have joined in the earlier suit and 
because the prior judgment did not



38a
necessarily decide whether defendant 
discriminated against this plaintiff. 
Timeliness of suit

Pursuant to this Court's order dated 
February 4, 1986, plaintiff has satisfied
the Court that the charge of racial 
discrimination filed with the Equal 
Employment Opportunity Commission (EEOC) 
and the EEOC Notice of Right to Sue issued 
to plaintiff on July 22, 1985 encompassed
plaintiff's discharge upon which this 
Title VII suit is based. Thus plaintiff's 
suit filed September 11, 1985 was filed
within the 9 0 day period provided for in 
42 U.S.C. §2OOOe—5(f) .
Collateral estoppel

Under the doctrine of collateral 
estoppel, or issue preclusion, a judgment 
on the merits in a prior suit precludes 
relitigation of issues actually decided 
and necessary to the outcome of the first



39a
action. C o l l a t e r a l  estoppel is
appropriate where (1) the issue is 
identical to one in a prior adjudication; 
(2) there was a final judgment on the 
merits; (3) the party to be estopped was a 
party or in privy with a party to the 
prior adjudication; and (4) the party to 
be estopped was given full and fair 
opportunity to be heard on the adjudicated 
issue. Oldham v. Pritchett. 599 F.2d 274, 
279 (8th Cir. 1979) ; White Earth Band of 
Chippewa Indians v. Alexander. 683 F.2d 
1129, 1134 (8th Cir.), cert, denied, 459
U.S. 1070 (1982).

In Parklane Hosiery Co. v. Shore. 439 
U.S. 322, 99 S.Ct. 645 (1979), the Supreme 
Court granted the district courts broad 
discretion to determine when offensive 
collateral estoppel should be applied, 
i . e . , when a plaintiff may estop a
defendant from relitigating issues which



40a
the defendant previously litigated and
lost against another plaintiff. Special
circumstances which would counsel against
the application of offensive collateral
estoppel include the stance of a "wait and
see" plaintiff who could have participated
in the previous action but, instead, held
back to await the outcome of that action.
The Court stated as follows:

The General rule should be that in 
cases where a plaintiff could easily 
have joined in the earlier action or 
where, [for any reason] ... the 
application of offensive collateral 
estoppel would be unfair to a 
defendant, a trial judge should not 
allow the use of offensive collateral 
estoppel.

Id. at 331, 99 S.Ct. at 652.
See also Crowder v. Lash. 687 F.2d 996, 
1010 (7th Cir. 1982).

The Court concludes that the four 
technical elements of collateral estoppel 
set forth above are satisfied in the
present case. The record now before the



41a
Court, however, does not indicate why 
plaintiff could not have joined in the 
earlier action. Plaintiff has thus failed 
to meet his burden for summary judgment 
under Rule 56(c), Fed.R. Civ. P. , and his 
motion is accordingly denied.

Dated this 27 day of June, 1986.

UNITED STATES DISTRICT JUDGE



42a

STATUTE INVOLVED 
42 U.S.C. § 2000e-5.

Prevention of unlawful employment 
practices

(a) Power of Commission. The Commission 
is empowered, as hereinafter provided, to 
prevent any person from engaging in any 
unlawful employment practice as set forth 
in section 703 or 704 of this title.
(b) Charges; notification; investigation 
and determination. Whenever a charge is 
filed by or on behalf of a person claiming 
to be aggrieved, or by a member of the 
Commission, alleging that an employer, 
employment agency, labor organization, or 
joint l a b o r - m a n a g e m e n t  c o m m i t t e e  
controlling apprenticeship or other 
training or retraining, including on-the- 
job training programs, has engaged in an 
unlawful employment practice, the 
Commission shall serve a notice of the



43a
charge (including the date, place and 
circumstances of the alleged unlawful 
employment practice) on such employer, 
employment agency, labor organization, or 
joint l a b o r - m a n a g e m e n t  c o m m i t t e e  
( h ereinafter referred to as the 
"respondent") within ten days,and shall 
make an investigation thereof. Charges 
shall be in writing under oath or 
affirmation and shall contain such 
information and be in such form as the 
Commission requires. Charges shall not be 
made public by the Commission. If the 
c o m m i s s i o n  determines after such 
investigation that there is not reasonable 
cause to believe that the charge is true, 
it shall dismiss the charge and promptly 
notify the person claiming to be aggrieved 
and the respondent of its action. In 
determining whether reasonable cause 
exists, the Commission shall accord



44a
substantial weight to final findings and 
orders made by State or local authorities 
in proceedings commenced under State or 
local law pursuant to the requirements of 
subsections (c) and (d). If the
C o m m i s s i o n  determines after such 
investigation that there is reasonable 
cause to believe that the charge is true, 
the Commission shall endeavor to eliminate 
by any such alleged unlawful employment 
p r a c t i c e  by informal methods of 
conference, conciliation, and persuasion. 
Nothing said or done during and as a part 
of such informal endeavors may be made 
public by the Commission, its officers or 
employees, or used as evidence in a 
subsequent proceeding without the written 
consent of the persons concerned. Any 
person who makes public information in 
violation of this subsection shall be 
fined not more than $1,000 or imprisoned



45a
for not more than one year, or both. The 
Commission shall make its determination on 
reasonable cause as promptly as possible 
and, so far as practicable, not later than 
one hundred and twenty days from the 
filing of the charge or, where applicable 
under subsection (c) or (d), from the date 
upon which the Commission is authorized to 
take action with respect to the charge.
(c) State or local proceedings. In the 
case of an alleged unlawful employment 
practice occurring in a State, or 
political subdivision of a State, which 
has a State or local law prohibiting the 
unlawful employment practice alleged and 
establishing or authorizing a State or 
local authority to grant or seek relief 
from such practice or to institute 
criminal proceedings with respect thereto 
upon receiving notice thereof, no charge 
may be filed under subsection (a) [(b)] by



46a
the person aggrieved before the expiration 
of sixty days after proceedings have been 
commenced under the State or local law, 
unless such proceedings have been earlier 
terminated, provided that such sixty-day 
period shall be extended to one hundred 
and twenty days during the first year 
after the effective date of such State or 
local law. If any requirement for the 
commencement of such proceedings is 
imposed by a State or local authority 
other than a requirement of the filing of 
a written and signed statement of the 
facts upon which the proceeding is based,
the proceeding shall be deemed to have
been commenced for the purposes of this
subsection at the time such statement is 
sent by registered mail to the appropriate 
State or local authority.
(d) Time for action under State or local 
law. In the case of any charge filed by a



47a
member of the Commission alleging an 
unlawful employment practice occurring in 
a State or political subdivision of a
State which has a State or local law
prohibiting the practice alleged and
establishing or authorizing a State or
local authority to grant or seek relief 
from such practice or to institute 
criminal proceedings with respect thereto 
upon receiving notice thereof, the 
Commission shall, before taking any action 
with respect to such charge, notify the 
appropriate State or local officials and, 
upon request, afford them a reasonable 
time, but not less than sixty days 
(provided that such sixty-day period shall 
be extended to one hundred and twenty days 
during the first year after the effective 
day of such State or local law), unless a 
shorter period is requested, to act under 
such State or local law to remedy the



48a
practice alleged.
(e) Time for filing charges. A charge 
under this section shall be filed within 
one hundred and eighty days after the 
alleged unlawful employment practice 
occurred and notice of the charge 
(including the date, p l a c e  and 
circumstances of the alleged unlawful 
employment practice) shall be served upon 
the person against whom such charge is 
made within ten days thereafter, except 
that in a case of an unlawful employment 
practice with respect to which the person 
aggrieved has initially instituted 
proceedings with a State or local agency 
with authority to grant or seek relief 
from such practice or to institute 
criminal proceedings with respect thereto 
upon receiving notice thereof, such charge 
shall be filed by or on behalf of the 
person aggrieved within three hundred days



49a
after the alleged unlawful employment 
practice occurred, or within thirty days 
after receiving notice that the State or 
local agency has terminated the 
proceedings under the Sate or local law, 
whichever is earlier, and a copy of such 
charge shall be filed by the Commission 
with the State or local agency.
(f) Civil action by Commission, Attorney 
General, or person aggrieved. (1) If 

within thirty days after a charge is 
filed with the Commission or within 
thirty days after expiration of any 
period of reference under subsection 
(c) or (d) , the Commission has been 
unable to secure from the respondent 
a conciliation agreement acceptable 
to the Commission, the Commission may 
bring a civil action against any 
r e s p o n d e n t  not a government, 
governmental agency, or political



50a
subdivision named in the charge.... 
If a charge filed with the Commission 
pursuant to subsection (b) is 
dismissed by the Commission, or if 
within one hundred and eighty days 
from the filing of such charge or the 
expiration of any period of reference 
under subsection (c) or (d),
whichever is later, the Commission 
has not filed a civil action under 
this section or the Attorney General 
has not filed a civil action in a 
case invo l v i n g  a government, 
governmental agency, or political 
subdivision, or the Commission has 
not entered into a conciliation 
agreement to which the person 
aggrieved is a party, the Commission, 
or the Attorney General in a case 
involving a government, governmental 
agency, or political subdivision,



51a
shall so notify the person aggrieved 
and within ninety days after the 
giving of such notice a civil action 
may be brought against the respondent 
named in the charge (A) by the person 
claiming to be aggrieved or (B) if 
such charge was filed by a member of 
the Commission, by any person whom 
the charge alleges was aggrieved by 
the alleged unlawful employment 
practice. Upon application by the 
complainant and in such circumstances 
as the court may deem just, the court 
may appoint an attorney for such 
complainant and may authorize the 
commencement of the action without 
the payment of fees, costs, or 
security. Upon timely application, 
the court may, in its discretion, 
permit the Commission, or the 
Attorney General in a case involving



52a
a government, governmental agency, or 
political subdivision, to intervene 
in s u c h  c i v i l  a c t i o n  upon 
certification that the case is of 
general public importance. Upon 
request, the court may, in its 
discretion, stay further proceedings 
for not more than sixty days pending 
the termination of State or local 
proceedings described in subsections 
(c) or (d) of this section or further 
efforts of the Commission to obtain 
voluntary compliance.

* * *

(3) Each United States district 
court and each United States court of 
a place subject to the jurisdiction 
of the United States shall have 
jurisdiction of actions brought under 
this title. Such an action may be 
brought in any judicial district in



53a
the State in which the unlawful 
employment practice is alleged to 
have been committed, in the judicial 
district in which the employment 
records relevant to such practice are 
maintained and administered, or in 
the judicial district in which the 
aggrieved person would have worked 
but for the alleged unlawful 
employment practice, but if the 
respondent is not found within any 
such district, such an action may be 
brought within the judicial district 
in which the respondent has his 
principal office. For purposes of 
sections 1404 and 1406 of title 28 of 
the United States Code, the judicial 
district in which the respondent has 
his principal office shall in all 
cases be considered a district in 
which the action might have been



54a
brought.
(4) It shall be the duty of the 
chief judge of the district (or in 
his absence, the acting chief judge) 
in which the case is pending 
immediately to designate a judge in 
such district to hear and determine 
the case. In the event that no judge 
in the district is available to hear 
and determine the case, the chief 
judge of the district, or the acting 
chief judge, as the case maybe, shall 
certify this fact to the chief judge 
of the circuit (or in his absence, 
the acting chief judge) who shall 
then designate a district or circuit 
judge of the circuit to hear and 
determine the case.
(5) It shall be the duty of the
judge designated pursuant to this
subsection to assign the case for



55a
hearing at the earliest practicable 
date and to cause the case to be in 
every way expedited. If such judge 
has not scheduled the case for trial 
within one hundred and twenty days 
after issue has been joined, that 
judge may appoint a master pursuant 
to rule 53 of the Federal Rules of 
Civil Procedure.

*  *  *

(i) Proceedings to compel compliance with
orders. In any case in which an employer, 
employment agency, or labor organization 
fails to comply with an order of a court 
issued in a civil action brought under 
this section, the Commission may commence 
proceedings to compel compliance with such 
order.
(July 2, 1964, P. L. 88-352, Title VII, §
706, 78 Stat. 259; Mar. 24, 1972, P. L.
92-261, § 4, 86 Stat. 104.)



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