Petition — Blue Bell, Inc. v. Fowler

Supreme Court of the United States

BLUE BELL, INc., a corporation, et al.,

MARLON Louts Fow.er, Individually and on

behalf of all others similarly situated,

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Of Counsel:

BLAKENEY, ALEXANDER & MACHEN

Charlotte, North Carolina

LANGE, SIMPSON, ROBINSON & SOMERVILLE

Birmingham, Alabama

IN THE

No. £9=<737@

Petitioner

WHITEFORD S. BLAKENEY

W. T. CRANFILL, JR.

3450 NCNB Plaza

Charlotte, North Carolina 28280

RICHARD M. WARREN

Blue Bell, Inc.

335 Church Court

Greensboro, North Carolina 27420

CHARLES A. PoWELL, Ill

1700 First Alabama Bank Building

Birmingham, Alabama 35203

Attorneys for Petitioner

OPINIONS BELOW

INDEX

Po

QUESTIONS PRESENTED

STATUTES, REGULATIONS, AND

PRINCIPLES OF LAW INVOLVED

STATEMENT OF THE CASE ..... |

REASONS FOR GRANTING THE WRIT

I. PRELIMINARY STATEMENT .......

I.

If.

IV.

VI.

CONCLUSION ......... oe re,

THE DECISION OF THE COURT OF

APPEALS EFFECTIVELY REDUCES THE

EQUITABLE DEFENSE OF LACHES

RATIONAL Is INHERENTLY DEFECTIVE

A PRIVATE TITLE VII PLAINTIFF

SHOULD Not BE PERMITTED To “IMPROVE”

His Posir1on WiTH REsPEcT To

PREJUDICIAL DELAYS MERELY

By OBTAINING A RIGHT-TO-SUE

LETTER FROM THE EEOC ...........

APPLYING THE DEFENSE OF LACHES

IN THIs PARTICULAR CASE DoEs Not

SUBVERT THE GENERAL CONCILIATION

PRrovIsIONsS OF TITLE VII ___.

BLUE BELL ACTED IN Goop FAITH,

AND THE PREJUDICE To IT Was

DEMONSTRATED AND UNREBUTTED

CoN OFF W

13

18

2

..2]

CITATIONS Page No.

Cases:

Albemarle Paper Co. v. Moody,

422 US. 405 (1975) ....... 2. .-. 9, 10, 15, 20

Bernard v. Gulf Oil Company, 596

Oe fee Ce ey OO ee ess yy et

Beverly v. Lone Star Lead Construction

Corp., 437 F. 2d 1136 (Si Cir., 1971) ......... 16

EEOC v. Bell Helicopter Co., 426 F. Supp.

FO CT RI, OD cs Ke et eee 18, 23

EEOC v. C & D Sportswear Corp., 398

F, Gam. O60 (OLD, Ga. 975) ..........-.-5s- 18

EEOC v. Griffin Wheel Co., 511 F. 2d

Se Ce, eS i ee ee 18

EEOC v. Louisville & Nashville R. R.

Co., 505 F. 2d 610 (Sth Cir., 1974) ............. 18

EEOC v. Metro Atlanta Girls’ Club

416 F. Supp. 1006 (N.D. Ga., 1976) ............ 18

EEOC v. Moore Group, Inc. 416 F. Supp.

ME LPN, GH, FD er hs She cei 19, 23

Franks v. Bowman Transportation Co.,

495 F. 2d 398 (5th Cir., 1974)

SGU S. TE CPO) we oss 13, 14, 15, 16

Gutierrez v. Waterman Steamship Corp.

ie re cs ie a ek SS. 5

Kamberos v. GTE Automatic Electric, Inc.,

603 F.2d 506 (7th Cr., 1979) .............. 16, 18

Moody v. Albemarle Paper Co., 4 FEP

Cs ee Cas BEE a i ee ee gs 9

ii

Occidental Life Insurance Co. of

California v. EEOC,

432 U.S. 355 (1977)

United States v. Georgia Power Co.,

474 F. 2d 906 (5th Cir., 1973)

Statutes:

5 U.S.C. §706

98 U.S.C. §1254(1)

42 U.S.C. §1981

42 U.S.C. §2000e

42 U.S.C. §2000e-5(b)

42 U.S.C. §2000e-5(e)

42 U.S.C. §2000e-5(f)(1)

42 U.S.C. §2000e-5(g) & (h)

Title 7, §26, Code of Alabama,

1940 (Recomp. 1958 )

Rules and Regulations:

29 CFR §1601.25a(c)

99 CFR §1601.25b(c)

29 CFR §1602.14

iii

Page No.

10, 11, 18, 20

18

19

fs)

20

4, 8, 13, 20

3, 5, 9, 12, 2

4,11

IN THE

Supreme Court of the United States

No.

BLUE BELL, INc., a corporation, et al.,

Petitioner

VS.

MarRLON Louis Fowter, Individually and on

behalf of all others similarly situated,

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

To THE HONORABLE, THE CHIEF JUSTICE AND THE

ASSOCIATE JUSTICES OF THE SUPREME COURT

OF THE UNITED STATES:

Petitioner, Blue Bell, Inc., respectfully prays that a

writ of certiorari be issued to review the judgment and

opinion of the United States Court of Appeals for the

Fifth Circuit entered in this case on June 15, 1979.’

OPINIONS BELOW

The opinion of the Court of Appeals is reported at

596 F. 2d 1276 and is reproduced in the Appendix to

this Petition.

'1Blue Bell’s Petition for Rehearing and Rehearing En Banc

was denied on August 9, 1979.

]

2

The Findings of Fact and Conclusions of Law, as well

as the Judgment, of the District Court are reported

unofficially at 14 FEP Cases 1009 (N.D. Ala., 1976),

and are reproduced in the Appendix to this Petition.

The appeal in this case was decided in conjunction

with the case of Bernard v. Gulf Oil Company, reported

at 596 F. 2d 1249.

Blue Bell’s petition for a rehearing by the full Court

was denied on August 9, 1979, as reported at 601 F. 2d

1195 (5th Cir., 1979). On September 27, 1979, the

Court of Appeals granted a petition filed by Gulf Oil

Company for such a rehearing. A copy of that Order is

reproduced in the Appendix to this Petition.

JURISDICTION

The decision of the Court of Appeals was entered on

June 15, 1979. Blue Bell’s subsequent Petition for Re-

hearing En Banc was denied on August 9, 1979. Juris-

diction to review, by Writ of Certiorari, that decision of

the Court of Appeals is conferred on this Court by the

provisions of 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1. In holding that time consumed by the Equal Em-

ployment Opportunity Commission incident to its

administrative processing of charges of discrimination

may not, under any circumstances, be considered in

assessing delays in the bringing of private Title VII

actions, did not the Court of Appeals thereby necessarily

3

eliminate this equitable defense in all such private

actions, contrary to the holdings of this Court and of

the Court of Appeals itself, and contrary to the statutory

command that Title VII actions are equitable in nature?

2. When a private Title VII claimant, in addition to

the Equal Employment Opportunity Commission, has

engaged in his own erratic, dilatory conduct with re-

spect to the prosecution of a claim of employment dis-

crimination, then merely because of his change of

status from that of charging party to that of plaintiff

as a result of the issuance of a “right-to-sue” letter, does

he thereby entirely escape accountability for the combi-

nation of his delays and those of the Commission, and

thus wipe out all application of the equitable defense of

laches?

STATUTES, REGULATIONS, AND PRINCIPLES

OF LAW INVOLVED

(a) The pertinent provisions of Section 706(f£)(1)

of the Civil Rights Act of 1964, as amended, 42 U.S.C.

§2000e-5(f)(1), are:

“... [I]f within one hundred and eighty days from

the filing of [a] charge . . . the Commission has not

filed a civil action under this section . . . or the Com-

mission has not entered into a conciliation agreement

to which the person aggrieved is a party, the Com-

mission . . . 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

4

named in the charge (A ) by the person claiming to be

aggrieved...”

(b) Sections 706 (g) & (h) of the Civil Rights Act

of 1964, as amended, 42 U.S.C. §2000e-5(g) & (h),

specify that lawsuits brought pursuant to that legisla-

tion are equitable in nature.

(c) The applicable portion of the Rules and Regu-

lations of the Equal Employment Opportunity Com-

mission, 29 CFR §1601.25a(c), as those provisions

existed at the time relevant to this case mandated that

the Commission promptly issue a “right-to-sue” notice

to a charging party “at any time after the expiration of

sixty (60) days from the date of the filing” of such

charge.”

(d) The Rules and Regulations of the Equal Em-

ployment Opportunity Commission, 31 Fed. Reg. 2833

(Feb. 17, 1960), 29 CFR §1602.14 (1977), require, in

appropriate part, that employment records relevant to

a charge of discrimination be maintained until that

charge is finally resolved.

(e) Laches is an equitable defense which concep-

tualizes prejudice to one party resulting from lack of

~ IPrjor to being amended in 1972, the Civil Rights Act of

1964 provided that a charging party could bring a private law-

suit against an employer sixty (60) days after the charge was

filed with the Equal Employment Opportunity Commission.

42 U.S.C. §2000e-5(e).

2After the Civil Rights Act of 1964 was amended in 1972,

the period of time set forth above was extended to 180 days

after the filing of a charge. 29 CFR §1601.25b(c).

5

diligence by the other. Gutierrez v. Waterman Steam-

ship Corp., 373 U.S. 206, 215-216 (1963).

STATEMENT OF THE CASE

The plaintiff, Fowler, filed a charge of racial dis-

crimination with the Equal Employment Opportunity

Commission on December 14, 1970. He received a

“right-to-sue” letter from that agency on January 30,

1976, (42 U.S.C. §2000e-5(f)(1)), and brought this

lawsuit on March 26, 1976, under the Civil Rights Acts’

of 1866 and 1964, the latter as amended, 42 U.S.C.

§1981 and 42 U.S.C. §2000e, et seq., asking compen-

satory, injunctive and other appropriate relief for him-

self and for a class he purported to represent.’

Before answering, Blue Bell filed a Motion To Dis-

miss (11)* based on time limitations specified in Title

VII, and on the Alabama one-year statute of limita-

tions, Title 7, §26, Code of Alabama, 1940 (Recomp.

1958). That Motion was denied. Thereafter, Blue Bell

filed its Answer and raised as affirmative defenses the

equitable doctrine of laches with respect to the Title VII

aspects of the case, and the Alabama statute of limita-

tions, noted above, with respect to the Section 1981

aspects (17-19).

'The Civil Rights Act of 1866 will be referred to hereafter as

“Section 1981”: the Act of 1964, as amended, will be referred

to as “Title VII”.

2There was no class certification.

’3Numbers in parentheses refer to pages in the Joint Appen-

dix filed in the Court of Appeals and now on file with this

6

Based on the foregoing defenses, Blue Bell mc 7ed for

Summary Judgment (13, 20, 23), and offered in sup-

port thereof the Affidavit of Richard M. Warren, its

Secretary & General Counsel (36-73), and the Deposi-

tion of Bertram N. Perry, Deputy Director of the Birm-

ingham District Office of the Equal Employment Op-

portunity Commission (74-123). With respect to those

aspects of the Motion based on laches, Fowler submitted

in opposition the Affidavit of William D. Davis, III, Law

Clerk for his counsel (21-22). Fowler did not oppose the

application of the Alabama one-year statute of limita-

tions (21-22).

All of the facts presented to the Court below were

contained in the documents just described.’ On the

basis of those facts, the Court granted Blue Bell’s Mo-

tion for Summary Judgment at a hearing held on

October 21, 1976. A Judgment in favor of the Company,

together with Findings of Fact and Conclusions of Law,

was entered on November 30, 1976. Appx. 9a-20a.

The plaintiff, Fowler, appealed; the Equal Employ-

ment Opportunity Commission filed a brief as amicus

curiae; and argument was heard on November 7, 1978,

by a panel of the Court of Appeals for the Fifth Circuit.

Court. Since more than one number appears on many of those

pages, references in this Petition will be to the numbers which

are printed at the top center of the various pages.

1An outline of those facts appears in the Findings of Fact

and Conclusions of Law as entered by the District Court.

Appendix to this Petition (Appx., hereafter), at pages 9a-19a.

7

That same panel also heard the case of Bernard v. Gulf

Oil Company, supra. Thereafter, in a letter dated March

19, 1979, counsel were advised that further considera-

tion of the Fowler case was being withheld pending

decision in the Bernard case.

The issue that these two cases have in common is the

application of the equitable defense of laches to private

Title VII actions. In both decisions, the Court of Ap-

peals, as most succinctly stated in the Bernard opinion,

held that “... plaintiffs’ failure to file their Title VII

[complaint] until completion of the EEOC process was

not inexcusable delay and could not support the appli-

cation of laches.” Bernard v. Gulf Oil Company, 596 F.

2d at 1257.

Blue Bell petitioned the full Court for a rehearing on

this holding, as stated in the Fowler case at Appx. 4a-9a.

Gulf Oil Company, in a petition filed on the same day,

likewise suggested that the adverse holdings in the

Bernard case be reueared en banc. Gulf’s petition was

granted. Appx. 21a-22a. Blue Bell's petition was denied.

601 F. 2d 1195 (5th Cir., 1979).

REASONS FOR GRANTING THE WRIT

The express holding of the Court of Appeals in both

the Fowler and the Bernard cases necessarily has the

practical effect of taking away from all defendants in

private Title VII actions the valuable and fundamental

defense of laches, a defense heretofore recognized as

being applicable to such actions. Accordingly, it is re-

spectfully submitted that the decision of the Court of

8

Appeals is in conflict with decisions of this Court and

other decisions of the Court of Appeals for the Fifth

Circuit, as well as decisions of the Court of Appeals for

the Seventh Circuit. Likewise, this decision involves a

substantial question of law in the field of employment

discrimination which is both important and recurring.

I.

Preliminary Statement

In assessing the reasons stated herein for granting a

writ in this case, it is first necessary to be cognizant of

the actions, in chronological sequence, taken by both

Fowler and the Equal Employment Opportunity Corm-

mission (“EEOC” or “Commission”, hereafter), with

respect to the underlying charge of discrimination. In

this regard, reference is invited to the Findings of Facts

and Conclusions of Law entered by the District Court,

Appx. 9a-19a, and to the Joint Appendix presently on

file with this Court (36-73, 78-81, 109-123).

Il.

The Decision Of The Court Of Appeals Effectively

Reduces The Equitable Defense Of Laches

To A Mirage

Section 706 of the Civil Rights Act of 1964, 42 U.S.C.

§2000e-5(e), specifically afforded Mr. Fowler the abso-

lute right to bring a private action, and to have a court-

appointed attorney, sixty (60) days’ after he filed his

charge on December 12, 1970. That is, as early as mid-

This statutory right was carried forward in the amend-

- ments to Title VII enacted in 1972, except that the period was

9

February, 1971, Fowler could have sued, regardless of

the inaction on the part of the EEOC.

This Court, in the case of Albemarle Paper Co. v.

Moody, 422 U.S. 405 (1975), held that the fundamental

and valuable defense of laches is applicable to private

Title VII lawsuits. There, the District Court had said

that:

“ _. The plaintiffs’ claim for back pay was filed

nearly five years after the institution of this action. It

was not prayed for in the pleadings. Although neither

party can be charged with deliberate dilatory tactics

in bringing this cause to trial, it is apparent that the

defendants would be substantially prejudiced by the

granting of such affirmative relief. . . .”

Moody v. Albemarle Paper Co.,

4 FEP Cases 561, 570 (E.D.N.C., 1971 )

“ _. The [district] court concluded that the peti-

tioners had been ‘prejudiced’ by [the] conduct [of the

plaintiff]. The Court of Appeals reversed on the

ground ‘that the broad aims of Title VII require that

the issue of backpay be fully developed and deter-

mined even though it was not raised until tne post-

trial stage of litigation, 474 F. 2d, at 141.

«But a party may not be ‘entitled’ to relief if its

conduct of the cause has improperly and substan-

tially prejudiced the other party. . . . To deny back-

extended to 180 days after the filing of a charge. 42 U.S.C.

§2000e-5(f)(1). The EEOC Regulation also reflected that

change. 29 CFR §1601.25b(c).

10

pay because a particular cause has been prosecuted

in an eccentric fashion, prejudicial to the other party,

does not offend the broad purposes of Title VII...”

[Court’s emphasis].

Albemarle Paper Co. v. Moody,

422 U.S. at 423-424

Further recognition of the application of this defense

to Title VII actions is found in the case of Occidental

Life Insurance Co. of California v. EEOC, 432 U.S. 355

(1977).

“It is, of course, possible that despite these proce-

dural protections a defendant in a Title VII enforce-

ment action might still be significantly handicapped

in making his defense because of an inordinate EEOC

delay in filing the action after exhausting its concili-

ation 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 preju-

diced by a private plaintiff's unexcused conduct of

a particular case, the trial court may restrict or

even deny backpay relief."! Albemarle Paper Co. v.

Moody, 422 U.S. 405, 424-425, 45 L.Ed 2d 280, 95 S.

In the Albemarle Paper case, supra, laches was involved

only with respect to the “initially disclaimed” back pay claims

which were first asserted “five years after the complaint [which

otherwise was timely] was filed.” 422 U.S. at 423. In light of

the discretionary power of the trial court to reach “a just

result”, the Petitioner suggests that there is no limitation on

the nature of the relief that may be granted to a defendant as

a result of laches, and that none should be read into the fore-

going statement.

11

Ct. 2362. 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” [emphasis supplied].

Occidental Life Insurance Co. of California

v. EEOC, 432 U.S. at 373

When the Court of Appeals held, as a matter of

law, that no inexcusable delay may arise where a pri-

vate plaintiff, regardless of his own erratic and dilatory

conduct, does not sue until the EEOC has completed

its processes—and that neither may the EEOC's delays

in completing its processes be considered—the neces-

sary result thereof is that the defense of laches in

private Title VII actions is reduced to a chimera and

can never, in reality, be available to defending em-

ployers, albeit that Title VII actions are, by statute,

equitable in nature, 42 U.S.C. §2000e-5(g)&(h), and

that the foregoing cases expressly recognize this de-

fense.

For all practical purposes, what was given on the one

hand by statute and by the foregoing decisions was

taken away by the decision of the Court of Appeals

when, as most clearly stated in the Bernard case, it held

that “. . . plaintiffs’ failure to file their Title VII [com-

plaint] until completion of the EEOC process was not

inexcusable delay and could not support the application

of laches” [emphasis supplied]. 596 F. 2d at 1257.

That is, no matter how many years the EEOC might

consume with its administrative processes, and no

12

matter that the private plaintiff, as in this case, followed

an erratic and completely dilatory course, and no matter

how much irreparable prejudice the defendant might

suffer in the interim period (for example, that all

records had become destroyed by act of God, or that all

witnesses had died, or whatnot), the mere act of the

EEOC in “passing” the underlying charge to the private

plaintiff by means of a right-to-sue letter would, inevi-

tably, have the effect of cleaning the slate insofar as

delay is concerned. Under this decision of the Court of

Appeals, changing the identity of the complaining party

serves to transform the action and to place the elapsed

time and prejudice beyond the equitable reach of the

courts.

This conclusion becomes even more compelling when

it is noted that Title VII bars private actions unless they

are filed within ninety (90) days after receipt of the

right-to-sue letter. 42 U.S.C. §2000e-5(f)(1). Thus, if

the delays of the EEOC are placed beyond consideration,

as this decision has done, there is no way, in actual ap-

plication, by which laches could ever be used in private

actions.

This result is directly contrary to the decisions of this

Court.

Moreover, it does not take into account that this and

all defending employers—although each enters such

proceedings with the legal presumption of having fully

obeyed the law—are helplessly and completely left

“holding the bag” with respect to prejudicial delays over

13

which they have no control, but over which private

plaintiffs have total control. For, as has been empha-

sized above, Fowler had the complete right sixty (60)

days after the filing of his charge to demand and obtain

from the Commission a letter permitting and authoriz-

ing him to file suit—and incidentally to have also a

Court appointed attorney institute such suit for him. 42

U.S.C. §2000e-5(e) and 29 CFR §1601.25a(c). Instead,

this decision accords to private plaintiffs the power

simply to side-step any accountability for years of de-

lay and even their own dilatory conduct, and allows

them to act with total indifference to the obligations

they legally and necessarily assume when they cast

themselves in the role of complainants.

Il.

The “Reliance-On-The-EEOC” Rational

Is Inherently Defective

The Court of Appeals for the Fifth Circuit in the case

of Franks v. Bowman Transportation Co., 495 F. 2d 398

(5th Cir., 1974), 424 U.S. 747 (1976), expressly recog-

nized the application of the defense of laches to private

Title VII actions.

There, the plaintiff, through no negligence or “fault”

on his part, did not actually receive the first right-to-sue

letter mailed to him by the EEOC. Over a year later, he

secured a second such letter and thereafter filed his

Complaint. The trial court held that Franks’ action was

barred by the (then applicable) 30-day limitation in

Title VII for bringing suit.

14

That holding was reversed on the ground that Title

VII requires actual, rather than constructive, notice to

a plaintiff of his right to sue. Significantly, the Court of

Appeals went on to state that on remand the District

Court should consider the application of laches.

“One further matter relating to the time suit was

filed remains to be considered, and that is the applica-

bility of the doctrine of laches.

“... In an equitable action, equitable defenses may

be raised, and these include the doctrine of laches.

In the proper case, laches might be applied to bar a

claim entirely, or it might bar only part of the remedy

sought, such as the back pay award or a portion of it.

See United States v. Georgia Power Co., supra at 923.

We do not intimate any view as to the applicability of

laches to this case, for the district court should make

such a determination in the first instance.

<

‘. . . Since the question of Franks’ tardiness in

initiating suit was called to the attention of the

district court, on remand it should specifically con-

sider the applicability of laches” [emphasis supplied].

Franks v. Bowman Transportation Co.,

495 F. 2d at 406

Clearly, Franks had “relied” on the EEOC (and the

Postal Service), and was not “at fault” concerning

receipt of the first right-to-sue letter. Yet, the Court of

15

Appeals, faced with, and expressly recognizing those

facts, specifically suggested the application of laches.

In the case now at hand, the District Court found,’

on uncontroverted facts, that Fowler had demonstrated

inaction and lack of diligence throughout the interim

years. Appx. 16a-18a. Such actions as he, and the EEOC,

did take were erratic, misleading, and dilatory. All the

while, Fowler occupied a position of having an absolute,

unfettered, statutory right to bring a private action at

any time after sixty (60) days from the filing of his

charge in December, 1972.’ Yet he, unlike Blue Bell, is

held not to be affected by the “fortuitous variables” of

the EEOC processes.

“__ [I]t is not necessary either for the Commission

to state in its notice [of right to sue] that it has been

unable to obtain voluntary compliance or for the

Commission to have engaged in any attempt at con-

ciliation whatsoever. The sole purpose of this [notice]

requirement is to provide a formal notification to the

claimant that his administrative remedies with the

Commission have been exhausted. Significantly,

under EEOC regulations [29 CFR §1601.25a(c)], a

right to demand and receive such a notice accrues

1The District Court’s decision was based expressly on the

Bowman Transportation and Albemarle Paper cases, supra.

Appx. 15a.

2On the other hand, there was absolutely no recourse avail-

able to Blue Bell with respect to the years of delay which

occurred before this lawsuit was filed. Appx. 17a.

16

sixty days after the charge is filed regardless of any

act or omission by the EEOC. Were this regulation

not written, we would read it into the Act lest a

claimant’s statutory right to sue in federal court

become subject to such fortuitous variables as work-

load, mistakes, or possible lack of diligence of EEOC

personnel” [emphasis supplied].

Beverly v. Lone Star Lead Construction Corp.,

437 F. 2d 1136 at 1140 (5th Cir., 1971)

Accordingly, the decision of the Court of Appeals in

the present case is opposite to the laches aspects of

other decisions on its own part—and this notwithstand-

ing the uncontroverted facts, as found by the District

Court, concerning prejudice and delay on the part of

both Fowler and the Commission. The unerring effect

of the Court of Appeals’ decision is to create a situation

in which the private plaintiff would always be in a

position simply to say that he waited—no matter how

long—until the Commission issued a right-to-sue letter

—and that this “reliance” on the EEOC insulates him

from the legal effect of any prejudice which might have

occurred to the defendant during the interim period.

Aside from being contrary to the Franks case, supra,

the decision now under consideration also is contrary

to a recent holding of the Court of Appeals for the

Seventh Circuit.

The case of Kamberos v. GTE Automatic Electric,

Inc., 603 F. 2d 598 (7th Cir., 1979), involved a “failure-

17

to-hire” allegation brought pursuant to Title VII.

Although the plaintiff filed her charge with the EEOC

in March, 1969, and her complaint in the District Court

in January, 1974, this decision does not consider or

otherwise address itself to the issue of laches. Rather,

the issue was whether the plaintiff, who prevailed at

trial, was entitled to back pay for the entire period after

her charge was filed with the EEOC. Because the plain-

tiff had an absolute, statutory right to obtain f-om the

EEOC a right-to-sue letter, the Court of Appeals held in

the negative, as follows:

“The court did overlook one factor in computing

the amount of backpay. Regulations passed pursuant

to 42 U.S.C. §§2000e et seg. provide that an ag-

crieved party may request a right to sue letter any

time after 180 days following the filing of a charge

with the EEOC. 29 CFR §1601.28 (1978). In Lynn v.

Western Gillette, Inc. 564 F. 2d 1282, 1287 (9th Cir.,

1977), the Ninth Circuit stated that the ‘complain-

ant should not be permitted to prejudice the employer

by taking advantage of the employer by taking ad-

vantage of the [EEOC’s] slowness in processing

claims, ... [p]articularly where the aggrieved party

has consulted counsel and is aware of this rignt. In

this case Kamberos not only retained counsel but is a

lawyer herself. Nevertheless, she permitted her com-

plaint to lie dormant with the EEOC for over four

years, despite the fact that EEOC regulations provide

for the automatic issuance of the right to sue letter

upon request of the complainant any time 180 days

18

after the filing of the complaint with the EEOC.

Under these circumstances the district court should

have subtracted from the end of the backpay period

an amount of time equivalent to the time between the

expiration of the 180 day period and the date when

the right to sue letter was actually received by the

plaintiff...”

Kamberos v. GTE Automatic

Electric, Inc., 603 F. 2d at 603

IV.

A Private Title VII Plaintiff Should Not Be Permitted To

“Improve” His Position With Respect To Prejudicial

Delays Merely By Obtaining A Right-To-Sue

Letter From The EEOC

This Court has held that the defense of laches is ap-

plicable to actions brought by the EEOC, itself. Occi-

dental Life Insurance Co. of California v. EEOC, supra.

The Court of Appeals for the Fifth Circuit also has

recognized the application of laches to the “private”

remedy aspects of Title VII actions brought by the Com-

mission. United States v. Georgia Power Co., 474 F. 2d

906, 923 (5th Cir., 1973); EEOC v. Griffin Wheel Co.,

511 F. 2d at 456, 459 (fn. 5) (5th Cir., 1975); and

EEOC v. Louisville & Nashville R.R. Co., 505 F. 2d 610

(5th Cir., 1974 ).' By “private” remedy, the Court of Ap-

1See also: EEOC v. C & D Sportswear Corp., 398 F. Supp.

300 (M.D. Ga., 1975), as well as a number of District Court

cases—eg., EEOC v. Bell Helicopter Co., 426 F. Supp. 785

(N.D. Tex., 1976); EEOC v. Metro Atlanta Girls’ Club, 416

19

peals was referring to relief of an individual nature

which the EEOC would obtain for a charging party

whose allegations to the Commission formed the basis

for that agency’s Jawsuit.

The remedy the EEOC would have sought for Mr.

Fowler as an individual, had it retained jurisdiction

over this matter and sued in its own name, would have

been precisely the same remedy that Fowler now seeks

in his own lawsuit. The Court of Appeals, as noted in

the cases cited above, has expressly recognized that the

very delays and prejudice which have been demon-

strated here would have served to foreclose the Com-

mission from obtaining any relief for Fowler, had it

sued in his behalf. Yet the Court of Appeals is saying

that Fowler—merely because he was issued a right-to-

sue letter—may not be “penalized”, no matter what

may have been the degree of delay or of prejudice to

the defendant.

From the decision of the Court of Appeals, the con-

clusion is inescapable: —That a right-to-sue letter has

the magical legal effect of transforming a case, against

which the defendant can defend, into a case, against

which the defendant cannot defend. In effect, the Court

of Appeals is saying that when the EEOC belatedly

F. Supp. 1006 (N.D. Ga., 1976); and EEOC v. Moore Group.,

Inc., 416 F. Supp. 1002 (N.D. Ga., 1976)—in which the

Administrative Procedure Act, 5 U.S.C. §706, was used as the

basis for affording relief to defending employers where the

EEOC had engaged in prejudicial delays incident to bringing

its lawsuits.

20

“passed” the matter over to Fowler, the interim years of

delay and prejudice to Blue Bell were simply placed

beyond the equitable reach of the District Court.

This result, entirely aside from being contrary to the

cases cited herein, is, as observed by the District Court,

one which surely would allow plaintiffs, “. . . in the

name of equity, to work injustice on defendants without

the discretionary restraint that rest with a Court sitting

in equity.” Appx. 15a.

Vv.

Applying The Defense Of Laches In This Particular

Case Does Not Subvert The General Conciliation

Provisions Of Title VII

In making the assessments set forth herein and re-

questing thai a writ of certiorari be issued, Blue Bell

does not overlook the position of conciliation in the

scheme of Title VII,’ as stated in the Court of Appeals’

decision and in the Occidental Life case, supra.

One of the issues in the Albemarle Paper case, supra,

was whether the application of laches in a given situa-

1That statutory scheme also is replete with manifestations

of the Congressional intent that claims be resolved promptly—

i.e., within a matter of days, not years. Charges must be filed

within 180 days after the alleged unlawful practice occurs.

42 U.S.C. §2000e-5(e). The charged company must be notified

within ten (10) days thereafter. 42 U.S.C. §2000e-5(b). The

EEOC is admonished that its cause determinations, in order to

be timely, must be made within 120 days after the filing of the

charge. 42 U.S.C. §2000e-5(b). The charging party need wait

only 180 days (60 at the time Fowler filed his charge ) before

having the right to sue. 42 U.S.C. §2000e-5(f)(1).

21

tion would have a general effect of narrowing the ap-

plication of Title VII or detracting from its enforce-

ment. This Court answered in the negative on both

points, holding that the denial of a remedy to a partic-

ular plaintiff because his “particular cause has been

prosecuted in an eccentric fashion, prejudicial to the

other party, does not offend the broad purposes of Title

VII . . .” [Emphasis in the original]. 422 U.S. at 424.

Laches is an individualized defense, as to which each

case stands on its own merits. Inasmuch as the decision

with respect to a laches issue is based solely on the facts

before the trial court, that decision does not, and can-

not, have any far-reaching adverse effect on either the

conciliation provisions of Title VII or on the enforce-

ment scheme which it prescribes.

VI.

Blue Bell Acted In Good Faith, And The Prejudice

To It Was Demonstrated And Unrebutted

The plaintiff’s individual claim involved an alleged

discriminatory failure to hire. The Complaint, however,

contains “class” allegations which challenge practically

every aspect of the employment relationship, including

“recruitment, hiring, assignment, promotion, transfer

practices and procedures as well as other terms, condi-

tions and privileges of employment” (4).

In order for Blue Bell to bear its burden with respect

to rebutting any prima facie case, which the plaintiff

might establish, it would have to show why the plan-

tiff was not hired. Even under ideal circumstances,

22

proving a negative fact always is difficult and neces-

sarily it would involve the recall and use of a wide range

of detailed data. Here, however, Blue Bell would be

called upon to deal with an individual who claims to

have been an unsuccessful applicant — in 1970. He is

a “stranger” to the defendant and had, at most, a de

minimis amount of contact with the defendant. In

addition, these considerations are multiplied immeasur-

ably when the class allegations are taken into account.

The District Court, based on its review of the record

and on the hearing it held with respect to Blue Bell’s

Motion For Summary Judgment, took into account the

wide range of prejudice to the defendant which the un-

controverted facts in the record demonstrate. Appx.

12a-14a. As that Court’s findings show, the basic sources

of Blue Bell’s defense have eroded and disappeared.

For example, a document as fundamental as the ap-

plication that Fowler supposedly filed in March, 1970,

does not exist. The Personnel Manager—the individual

responsible for hiring decisions and personnel policies

at that time—‘“was discharged for cause in October,

1971, for reasons unrelated to the plaintiff's charge”

and is now unavailable.’ Appx. 12a. The passage of time

'The Court of Appeals’ statement (Appx. 7a), that the only

reason Blue Bell would need this individual as a witness is

because he was the custodian of the personnel records, is en-

tirely contrary to the undisputed facts in the record. As the

District Court found: —“Business records and the independent

recollections of the personnel and plant managers would be

the sources from which the defendant would prepare its de-

fenses, either as to the plaintiff himself or as to any class the

plaintiff might seek to represent. Those sources are not avail-

able to the defendant.” Appx. 13a-14a.

23

has had such effect both on witnesses and on a myriad

of personnel records, which are relevant and essential

to a meaningful defense.

The District Court made findings on each of these

points. It concluded that Blue Bell had acted in good

faith' with respect to the reinstituting of its normal

record retention practices, and recognized that witnes-

ses who would be critical to defense had become un-

available in any reasonable or practical sense of the

word.

“... [T]he Court concludes that the defendant's

actions with respect to its business records and the

personnel changes were made in good faith and were

not a pretext or subterfuge for defeating the plain-

tiff’s claim. This Court does not fault the defendant

for taking these actions in light of the extensive lapse

of time without there having been any action by

either the plaintiff or the Commission.” Appx. 18a.’

There are a number of facets to the prejudice suf-

fered by Blue Bell. The Court of Appeals’ decision, how-

ever, either entirely overlooks or discounts the nature

1As noted in Company memoranda, “. . . basically, the

whole case does not make very much sense anyway, in that

Fowler did not want to conciliate the matter in 1972, and now

three years later it is being brought up again” (69). “[O]n July

25, 1972, we were notified by the EEOC that ‘The Charging

Party declined the Director’s invitation to engage in settle-

ment discussions.’ We therefore considered the matter closed

. . .” [emphasis supplied] (71).

2See also: EEOC v. Moore Group, Inc., 416 F. Supp. at 1005

and EEOC v. Bell Helicopter Co., 426 F. Supp. at 793.

24

and significance of this prejudice. The District Court's

findings were reviewed without reference to the prac-

tical considerations—for example, the nature of the

claim, namely, failure-to-hire, ongoing personnel

turnover, the records retention policies in the Com-

pany’s business, and the unusual lapse of time—upon

which the District Court reached the conclusion that

“{t]he equitable balance in this case has shifted to the

defendant.” Appx. 18a. Thus, not only did the Court

of Appeals reject consideration of the delays herein-

above discussed, its decision likewise does not take into

account the fact that the doctrine of laches, itself, con-

ceptualizes the inevitable erosion of defenses resulting

from the passage of time and, accordingly, affords re-

lief to the defendant. The Court of Appeals’ decision

simply pays no heed to the very practical and realistic

nature of the prejudice which has resulted from the

inordinate delays of both the plaintiff and the Com-

mission in this case.

CONCLUSION

Upon all the foregoing, the Petitioner prays the Court

for a Writ of Certiorari directed to the United States

Court of Appeals for the Fifth Circuit, to the end that

this Court may review the decision which has been

rendered by that Court in the present case.

Respectfully submitted,

WHITEFORD S. BLAKENEY

W. T. CRANFILL, JR.

Attorneys for Petitioner

ae >

APPENDIX

INDEX TO APPENDIX

Page No.

Opinion Of The United States

Court cr Appeae .....i#iwi#ia wn la

Findings Of Fact And Conclusions Of Law, and

Judgment Of The United States District Court . 9a

Order Of The United States Court Of Appeals

Granting Petition for Rehearing And Petition

For Rehearing En Banc, Bernard v. Gulf Oil

Company, 596 F. 2d 1249 (5th Cir., 1979) ..-. .2la

United States Court of Appeals

FOR THE FIFTH CIRCUIT

MARLON LoutIs Fow_er, Individually and

on behalf of all others similarly situated,

Plaintiffs-Appellants,

V.

BLUE BELL, INC., a corporation, et al.,

Defendants-Appellees.

No. 77-1179.

———

United States Court of Appeals,

Fifth Circuit.

June 15, 1979.

Rehearing and Rehearing En Banc

Denied Aug. 9, 1979.

la

2a

William H. Ng, Atty., E.E.O.C., Washington, D. C.,

amicus curiae.

Robert L. Wiggins, Jr., Birmingham, Ala., for Plain-

tiffs-appellants.

Charles A. Powell, III, Birmingham, Ala., W. T. Cran-

fill, Jr., Whiteford S. Blakeney, Charlotte, N. C., Richard

Moore Warren, Secretary & Gen. Counsel, Blue Bell,

Inc., Greensboro, N. C., for defendants-appellees.

Appeal from the United States District Court for the

Northern District of Alabama.

Before THORNBERRY, GODBOLD and HILL, Cir-

cuit Judges.

THORNBERRY, Circuit Judge:

This is a Title VII case. The district court granted

summary judgment in favor of defendant after finding

that laches barred plaintiff's claim. Fowler v. Blue Bell,

Inc. 14 F.E.P. Cases (BNA) 1009 (N.D. Ala. 1976). We

reverse.

Plaintiff Fowler applied for a job with defendant Blue

Bell, Inc. in March and again in November, 1970. De-

fendant did not hire him. Fowler then filed a charge

with the EEOC in December, 1970, alleging that Blue

Bell had violated Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seq., by refusing to hire him

because of his race. The EEOC notified Blue Bell of the

charge in July, 1971, and served its Field Director’s

Findings of Fact on the company in December, 1971.

3a

Blue Bell entered exceptions to these findings, but in

June, 1972, the EEOC informed Blue Bell that the ex-

ceptions were “non-meritorious.” At the invitation of

the EEOC, Blue Bell agreed to participate in settlement

discussions. Fowler, however, refused to participate. In

July, 1972, the EEOC’s Birmingham district office in-

formed Blue Bell that Fowler “declined the Director’s

invitation to engage in settlement discussions. Accord-

ingly, this office is forwarding the full investigation file

to the Commission for determination as to reasonable

cause. As soon as the determination is made, you will

be notified.” One year after it received this letter, hav-

ing heard nothing else from the EEOC or Fowler, Blue

Bell concluded “that the entire matter had been closed

administratively by the EEOC” and destroyed all records

relevant to Fowler’s claim. Affidavit of Richard M. War-

ren, General Counsel to Blue Bell, Inc. The EEOC had

not terminated its consideration, however, and issued

a determination of reasonable cause in March, 1975.

After further correspondence between the EEOC and

Blue Bell, the EEOC decided not to file a civil action it-

self. It informed both Fowler and Blue Bell of this deci-

sion and sent Fowler a Notice of Right-to-Sue in Janu-

ary, 1976. Fowler filed this suit in March, 1976, within

90 days of receiving the EEOC Notice.

In Bernard v. Gulf Oil, Inc., 596 F.2d 1249 (5 Cir.

1979), also decided today, we recognize that laches may

apply to Title VII suits brought by private plaintiffs if

the evidence indicates both that the plaintiff delayed

inexcusably in bringing the suit and that this delay

4a

unduly prejudiced defendants. Id. at 1256. As in Ber-

nard, we hold that the evidence before the court on

this summary judgment does not allow a finding that

either of these elements exists.

Blue Bell argues that this conclusion is improper.

First, it asserts that after it presented affidavits in sup-

port of its summary judgment motion, Fowler had the

duty of submitting contrary evidence in order to raise

an issue of fact. Blue Bell argues that since its affidavits

alleged delay and prejudice and Fowler failed to dis-

pute these allegations the summary judgment was prop-

er. This argument is without merit. Fowler does not

dispute that more than five years lapsed between the

filing of his charge with the EEOC and the commence-

ment of this suit. Nor does he disagree with Blue Bell’s

contention that it has lost personnel and destroyed

records that would be helpful in deciding Fowler’s

claim. Fowler’s argument is that these facts do not per-

mit a finding of laches in this case. Therefore, his fail-

ure to submit controverting evidence to the trial court

is irrelevant.

Blue Bell also argues that the district court’s ruling

was correct on the merits. It asserts that Fowler delayed

inexcusably because he could have initiated this suit

60 days after filing the EEOC charge rather than wait-

ing for five years while the EEOC investigated the

claim. Although the EEOC regulations in 1970 did al-

low the claimant to withdraw his charge from the EEOC

and file a private suit 60 days after he filed the charge,

5a

35 Fed. Reg. 10006 (June 18, 1970) (currently at 29

C.F.R. 1601.25b(c) (1977) ), this provision did not re-

quire Fowler to file suit at that time. As we noted in

Bernard, 596 F.2d at 1256, the legislatively and judicial-

ly favored method of resolving Title VII claims is

through the EEOC administrative process. Therefore,

we should not penalize a claimant for awaiting the end

of that process. Blue Bell argues, however, that this

analysis is not applicable to the present case because

Fowler's refusal to participate in settlement negotia-

tions in July, 1972, was an abandonment of the EEOC

and proved that he no longer wished to rely on the nor-

mal administrative process. This conclusion is also in-

correct. EEOC regulations provide that after the field

director issues findings of fact, the EEOC may invite

the parties to engage in settlement discussions. 35 Fed.

Reg. 3163 (Feb. 19, 1970) (currently at 29 C.F.R. 1601.-

19a (1977) ). Those regulations also recognize, however,

that the parties may not wish to entertain settlement

at that time and provides that the Commission may

take further action as it deems necessary. In the present

case, when Fowler refused to entertain settlement the

EEOC informed Blue Bell that “this office is forward-

ing the full investigation file to the Commission for

determination as to reasonable cause.” Thus, it is clear

that the EEOC did not consider Fowler’s refusal to en-

gage in predetermination settlement an abandonment

of the EEOC process. In fact, Fowler’s refusal to deal

directly with Blue Bell merely allowéd the EEOC to

complete its normal investigation and conciliation pro-

6a

cedures. Therefore, the mere fact that Fowler refused

to postpone the EEOC’s efforts in his behalf cannot

support a finding that he was not entitled to await the

completion of those efforts. Fowler’s delay was there-

fore reasonable.

The Supreme Court’s language in Occidental Life

Ins. Co. v. EEOC, 432 U.S. 355, 97 S. Ct. 2447, 53 L. Ed.

2d 402 (1977), supports this conclusion. The Court

stated:

It is, of course, possible that . . . a defendant in a

Title VII enforcement action might still be signifi-

cantly handicapped in making his defense because

of an inordinate 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 language implies that, although the doctrine of

laches may be available in some cases to bar the EEOC

from bringing suit, this bar arises only if the EEOC has

delayed unreasonably after it has completed concilia-

tion efforts. We can perceive no reason to require pri-

vate plaintiffs to file suit before the EEOC completes

conciliation efforts if the EEOC itself is not so con-

strained. In this case, the delay of which Blue Bell com-

plains occurred before the EEOC ended its conciliation

efforts, because Fowler filed suit only 90 days after that

date.

Blue Bell’s contention that Fowler’s delay seriously

prejudiced its defense of the case is also without merit.

7a

Blue Bell asserts two sources of prejudice. First, it ar-

gues that the testimony of several past personnel and

plant managers is essential to Blue Bell’s defense of

the case and that these managers are no longer em-

ployed by Blue Bell. The mere assertion that these per-

sons are not presently with the company is insufficient

to support a finding of prejudice. Blue Bell must also

show that they are unavailable to testify. Akers v. State

Marine Lines, Inc., 344 F. 2d 217, 221 (5 Cir. 1965).

Blue Bell does allege that the personnel manager at the

time Fowler filed his complaint is now unavailable. The

primary reason Blue Bell alleged that this individual’s

personal testimony is necessary, however, is that he was

the custodian of records relevant to Fowler’s charge and

Blue Bell has since destroyed those records. Blue Bell

knew of Fowler’s charge soon after it was filed. In July,

1972, the EEOC informed Blue Bell that it was consid-

ering Fowler’s charge for a determination as to reason-

able cause and told Blue Bell: “As soon as the determi-

nation is made, you will be notified.” Despite this ex-

plicit statement, and without asking the EEOC about

the status of the charge, Blue Bell concluded in 1973

that the EEOC was no longer pursuing Fowler’s claim

and destroyed all records relevant to the claim. Blue

Bell’s destruction of these records violated clear EEOC

regulations. 31 Fed. Reg. 2833 (Feb. 17, 1966) (cur-

rently at 29 C.F.R. 1602.14 (1977)). Thus, any prej-

udice to Blue Bell was the result of its own negligence

and disregard of administrative regulations rather than

Fowler’s delay. Bernard at 1256.

8a

We conclude that the facts adduced on Blue Bell's

summary judgment motion do not allow findings of

either unreasonable delay by Fowler or undue prejudice

to Blue Bell. Therefore, the district court’s finding that

laches bars Fowler’s claim was an abuse of its discre-

tion to locate a just result. See Albemarle Paper Co. v.

Moody, 422 U.S. 405, 424, 95 S. Ct. 2362, 2375, 45 L.

Ed. 2d 280 (1975).

The judgment of the district court is REVERSED and

the case REMANDED.

9a

IN THE

United States District Court

FOR THE NORTHERN DISTRICT OF

ALABAMA

SOUTHERN DIVISION

‘

MaRLON Louts FowLer, individually

and on behalf of all others

similarly situated,

Plaintiff , Civil Action No.

sue 76-M-0431-S

BLUE BELL, INC., a corporation,

et al.,

Defendants

J

FINDINGS OF FACT AND

. CONCLUSIONS OF LAW

STATEMENT OF THE CASE

This action was brought pursuant to the Civil Rights

Acts of 1964 and 1886, 42 U.S.C. §§2000e, et seq. and

42 U.S.C. §1981, respectively. The defendant moved for

summary judgment on the grounds that: (a) the Title

VII aspects of the case were barred by the equitable

doctrine of laches; and (b) the Alabama one-year

statute of limitations barred such aspects as were based

on the Act of 1866.

10a

The Court, upon consideration of the Defendant's

Motion For Summary Judgment, the affidavits asso-

ciated with that Motion, the plaintiff's response in op-

position, the deposition of Mr. Bertram N. Perry,

Deputy Director of the Birmingham District Office of

the Equal Employment Opportunity Commission, the

memoranda submitted by both parties, as well as the

arguments of their counsel, granted the defendant's

Motion For Summary Judgment at a hearing held on

October 21, 1976.

FINDINGS OF FACT

1. The defendant operates a garment manufacturing

plant at Oneonta, Alabama. The plaintiff applied for

a job at that plant in March, 1970, and inquired about

employment in November of that year. When he was

not hired, the plaintiff filed a charge of racial discrim-

ination with the Equal Employment Opportunity Com-

mission (“EEOC” or “Commission” hereafter) in

December, 1970.

2. On July 22, 1971, the defendant was first notified

of the charge, and the EEOC thereafter conducted an

investigation. The principal participants for the defend-

ant were the Oneonta plant manager and its personnel

manager. They were directly responsible for submit-

ting information and position statements to the Com-

mission based on their personal knowledge, as well

as on business records which existed at that time.

3. Following the investigation, the EEOC forwarded

to the defendant a document entitled “Field Director's

Findings of Fact” on December 15, 1971. The defend-

e-

lla

ant considered those findings to be erroneous. Accord-

ingly, it submitted detailed Exceptions. On June 24,

1972, the Commission informed the defendant that its

Exceptions had been found to be “non-meritorious.”’

It invited the defendant “to engage in settlement

discussions.”

4. In a letter dated June 30, 1972, the defendant ac-

cepted the Commission’s offer. The plaintiff, however,

“declined the Director’s invitation to engage in settle-

ment discussions.” His decision was communicated to

the defendant by means of a letter from Bertram N.

Perry, acting Deputy Director of the Birmingham Dis-

trict Office, dated July 25, 1972. The foregoing letter

was the last communication between the defendant and

the EEOC or the plaintiff until March 25, 1975, at

which time the Commission forwarded to the defend-

ant a “Determination” stating that there was cause to

believe the plaintiff had been subjected to discrimina-

1The Court does not express an opinion with respect to the

merits of those Findings of Fact. It does, however, note what

clearly appears to be an error concerning a highly significant

aspect of the investigation. The EEOC found that 11 blacks

out of a workforce of 535 was “less than 1%” when in fact,

that fraction computes to a black utilization of 2.1%. The

EEOC arbitrarily refused to consider this obviously erroneous

computation when it found the defendant’s exception to be

non-meritorious. This, however, was a significant fact because

the availability of blacks in the Blount County workforce was

shown to be 2.1%. In this regard, it is further noteworthy

that each of the investigative affidavits (eight in number )

taken by the EEOC and attached to the deposition of Bertram

N. Perry, except for the plaintiff's, state that the defendant

does not discriminate against blacks.

12a

tion.! On January 30, 1976, the EEOC issued the plain-

tiff a “right-to-sue” letter after having decided not to

bring a Commission lawsuit against the defendant. The

plaintiff filed this action on March 26, 1976, approxi-

mately five and one-half years after he submitted his

charge to the EEOC.

5. In the period between the time the plaintiff made

his allegation of discrimination in December, 1970,

and the filing of this lawsuit on March 26, 1976, the

following changes took place with respect to the de-

fendant’s Oneonta Plant:

(a) The personnel manager at the time the plaintiff

applied, as well as during the EEOC administrative in-

vestigation, was discharged for cause in October, 1971,

for reasons unrelated to the plaintiff's charge. The de-

fendant does not know where this person is or how to

get in touch with him.

(b) The replacement for the foregoing personnel

manager left the Company in June, 1975, after which

the incumbent personnel manager assumed those

duties.

(c) The Oneonta plant manager at the time of the

charge and investigation has since moved to Europe

where he works for a subsidiary of the Company.

1The Court notes that the “Determination” perpetuates the

same mathematical error with respect to the defendant's black

utilization. In that document, the Commission found that 11

blacks out of 524 employees (as opposed to the total em-

ployment of 535 which was set forth in the Field Director's

Findings of Fact) was “less than one percent.”

13a

(d) There have been two personnel clerks since the

incumbent, at the time the plaintiff applied, left the

Company.

(e) Over a year after the plaintiff refused to discuss

settlement, the defendant reached a good faith conclu-

sion, based on the inaction of both the plaintiff and

the Commission, the lapse of time, and the plaintiff's

decision with respect to settlement that the case had

been closed by the EEOC and that the plaintiff was

not going to bring a private action. The defendant then

resumed normal office procedures at Oneonta. Person-

nel files and records which existed at the time of the

charge and the EEOC investigation have been de-

stroyed. The defendant resumed its practice of system-

atically destroying applications within three years

after they were filed, thereby making it impossible to

determine now who may have competed with the

plaintiff for whatever jobs may have been open at that

time, or to evaluate relative qualifications.

(f) Personnel folders are available only from 1972

to the present. Accordingly, it would not be possible to

reconstruct the pre-1972 workforce.

(g) The defendant has no records, files or other

means of racially identifying former employees. EEO-1

Reports are based on visual surveys. They, however, do

not establish which jobs (in terms of plant classifica-

tions ) minority employees held.

6. Business records and the independent recollec-

tions of the personnel and plant managers would be

l4a

the sources from which the defendant would prepare

its defenses, either as to the plaintiff himself or as

to any class the plaintiff might seek to represent. Those

sources are not available to the defendant.

7. Although the plaintiff had an absolute right to

request and to receive a right-to-sue letter at any time

after 60 days from the day he filed his charge of dis-

crimination in December, 1970, the plaintiff never

exercised that right. EEOC Regulation §1601.25a(c)

(Jan., 1970). Nor did the plaintiff contact the Commis-

sion during the interim years for the purpose of inquir-

ing about his case, or for any other purpose.

8. The matters set forth in the Affidavit submitted

in support of the defendant’s Motion were not contro-

verted by the plaintiff. The plaintiff did, however, assert

that the defendant could have requested the Commis-

sion to issue a right-to-sue letter to the plaintiff.

Contrary to that assertion, the Court, based on the

deposition of Bertram N. Perry and on the EEOC Regu-

lation §1601.25b(c), finds that the Commission would

not have issued such a letter to the plaintiff on the

request of the defendant. There was no action the

defendant could have taken to effect an earlier resolu-

tion of the plaintiff's claim.

CONCLUSION OF LAW

1. This Court has jurisdiction over the parties and

the subject matter of this action.

2. Those aspects of this action which are based on

42 U.S.C. §1981 are barred by the Alabama one-year

15a

statute of limitations, Title 7, §26, Code of Alabama,

1940 (Recomp. 1958). Johnson v. Railway Express

Agency, 421 U.S. 454 (1975); Beard v. Stephens, 372

F. 2d 685 (5th Cir. 1967); Sewell v. Grand Lodge of

Int'l. Association of Machinists & Aerospace Workers,

445 F. 2d 545 (5th Cir. 1971), cert. den., 404 U.S. 1024

(1972); and Ripp v. Dobbs Houses, Inc., 366 F. Supp.

205 (N.D. Ala. 1973).

3. Actions brought pursuant to Title VII of the Civil

Rights Act of 1964, as amended, are equitable in nature.

42 U.S.C. §2000e-5(g) and (h). See also, Franks v.

Bowman Transportation Company, 495 F. 2d 398, 406

(5th Cir. 1974), reversed on other grounds, US.

, 47 L. Ed. 2d 444 (1976).

4. Laches is an equitable doctrine generally held to

be applicable where there has been a lack of diligence

by the plaintiff and injury or prejudice to the defendant

due to that inaction. The doctrine is applicable to Title

VII actions brought by private plaintiffs. Albemarle

Paper Company v. Moody, 422 U.S. 405 (1975). See

also, Franks v. Bowman Transportation Company,

supra. Although the mandate of Title VII has been con-

strued to be broad, actions brought thereunder remain

subject to the traditional principles of equity. To hold

otherwise would be to permit plaintiffs, in the name of

equity, to work injustice on defendants without the

discretionary restraint that rests with a Court sitting in

equity.

5. The application of the doctrine of laches is a mat-

ter which arises from the facts of each individual case.

16a

The Court, upon consideration of all the facts and

circumstances presented incident to the defendant's

Motion for Summary Judgment, concludes that the

Motion should be granted. The defendant has been sub-

stantially and irreparably prejudiced by the plaintiff's

lack of diligence in pursuing his claim. The granting of

this summary judgment, based on that prejudice, will

not serve to defeat justice but will serve to prevent the

working of an injustice on the defendant.

6. The Court is not unmindful of the time consumed

by the Commission in this case. It also has considered

the plaintiff's assertion that he was following EEOC

procedures in bringing this lawsuit. The Court con-

cludes, however, that the foregoing considerations are

not sufficient to prevail in the face of the following fac-

tors:

(a) Separate and apart from the Commission’s role

in this case is the demonstrated and unrebutted lack of

diligence and inaction on the part of the plaintiff. First,

the plaintiff refused even to discuss settlement in July,

1972, although the EEOC would have required a full

remedy in his behalf as the justification for the plaintiff

waiving his right to sue incident to such a settlement.

By that refusal, the plaintiff turned his charge toward

a judicial resolution. Nevertheless, he sat back and

permitted nearly four additional years to elapse before

bringing this action. During that time, he contacted

neither the Commission nor the defendant.

_ —s

17a

(b) Pursuant to EEOC Regulation §1601.25a(c) and

its successor, §1601.25b(c), the plaintiff had an,.abso-

lute right to request and to receive a right-to-sue letter

from the Commission at any time after 60 days from the

filing of his charge in December, 1970.' The EEOC had

no discretion with respect to issuing such a letter. Ac-

cordingly, based on the statute itself, 42 U.S.C. §2600e-

5(f)(1), and the foregoing Regulations, the Court con-

cludes that the plaintiff had notice of his right to obtain

a suit authorization and that, at the least, the plaintiff

was on notice that he should contact the Commission

with respect to his charge, particularly after his refusal

to discuss settlement.

(c) The plaintiff had the right and the means of

moving toward a resolution of his claim by means of a

private lawsuit. He, however, did not act, either to bring

such a lawsuit or to contact the Commission in that

regard. The Court concludes that during those interim

years, the defendant's ability to defend itself was irrep-

arably prejudiced and effectively eliminated by the

personnel changes and the good-faith resumption of

‘Although the plaintiff asserted in his Memorandum and

the Affidavit attached thereto that the defendant also had

a right to request the Commission to issue a right-to-sue letter

to the plaintiff, the Court concludes that the defendant did

not, in fact, have such a right. The language of EEOC Regu-

lation §1601.25a(c) supports the plaintiff's assertions; how-

ever, the deposition of Mr. Perry clearly establishes that the

Commission would not have issued such a leiter at the request

of the defendant. This is corroborated by the successor Regu-

lation, EEOC Regulation §1601.25b(c). Accordingly, there is

no merit to the plaintiff's argument in this regard.

18a

normal office procedures at the Oneonta Plant.’ The

record of this case establishes that the people and the

documents with which the defendant would prepare its

defenses no longer are available or no longer exist.

7. Title VII is remedial legislation which is broadly

construed by this Court. That consideration, however,

does not outweigh the duty which rested with this

plaintiff to take steps to pursue his claim in a timely

fashion without regard to the actions, or lack thereof,

by the Commission. This is especially true in light of

the plaintiff's refusal to engage in settlement discus-

sions when that course was offered by. the Commission

and accepted by the defendant on July 30, 1972. The

equitable balance in this case has shifted to the defend-

ant. Aside from, and not controlled by, the general unde-

sirability of defending stale claims, this Court, based

upon all of the facts and circumstances, concludes that

the specific prejudice caused to the defendant by the

'The Court recognizes that Title VII respondents are re-

quired to maintain records with respect to charges of dis-

crimination. The Court also recognizes that the defendant's

Oneonta Plant is an on-going business, the operations of

which are not susceptible to being suspended for years at a

time because of an allegation of discrimination. Based on the

uncontroverted Affidavit and attachments which accompa-

nied the defendant’s Memorandum, the Court concludes that

the defendant’s actions with respect to its business records

and the personnel changes were made in good faith and were

not a pretext or subterfuge for defeating the plaintiff's claim.

This Court does not fault the defendant for taking these

actions in light of the extensive lapse of time without there

having been any action by either the plaintiff or the

Commission.

19a

plaintiff's lack of diligence clearly yields a situation in

which it would be unjust to permit this action to pro-

ceed.

This 30th day of November, 1976.

FRANK H. McFADDEN

United States District Judge

20a

IN THE

United States District Court

FOR THE NORTHERN DISTRICT OF

ALABAMA

SOUTHERN DIVISION

‘

MARLON LouIs Fow-er, individually

and on behalf of all others

similarly situated,

Plaintiff

Civil Action No.

vs. 4

76-M-0431-S

BLUE BELL, INC., a corporation,

et al.,

Defendants

JUDGMENT

Having heard the Defendant’s Motion for Summary

Judgment and having considered the matters presented

by the parties incident thereto, it is THEREFORE, OR-

DERED, ADJUDGED AND DECREED THAT the plaintiff shall

have and recover nothing by his action and that judg-

ment be, and hereby is, entered in favor of the defend-

ant. Costs shall be taxed to the plaintiff.

ENTERED this 30th day of November, 1976.

FRANK H. McFADDEN

United States District Judge

2Qla

IN THE

United States Court of Apprals

FOR THE FIFTH CIRCUIT

NO. 77-1502

WESLEY P. BERNARD, et al.,

Plaintiffs-Appellants,

versus

GuLF Or CoMPANY, et al.,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

On Petition For Rehearing and Petition

For Rehearing En Banc

(Opinion June 15, 1979, 5 Cir., 197—, —F 2d—).

(September 27, 1979 )

Before Brown, Chief Judge, CoLEMAN, GODBOLD,

CLARK, ROoNEY, GEE, TJOFLAT, HILL, Fay,

RuBIN, VANCE, KRAVITCH, JOHNSON, GARZA,

HENDERSON, REAVLEY, POLITZ, HATCHETT,

ANDERSON and RANDALL, Circuit Judges.

By THE CouRT:

A member of the Court in active service having re-

quested a poll on the application for rehearing en banc

22a

and a majority of the judges in active service having

voted in favor of granting a rehearing en banc,

It Is ORDERED that the cause shall be reheard by the

Court en banc with oral argument on a date hereafter

to be fixed. The Clerk will specify a briefing schedule

for the filing of supplemental briefs.

Judges Goldberg and Ainsworth have recused them-

selves and did not participate in this decision.