Opposition Brief — Garrett v. General Motors Corp.

# Supreme court, US.

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No. 88-255 sep 8 1888

: CLERK sii

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

WARREN GARRETT,

Petitioner,

VS.

GENERAL Motors CorPORATION,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals For the Eighth Circuit

RESPONDENT?’S BRIEF IN OPPOSITION

LASHLY, BAER & HAMEL

A Professional Corporation

JAMES E. McCDANIEL*

RosBerT A. KAISER

714 Locust Street

St. Louis, Missouri 63101

(314) 621-2939

David M. Davis, Legal Staff

GENERAL Motors CorPORATION

3031 West Grand Boulevard

Detroit, Michigan 48232

Attorneys for Respondent

*Counsel of Record

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

QUESTION PRESENTED

1. Did the Court of Appeals for the Eighth Circuit

correctly hold that a Title VII suit can be barred by

the application of laches where the plaintiff does

not exercise due diligence in filing suit and the

defendant is thereby prejudiced.

PARTIES TO THE PROCEEDING

All parties are listed in the caption.

Rule 28.1: Statement

General Motors is not a subsidiary of a publicly owned corpora-

tion. All subsidiaries and affiliates of General Motors Corpora-

tion are wholly-owned except:

AeroVironment Inc. (USA)

Alambrados Automatrices, S.A. de C.V. (Mexico)

Alambrados y Circuitos Electricos, S.A. de C.V. (Mexico)

AMBRAKE Corporation (USA)

Applied Intelligence Systems, Inc. (USA)

Aralmex, S.A. de C.V. (Mexico)

Autos y Maquinas del Ecuador S.A. (AYMESA) (Ecuador)

Cableados de Juarez, S.A. de C.V. (Mexico)

CABLESA-Industria de Componentes Electricos Limitada

(Portugal)

Calsonic Harrison Co., Ltd. (Japan)

Compagnie de Faisceaux Tunisian International S.A. (Tunisia)

Compania Nacional de Direcciones Automotrices, S.A. de C.V.

(Mexico)

Componentes Delfa, C.A. (Venezuela)

Componentes Mecanicos de Matamoros, S.A. de C.V. (Mexico)

Compresores Delfa, C.A. (Venezuela)

Conductores y Componentes Electricos, de Juarez, S.A. de

C.V. (Mexico)

Convesco Vehicle Sales GmbH (West Germany)

Daewoo Automotive Components, Ltd. (Korea)

Daewoo Motor Co., Ltd. (Korea)

Delco Electronics Corporation (USA)

Delkor Battery Company, Ltd. (Korea)

Delmex de Juarez, S.A. de C.V. (Mexico)

Delredo, S.A. de C.V. (Mexico)

Delta Industrial, C.A. (Venezuela)

Detroit Deere Corporation (USA)

Detroit Diesel Corporation (USA)

DHB - Componentes Automotivos S.A. (Brazil)

DHMS Industries, Ltd. (Korea)

Diffracto Limited (Canada)

DR DE CHIHUAHUA, S.A. de C.V. (Mexico)

Ensemble de Cables Y Componentes, S.A. de C.V. (Mexico)

Fabrica Columbiana de Automotores S.A. (‘‘Colomotores’’)

(Columbia)

General Motors de Brasil, Ltda. (Brasil)

General Motors de Colombia S.A. (Colombia)

General Motors del Ecuador S.A. (Ecuador)

General Motors Egypt, S.A.E. (Egypt)

General Motors Espana, S.A. (Spain)

General Motors (Europe) AG (Switzerland)

General Motors France (France)

General Motors Hellas, A.B.E.E. (Greece)

General Motors Iran Limited (Iran)

General Motors Kenya Limited (Kenya)

General Motors Korea Co., Ltd. (Korea)

General Motors del Peru S.A. (Peru)

General Motors de Portugal, Limitada (Portugal)

General Motors Terex do Brasil Ltda. (Brasil)

Genie Mecanique Zairose, S.A.R.L. (Zaire)

GM Allison Japan Limited (Japan)

GM Locomotivas Ltda. (Brazil)

GMFanuc Robotics Corporation (USA)

Hua Tung Automotive Corporation (Rep. of China)

IBC Vehicles Limited (England)

Ilmor Engineering, Ltd. (England)

Industries Mecaniques Maghrebines, S.A. (Tunisia)

Industrija Delova Automobila, Kikinda (Yugoslavia)

INLAN-Industria de Componentes Mecanicos, Lda. (Portugal)

Isuzu Motors Limited (Japan)

Isuzu Motors Overseas Distribution Corp. (Japan)

Kabelwerke Reinshagen GmbH (West Germany)

Kabelwerke Reinshagen Werk Berlin GmbH (West Germany)

Kablewerke reinshagen Werk Neumarkt GmbH (West Ger-

many)

Koram Plastics Company, Ltd. (Korea)

iV

Metal Casting Technology, Inc. (USA)

Motor Enterprises, Inc. (USA)

New United Motor Manufacturing, Inc. (USA) |

NHK Inland Corporation (Japan) |

Omnibus BB Transportes, S.A. (Ecuador) |

Packard Electric Ireland Limited (Ireland)

Philip Crosby Associates, Inc. (USA)

Promotora de Partes Electronicos Automotrices (Mexico)

P.T. Mesin Isuzu Indonesia (Indonesia)

Rimir, S.A. de C.V. (Mexico)

Rio Bravo Electricos, S.A. de C.V. Mexico)

Robotic Vision Systems, Inc. (USA)

Senalizacion y Accesorios del Automovil Yorka, S.A. (Spain)

Shinsung Packard Company, Ltd. (S. Korea)

Suzuki Motor Co., Ltd. (Japan)

Tactical Truck Corporation (USA)

Teknowledge, Inc. (USA)

TEREX Equipment Limited (Scotland)

Vauxhall Motors Limited (England)

Vestiduras Fronterizas, S.A. de C.V. (Mexico)

View Engineering (USA)

Volvo GM Heavy Truck Corporation (USA)

As of September 1, 1988

TABLE OF CONTENTS

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Parties to the Proceeding .........cccccsccscvcccsees

Rule 28.1:

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Citations to Opinions Below.................000008:

Jurisdictional Statement .................ccccceeees

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Argument

I. The Decision Below Applies Established

Steve Oe 2s sd Favrwewrets+ets bane eaacea ae eaewaesessas ta

Precedent to the Specific Facts of this Case ..

Il. There is no Genuine Conflict Among the Cir-

NR. Ss ie a ge bbe a ee cee a a id ee

III. Review by this Court is Neither Appropriate

ST PE 6 5s Sand ve cne ss ekuweaseeous

Conclusion

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16

vi

TABLE OF AUTHORITIES

Page

Cases:

Albemarle Paper Company v. Moody, 422 U.S. 405

(PPP errr rrr rer are oe 10,11,12

Bernard v. Gulf Oil Co., 596 F.2d 1249 (Sth Cir. 1979)

Rehearing en banc, 619 F.2d 459 (Sth Cir. 1980),

aff'd, 482 U.S. 89 (1981) ...........44.. ...12,13,14,15

Boone v. Mechanical Specialties Co., 609 F.2d 956

Cb Ral. HUE wnuanndadskeddnecansinankatebeas 13,14

Cleveland Newspaper Guild v. The Plain Dealer Pub-

lishing Co., 839 F.2d 1147 (6th Cir. 1988) (en

banc), pet. for cert. filed, 56 U.S.L.W. 3806 (No.

SED Sncccecécubacsstenduseneleeeee 13

EEOC v. Mistletoe Express Service, F.Supp. ;

3}, gah © | Rr reeree 10

Gifford v. Atchison, Topeka & Santa Fe Railroad, 685

Pe CaP en Gals SUED 400606 baaebuuesbnees 12,13,14

Holsey v. Armour & Co., 743 F.2d 199 (4th Cir. 1984),

cert. den., 470 U.S. 1028 (1985)... .. 2... 6. 6 6 eee. 13

Howard v. Roadway Express, Inc., 726 F.2d 1529

tt Le | ere ee .12,13,14

Jeffries v. Chicago Transit Authority, 770 F.2d 676

(7th Cir. 1985), cert. den., 475 U.S. 1050 (1986) . . . 13

Lacy v. Chrysler Corporation, 533 F.2d 353 (8th Cir.)

cert. den., 429 U.S. 989 (1976)... ... 2... eee eee 7

Mosely v. General Motors Corp., 497 F.Supp. 583

8 ee 2,3,8

Occidental Life Insurance Co. of California v. EEOC,

Ges ei cccccedseseduvudbnueereuess 8.11.12

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

Ge, Be. Suddovcevesdsuceswanbassasesaneeces 12,13,15

Tuft v. McDonnell-Douglas Corp., 517 F.2d 1301 (8th

Cir. 1975), cert. den., 423 U.S. 1052 (1976) ....... 7

Waddell v. Small Tube Products, Inc., 799 F.2d 67

SN BED occncucedbunusebenseesnaleaseun 13,16

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

el ee ed eee es 13

Statutes:

rr Ln ose seusénenasesesaeueens l

Title VII of the Civil Rights Act of 1964, 42 U.S.C.

SESE ccccccccccccecceccccoesecsorccoesases i6

Citations to Opinions Below

Respondent adopts the Petitioner’s recitation of opinions

below.

No. 88-255

IN THE

Supreme Court of the United States

OcToBer TERM, 1988

WARREN GARRETT,

Petitioner,

VS.

GENERAL Motors CORPORATION,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals For the Eighth Circuit

RESPONDENT'S BRIEF IN OPPOSITION

JURISDICTIONAL STATEMENT

The judgment of the District Court of the Eastern District of

Missouri, Eastern Division was filed on April 24, 1987. The

judgment of the Eighth Circuit Court of Appeals was filed on

April 14, 1988. A petition for rehearing was filed and subse-

quently denied on May 20, 1988. The Petition for a Writ of

Certiorari was filed on August 8, 1988. Jurisdiction to review

the judgment of the Court of Appeals by Writ of Certiorari is

conferred upon this Court by 28 U.S.C. §1254(1).

~~, oe

STATEMENT OF THE CASE

This Title VII case is based on a race discrimination charge

which Petitioner Warren Garrett filed with the EEOC in Oc-

tober 1970, almost eighteen years ago.' That charge alleged that

certain terms and conditions of Garrett’s employment with

Respondent General Motors Corporation, (hereinafter

sometimes referred to as ‘‘G.M.’’) were discriminatory. In

1971, the year after the charge was filed, Garrett was discharged

from his employment with G.M. for participation in a wildcat

strike in contravention of the contract between G.M. and Gar-

rett’s Union, the United Auto Workers. Garrett never amended

his EEOC charge to allege that his discharge was racially

motivated.

Garrett alleged his discharge on March 29, 1971 was in viola-

tion of Title VII. G.M. has a progressive discipline policy, and

because Garrett was already at the final step of that policy, he

would have been discharged for any disciplinary violation.

(T.276, 286). As was specifically found in Mosley v. General

Motors Corperation, 497 F.Supp. 583, 589 (E.D. Mo. 1980),

' The only record of the charge is the charge control ledger produc-

ed by the EEOC. The actual EEOC records were destroyed between

March 1976 and March 1979, and G.M. did not retain its complete

EEOC file regarding Garrett after being notified by the EEOC that

Garrett’s file was closed. EEOC records do not indicate the filing of a

second charge in March 1971, even though the purported charge was

produced at trial. Garrett also filed a complaint of discrimination

with the St. Louis Council on Human Relations on March 18, 1971.

(T.63-65; and G.M. Exhibit Q). Garrett admitted receiving a letter

from the St. Louis Council on Human Relations sometime in 1974

stating that their investigation revealed no discrimination. (T.64-65;

G.M. Exhibit R).

on

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

wildcat strike.’

From June of 1970 through March of 1971, Garrett was tardy

eleven times. (G.M. Exhibit N). Garrett was disciplined for be-

ing tardy the ninth time, on January 28, 1971. (G.M. Exhibit C;

T.88). Garrett was unable to recall, because of the sixteen years

that had elapsed from the date of these events and the date of

trial the circumstances surrounding his tardiness or discipline

imposed. (T.88-89).

Garrett also had a horrendous absentee record. According to

Garrett’s absence record, he was absent ten times between June

of 1970 and February of 1971. (G.M. Exhibit M). On March

11, 1970, the eleventh (11th) time he was absent, Garrett was

given a vw’ iten reprimand for being absent from work without

reasonabie cause. (G.M. Exhibit C; T.92-95). On the following

day, March 12, 1970, Garrett received a suspension for the

balance of the shift plus one day for being late to work. (G.M.

Exhibit C; T.93-94).

In June of 1970, Garrett was suspended for the balance of the

shift plus three days for using abusive language to a supervisor.

(G.M. Exhibt C). Garrett admitted that in this incident had had

a knife in his hand and that he got upset with his foreman.

(T.96-97). On December 22, 1970, Garrett was suspended for

the balance of the shift plus one week for being under the in-

fluence of alcohol and for using vulgar language. (G.M. Ex-

hibit C; T.98-99). Garrett admitted that he drank alcohol dur-

ing his lunch period, and that he yelled at his foreman.

(T.99-100).

> The plaintiffs in Mos/ey had not similarly reached the last level in

the disciplinary process. While the District Court did indicate that

G.M. was collaterally estopped by Mosley, it is clear from the decision

that the statement was used only in the context of discussing the sec-

ond element of laches, prejudice to the defendant. (App. p. 32a)

(T.291-293; G.M. Exhibits HH-1 - HH-126).

a eo

On January 28, 1971, Garrett was suspended for the balance

of the shift plus two weeks for being late to work. (G.M. Ex-

hibit C; T.101-102). On March 17, 1971, Garrett was suspended

for the balance of the shift plus thirty days for leaving the plant

without permission. (G.M. Exhibit C; T.103). Garrett admit-

ted that he left the plant without permission and was disciplin-

ed. (T.103-104). Prior to leaving the plant, Garrett was stopped

by a security guard and instructed to return to his job. (G.M.

Exhibit C; T.105).

On March 29, 1971, Garrett was discharged for participating

in an unauthorized work stoppage. (G.M. Exhibit C; T.107).

Garrett admitted that he participated in the unauthorized work

stoppage. (T.107-108).

Garrett’s discipline record indicate that from June of 1970

through March of 1971, he was disciplined six times in a pro-

gressive manner. (G.M. Exhibit C; T.284-285). Garrett’s

discharge on March 29, 1971 was the seventh disciplinary action

taken against him in a nine month period. (T.284-85). Further-

more, according to the progressive discipline policy, when an

employee is at the sixth and final step of discipline, any rule

violation can be the basis for the employee’s discharge. (T.286).

The District Court found that from the time of his discharge

in 1971 until 1980, Garrett made no active inquiry into the status

of his charge, though during most of this period he could have

requested a right-to-sue letter from the EEOC and filed suit

against G.M. He had even contacted several private attorneys

about his case, and each instructed him to request a right-to-sue

letter. (T.82-83). By 1979 at the latest, eight years after the

charge had been filed, the EEOC destroyed Garrett’s charge file

in accordance with its internal procedures. Garrett inquired

about his charge in 1980 in response to a newspaper article; the

EEOC told him that his file had been destroyed and there was

nothing further the EEOC could do. (T.75). Sometime be-

tween September and October of 1982, after G.M. had been in-

—, oo

formed by the EEOC that the case was closed and the file

destroyed, G.M. decided not to retain closed records over ten

years old. (1.346). Those files were purged to conserve space.

(1.348). Included were records pertaining to Mr. Garrett, in-

cluding information in connection with each _ particular

disciplinary matter. (T.346-47). The records would also have in-

cluded interviews with supervisors and anyone that might have

had direct contact with the particular disciplinary matter, the

notice of discipline, a fact sheet completed by the foreman, and

notes from the disciplinary interview conducted by the labor

relations representative with all the information he was able to

obtain in the interview. (T.347).

Garrett did not contact the EEOC between 1980 and 1983. In

late 1983, Garrett again contacted the EEOC, this time to deter-

mine whether he was covered by a national settlement agree-

ment negotiated by G.M. and the EEOC. After several years

during which the EEOC attempted to determine whether Gar-

rett was covered by the settlement agreement and whether it had

ever sent a right-to-sue letter to Garrett, a new right-to-sue letter

was issued in July 1985. An earlier right-to-sue letter, however,

may very well have been sent as early as 1972.

Two representative from the EEOC attempted to reconstruct

at trial the EEOC handling of Garrett’s charge. The charge

control ledger and the case control ledger were the only

documents which the EEOC retained concerning Garrett’s

charge. (See G.M. Exhibit T and U). The EEOC admitted that

from 1976 through 1983, both the case control ledger and the

charge control ledger indicated that there was absolutely no ac-

tivity on Garrett’s charge. (T.205). Furthermore, if Garrett had

called the EEOC to find out the status of his charge from 1976

through 1983 and the EEOC personnel checked the charge con-

troi ledger, they would know that the file was closed.

(T.205-07). When G.M. inquired concerning the status of Gar-

rett’s charge on January 20, 1980, it was informed that the file

was closed and destroyed. (T.209-11, 242-3; G.M. Exhibit W).

— ye

Once G.M. was notified of the closure of the file, it was no

longer obligated to keep the documents relevant to Garrett’s

charge. (1T.242-43).

An EEOC representative from the Office of Congressional

Affairs wrote a letter dated March 20, 1984, to Congressman

William Clay informing him that there was an unsuccessful con-

ciliation of Garrett’s charge, and that Garrett had, in fact, been

issued an earlier right-to-sue letter. (1.200; G.M. Exhibit Y).

The EEOC, in a letter addressed to Garrett dated June 21,

1984, stated that due to the time elapsed, their research on

whether he was issued a right-to-sue letter was inconclusive.

(T.213-14; G.M. Exhibit Z). Because Garrett’s EEOC file was

destroyed, the information concerning Garrett’s charge was

based upon supposition. (T.218). The EEOC coulu not deter-

mine whether or not Garrett had been issued a right-to-sue let-

ter. (1.218).

Garrett’s file was sent to the EEOC records center in March

of 1976. (T.204-04). According to the EEOC representative

testifying before the District Court, it was the standard pro-

cedure of the EEOC to send a file to the records center only

after the final EEOC actions have been taken. (T.204). More-

over, it was the general practice of the EEOC to notify the

charging party that the final actions have been taken regarding

the charge. (T.205).

Making matter more complex, another representative of the

EEOC testified that the EEOC has used a two and three letter

system for notifying charging parties concerning the status of

their charges. (T.146-57). The first letter is identical under both

of these systems. (T.147). It informs the charging party that

conciliation efforts by the commission have failed and that if

180 days have expired, the charging party may request a right-

to-sue letter. (T.147). It was the standard practice of the EEOC

to issue the first letter-after conciliation efforts had failed.

(T.148).

mae. ren

Under the procedure utilized in 1972 and 1973, Garrett

should have been issued the first letter notifying him that con-

ciliation efforts had failed and that he could request a right-to-

sue letter with 180 days of filing his charge. (T.149), 151). Gar-

rett acknowledged that he received this letter. (T.73). Garrett

also admitted that he received ‘‘quite a few letters from the

EEOC,”’ but could not specifically say what they were. (T.73).

Prior to the 1972 amendment to Title VII, the EEOC did not

have the power to file suit on behalf of a charging party. Conse-

quently, a notification by the commission that conciliation ef-

forts had failed constituted a right-to-sue letter.’ Neither

representative from the EEOC knew under which procedure

Garrett received his notice that conciliation efforts had failed.

(T.202, 245-47). If Garrett had been issued that type of letter

from the EEOC stating that conciliation efforts had failed, that

letter would have been destroyed by the EEOC in 1979 when

Garrett’s file was destroyed. (T.202-03).

It was also the normal practice for the EEOC, under the three

letter system used after 1973 to issue a right-to-sue letter after a

file had been rejected for litigation by the EEOC. (T.151-52).

It is uridisputed, however, that the EEOC did not ultimately

take Garrett’s case to litigation. If Garrett had been sent a letter

rejecting his case for litigation and a right-to-sue letter, a copy

of each letter would have been kept in the EEOC file until it was

destroyed. (T.158). The receipt of the letter rejecting his case

for litigation would begin the ninety day period for filing suit

under Title VII. Lacy v. Chrysler Corporation, 533 F.2d 353,

360-1 (8th Cir.), cert. denied, 429 U.S. 959 (1976). Thus,

regardless of the system used, it was probable that an earlier

right-to-sue letter had been sent. (App. at 25a).

> Tuft v. McDonnell Douglas Corporation, 517 F.2d 1301, 1305 (8th

Cir. 1975).

=

Garrett filed this suit on September 11, 1985, approximaiely

fourteen years after his discharge and fifteen years after his

charge had been filed with the EEOC. The complaint alleged,

among other things, that Garrett had been discriminatorily

discharged from G.M.’s employ; the District Court held that

the unamended EEOC charge was broadly enough worded to

support the discharge claim.

However, the District Court dismissed the action on the

grounds of laches, holding that Garrett had unreasonably

delayed filing suit, to the detriment of G.M. In particular, the

court noted that Garrett might have been sent a right-to-sue let-

ter sometime in the 1970’s, that it was impossible to resolve this

issue because of the passage of time, and that Garrett’s delay

therefore prejudiced a probable statute of limitations defense.

(App. at 25a-33a).

On appeal, the Eighth Circuit Court of Appeals unanimously

affirmed the District Court’s decision. The panel considered

and rejected Garrett’s argument that a Title VII plaintiff has the

absolute right to await the administrative processing of this

EEOC charge before filing suit, no matter how long that pro-

cessing takes and regardless of whether the plaintiff ever in-

vestigated the status of his charge. The panel also upheld the

District Court’s finding that laches applied to the circumstances

of Garrett’s case. Contrary to Petitioner’s suggestion, the

Court of Appeals ‘‘declined to reach’’ the question concerning

collateral estoppel and the Mosley case. (App. at 14a)

=

SUMMARY OF ARGUMENT

It is well established that laches may be utilized as a defense in

a Title VII suit brought by a private plaintiff. Petitioner’s sug-

gestions that laches never be applied when the delay is caused by

the EEOC would, as a practical matter, destroy the use of

laches. The only unregulated time period, and therefore the on-

ly time period amenable to laches analysis, is the time frame oc-

casioned by EEOC processes. Moreover, application of laches

to private individuals would not, contrary to Petitioner’s

claims, interfere with the legitimate investigative functioning of

the EEOC, as the doctrine is applied only in cases of

“‘unreasonable’’ delay.

The application of laches is decidedly fact-based. It is the fact

based nature of laches that is reflected in the divergent results

reached by the various circuits. No circuit has adopted the ab-

solute rule suggested by Petitioner, and no true conflict among

the circuits exist.

This question arises too infrequently for consideration by this

court. Moreover, if delays caused by the EEOC causes a

substantial burden and is truly considered a widespread con-

cern, it is more appropriately dealt with by congressional, not

judicial, action.

—

ARGUMENT

I. The Decision Below Applies Established Precedent to

the Specific Facts of this Case.

Petitioner suggests that review by this Court is required

because certain Supreme Court cases are ‘‘implicated.’’ While

it is true that the goals of these cases are implicated, the decision

of the Eighth Circuit is entirely consistent with those goals,

while the result sought by Petitioner is inconsistent.

It is well settled that the doctrine of laches may be invoked as

a defense in a Title VIl action. See, Albemarle Paper Company

v. Moody, 422 U.S. 405, 424-5 (1975); Occidental Life In-

surance Company of California v. EEOC, 432 U.S. 355, 373

(1977). This is true even when the plaintiff is a private party. /d.

Adoption of Petitioner’s position would, as a practical mat-

ter, completely remove laches as a defense against private plain-

tiffs. Under Title VII, the time period during which the EEOC

investigates and reviews a charge is not limited by the Act. /d.

The three hundred day period in which a charge must be filed

and the 90 day period following receipt of the right-to-sue letter

during which suit must be brought are reviewed under tolling

analysis. In addition, application of laches is not feasible when

dealing with such short periods of time. As noted in EEOC v.

Mistletoe Express Service, F.Supp. ____, 45 FEP 777, n. 1

(S.D. Tex. 1987), there have been no reported cases in which

laches was applied where the suit was commenced less than two

years after filing of the charge. Thus, as a practical matter,

adoption of Petitioner’s position is the functional equivalent of

overruling this Court acceptance of laches in A/bemarle and Oc-

cidental.

Petitioner argues that the goals of Title VII are thwarted by

the application of laches to a private plaintiff who has waited 15

years for the EEOC to complete processing his charge before br-

inging suit. These generalized goals, however, do not compel

review by this court. In A/bemarle, this court recognized that,

“‘on these issues of procedural regularity and prejudice, the

‘broad aims of Title VII’ provide no ready solution.’’ /d. at

425.

The particularized goal of protecting the EEOC as primary

enforcer of Title VII does not warrant the establishment of an

absolute right of a private plaintiff to await completion of

EEOC processes before requesting a right-to-sue letter. In fact,

that goal would seem to suggest the opposite. If the EEOC is

the primary enforcer of Title VII and it is permissible to apply

laches to it, it is equally permissible to apply laches to a private

plaintiff, as a secondary enforcer, for the very same delay. The

EEOC’s right to proceed, in any given matter, is certainly not

less than private individuals. See, Occidenta/ Life Insurance

Co. of California v. EEOC, 432 U.S. 355, 373 (1977).

Moreover, this case does not factually present a situation in

which the processes were continuing and any delay was at-

tributable to the EEOC’s workload. On the contrary, the

EEOC had long since ceased investigating the claim, closed the

matter, and destroyed the file. From the EEOC’s perspective,

its role had been complete for almost ten years prior to suit

being brought.

One recurrent principle found in this court’s pronouncements

is the need to allow lower courts ‘‘discretionary power ‘to locate

a ‘‘just result’’ in iight of the circumstances peculiar to case’.’’

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

355, 373 (1977), citing Albemarle Paper Co. v. Moody, 422 U.S.

405, 424-425 (1975). The trial court in this case did just that.

After a full trial, the judge concluded that the plaintiff had not

exercised due diligence in following the status of his EEOC

charge. Under normal circumstances he would already had

been issued a right-to-sue letter as many as ten years before he

brought suit, and the files were destroyed by the EEOC over six

years before he brought suit. Thus, the existence of an earlier

=, =

a

right-to-sue letter could not be proven. Therefore, the decision

in this case is quite unique. The question presented was not

merely if plaintiff had the absolute right to not request a right-

to-sue letter during the pendency of the EEOC process, but if

this plaintiff had ever in fact received an earlier right-to-sue let-

ter.

Unlike the majority of cases cited by Petitioner, this case does

not involve good faith reliance on continued assurances by the

EEOC of an ongoing and active investigation* or destruction of

documents attributable to defendant.’ In fact, the District

Court found that Petitioner's contact with the EEOC during his

15 year wait was minimal, and that it was the EEOC that

destroyed the file. Respondent was told by the EEOC three (3)

years prior to the suit that the matter had been closed, a right-

to-sue letter issued, and that the file had been destroyed. This

same information was also given by the EEOC to the

Petitioner’s United States Congressman. This unique factual

scenario was properly analyzed ‘‘in light of the circumstances

peculiar to the case’’ as suggested in Occidental and Albemarle.

The writ should not be granted merely to review the District

Court’s application of the mandate of Occidental and

Albemarle to the specific and unique facts of this case.

il. There is no Genuine Conflict Among the Circuits.

Every Circuit reaching the question has held that the defense

of laches is available in Title VII suits brought by private plain-

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

1983); Gifford v. Atchison, Topeka and Santa Fe Railroad Co., 685

F.2d 1149 (9th Cir. 1982)

' See, Bernard v. Gulf Oil Co., 996 F.2d 1249 (Sth Cir. 1979);

Howard v. Roadway Express, Inc., 726 F.2d 1529 (ilth Cir, 1984);

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

~~

tiffs.* Also universally accepted is the notion that the deter-

mination of laches is heavily fact based, reviewed according to

the specific facts of each case. Gifford v. Aitchison Topeka &

Santa Fe Railroad Co., 685 F.2d 1149, 1152 (9h Cir. 1982).

Petitioner’s characterization of the holdings of the Fourth,

Fifth, Ninth, Eleventh and District of Columbia Circuits as

necessarily in conflict with those of the Sixth, Seventh and

Eighth’ Circuits is incorrect. Petitioner has taken phrases used

to characterize behavior in a given case and imbued them with

universal applicability. In fact, the different results reached in

these circuits are a reflection of specific facts and not the ap-

plication of different law.

The Fourth Circuit, in Holsey v. Armour & Co., 743 F.2d

199, 211 (4th Cir. 1984) merely noted that the *‘[{The plaintiff's]

decision to rely on the Commission’s administrative process

before initiating a private suit is not inexcusable delay."" The

terse holding was limited by its very terms to the decision of that

plaintiff.

* See, Waddell v. Small Tube Products, Inc., 799 F.2d 69 (3rd Cir.

1986); Holsey v. Armour & Co., 743 F.2d 199, 211 (4th Cir. 1984);

Bernard v. Gulf Oil Co., $96 F.2d 1249, 1256 (Sth Cir. 1979), aff'd on

other grounds, 452 U.S. 89 (1981); Cleveland Newspaper Guild v.

Plain Dealer Publishing Co., 839 F.2d 1147 (6th Cir. 1988) (en banc),

pet. for cert. filed 56 U.S.L.W. 3806 (No. 87-1864); Jeffries v.

Chicago Transit Authority, 770 F.2d 676 (7th Cir. 1985) cert. den. 475

U.S. 1050 (1986); Whitfield v. Anheuser-Busch, Inc., 820 F.2d 243,

244-5 (8th Cir. 1987); Boone v. Mechanical Specialties Co., 609 F.2d

956 (Mh Cir. 1979); Howard v. Roadway Express, Inc., 726 F.2d

1529, 1532 (11th Cir. 1984); Rozen v. District of Columbia, 702 F.2d

1201, 1203 (D.C, Cir, 1983),

’ Petitioner failed to note the holding of the Third Circuit as consis.

tent with the Sixth, Seventh and Eighth Circuits. Waddell v. Small

Tube Products, 7199 F.2d 69 (3rd Cir, 1996).

—* =

The Fifth Circuit, in Bernard v. Gulf Oil Co., 596 F.2d 1249

(Sth Cir. 1979), faced the issue in the context of ruling on a mo-

tion for summary judgment. The court refused to apply the

doctrine of laches, *‘because the facts as presented on this sum-

mary judgment motion, without more, do not allow a finding of

laches.”’ The court nonetheless continued to discuss the second

element of laches, prejudice to defendants, and reasoned that

any prejudice to defendants was in fact, attributable to the

defendants, not the plaintiff. The court closed discussion of the

issue by stating:

**We conclude that the present facts do not allow findings

of either unreasonable delay or prejudice.’’ /d.

The Ninth Circuit serves as an excellent example of the fact

based nature of laches. In Boone v. Mechanical Specialties Co.,

609 F.2d 956 (Mh Cir. 1979), the court held that a plaintiff does

not have an absolute right to await completion of EEOC pro-

cesses before seeking a right-to-sue letter, and applied laches to

a private plaintiff's Title VII suit. In Gifford v. Alichison,

Topeka and Santa Fe Railroad Co., 685 F.2d 1149 (Mh Cir.

1982), the court was faced with the denial of a summary judg-

ment motion. In sharp contrast to the facts of the instant case,

the court noted that in opposing the motion for summary judg-

ment “‘plaintiff’s attorney submitted an extensive affidavit . . .

detailing repeated and continuous efforts of plaintiff and her at-

torneys to monitor the progress of her charge through the

EEOC.”’ (/d. at 1152). The court concluded that ‘‘there are

material factual issues to be resolved.’’ (/d.). It can hardly be

said that the Ninth Circuit recognizes, as Petitioners suggest, an

absolute right to await completion of administrative processes.

The Eleventh Circuit, in Howard v. Roadway Express, Inc.,

726 F.2d 1529 (Lith Cir. 1984), similarly refused to establish any

such absolute right. The court noted that there were ‘‘excep-

tions’’ to the rule that plaintiffs should normally be allowed to

wait for termination of the EEOC's process before filing suit,

—

but declined ‘‘to make an exception in this case.’’ /d. In-

terestingly, just as in Bernard, the court proceeded to review the

element of prejudice to the defendant, and concluded that any

prejudice was attributable solely to defendant.

The last case Petitioner relies on is Rozen v. District of Co-

lumbia, 701 F.2d 1202 (D.C. Cir. 1983). In Rozen, the D.C.

Circuit considered in detail the record of the plaintiff's dealing

with the EEOC, and held only that under the circumstances, the

plaintiff was not unreasonable in waiting. The court concluded

that the steps taken by the plaintiff to pursue his claim ‘‘suffi-

ciently rebuts any inference that Rozen was content to ‘sleep on

his rights’.”’ /d at 1204. In addition, the court noted defen-

dant’s failure to prove any prejudice. Such a detailed factual

analysis does not indicate a view of the law different from that

of the Eighth Circuit in the instant case.

Rather ihan an actual difference of opinion of the law of

laches amongst the circuits, the different results appear to arisc

solely because of the facts of each case and the manner in which

the case is presented. No true conflict exists.

Ill. Review by this Court is Neither Appropriate nor

Necessary.

Petitioners seek to establish an absolute rule that a plaintiff

may wait forever for the EEOC to complete its investigative

processes prior to bringing suit. This position has not been

adopted by any circuits. Respondent merely suggests that a

plaintiff may not wait an unreasonable period of time and

thereby fail to fulfill the duty to exercise due diligence. As the

cases indicate, there are (imes when reliance on the EEOC is

reasonable, and there are other times, admittedly more rare,

when the wait is not reasonable. As the Third Circuit noted in

reviewing all of the cases:

“In sum, although plaintiffs have some obligation to

monitor the progress of their charge and do not have the

absolute right to await terminaion of EEOC proceedings

where it would appear to a reasonable person that no ad-

ministrative resolution will be forthcoming, whether the

circumstances warranted the delay in a particular case re-

quires an ad hoc determination.’’ Waddell at p. 77

The attempt by Petitioners to remove the trier of fact’s discre-

tionary power to ‘‘locate a just result’? should be avoided. At

the very least, the infrequency with which this question arises

should indicate that review by this court is unnecessary.

Additionaily, resolution of this matter should more ap-

propriately be made by Congress. Petitioner notes recent

passage of an analogous law, the Age Discrimination Claims

Assistance Act of 1988, P.L. 100-283, specifically aimed at

relieving individuals of the burdens caused by delays in EEOC

processing. Any similar burden imposed on Title VII plaintiffs

because of EEOC delays could be similarly, and more ap-

propriately, addressed by Congress.

CONCLUSION

The Petition for A Writ of Certiorari should be denied.

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