No. 00-15983-EE _________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT __________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. TM POLY-FILM, INC. Defendant-Appellee. _______________________________________________________ On Appeal from the United States District Court for the Middle District of Georgia _______________________________________________________ BRIEF OF THE UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS PLAINTIFF-APPELLANT _______________________________________________________ C. GREGORY STEWART EQUAL EMPLOYMENT OPPORTUNITY General Counsel COMMISSION Office of General Counsel PHILIP SKLOVER 1801 L Street, N.W., Room 7030 Associate General Counsel Washington, D.C. 20507 (202) 663-4724 CAROLYN L. WHEELER Assistant General Counsel ANNE NOEL OCCHIALINO Attorney EEOC V. TM-Poly Film, Inc., No. 00-15983-EE CERTIFICATE OF INTERESTED PERSONS Counsel hereby certifies that the following persons or entities have an interest in the outcome of this case: 1. Melissa L. Bodnar, Attorney for Defendant-Appellee. 2. Frank L. Butler, III, Attorney for Defendant-Appellee. 3. Myra Davis, Charging Party. 4. Edgar Ennis, Jr., Attorney for Defendant-Appellee. 5. Equal Employment Opportunity Commission, Plaintiff-Appellant. 6. Yvonne Garland, Charging Party. 7. Lucy Miller, Charging Party. 8. Anne Noel Occhialino, Attorney for the EEOC. 9. The Honorable Wilbur D. Owens, Jr., District Court Judge. 10. Gwendolyn Young Reams, Associate General Counsel, EEOC. 11. Philip B. Sklover, Associate General Counsel, EEOC. 12. C. Gregory Stewart, General Counsel, EEOC. C-1 of 2 13. TM Poly-Film, Inc., Defendant-Appellee. 14. Carolyn L. Wheeler, Assistant General Counsel, EEOC. _____________________________ Anne Noel Occhialino STATEMENT REGARDING ORAL ARGUMENT The Commission requests oral argument. This appeal involves an important issue concerning the application of the doctrine of laches to cases brought by the Commission. Specifically, this case raises the issue of when an employer has shown undue prejudice. Resolution of this case requires a careful review and explication of the factual record. The Commission submits that oral argument will assist this Court in resolving this issue. TABLE OF CONTENTS PAGE CERTIFICATE OF INTERESTED PERSONS . . . . . . . . . . C1 of 1 STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . i TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . ii TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . v STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 2 1. Nature of the Case . . . . . . . . . . . . . . 2 2. Course of Proceedings . . . . . . . . . . . . . 2 3. Statement of Facts . . . . . . . . . . . . . . . 3 4. District Court Decision . . . . . . . . . . 12 5. Standard of Review . . . . . . . . . . . . . 15 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . 16 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . 18 TABLE OF CONTENTS (cont'd) PAGE I. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR TM POLY-FILM BECAUSE IT IS UNDISPUTED THAT TM POLY-FILM RECEIVED PROMPT NOTICE OF THE CHARGES OF DISCRIMINATION ALONG WITH COPIES OF THE CHARGES, WHICH FORECLOSES A FINDING OF UNDUE PREJUDICE . . . . . . . . . . . . . . . . . . 20 II THE DISTRICT COURT ERRED IN FINDING UNDUE PREJUDICE BECAUSE ALL OF THE WITNESSES ARE AVAILABLE TO TESTIFY; ONLY ONE SUPERVISORY EMPLOYEE HAS LEFT TM POLY-FILM; NO DOCUMENTS HAVE BEEN LOST; AND NONE OF THE OTHER FACTS IDENTIFIED BY THE DISTRICT COURT JUSTIFY DISMISSAL ON LACHES GROUNDS . . . . . . . . . . . . . 26 A. Witnesses, personnel, and records are available . 26 B. Witnesses remember the relevant facts surrounding the discharges. . . . . . . . . . . . . . . . . . 28 C. None of the other facts identified by the district court justify dismissal on laches grounds . . . . . . . 32 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . 36 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES PAGE(S) EEOC v. Alioto Fish Co., 623 F.2d 86 (9th Cir. 1980) . . . 27 EEOC v. Atlanta Big Boy Mgmt., Inc., 17 Fair Empl. Prac. Cas. (BNA) 344 (N.D. Ga. 1978) . . . . . . . . . . . . . . . . . 19 *EEOC v. Dresser Indus., Inc., 668 F.2d 1199 (11th Cir. 1982) . . . . . . . . . . . . . . . passim EEOC v. Firestone Tire & Rubber Co., 626 F. Supp. 90 (M.D. Ga. 1985) . . . . . . . . . . . . . . 19, 24, 27, 34 *EEOC v. Jacksonville Shipyards, Inc., 690 F. Supp. 995 (M.D. Fla. 1988) . . . . . . . . . . . . . . . . . passim *EEOC v. Phillips Colleges, Inc., 984 F. Supp. 1464 (M.D. Fla. 1997) . . . . . . . . . . . . . . . . passim EEOC v. Times Mirror Magazine, Inc., 42 FEP Cases 449 (S.D.N.Y. 1986) . . . . . . . . . . . . . . . . . . . 33 Evans v. McClain of Georgia, Inc., 131 F.3d 957 (11th Cir. 1997). . . . . . . . . . . . . . . . . . . . 15 TABLE OF AUTHORITIES (cont'd) PAGE Howard v. Roadway Express, Inc., 726 F.2d 1529 (11th Cir. 1984) . . . . . . . . . . . . . . . . 22, 23 Occidental Life Ins. Co. v. EEOC, 432 U.S. 355 (1977) . . . 33 STATUTES AND RULES 28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1345 . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 2000e, et seq . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 2000e-5(b) . . . . . . . . . . . . . . . 20, 24 Fed. R. App. P. 4(a)(1) . . . . . . . . . . . . . . . . . . 1 STATEMENT OF JURISDICTION The Equal Employment Opportunity Commission is appealing from a final judgment of the district court granting summary judgment in favor of TM-Poly Film, Inc., on claims advanced under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1345. The district court entered final judgment on September 11, 2000, disposing of all claims with respect to all parties. The Commission filed a timely notice of appeal on November 9, 2000. See Fed. R. App. P. 4(a)(1). This Court has jurisdiction of the district court's final order pursuant to 28 U.S.C. § 1291. STATEMENT OF THE ISSUES 1. Whether the district court erred in finding undue prejudice and in granting summary judgment in favor of TM Poly-Film on the ground of laches when it is undisputed that TM Poly-Film received notice and copies of the charges of discrimination filed by the claimants within the statutorily required ten-day period, thereby providing TM Poly-Film with the opportunity to interview witnesses and maintain relevant documents. 2. Whether the district court erred in concluding that undue prejudice existed when the undisputed facts establish that all relevant documents have been maintained; all of the witnesses are available to testify at trial; the supervisory employees recall the key events surrounding TM Poly-Film's termination of the employment of all eight of the women working in its Glove Manufacturing Department; and only one supervisory employee has left TM Poly-Film since the charges were filed. STATEMENT OF THE CASE 1. Nature of the Case In this sex discrimination case, the Commission alleges that TM Poly-Film violated Title VII by discharging eight women, including the four charging parties, from the Glove Bag Department of TM Poly-Film's manufacturing facility. Doc. 1-Pg. 1. The Commission also alleges that TM Poly-Film violated Title VII by denying employment opportunities to female employees and by refusing to hire women because of their sex. The Commission appeals from an order of the district court entering summary judgment in favor of TM Poly-Film on the ground of laches. Doc. 72. 2. Course of Proceedings The Commission commenced this action on November 6, 1998. Doc. 1. On November 24, 1999, TM Poly-Film moved for summary judgment. Doc. 58. By order dated September 11, 2000, the district court granted TM Poly-Film's motion, Doc. 72, and on September 12, 2000, the district court entered final judgment in favor of TM Poly-Film. Doc. 73. 3. Statement of Facts TM Poly-Film extrudes plastics and manufactures plastic bags and other plastic products for commercial use. Doc. 72-Pg. 2. The Glove Bag Department produces bags used in the removal and disposal of asbestos. Doc. 72-Pg. 2. On February 17, 1994, TM Poly-Film fired all eight women working in its Glove Bag Department, including charging parties Sonia Williams, Myra Davis, Yvonne Garland, and Lucy Miller. Doc. 72-Pg. 1. The other four women who were fired were Jocelyn Best, Wanda Gray, Patricia Hamby, and Tricia Love. Doc. 72-Pg. 1. At the time of the firings, three other employees were assigned to the Glove Bag Department: Sherrie Moore, who was absent on worker's compensation, Doc. 67- Pg. 78; supervisor Sandra Simmons, who had been temporarily reassigned to the sewing department, Doc. 66-Pg. 9; and supervisor James DeVane, the only male working in the Glove Bag Department, and the only employee actually working in the Glove Bag Department on February 17, 1994, who was not fired, Doc. 65-Pgs. 9-10. <1> Danny Moss, TM Poly-Film's Plant Manager, made the decision to fire the eight women after consulting with several people, including Ms. Simmons, Doc. 67-Pg. 68; Charles Birdsong, TM Poly-Film's Personnel Manager, Doc. 64-Pgs. 33-34; and Nelda Brantley, an employee of the Georgia Department of Labor, Doc. 67-Pg. 68. Mr. Birdsong and Mr. Moss had several five-to-ten minute conversations before the February 17, 1994 firings occurred. Doc. 64-Pg. 33. During their first conversation, Mr. Moss talked about problems he was having with employees in the Glove Bag Department, which he said were "really frustrating him," and discussed some worker's compensation cases he had in the Glove Bag Department. Doc. 64-Pgs. 33-34. During the second conversation, Mr. Moss said he was probably going to fire the women, and Mr. Birdsong said, "I don't know if you ought to do that" and advised Mr. Moss to call the unemployment office and ask for some guidance. Doc. 64-Pg. 34 (internal quotations omitted). Mr. Moss followed this advice and spoke with Ms. Brantley at the Georgia Department of Labor. Doc. 67-Pg. 63. He told her about the problems he was having, and Ms. Brantley said that "Georgia was a right-to-hire state and that you didn't have to have a specific reason" to fire employees. Doc. 67-Pg. 64. After this discussion, Mr. Moss decided to fire the women from Glove Bag Department. Doc. 67-Pg. 64. Although Mr. Moss does not recall consulting with Mr. DeVane about the firings, Doc. 67-Pg. 67, Mr. DeVane testified that he had one conversation with Mr. Moss and Mr. Birdsong in which Mr. Moss asked Mr. DeVane who he thought should be kept in the Glove Bag Department. Doc. 65-Pg. 11. Mr. DeVane recommended that Mr. Moss keep Ms. Gray, Ms. Miller, and Ms. Best, Doc. 65-Pg. 11, because they were good workers. Doc. 65-Pg. 21. Mr. Moss nevertheless decided to fire all of the women working in the Glove Bag Department. Doc. 65-Pg. 11. TM Poly-Film claims that it decided to fire the women because they frequently missed work, left early, had bad attitudes, were reluctant to implement changes, disagreed with each other, were inefficient, and because TM Poly-Film wanted to cut costs by replacing them with part-time employees. Doc. 67-Pgs. 71-73. On February 17, 1994, Mr. Moss called the eight women into a meeting in the Glove Bag Department. Doc. 67-Pg. 62. Ms. Moore and Mr. DeVane also attended the meeting. Doc. 67-Pg. 67. Mr. Moss told the eight women that "we were going to be shutting the glove bag department down today and they were going to be terminated and that they were ready for them at the unemployment office, that they were going to be able to get their unemployment, and we had their vacation checks and anything else ready for them over in the office." Doc. 67-Pg. 62. After deciding to fire the women, Mr. Moss told Mr. Birdsong that he would be allowed to handle the Glove Bag Department. Doc. 64-Pg. 35. While Mr. Moss does not recall giving Mr. Birdsong any direction on how to rehire staff for the Glove Bag Department, Doc. 67-Pg. 45, Mr. Birdsong testified that Mr. Moss instructed him to hire only men for the Glove Bag Department. Doc. 64-Pg. 37; Doc. 65-Pg. 28. Because Mr. Moss wanted the Glove Bag Department to be restaffed by the Monday after the firings, Mr. Birdsong immediately began looking for replacements. Doc. 64-Pg. 36. Following Mr. Moss' directive, Mr. Birdsong restaffed the Glove Bag Department with men. Doc. 64-Pg. 37; Doc. 65- Pg. 29. Production in the Glove Bag Department, with an all-male staff, resumed on the Tuesday following the firings. Doc. 65-Pg. 28. On April 30, 1994, Ms. Williams and Ms. Miller filed charges of sex discrimination with the Savannah Local Office of the EEOC. Doc. 59-Pg. 2. On May 5, 1994, the Savannah Local Office sent to TM Poly-Film a copy of Ms. Miller's charge of discrimination, notice of the charge of discrimination, and a request for information. Doc. 69 (Pl.'s Statement of Material Facts)-Pg. 3. On May 6, 1994, the Savannah Local Office sent to TM Poly-Film a copy of Ms. Williams' charge of discrimination, notice of the charge of discrimination, and a request for information. Doc. 69 (Pl.'s Statement of Material Facts)-Pg. 2. On May 18, 1994, Ms. Davis filed her charge of sex discrimination with the Savannah Local Office, Doc. 59-Pg. 2, which sent to TM Poly-Film on May 27, 1994, a copy of Ms. Davis' charge of discrimination, notice of the charge of discrimination, and a request for information. Doc. 69 (Pl.'s Statement of Material Facts)-Pg. 3. Finally, on July 2, 1994, Ms. Garland filed her charge of discrimination with the Savannah Local Office, Doc. 59-Pg. 2, and on July 8, 1994, the Savannah Local Office sent to TM Poly-Film a copy of her charge of discrimination and the notice of the charge of discrimination. Doc. 69 (Pl.'s Statement of Material Facts)-Pg. 2. On May 27, 1994, Ms. Williams' charge was transferred from the Savannah Local Office to the Atlanta District Office. Doc. 59-Pg. 3. Joycia Ricks, the supervisory investigator, was originally assigned the charge, but on October 31, 1994, the charge was reassigned to investigator Nancy Gilbert, Doc. 59-Pg. 4. On July 20, 1994, the Atlanta District Office requested additional information from TM Poly-Film regarding Ms. Williams' charge of sex discrimination. Doc. 69 (Pl.'s Statement of Material Facts)-Pg. 3. The request asked for copies of TM Poly-Film's employment applications for the Glove Bag Department from January 1, 1993, to the present; documents reflecting the reasons for separation of each employee fired on February 17, 1994, from the Glove Bag Department; production records, injury records, and profitability records for each department, including the Glove Bag Department, from January 1, 1992, to the present; and payroll records in the Glove Bag Department from January 1, 1993, to the present. Doc. 69 (Pl.'s Statement of Material Facts)-Pgs. 4-5. After receiving two extensions of time to respond to the request, on September 6, 1994, TM Poly-Film sent to the EEOC its response, which included a box of documents consisting of personnel files, time and attendance records, disciplinary actions, and production records. Doc. 69 (Pl.'s Statement of Material Facts)-Pgs. 4-5. TM Poly-Film has copies of these documents. Doc. 69 (Pl.'s Statement of Material Facts)-Pg. 5. Gloria Barnett, the local director of the Savannah Local Office, assigned Ms. Davis' and Ms. Miller's charges to investigator Glenda Sue Scott. Doc. 59- Pg. 4. Ms. Barnett assigned Ms. Garland's charge to investigator Glen Collins. Doc. 59-Pg. 4. Ms. Scott and Mr. Collins left the EEOC in early 1995. Doc. 59- Pg. 5. In the fall of 1994 Ms. Barnett left the Savannah Local Office for the EEOC's Charlotte office. Doc. 72-Pg. 5. Marvin Frazier, who became the director of the Savannah Local Office in November 1994, Doc. 72-Pg. 5, assigned the charges to himself, Doc. 59-Pg. 7. On April 15, 1996, Mr. Frazier made an on- site visit to TM Poly-Film at TM Poly-Film's request. Doc. 59-Pg. 7; Doc. 70-Pg. 4. On April 23, 1996, Mr. Frazier requested that Ms. Williams' charge be transferred from the Atlanta District Office back to the Savannah Local Office. Doc. 59-Pg 7. This transfer was effected on May 3, 1996. Doc. 59-Pg. 7. At the time of the transfer, the Atlanta District Office had not finished analyzing the information it had received from TM Poly-Film with respect to Ms. Williams' charge, and it had not conducted an on-site interview or interviewed witnesses. Doc. 59-Pg. 8. Soon after Mr. Frazier's visit, Robert M. Clyatt, who was then representing TM Poly-Film, called Mr. Frazier to reiterate TM Poly-Film's desire to resolve the charges by either rehiring the discharged women or by settling the case. Doc. 70- Pg. 5. When Mr. Clyatt asked whether he could call the discharged women and tell them of TM Poly-Film's desire to bring them back to work or resolve the matter, Mr. Frazier instructed Mr. Clyatt not to contact the women until the EEOC had reviewed all of the facts and documents and had issued a letter concerning the EEOC's findings. Doc. 70-Pg. 6. Mr. Clyatt called Mr. Frazier again on May 8 and May 13 and said that TM Poly-Film wanted to resolve the matter or have the women return to work. Doc. 70-Pgs. 7-8. In early 1997 Mr. Frazier analyzed the information he had received, and in April 1997 he interviewed the charging parties. Doc. 59-Pg. 8. In April 1997 Mr. Frazier submitted cause recommendation determinations to Bernice Williams- Kimbrough, the District Director. Doc. 59-Pg. 8. On May 15, 1997, Ms. Williams-Kimbrough signed the cause determination letters with respect to all four charges. Doc. 59-Pg. 8. On July 18, 1997, Mr. Frazier sent conciliation proposals to TM Poly-Film. Doc. 59-Pg. 8. TM Poly-Film responded with a counter-proposal on August 28, 1997, Doc. 59-Pg. 8, but the EEOC did not respond to it because TM Poly-Film's proposal offered considerably less than the remuneration sought by the EEOC, Doc. 72-Pg. 7, and was, in Mr. Frazier's view, "woefully negligent in trying to resolve the matter." Doc. 34-Pg. 111. On February 25, 1998, the EEOC sent to TM Poly-Film a notice of failure of conciliation, and in March 1998 the EEOC sent the charges to the legal unit. Doc. 59-Pgs. 8-9. On November 6, 1998, the EEOC filed this lawsuit alleging that TM Poly- Film's employment practices violated Title VII of the Civil Rights Act of 1964 by discriminating on the basis of sex. Doc. 1. The EEOC brought suit on behalf of the four charging parties, other similarly situated females who were fired because of their sex, and females who were denied employment opportunities or not hired because of their sex. Doc. 1-Pg. 1. The EEOC sought a permanent injunction enjoining TM Poly-Film from engaging in the discriminatory discharge and refusal to hire females because of their sex, and from discriminating in any other employment practice on the basis of sex. Doc. 1-Pg. 4. The EEOC also sought an injunction ordering TM Poly-Film to institute and carry out policies providing equal employment opportunities for women; backpay and frontpay for the four charging parties and other similarly situated females who had been discharged or not hired; compensation for past and future non-pecuniary losses; punitive damages; and costs. Doc. 1-Pgs. 4-5. From April 26, 1999, through April 28, 1999, attorneys representing TM Poly-Film and the EEOC interviewed the eight women who had been terminated. Doc. 69 (Pl.'s Statement of Material Facts)-Pg. 5. In accordance with the district court's instructions, the interviews were tape-recorded and transcribed, Doc. 69 (Pl.'s Statement of Material Facts)-Pg. 5, although only the first four pages of each transcribed interview is in the record. Doc. 69 (Pl.'s Memo. in Opposition to Def.'s Mo. for Sum. J.)-Ex. A (Sept. 19, 1999 letter and first four pages of transcript of each interview). The EEOC has deposed the supervisory employees involved in the firing of the eight women, and TM Poly-Film has deposed the EEOC investigators who handled the case. Doc. 69 (Pl.'s Statement of Material Facts)-Pg. 6. Although TM Poly-Film may have lost some of its original documents concerning the charges of discrimination, Mr. Moss testified that he believes that there are copies of everything. Doc. 67-Pg. 168. Mr. Birdsong, Ms. Simmons, and Mr. Moss remain employed at TM Poly-Film. Doc. 64-Pg. 5; Doc. 66-Pg. 6; Doc. 67-Pg. 5. 4. District Court Decision On September 11, 2000, the district court issued an order granting TM Poly- Film's summary judgment motion on the ground of laches. Doc. 72. The district court noted that "‘[t]o apply laches in the context of an EEOC action, the court must find "both that the plaintiff delayed inexcusably in bringing the suit and that this delay unduly prejudiced defendants."'" Doc. 72-Pg. 11 (quoting EEOC v. Phillips Colleges, Inc., 984 F. Supp. 1464, 1468 (M.D. Fla. 1997)). The court also stated that "[l]aches has been defined as involving ‘more than the mere passage of time: it is time plus prejudicial harm. A cognizable defense of laches entails a harm which has subjected a party to a disadvantage in asserting and establishing a defense.'" Doc. 72-Pg. 10-11 (quoting EEOC v. Atlanta Big Boy Mgmt., Inc., 17 Fair Empl. Prac. Cas. (BNA) 344, 346 (N.D. Ga. 1978)). The district court rejected the EEOC's argument that its delay in handling the charges was reasonable because of the EEOC's heavy caseload. Doc. 72-Pgs. 11-14. The district court went on to consider whether the EEOC's delay had prejudiced TM Poly-Film. Doc. 72-Pgs. 14-20. The court stated that the "‘classic elements of undue prejudice include unavailability of witnesses, changed personnel, and the loss of pertinent records.'" Doc. 72-Pg. 14 (quoting EEOC v. Dresser Indus., Inc., 668 F.2d 1199, 1203 (11th Cir. 1982)). The district court stated that as in EEOC v. Bray Lumber Co., 478 F. Supp. 993 (M.D. Ga. 1979), in this case TM Poly-Film "had never encountered a charge with the EEOC much less a potential law suit" and therefore did not know how to proceed with the case. Doc. 72-Pg. 15. The court noted that at the time of the discharge, TM Poly-Film did not have any formal procedures for disciplining, hiring, or firing employees and therefore did not have "any of the documents relating to any sort of potentially discriminatory practices as used in similar cases." Doc. 72-Pg. 15. The court reasoned that because documents relating to the termination were never created, the "only evidence available is in the form of deposition testimony by witnesses employed by TM at the time the eight women were discharged. The deposition testimony of these women and the supervisory employees of TM show a complete lack of memory of the events surrounding the terminations." Doc. 72-Pg. 15. The court stated that an employer can be prejudiced even in the absence of the classic elements of undue prejudice. Doc. 72-Pgs. 15-16. Citing Dresser, 668 F.2d at 1203 n.13 and EEOC v. Firestone Tire & Rubber Co., 626 F. Supp. 90, 93 (M.D. Ga. 1985), the district court concluded that the "class action nature of the complaint" prejudiced TM Poly-Film because the EEOC had requested back pay for all potential class members, which substantially increased the amount of TM Poly-Film's potential liability. Doc. 72-Pg. 16. The district court went on to distinguish two district court cases cited by the EEOC holding that laches did not bar suits brought by the EEOC because there was no undue prejudice. Doc. 72-Pgs. 14-19 (distinguishing EEOC v. Jacksonville Shipyards, Inc., 690 F. Supp. 995 (M.D. Fla. 1988) and Phillips Colleges, 984 F. Supp. 1464). The court concluded that Jacksonville Shipyards was inapposite because in that case the parties were vehemently disputing whether the defendant had destroyed pertinent records, and thereby hampered its own defense, whereas in this case "the prejudice asserted by TM may be attributed to the EEOC's delay." Doc. 72-Pg. 17. The court distinguished Phillips Colleges on the ground that "[u]nlike in Phillips Colleges, witnesses for both sides have been deposed in this case. The testimony from both sides shows an indisputable unwillingness on the EEOC's part to handle the charges effectively or efficiently." Doc. 72-Pg. 19. Although the district court acknowledged that TM received notice of the charges soon after they were filed, the court was unpersuaded by the EEOC's argument that this foreclosed a finding of prejudice. Doc. 72-Pg. 18. The court also stated that the depositions and affidavits reveal "numerous instances" where TM or its attorney "pleaded with the EEOC to bring these charges to some type of conclusion, whether by TM rehiring the women, engaging in conciliation efforts or anything other than sitting around and waiting for years at a time with no activity." Doc. 72-Pg. 17. In concluding that "TM has been greatly prejudiced in the processing of this case," the district court noted that there had been long periods of EEOC inactivity; that Mr. Frazier had "refused to allow TM Poly-Film to investigate or interview the charging parties;" and that the on- site investigation occurred years after the charges were filed and only at TM Poly- Film's insistence. Doc. 72-Pg. 19. Having found that the EEOC "delayed inexcusably and to Defendant's prejudice in filing its complaint," the district court granted TM Poly-Film's motion for summary judgment. Doc. 72-Pg. 20. 5. Standard of Review This Court reviews a district court's grant of summary judgment de novo. See Evans v. McClain of Georgia, Inc., 131 F.3d 957, 961 (11th Cir. 1997) (per curiam). In reviewing the district court's action, this Court must "examine the record in the light most favorable to the [Commission] to determine if [TM Poly- Film] demonstrated the absence of a genuine issue of material fact." Dresser, 668 F. 2d at 1201 (citing Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970)). If TM Poly-Film has established the absence of a genuine issue of material fact, this Court must determine whether TM Poly-Film "is entitled to the dismissal as a matter of law." Id. (citing Fed. R. Civ. P. 56(c)). SUMMARY OF ARGUMENT The district court erred in granting summary judgment in favor of TM Poly- Film on the ground of laches. Although the Commission does not appeal the district court's determination that the Commission's delay in investigating this case and in filing suit was unreasonable, this Court should reverse the district court because the undisputed facts establish that TM Poly-Film was not unduly prejudiced by the Commission's delay in bringing suit. Instead of carefully considering whether TM Poly-Film would be unduly prejudiced by having to defend against this case, the district court improperly dwelled on what it considered to be the Commission's inexcusable delay in bringing suit. This approach effectively and incorrectly collapsed the two-prong laches analysis into a single inquiry: whether the Commission had unreasonably and inexcusably delayed in investigating the charges of discrimination and in filing suit. In the district court's rush to condemn the Commission for its alleged dilatory handling of this case, the district court failed to properly apply established precedent of the Eleventh Circuit for determining the existence of undue prejudice. This Court should reverse the district court because TM Poly-Film concedes that it received notice of the charges of discrimination, copies of the charges of discrimination, and requests for information within the ten-day statutory requirement. This fact precludes a finding of undue prejudice because the prompt notice enabled TM Poly-Film to interview or depose witnesses and to maintain any relevant documents it had generated. That TM Poly-Film failed to do so is its own fault and precludes TM Poly-Film from blaming the EEOC for any impaired ability to defend itself due to the allegedly faded memories of its own supervisory employees. Even if prompt notice of the charges does not defeat the laches defense as a matter of law, the district court's judgment must be reversed because TM Poly- Film has not demonstrated prejudice as a matter of fact. None of the classic elements of undue prejudice exist in this case. First, all of the witnesses, including TM Poly-Film's supervisory employees and the eight discharged women, are available to testify. Second, with the exception of James DeVane, all of TM Poly- Film's supervisory employees are still employed by TM Poly-Film. Third, to the extent TM Poly-Film ever created any pertinent records, TM Poly-Film has copies of all of those documents. Moreover, contrary to the district court's opinion, the deposition testimony of the supervisory employees establishes that they remember the key events surrounding the February 17, 1994 terminations. Although the district court stated in its opinion that the deposition testimony of the eight discharged women showed "a complete lack of memory of the events surrounding the terminations," this statement contradicts the record because only the first four pages of the transcribed interviews of the discharged women were ever admitted into the record, and these pages of testimony do not establish that the women cannot recall the events surrounding their firings. Regarding the issue of back pay liability, the Commission submits that TM Poly-Film's increased potential liability for back pay does not justify the district court's entry of summary judgment in TM Poly-Film's favor and should be considered, if at all, only on remand to possibly limit any award for back pay that the EEOC actually obtains. ARGUMENT The district court's opinion is fundamentally flawed because it effectively and improperly merged the unreasonable delay analysis, which requires a determination of whether the EEOC delayed inexcusably in bringing suit, into the undue prejudice analysis, which focuses on whether the defendant was disadvantaged "in asserting and establishing a defense." Atlanta Big Boy, 17 Fair Empl. Prac. Cas. (BNA) 344, 346 (N.D. Ga. 1978) (citations omitted). Although the Commission concedes its delay in investigating these charges was unreasonable, the district court erred in concluding that the delay unduly prejudiced TM Poly-Film and that laches therefore should bar this action. The district court's undue prejudice analysis is permeated with inappropriate references to the court's conclusion that the EEOC delayed in bringing suit.<2> "[T]he mere passage of time does not alone establish a laches defense because the Defendant must also show that the unreasonable delay has created substantial prejudice to the defense." Firestone Tire, 626 F. Supp. at 93. While the district court may have been understandably frustrated with the amount of time that elapsed between the filing of charges of discrimination and the Commission's filing of this lawsuit, that frustration cannot substitute for a lack of evidence showing undue prejudice. By collapsing the undue prejudice analysis into the inexcusable delay analysis, and by concluding that because the EEOC delayed unreasonably TM Poly-Film was therefore prejudiced, the district court committed reversible error. I. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR TM POLY-FILM BECAUSE IT IS UNDISPUTED THAT TM POLY-FILM RECEIVED PROMPT NOTICE OF THE CHARGES OF DISCRIMINATION ALONG WITH COPIES OF THE CHARGES, WHICH FORECLOSES A FINDING OF UNDUE PREJUDICE AS A MATTER OF LAW When charges of discrimination are filed, "the Commission shall serve a notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice)" on the employer within ten days. 42 U.S.C. § 2000e-5(b). Although the district court properly acknowledged that TM Poly- Film received prompt notice of the charges of discrimination, Doc. 72-Pg. 17, the court erred when it declined to rule that this finding is dispositive of the issue of prejudice and forecloses the application of the doctrine of laches. See Jacksonville Shipyards, 690 F. Supp. at 1000 (holding that whether an employer receives prompt notice of a charge of discrimination is dispositive of the issue of undue prejudice); Phillips Colleges, 984 F. Supp. at 1469 (stating that "[t]his Court has previously found that prompt notice forecloses the application of laches," and finding that the defendant's prompt notice of charges of discrimination precluded a finding of prejudice). In Jacksonville Shipyards the EEOC filed suit almost six years and ten months after one party filed charges of discrimination and almost five years and ten months after a second party filed charges of discrimination. See Jacksonville Shipyards, 690 F. Supp. at 999. The court concluded that the defendant had not been unduly prejudiced by the EEOC's delay in investigating and filing suit because the EEOC had given the defendant prompt notice of the charges of discrimination. See id. at 1000. Therefore, the court reasoned, the employer "‘could have maintained its records and taken testimony of key employees in anticipation of the ensuing litigation.'" Id. at 1000-01 (citing Howard v. Roadway Express, Inc., 726 F.2d 1529, 1533 (11th Cir. 1984)). The court went on to state that "[a]ny prejudice asserted by defendant which is attributed to destroyed records or lapsed memories [ ] may not be attributed to EEOC's delay." Id. at 1001 (citing Howard, 726 F.2d at 1534) (footnote omitted). In Phillips Colleges, the district court followed Jacksonville Shipyards and held the EEOC's prompt notification of the employer of the filing of a charge of discrimination foreclosed the application of laches. See Phillips Colleges, 984 F. Supp. at 1469. The court stated that after the EEOC notified the employer of the charge of discrimination pending against it, the employer "was put on notice to (i) retain records regarding Mr. Garner, and (ii) begin its own internal investigation." Id. The court held that "the fact that [defendant] was promptly notified of Mr. Garner's charges precludes a finding of prejudice to Defendants." Id. at 1469 (footnote omitted). Although this Court has not yet adopted the preclusion rule advanced by the courts in Jacksonville Shipyards and Phillips Colleges, such a rule is consistent with this Court's opinion in Howard v. Roadway Express, Inc., 726 F.2d 1529 (11th Cir. 1984). In Howard the defendant argued that laches barred the plaintiff's employment discrimination action. See id. Although this Court rejected the defendant's argument, this Court nevertheless went on to consider whether the defendant had been unduly prejudiced by the plaintiff's delay in filing suit. See id. at 1533. After noting that the defendant had been notified of the plaintiff's charge "well within a year of the alleged discriminatory act," this Court stated that "[a]t that time, [defendant] could have maintained its records and taken the testimony of key employees in anticipation of the ensuing litigation." Id. This Court quoted the following passage from Occidental Life Insurance Co. v. EEOC, 432 U.S. 355 (1977): Unlike the litigant in a private action who may first learn of the cause against him upon service of the complaint, the Title VII defendant is alerted to the possibility of an enforcement suit within 10 days after a charge has been filed. This prompt notice serves, as Congress intended, to give him an opportunity to gather and preserve evidence in anticipation of a court action. Id. at 1533-34. This Court concluded that any prejudice asserted by the defendant "resulting from the destruction of records or the death of an employee may not be attributed to [plaintiff's] delay." Id. at 1534. Here, it is undisputed that TM Poly-Film received notice of the charges of discrimination and copies of the charges of discrimination within ten days of the EEOC's receipt of each of the four signed charges of discrimination. Doc. 59-Pg. 3; Doc. 69 (Pl. Statement of Material Facts)–Pgs. 2-3; Doc. 72-Pg. 17. This fact distinguishes this case from others in which this Court and other district courts have found undue prejudice. Cf. Dresser, 668 F. 2d 1199 (finding undue prejudice when the EEOC sent to defendant notice of a charge within ten days of its filing but waited two and a half years to send a copy of the charge itself);<3> Firestone Tire, 626 F. Supp. 93 (finding undue prejudice where the EEOC waited thirty- three months to send the defendant copies of the two charges of discrimination that had been filed against it). The district court's efforts to distinguish Jacksonville Shipyards and Phillips Colleges are unconvincing. For instance, the district court tried to distinguish Jacksonville Shipyards on the ground that in that case the employer failed to preserve evidence, whereas in this case TM Poly-Film cooperated with the EEOC and asked it to move the charges along. Doc. 72-Pg. 17. This reasoning does not address how TM Poly-Film would be disadvantaged in asserting and establishing a defense when it knew of the charges of discrimination within ten days of their filing; instead, this reasoning merely serves to further justify the district court's initial conclusion that the EEOC delayed inexcusably in bringing this lawsuit. The court sought to distinguish Phillips Colleges on a similar ground, reasoning that "[u]nlike in Phillips Colleges, witnesses for both sides have been deposed in this case. The testimony from both sides shows an indisputable unwillingness on the EEOC's part to handle the charges effectively or efficiently." Doc. 72-Pg. 19. Again, whether the EEOC was unable or unwilling to handle the charges efficiently in this case is relevant to the issue of unreasonable delay, not undue prejudice. Based on the undisputed facts, TM Poly-Film received notice and copies of the charges of discrimination within the statutorily mandated ten-day period. This provided TM Poly-Film with the opportunity to interview key witnesses and to maintain whatever documents it had created pertaining to the firing of the eight women from the Glove Bag Department.<4> Therefore, the district court erred by finding undue prejudice. See Jacksonville Shipyards, 690 F. Supp. at 1000; Phillips Colleges, 984 F. Supp. 1468-69. II. THE DISTRICT COURT ERRED IN FINDING UNDUE PREJUDICE BECAUSE ALL OF THE WITNESSES ARE AVAILABLE TO TESTIFY; ONLY ONE SUPERVISORY EMPLOYEE HAS LEFT TM POLY-FILM; NO DOCUMENTS HAVE BEEN LOST; AND NONE OF THE OTHER FACTS IDENTIFIED BY THE DISTRICT COURT JUSTIFY DISMISSAL ON LACHES GROUNDS Even if prompt notice of the charges does not prelcude a laches defense as a matter of law, in this case TM Poly-Film cannot point to any evidence that would support a claim of undue prejudice as a matter of fact. See Phillips Colleges, 984 F. Supp. at 1469-70 (holding that the EEOC's prompt notification of the employer of charges of discrimination foreclosed a finding of undue prejudice, and adding that "[a]t the same time, Defendants have failed to demonstrate prejudice in fact."). The district court's holding that there was undue prejudice must be reversed because it is contrary to the undisputed facts and because it is contrary to established law concerning the existence of undue prejudice. A. Witnesses, personnel, and records are available This Court has held that "‘[c]lassic elements' of undue prejudice include unavailability of witnesses, changed personnel, and the loss of pertinent records." Dresser, 668 F.2d at 1203 (citations omitted). None of these "classic elements" are present here. TM Poly-Film has not claimed that the witnesses are unavailable to testify, and only one of TM Poly-Film's supervisory employees, James DeVane, has left TM Poly-Film since the charges were filed. Doc. 64-Pg. 5; Doc. 65-Pg. 5; Doc. 66-Pg. 6; Doc. 67-Pg. 5. Cf. EEOC v. Alioto Fish Co., 623 F.2d 86, 88 (9th Cir. 1980) (finding substantial prejudice when in the time since charge of discrimination had been filed three people with hiring authority had died; the EEOC conciliator had died; the night manager who was authorized to hire employees had retired and was seventy-four years old; fifteen out of sixteen employee food servers had left defendant's employment; and the EEOC employee who investigated the charge had left the EEOC and was unavailable at the time of judgment); Firestone Tire, 626 F. Supp. at 92-93 (finding undue prejudice where the defendant's labor relations manager and plant manager had been fired since the filing of charges of discrimination, and where two former employees were in poor health or advanced age and a third could not be located). As the district court noted, TM Poly-Film does not claim that the loss of pertinent records constitutes a major foundation for a finding of undue prejudice. Doc. 72-Pg. 14. Even if it had, the evidence would not support this claim since TM Poly-Film has copies of all the relevant documents. Doc. 67-Pg. 168. The district court made the counter-factual observation that there have never "been any of the documents relating to any sort of potentially discriminatory practices as used in similar cases" because at the time of the terminations TM did not have any "set, formal procedures for disciplining, hiring or firing employees." Doc. 72-Pg. 15. Undisputed evidence in the record, however, contradicts this conclusion. Ms. Gilbert, an EEOC investigator, testified that she received from TM Poly-Film a box of documents containing personnel files, time and attendance records, disciplinary actions, and production records. Doc. 50-Pg. 34. Although the originals may have been misplaced, Mr. Moss testified that he thinks TM Poly- Film has copies of all the documents, Doc. 67-Pg. 168, which implies that some employment records do exist. B. Witnesses remember the relevant facts surrounding the discharges Failing to find the existence of classic elements of undue prejudice, the district court evaluated what it determined to be other evidence of undue prejudice. The court reasoned, despite the existence of documentary evidence discussed, supra, that the only evidence available in this case consists of the witnesses' deposition testimony. Doc. 72-Pg. 15. Finding that "[t]he deposition testimony of these [eight discharged] women and the supervisory employees of TM Poly-Film show[s] a complete lack of memory of the events surrounding the terminations," the district court implied that the witnesses' lack of memory combined with the absence of documentary evidence prejudiced TM Poly-Film. Doc. 72-Pg. 15. The record contradicts the district court's patently false conclusions about the factual witnesses' lack of memory. The depositions of the discharged women were never taken. Instead, the parties tape-recorded interviews with the eight women and then had the interviews transcribed. Doc. 69 (Resp. in Opposition to Mo. for Sum. J.)-Ex. A. Only the first four pages of each transcribed interview are in the record, and these pages do not address whether the women remember the events surrounding the terminations. Doc. 69 (Resp. in Opposition to Mo. for Sum. J.)-Ex. A. Because the district court never had the opportunity to review anything but the first four pages of each women's transcribed interview, and therefore had no evidence before it concerning the women's ability to remember the details surround the terminations, the district court erred in relying on the women's "complete lack of memory surrounding the terminations" to support a finding of undue prejudice. The district court's conclusion that the deposition testimony of the supervisory employees reveals a "complete lack of memory of the events surrounding the terminations" is also contradicted by the record. Although the supervisory employees admit in their depositions to having forgotten some of the details surrounding the terminations, they clearly remember most of what occurred.<5> For instance, despite some professed memory loss, Doc. 67-Pgs. 177- 78, Mr. Moss testified for three pages in his deposition concerning his reasons for firing the eight women. Docs. 67-Pgs. 71-73. Mr. Moss also recalled that he made the decision to terminate the eight women after he had spoken with Ms. Simmons, a former supervisor of the Glove Bag Department, and Ms. Brantley of the Georgia Department of Labor. Doc. 67-Pg. 68. Mr. Moss was able to recall quite clearly what Ms. Brantley told him about firing the women. Doc. 67-Pg. 64. Mr. Moss also testified that he believed that Mr. DeVane and Ms. Simmons were present at the meeting he held in the Glove Bag Department when he fired the eight women. Doc. 67-Pg. 67. Mr. Moss further testified that at the meeting he told the women that TM Poly-Film was going to shut down the Glove Bag Department; that they were being fired; that the unemployment office was ready for them; and that they "had their vacation checks and anything else ready for them over in the office." Doc. 67-Pg. 62. Mr. Birdsong also remembers the salient events surrounding the firing of the eight women. He recalls having had several five-to-ten minute conversations with Mr. Moss before the February 17, 1994 firings occurred. Doc. 64-Pg. 33. He remembers that during their first conversation, Mr. Moss talked about problems he was having with employees in the Glove Bag Department, which were "really frustrating him." Doc. 64-Pgs. 33. Mr. Birdsong's deposition testimony reveals that during the second conversation, Mr. Moss complained a lot and discussed some worker's compensation cases he had in the Glove Bag Department. Doc. 64-Pgs. 33-34. Mr. Birdsong recalls that during the second conversation Mr. Moss said he was probably going to fire the women, and Mr. Birdsong said, "I don't know if you ought to do that" and suggested that Mr. Moss call the unemployment office. Doc. 64-Pg. 34 (internal quotations omitted). Ms. Simmons, who was working in the sewing department at the time of the firings, testified that she had nothing to do with the firings. Doc. 66-Pg. 21. She recalled that she was present at the meeting in which Mr. Moss fired the women, and she remembered that Mr. Moss told the women that he was going to make some changes for the "betterment of the company." Doc. 66-Pg. 23. Mr. DeVane was also able to recall the key events surrounding the terminations. He testified about production problems in the Glove Bag Department in the two months before the firings occurred. Doc. 65-Pg. 17. He recalls that he had one conversation with Mr. Moss and Mr. Birdsong in which Mr. Moss asked Mr. DeVane who he thought should be kept in the Glove Bag Department. Doc. 65-Pg. 11. Mr. DeVane remembers recommending that Mr. Moss keep Ms. Gray, Ms. Miller, and Ms. Best, Doc. 65-Pg. 11, because they were good workers. Doc. 65-Pg. 21. Although Mr. DeVane does not remember what Mr. Moss said during the meeting in which he fired the women, Mr. DeVane remembers that he was present at the meeting. Doc. 65-Pgs. 12-13. Thus, while Mr. DeVane admitted in his deposition that his memory of the events surrounding the terminations had faded somewhat, Doc. 65-Pg. 37, he was clearly able to recall the significant details surrounding the event that is at the heart of this lawsuit. C. None of the other facts identified by the district court justifies dismissal on laches grounds In a case in which this Court affirmed a finding of classic elements of prejudice, the Court stated in dicta that the "class action" nature of a complaint can prejudice an employer when the EEOC delays in filing a lawsuit because the delay exposes the employer to an increased potential back pay award. See Dresser, 668 F.2d at 1204 n.13. Here, the district court reasoned that "[a]s in Dresser, in this case the class action nature of the complaint prejudices TM [Poly- Film] because the EEOC requests back pay for all potential class members. Therefore, delay substantially increases the amount of potential recovery." Doc. 72-Pg. 16 (citing Firestone, 626 F. Supp. at 93; Dresser, 668 F.2d at 1204 n.13). However, something more than increased backpay liability must be necessary to demonstrate undue prejudice, or else every case in which there is an unreasonable delay would automatically cause prejudice and there would be no need for a separate inquiry into prejudice. The Commission submits that "[t]he backpay liability question may have merit as a reason to limit any backpay award, but it does not justify summary judgment against EEOC." Jacksonville Shipyards, 690 F. Supp. at 1001 n.2; see also EEOC v. Times Mirror Magazine, Inc., 42 FEP Cases 449, 450 (S.D.N.Y. 1986) (holding that the defendant's potentially increased award for back pay due to the EEOC's delay in bringing suit was insufficient to establish prejudice and stating, "should plaintiff ultimately prevail here, this argument will be fully considered by the court in whatever relief it grants") (citation omitted). Dismissal of a suit on laches grounds is too draconian an outcome where a court can exercise its equitable powers at the relief stage to eliminate any undue prejudice. See Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 373 (1977) (noting that if a defendant is prejudiced by conduct of a case a court may restrict or deny back pay relief, even when the EEOC is the plaintiff). Dismissal is particularly unwarranted in this case because none of the classic elements of undue prejudice are present. Moreover, TM Poly-Film's supervisory employees clearly remember the important events surrounding the termination of the eight women, which militates against a finding of undue prejudice. Cf. Firestone Tire, 626 F. Supp. at 93 (finding that the potential for increased back pay constituted "an additional element of prejudice supporting dismissal of the suit" where two of the defendant's key witnesses had been fired, three witnesses were unavailable, and the defendant was "without many relevant records which it might have substituted for at least portions of the unavailable testimony") (emphasis added). The district court's finding of undue prejudice also improperly rests in part on the fact that "[w]hen TM [Poly-Film] requested permission to move the case along itself, Frazier adamantly refused to allow TM [Poly-Film] to investigate or interview the charging parties." Doc. 72-Pg. 19 (citing Clyatt Aff. at 6). Assuming that in 1996 Mr. Frazier told TM Poly-Film not to interview the discharged women until the EEOC finished its investigation, this fact does not bear on the issue of undue prejudice because it fails to explain why TM Poly-Film did not investigate the charges of discrimination and interview witnesses in 1994 when TM Poly-Film first received notice and copies of the charges. See Jacksonville Shipyards, 690 F. Supp. at 1000-1001 ("Because defendant had prompt notice it ‘could have maintained its records and taken testimony of key employees in anticipation of the ensuing litigation.'") (citation omitted). Nor does it explain why TM Poly-Film did not interview and preserve the memories of its own employees at any time during the pendency of the EEOC investigation. Finally, in concluding that undue prejudice existed, the district court appeared to reason that TM Poly-Film should not have to defend itself against this lawsuit for the following inappropriate reasons: because TM Poly-Film offered to rehire the eight women; because TM Poly-Film had reformed its employment practices; and because TM Poly-Film now has several women working in the Glove Bag Department. Doc. 72-Pg. 18. Assuming that these facts are true, they do not speak to the issue of whether TM Poly-Film would be hampered in asserting and establishing a defense to this lawsuit due to the EEOC's delay in bringing suit. Nor do they absolve TM Poly-Film of its liability for having violated the civil rights of the eight discharged women and other similarly situated women to whom TM Poly-Film denied employment opportunities. The district court's statements suggest that its finding of undue prejudice was fueled in large part out of its frustration with EEOC's delay and out of misplaced sympathy for a company that fired all eight female employees from a single department and then immediately replaced them with men. Neither the district court's frustration nor its sympathy justifies its finding of undue prejudice, which is not supported by record in this case or the law of this Circuit. CONCLUSION For the foregoing reasons, the Commission urges this Court to reverse the district court's judgment and remand the case for further proceedings. Respectfully submitted, C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ________________________ Anne Noel Occhialino Attorney U.S. EQUAL EMPLOYMENT COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7030 Washington, D.C. 20507 (202) 663-4724 December ___, 2000 CERTIFICATE OF COMPLIANCE I, Anne Noel Occhialino, hereby certify that this brief complies with the type-volume limitations imposed under Fed. R. App. P. 32(a)(7)(B)(i). The brief contains 8178 words. _______________________ Anne Noel Occhialino CERTIFICATE OF SERVICE I, Anne Noel Occhialino, hereby certify that I served two copies of the foregoing brief this ____ day of December, 2000 by first-class mail, postage pre-paid, to the following: Edgar W. Ennis, Jr. Melissa L. Bodnar Frank L. Butler, III Constangy, Brooks & Smith, LLC 577 Mulberry St., Suite 710 Macon, GA 31201 _____________________ Anne Noel Occhialino Attorney U.S. EQUAL EMPLOYMENT COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7030 Washington, D.C. 20507 (202) 663-4724 *********************************************************************** <> <1> Mr. DeVane and Ms. Simmons took turns acting as the supervisor of the Glove Bag Department. Doc. 65-Pg. 9. On February 17, 1994 Mr. DeVane was the supervisor. Doc. 65-Pg. 10. <2> The district court’s inappropriate references include the following statements: “[a]lthough TM [Poly-Film] received note of the charges soon after they were filed, the EEOC took an inordinate amount of time to investigate and pursue the charges,” Doc. 72-Pg. 17; “[e]ven though TM [Poly-Film] received notice of the initial charges filed against them [sic], the EEOC inexcusably procrastinated the investigation and resolution of this case,” Doc. 72-Pg. 18; “[t]he various depositions are replete with testimony evidencing the neglectful manner in which charges are handled,” Doc. 72-Pg. 19; “[t]he testimony from both sides shows an indisputable unwillingness on the EEOC’s part to handle the charges effectively or efficiently,” Doc. 72-Pg. 19; and “[a]ll interested parties have had a chance to be heard and the resulting testimony points to the EEOC’s blatant disregard of their [sic] duties,” Doc. 72-Pg. 19. <3> Although this Court did not address whether the notice sent to the employer in Dresser was deficient, it appears that it was because it failed to meet the requirement that the notice include the “date, place and circumstances of the alleged unlawful employment practice.” 42 U.S.C. § 2000e-5(b). In Dresser the court stated that the “notice merely indicated that a charge had been filed alleging sex discrimination in ‘hiring, terms and conditions of employment and in maintaining segregated facilities.’” Dresser, 668 F.2d at 1201 (footnote omitted). Noting that the “notice was not accompanied by a copy of the charge itself,” this Court stated that “[i]t was at this point in the process, the EEOC’s delay began.” Id. <4> TM Poly-Film was on notice that the EEOC was investigating TM Poly-Film’s hiring practices as early as July 20, 1994, when the EEOC sent a request for information asking for copies of TM Poly-Film’s employment application for the Glove Bag Department from January 1, 1993 to the present. Doc. 69 (Pl.’s Statement of Material Facts)-Pg. 4. <5> Of course, the possibility of fading memories is precisely why prompt notice of a charge is statutorily required, which precludes a finding of undue prejudice as a matter of law. See supra at pgs. 20-25. TM Poly-Film was obviously free to interview and record the explanations of its managers at the time it received prompt notice and copies of the charges of discrimination.