EEOC v. Watkins Motor Lines, Inc., 6th Cir. Reply brief June 17, 2005 (proof brief filed) July 13, 2005 (final brief filed) No. 05-3218 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. WATKINS MOTOR LINES, INC., Defendant-Appellee. ______________________________________________________ On Appeal from the United States District Court for the Southern District of Ohio Docket No. 02-00505 Hon. Thomas M. Rose ______________________________________________________ REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ______________________________________________________ ERIC S. DREIBAND U.S. EQUAL EMPLOYMENT General Counsel OPPORTUNITY COMMISSION Office of General Counsel VINCENT J. BLACKWOOD 1801 L Street, N.W., Room 7020 Acting Associate General Counsel Washington, D.C. 20507 (202) 663-4571 LORRAINE C. DAVIS daniel.vail@eeoc.gov Assistant General Counsel DANIEL T. VAIL Attorney TABLE OF CONTENTS Page TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . .iii ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 A. The District Court Erred in Finding That Grindle Had No ADA Impairment . . . . . . . . . . . . . . . . . . . .1 B. Watkins Misapplies Prevailing Principles for Proving an Employer Regards an Employee As Substantially Limited in Working4 C. Watkins's General Claim of Adherence to "Safe Business Practices" Is Not a Defense to This Action. . . . . . . . . . . .7 D. Watkins's Claimed Laches Defense Must Fail . . . . . 11 1. Laches Should Not Apply to EEOC Enforcement Actions11 2. Even If Laches Applies to an EEOC Enforcement Action, Watkins Has Not Established This Defense As a Matter of Law . . . . . . . . . . . . . . . . 19 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 28 CERTIFICATE OF COMPLIANCE WITH RULE 32(a). . . . . . . . . . . 29 ADDENDA. . . . . . . . . . . . . . . . . . . . . . . . . . . .A-1 Unpublished Opinions Cited in Appellant's Reply BriefA-2 Dole v. Hopple Plastics, Inc., 1990 WL 51409 (6th Cir. 1990). . . . . . . . . . . .A-3 EEOC v. Nat'l City Bank, 1988 WL 136541 (6th Cir. 1988) . . . . . . . . . . .A-4 Verzeni v. Potter, 2004 WL 1946513 (3d Cir. 2004) . . . . . . . . . . .A-5 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Page Cases Advanced Cardiovascular Sys., Inc. v. Scimed Life Sys., Inc., 988 F.2d 1157 (Fed. Cir. 1993). . . . . . . . . . . . . . 20 Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) . . . . . . . . . . . . . . . . . . . 18 Am. Marine Corp. v. Citizens Cas. Co. of N.Y., 447 F.2d 1328 (5th Cir. 1971) . . . . . . . . . . . . .20-21 Andrews v. Ohio, 104 F.3d 803 (6th Cir. 1997). . . . . . . . . . . . . . . .3 Broadcast Music, Inc. v. Roger Miller Music, Inc., 396 F.3d 762 (6th Cir. 2005). . . . . . . . . . . . . . . 19 Chevron U.S.A., Inc. v. Echazabal, 536 U.S. 73 (2002). . . . . . . . . . . . . . . . . . . . .9 Cleveland Newspaper Guild, Local 1 v. The Plain Dealer Publ'g Co., 839 F.2d 1147 (6th Cir. 1988) . . . . . . . . . . . . 17, 19 Coalition for Gov't Procurement v. Fed. Prison Indus., Inc., 365 F.3d 435 (6th Cir. 2004). . . . . . . . . . . . . . . 19 Cook v. R.I. Dep't of Mental Health, Retardation, & Hosps., 10 F.3d 17 (1st Cir. 1993). . . . . . . . . . . . . . . . .3 Costello v. United States, 365 U.S. 265 (1961) . . . . . . . . . . . . . . . . . 12, 16 Dole v. Hopple Plastics, Inc., 1990 WL 51409 (6th Cir. 1990) . . . . . . . . . .16, 17, A-3 EEOC v. Airguide Corp., 539 F.2d 1038 (5th Cir. 1976) . . . . . . . . . . . . . . 19 EEOC v. Am. Nat'l Bank, 574 F.2d 1173 (4th Cir. 1978) . . . . . . . . . . . . . . 19 EEOC v. Exxon Corp., 203 F.3d 871 (5th Cir. 2000). . . . . . . . . . . . . .9, 10 EEOC v. Frank's Nursery & Crafts, Inc., 177 F.3d 448 (6th Cir. 1999). . . . . . . . . 15, 16, 17, 18 EEOC v. Great Atl. & Pac. Tea Co., 735 F.2d 69 (3d Cir. 1984). . . . . . . . . . . . .19-20, 26 EEOC v. Kimberly-Clark Corp., 511 F.2d 1352 (6th Cir. 1975) . . . . . . . . . . . . . . 15 EEOC v. Nat'l City Bank, 1988 WL 136541 (6th Cir. 1988). . . . . . . . . . . .18, A-4 EEOC v. Waffle House, Inc., 534 U.S. 279 (2002) . . . . . . . . . . . . . . . 14, 17, 18 Estate of Mauro v. Borgess Med. Ctr., 137 F.3d 398 (6th Cir. 1998). . . . . . . . . . . . . . .8-9 Fowler v. Blue Bell, Inc., 596 F.2d 1276 (5th Cir. 1979) . . . . . . . . . . . . . . 20 Francis v. City of Meriden, 129 F.3d 281 (2d Cir. 1997) . . . . . . . . . . . . . . . .3 Gen. Tel. Co. of the N.W., Inc. v. EEOC, 446 U.S. 318 (1980) . . . . . . . . . . . . . . . . . . . 14 Goodman v. McDonnell Douglas Corp., 606 F.2d 800 (8th Cir. 1979). . . . . . . . . . . . . . . 26 Guar. Trust Co. of N.Y. v. United States, 304 U.S. 126 (1938) . . . . . . . . . . . . . . . . . . . 13 Hamlin v. Charter Township of Flint, 165 F.3d 426 (6th Cir. 1999). . . . . . . . . . . . . . 8, 9 Hatchett v. United States, 330 F.3d 875 (6th Cir. 2003). . . . . . . . . . . . . . . 12 Holiday v. City of Chattanooga, 206 F.3d 637 (6th Cir. 2000). . . . . . . . . . . . . . . .9 Hoste v. Radio Corp. of Am., 654 F.2d 11 (6th Cir. 1981) . . . . . . . . . . . . . . . 27 Howard v. Roadway Express, Inc., 726 F.2d 1529 (11th Cir. 1984). . . . . . . . . . . . .25-26 Levy v. United States, 477 F.2d 916 (6th Cir. 1973). . . . . . . . . . . . . . . 12 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) . . . . . . . . . . . . . . . . . . . .6 Morton v. United Parcel Serv., Inc., 272 F.3d 1249 (9th Cir. 2001) . . . . . . . . . . . . . . 10 Murphy v. United Parcel Serv. Inc., 527 U.S. 516 (1999) . . . . . . . . . . . . . . . . . . . .4 Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) . . . . . . . . . . . . . . . . . 13, 18 Nese v. Julian Nordic Constr. Co., 405 F.3d 638 (7th Cir. 2005). . . . . . . . . . . . . . . .6 Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355 (1977) . . . . . . . . . . . .13-14, 18, 19, 20 Pa. State Police v. Suders, 124 S.Ct. 2342 (2004) . . . . . . . . . . . . . . . . . . 16 Rakity v. Dillon Cos., Inc., 302 F.3d 1152 (10th Cir. 2002). . . . . . . . . . . . . . .6 Rasimas v. Mich. Dep't of Mental Health, 714 F.2d 614 (6th Cir. 1983). . . . . . . . . . . . . . . 25 Ross v. Campbell Soup Co., 237 F.3d 701 (6th Cir. 2001). . . . . . . . . . . . . . 5, 6 SEC v. Gulf & W. Indus., Inc., 502 F. Supp. 343 (D.D.C. 1980). . . . . . . . . . . . . . 13 Smaw v. Va. Dep't of State Police, 862 F. Supp. 1469 (E.D. Va. 1994) . . . . . . . . . . . . .3 Tobacco Workers Int'l Union, Local 317 v. Lorillard Corp., 448 F.2d 949 (4th Cir. 1971). . . . . . . . . . . . . . . 26 United States v. Beebe, 127 U.S. 338 (1888) . . . . . . . . . . . . . . . . . .11-12 United States v. City of Warren, 138 F.3d 1083 (6th Cir. 1998) . . . . . . . . . . . . . . 25 United States v. Peoples Household Furnishings, Inc., 75 F.3d 252 (6th Cir. 1996) . . . . . . . . . . . . . . . 12 United States v. Summerlin, 310 U.S. 414 (1940) . . . . . . . . . . . . . . . 12, 16, 18 United States v. Weintraub, 613 F.2d 612 (6th Cir. 1979). . . . . . . . . . . . . 12, 13 Utah Power & Light v. United States, 243 U.S. 289 (1917) . . . . . . . . . . . . . . . . . 12, 17 Verzeni v. Potter, 2004 WL 1946513 (3d Cir. 2004). . . . . . . . . . . .10, A-5 Watkins v. N.W. Ohio Tractor Pullers Ass'n, Inc., 630 F.2d 1155 (6th Cir. 1980) . . . . . . . . . . . . . . 27 Whitfield v. Anheuser-Busch, Inc., 820 F.2d 243 (8th Cir. 1987). . . . . . . . . . . . . . . 20 3750 Orange Place Ltd. P'ship v. NLRB, 333 F.3d 646 (6th Cir. 2003). . . . . . . . . . . . . . . 19 TABLE OF AUTHORITIES (con't) Page Statutes 42 U.S.C. § 2000e-5(b) . . . . . . . . . . . . . . . . . . . . 20 42 U.S.C. § 12112(b)(6). . . . . . . . . . . . . . . . . . . . 20 42 U.S.C. § 12113(a) . . . . . . . . . . . . . . . . . . . . . 10 42 U.S.C. § 12113(b) . . . . . . . . . . . . . . . . . . . . . .8 42 U.S.C. § 12117(a) . . . . . . . . . . . . . . . . . . . . . 20 Regulations 29 C.F.R. § 1630.2(r). . . . . . . . . . . . . . . . . . . . . .9 Administrative Guidance 29 C.F.R. pt. 1630 app. § 1630.2(l). . . . . . . . . . . . . . .8 29 C.F.R. pt. 1630 app. § 1630.2(r). . . . . . . . . . . . . . .9 Rules Fed. R. App. P. 32(a)(5) . . . . . . . . . . . . . . . . . . . 29 Fed. R. App. P. 32(a)(6) . . . . . . . . . . . . . . . . . . . 29 Fed. R. App. P. 32(a)(7)(B). . . . . . . . . . . . . . . . . . 29 Fed. R. App. P. 32(a)(7)(B)(iii) . . . . . . . . . . . . . . . 29 6 Cir. R. 28(g). . . . . . . . . . . . . . . . . . . . . . . . 10 6 Cir. R. 206(c) . . . . . . . . . . . . . . . . . . . . . . . 16 ARGUMENT A. The District Court Erred in Finding That Grindle Had No ADA Impairment Watkins's position on appeal depends in large part on minimizing the severity of Grindle's weight-related condition. Watkins criticizes the EEOC for "repeatedly label[ing] Grindle as being morbidly obese." Watkins Br. at 16. Watkins claims that "the only diagnosis that existed at the time Grindle was placed on safety hold and later discharged was gross exogenous obesity." Id. Watkins then concludes that "all Watkins knew in June 1996 was that Grindle was obese." Id. Watkins mischaracterizes the undisputed evidence in an effort to create the false impression that Grindle was only "obese" and that his weight was not as abnormally high as it was. That Grindle was morbidly obese has been established beyond dispute. See EEOC Opening Br. at 4-5, 36 n.8. Further, the precise title of Grindle's condition (e.g., "morbid obesity" versus "gross exogenous obesity" versus "clinically severe obesity") is not the point. See id. at 19 n.5, 36 n.8, 38-39 n.10. Watkins officials were well aware of Grindle's condition, whatever its medical description. Dr. Lawrence's letter specifically stated that the "most notable item" about Grindle was that he weighed over 450 pounds. See id. at 10. Koppenhofer, who put Grindle on "safety hold," obviously read this letter (it was the reason for the "safety hold"). Id. at 12-13. Dr. Lawrence's letter also stated that Grindle had to lose over 200 pounds to perform his job safely. Id. at 11. Thatcher, who with Linebarier terminated Grindle, implemented this directive by telling Grindle he had to lose 200 pounds to return to work. See id. at 14-16. Therefore, at all relevant times, Watkins certainly knew that Grindle's weight was well outside the range of "normal." As discussed in the EEOC's opening brief, id. at 22, 30-39 (and in this brief, below), that is all that matters with respect to Grindle's weight. Watkins argues that Grindle's weight was merely a "physical characteristic" not caused by a physiological disorder, and thus of no legal consequence. Watkins clings to the misguided notion that weight alone can never be an impairment because it is always simply a "physical characteristic." Watkins Br. at 18, 19, 20. Watkins insists that obesity without a physiological disorder – matter how severe – cannot qualify. This position simply does not comport with the applicable law. In our opening brief, the EEOC acknowledged that most "physical characteristics" unaccompanied by a physiological disorder are not ADA impairments. See EEOC Opening Br. at 30-31. However, we also explained that in extreme situations like this case, "physical characteristics" can rise to the level of ADA impairment even without a corresponding physiological disorder. Id. at 31. If the physical characteristic is well outside the range of "normal," the characteristic itself can become a condition which on its own meets the definition of ADA impairment. Thus, with respect to weight, specifically, simple obesity (i.e., weight somewhere within the range of normal not caused by a physiological disorder) is not an impairment. However, when weight far exceeds the range of "normal" – as Grindle's clearly did – this weight-related condition itself becomes the ADA impairment. Id. at 31. No additional physiological disorder is necessary. This Court held as much in Andrews v. Ohio, 104 F.3d 803 (6th Cir. 1997). See EEOC Opening Br. at 32-34 (quoting language from Andrews concluding that a plaintiff can show an impairment by showing that his or her "weight . . . [was] beyond a normal range" or that he or she "suffer[s] from a physiological disorder"). Andrews requires that this Court reject Watkins's attempts to conflate all forms of obesity as mere "physical characteristics" lacking legal import. This Court should simply follow Andrews, recognize that Grindle's extreme obesity was an ADA impairment, and reverse the district court's conclusion to the contrary.<1> B. Watkins Misapplies Prevailing Principles for Proving an Employer Regards an Employee As Substantially Limited in Working Watkins's response to the EEOC's arguments that Watkins regarded Grindle as substantially limited in working is unpersuasive. We argued that, under Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999), a plaintiff can show that an employer regards an employee as substantially limited in working if the limitations the employer subjectively perceived the employee as having would, if actually present, significantly restrict the employee from doing a class or broad range of jobs. See EEOC Opening Br. at 49-51. Watkins responds to this argument by noting that "Grindle was generally employable as a driver in 1996, had been DOT certified as a driver for years, and secured employment as a driver two weeks after his termination." Watkins Br. at 30. Watkins asserts "an entire array of jobs were available to Grindle, and, at most, he was regarded as unable to perform only one particular job." Id. This misses the point. The question is not whether Grindle actually could work. The EEOC does not allege that Grindle was actually substantially limited in working. Rather, the issue is whether, assuming Grindle was as limited as Watkins thought he was, he would be significantly restricted in working. Here, the evidence suggests Watkins thought Grindle could not do any driving or dock work. If this were true, Grindle could not perform what legally qualifies as a class or broad range of jobs. Under Murphy, this is enough to establish that Watkins regarded Grindle as substantially limited in working. See EEOC Opening Br. at 50-51. That Grindle actually could work in any number of truck driving or dock working jobs is beside the point. Watkins also criticizes the EEOC's analysis of Ross v. Campbell Soup Co., 237 F.3d 701 (6th Cir. 2001). Watkins claims that "Ross clearly had an impairment, while Grindle does not." Watkins Br. at 33. Yet our Ross discussion presupposes that this Court would find that Grindle's weight-related condition was an impairment. Watkins further claims that the facts of Ross were "particularly egregious" and that this case, by contrast, offers "absolutely no evidence of any ‘smoking gun' memorandum . . . [or] evidence that Grindle was labeled an ‘obesity case.'" Watkins Br. at 34. Watkins ignores the plethora of record evidence clearly linking Watkins's adverse actions with Grindle's extreme obesity. See EEOC Opening Br. at 45-49, 53- 56. Indeed, Dr. Lawrence's letter and the transcript of Grindle's phone call with Thatcher alone are as compelling as any of the evidence this Court relied on in Ross. Finally, Watkins argues that cases from other circuits have rejected Ross's finding that proof of pretext is probative on the question of whether an employer regards an employee as disabled. Watkins Br. at 35-36 (citing Nese v. Julian Nordic Constr. Co., 405 F.3d 638 (7th Cir. 2005), and Rakity v. Dillon Cos., Inc., 302 F.3d 1152 (10th Cir. 2002)). Contrary to Watkins's characterization of Rakity, however, the Tenth Circuit there did not disapprove of Ross at all. Rakity merely criticizes the plaintiff for misconstruing Ross. See Rakity, 302 F.3d at 1165 (emphasis added) ("We do not think the Sixth Circuit intended [plaintiff's] interpretation [of Ross], and if it did we decline to follow it"). In Nese, the Seventh Circuit mistakenly misreads Ross as collapsing the "prima facie case" and "pretext" parts of a McDonnell Douglas analysis. See Nese, 302 F.3d at 642 (referring to McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). However, as we explained in our opening brief, Ross actually holds that evidence of pretext "may tend to prove" an employer regards an employee as disabled. See EEOC Opening Br. at 43-44; Ross, 237 F.3d at 708-09. In any event, while another circuit may disagree with this Court's reasoning, Ross governs how this Court should analyze similar questions arising in this Circuit. C. Watkins's General Claim of Adherence to "Safe Business Practices" Is Not a Defense to This Action In its brief, Watkins tries to justify its actions by asserting a vague "safety defense" never ruled upon by the district court. Watkins argues it was merely acting pursuant to "sound, safe, and consistent business practices necessary by virtue of the safety sensitive nature of the duties of a truck driver." Watkins Br. at 42. Watkins claims that its "return-to-work physical examinations are job related and consistent with business necessity." Id. at 43. Watkins contends that, given Dr. Lawrence's letter finding Grindle unsafe to return to work, Thatcher's and Linebarier's liability fears (e.g., that Grindle might crash into a school bus or run someone on the dock over with a towmotor) were justified and its decision to discharge Grindle was warranted. Id. at 42-43. Watkins thus apparently believes it can lawfully terminate any employee for failing a return-to-work physical even if the employee failed precisely because the employer erroneously regards the employee as disabled. Similarly, Watkins apparently believes it can concoct an arbitrary new safety rule for one particular employee it perceives to be disabled (i.e., require Grindle to lose 200 pounds) out of speculative liability concerns, and then discharge the employee for an inability to meet the new requirement. See Watkins Br. at 41-43. These are among the very employer attitudes and adverse actions the ADA was designed to deter.<2> In fact, the ADA does not permit Watkins to discharge an employee it perceives to be disabled based on vague notions of "safety." This case does not challenge a safety-based qualification standard applied to the general workforce. The EEOC does not challenge as discriminatory Watkins's general practice of requiring employees to pass return-to-work physicals. This case challenges only Watkins's discrete decision to discharge Grindle because he was grossly overweight and could not or did not lose 200 pounds. This is a unique standard that Watkins applied only to Grindle. To impose such an employee-specific disability-based "safety" requirement lawfully, Watkins must show that Grindle was a "direct threat" within the meaning of the ADA. See 42 U.S.C. § 12113(b); Hamlin v. Charter Township of Flint, 165 F.3d 426, 432-33 (6th Cir. 1999) (analyzing whether an employee posed a "direct threat" in determining whether employer legitimately fired employee because employer believed the employee could not safely fight fires); Estate of Mauro v. Borgess Med. Ctr., 137 F.3d 398, 402-04 (6th Cir. 1998) (applying "direct threat" rules to determine if an employer could properly remove an HIV- positive employee from a surgical technician position); see also EEOC v. Exxon Corp., 203 F.3d 871, 873, 875 (5th Cir. 2000) (employer must meet the "direct threat" test when it imposes a safety standard on a particular individual). Watkins cannot clear this high hurdle.<3> Even assuming that Watkins's return-to-work physical requirement is the safety qualification standard at issue, this rule still could not shelter Watkins from liability. Use of an across-the-board safety-based rule can only be a defense to discrimination if it is "job-related and consistent with business necessity." See 42 U.S.C. §§ 12112(b)(6), 12113(a). In EEOC v. Exxon Corp., the Fifth Circuit ruled that an across-the-board safety rule will only meet this standard if the employer can show that the risks the qualification standard purportedly guards against "are real and not the product of stereotypical assumptions." 203 F.3d at 875. In Morton v. United Parcel Service, Inc., 272 F.3d 1249 (9th Cir. 2001), the Ninth Circuit found that, to satisfy the "business necessity" requirement, a general safety qualification must ensure "an accurate measure of an [employee's] actual ability to perform the job." Id. at 1263 (quotations and citations omitted). Similarly, in Verzeni v. Potter, 2004 WL 1946513 (3d Cir. 2004), the Third Circuit cautioned that the "business necessity defense cannot be based on unfounded fears or uninformed attitudes about the disability," but instead must rely on "current medical knowledge about the disability and on the real risks that the disability may present." Id. at **6.<4> Here, Watkins failed to meet this stringent standard. To the contrary, the application of Watkins's return-to-work physical rule in Grindle's case did not guard against realistic risks or provide an accurate measure of Grindle's ability to do his job (indeed, Grindle had been doing the same job safely for years). Dr. Lawrence's letter, reporting the results of Grindle's return-to-work physical, was based on unreasonable medical judgments and stereotypical biases against morbidly obese individuals. In short, general assertions that Watkins was complying with its "safety policies" are insufficient to innoculate it from liability for disability-based discrimination. Moreover, the facts pertinent to these "direct threat" and "business necessity" defenses are clearly contested and the district court never ruled on these matters below. It would thus be inappropriate for this Court to affirm the district court's grant of summary judgment on these grounds. D. Watkins's Claimed Laches Defense Must Fail Watkins urges this Court to apply another defense the district court did not address. Watkins asserts that the doctrine of laches should be applied to dismiss the EEOC's enforcement action. Watkins Br. at 14, 49-55. This position is legally untenable and stands as no bar to reversing the district court's ruling. 1. Laches Should Not Apply to EEOC Enforcement Actions The Supreme Court ruled, as far back as 1888, that "[t]he principle that the United States [is] not bound by . . . laches . . . in a suit brought by [it] as a sovereign Government to enforce a public right, or to assert a public interest, is established past all controversy or doubt." United States v. Beebe, 127 U.S. 338, 344 (1888). The Supreme Court has repeatedly reaffirmed this principle of law. See, e.g., Utah Power & Light v. United States, 243 U.S. 389, 409 (1917) ("[L]aches or neglect of duty on the part of officers of the Government is no defense to a suit by it to enforce a public right or protect a public interest."); United States v. Summerlin, 310 U.S. 414, 416 (1940) ("It is well settled that the United States is not . . . subject to the defense of laches in enforcing its rights."); Costello v. United States, 365 U.S. 265, 281 (1961) ("This Court has consistently adhered to this principle."). The Sixth Circuit has also repeatedly applied this rule. See, e.g., Hatchett v. United States, 330 F.3d 875, 887 (6th Cir. 2003) ("It is well established that the Government generally is exempt from the consequences of its laches."); United States v. Peoples Household Furnishings, Inc., 75 F.3d 252, 254 (6th Cir. 1996) (internal quotation marks omitted) ("The ancient rule . . . has enjoyed continuing vitality for centuries."); United States v. Weintraub, 613 F.2d 612, 618 (6th Cir. 1979) (finding "no exceptions to the rule that laches cannot defeat the government" and noting that it "is of such long standing that . . . the Supreme Court would [not] carve out an exception to it without expressly saying so"); Levy v. United States, 477 F.2d 916, 918 (6th Cir. 1973) ("The Supreme Court has consistently adhered to the principle that laches is not a defense against the sovereign."); cf. SEC v. Gulf & W. Indus., Inc., 502 F. Supp. 343, 348 (D.D.C. 1980) ("A claim of laches . . . cannot be applied to a government agency working in the public interest."); see also Guar. Trust Co. of N.Y. v. United States, 304 U.S. 126, 132 (1938) (explaining that the "source of the continuing vitality" of this rule is "the great public policy of preserving the public rights . . . from injury and loss, by the negligence of public officers"); United States v. Weintraub, 613 F.2d 612, 618 (6th Cir. 1979) (same). Watkins contends that this rule should not apply to EEOC enforcement actions because such suits merely seek relief for specific individuals and thus are not actions by the sovereign. Watkins Br. at 50-52. Watkins is wrong. In fact, the Supreme Court recently indicated that laches should not apply in the EEOC enforcement action context, specifically. In National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), the Supreme Court observed that while the case before it did not present a proper "occasion to consider whether the laches defense may be asserted against the EEOC . . . the doctrine traditionally may not be applied against the sovereign." Id. at 122 n.14 (emphasis added). This makes sense. Indisputably, EEOC actions like this one are suits by the sovereign United States to enforce public rights and to protect the public interest. The Supreme Court has repeatedly held as much. The Supreme Court observed, in Occidental Life Insurance Co. of Cal. v. EEOC, 432 U.S. 355, 368 (1977), that even though the EEOC can and does seek relief for individual victims of discrimination, it "does not function simply as a vehicle for conducting litigation on behalf of private parties." That is, the Supreme Court later explained in General Telephone Co. of the Northwest, Inc. v. EEOC, 446 U.S. 318 (1980), "[t]he EEOC is not merely a proxy for victims of discrimination and [its] enforcement suits should not be considered representative actions." Id. at 326. When the EEOC acts, "albeit at the behest of and for the benefit of specific individuals, it acts also to vindicate the public interest in preventing employment discrimination." Id. Most recently, in EEOC v. Waffle House, Inc., 534 U.S. 279 (2002), the Supreme Court again reaffirmed the bedrock principle that EEOC suits are not merely "derivative actions." Id. at 297. The Supreme Court explained that there is a distinct "difference between the EEOC's enforcement role and an individual employee's private cause of action . . . ." Id. at 287. The Supreme Court recognized that when the EEOC brings a civil action, it has the "authority to evaluate the strength of the public interest at stake." Id. at 291. Thus, the Supreme Court concluded, "the agency may be seeking to vindicate a public interest, not simply provide make-whole relief for the employee, even when it pursues entirely victim-specific relief." Id. at 296. This Court has also recognized that the EEOC sues in its sovereign capacity. In EEOC v. Kimberly-Clark Corp., 511 F.2d 1352 (6th Cir. 1975), this Court noted that "the eradication of . . . discrimination promotes public interests and transcends private interests . . . . Thus, the EEOC represents the public interest when it sues . . . not solely the interests of the private charging parties." Id. at 1359. In EEOC v. Frank's Nursery & Crafts, Inc., 177 F.3d 448 (6th Cir. 1999), this Court acknowledged that the Supreme Court has "rejected the notion that insofar as the EEOC seeks to recover backpay for individuals, it stands in the shoes of the individuals and is not suing in its sovereign capacity." Id. at 458 (internal quotation marks omitted) (citing Occidental). Therefore, in the present case, the EEOC is not merely bringing suit to secure appropriate relief for Grindle. Indeed, the EEOC's Complaint also requests general injunctive relief precluding Watkins from discharging any other employee due to a perceived disability in violation of the ADA. (R.1, Complaint pg.4, Apx15.) The EEOC's action against Watkins is one by the United States acting in its sovereign capacity to vindicate the public interest in combating disability-based employment discrimination. Accordingly, under Watkins's own formulation of the standard for determining when laches applies to the government, it may not invoke a laches defense. Its attempts to argue otherwise – and to convince this Court to ignore longstanding and well-settled Supreme Court precedent precluding the assertion of laches against the sovereign – are unavailing. Watkins argues that Summerlin and Costello (Supreme Court opinions explicitly providing that a laches defense is unavailable against the United States) – are distinguishable because they "involve the Federal government as a party, not EEOC . . . ." Watkins Br. at 50-51 n.13 (emphasis in original). This makes no sense. The EEOC is an integral part of the Federal government. See, e.g., Pa. State Police v. Suders, 124 S.Ct. 2342, 2352 (2004) (emphasis added) (explaining that the EEOC is "the federal agency charged with implementing" employment discrimination laws); Frank's Nursery & Crafts, 177 F.3d at 456 (emphasis added) (noting that the EEOC brings suits "on behalf of the Federal government"). This basis for distinguishing Supreme Court precedent is frivolous. Watkins next claims that laches can be applied against the EEOC given Dole v. Hopple Plastics, Inc., 1990 WL 51409 (6th Cir. 1990). Yet in that unpublished case (which, under 6th Cir. R. 206(c), does not bind this panel), this Court concluded that under the fair credit statute at issue, the Department of Labor was "seeking only to serve as a conduit for relief" for one individual and not attempting "to vindicate its right as sovereign." Id. at **3 (emphasis added). Moreover, in Hopple, this Court specifically distinguished the statutory enforcement scheme at issue there and EEOC actions like the one here. This Court noted that "[t]his suit, of course, was not brought under Title VII by the EEOC and the policy concerns [weighing in favor of exempting the EEOC from various time-related defenses] are not compelling in the lawsuit brought by the D.O.L." Hopple, 1990 WL 51409 at **2. Accordingly, despite Watkins's claims, Hopple (which, incidentally, pre-dates Waffle House and Frank's Nursery & Crafts) offers no support for applying laches in this case. Watkins also indicates that Cleveland Newspaper Guild, Local 1 v. The Plain Dealer Publishing Co., 839 F.2d 1147 (6th Cir. 1988), somehow authorizes its laches defense. Watkins Br. at 51. But Cleveland Newspaper Guild was brought by a private party. The defendant there was seeking to invoke laches as a defense against a non-governmental plaintiff. Here, by contrast, the EEOC initiated this lawsuit. Watkins is asserting laches against the United States. Laches cannot bar this action brought by the sovereign to vindicate the public interest in eradicating employment discrimination. Nothing in Cleveland Newspaper Guild contradicts this conclusion (or even addresses this question). Thus, nothing in Cleveland Newspaper Guild can salvage Watkins's attempts to invoke a laches defense against the EEOC. See, e.g., Utah Power & Light, 243 U.S. at 409 (because laches does not apply to the United States when it is suing to protect the public interest, such a suit by the United States "stands upon a different plane . . . from the ordinary private suit"). In short, the Supreme Court has unambiguously held that the defense of laches is not available in a suit brought by the sovereign United States and has hinted that this rule should extend to EEOC enforcement actions. The Sixth Circuit has never held that a laches defense can be asserted against the EEOC in an enforcement action alleging a substantive violation of federal employment discrimination law.<5> This panel should not depart from this considerable and enduring body of law and apply laches to bar this EEOC suit.<6> 2. Even If Laches Applies to an EEOC Enforcement Action, Watkins Has Not Established This Defense As a Matter of Law Even if this Court concludes that laches can be invoked against the EEOC, this defense fails on the facts of this particular case. Laches consists of two elements: (1) unreasonable delay in asserting one's rights; and (2) a resulting prejudice to the defending party. Coalition for Gov't Procurement v. Fed. Prison Indus., Inc., 365 F.3d 435, 466 (6th Cir. 2004); 3750 Orange Place Ltd. P'ship v. NLRB, 333 F.3d 646, 665 (6th Cir. 2003). Laches is an affirmative defense and the burden is therefore on Watkins to prove both prongs of it. See Broadcast Music, Inc. v. Roger Miller Music, Inc., 396 F.3d 762, 783 (6th Cir. 2005) (". . . [L]aches is an equitable remedy that must be properly raised as an affirmative defense."); EEOC v. Great Atl. & Pac. Tea Co., 735 F.2d 69, 80 (3d Cir. 1984) (questioning whether laches should ever apply against the EEOC, but, assuming that it does, holding its elements "are conjunctive" and "the burden of establishing both is on the defendant"). Watkins has not met this burden. Conciliation efforts ended on February 11, 1999, when Watkins told the EEOC that "it had no interest in conciliating this matter." Watkins Br. at 11. The EEOC filed suit on October 20, 2002. (R.1, Complaint, Apx12.) The delay at issue was therefore roughly three years and eight months.<7> However, the mere length of the delay is not dispositive. Watkins must prove the delay was unreasonable or inexcusable. See Advanced Cardiovascular Sys., Inc. v. Scimed Life Sys., Inc., 988 F.2d 1157, 1161 (Fed. Cir. 1993) (mere passage of time does not constitute laches); Whitfield v. Anheuser-Busch, Inc., 820 F.2d 243, 245 (8th Cir. 1987) ("In examining the ‘unreasonable and unexcused delay' prong of the laches standard, we consider both the length of the delay and the plaintiff's reasons for the delay"; "[L]aches is an equitable, hence flexible doctrine, and no length of time is considered per se unreasonable."); Am. Marine Corp. v. Citizens Cas. Co. of N.Y., 447 F.2d 1328, 1329 (5th Cir. 1971) (mere passage of time – "even, as here, a considerable amount of time" – will not automatically support finding of laches). Watkins argues that the EEOC "seeks to justify its delay in filing suit on the basis of vague explanations about bureaucratic delays and changes in its procedures, which seemingly resulted in years of review of this matter." Watkins Br. at 50. However, the EEOC has nothing to justify. Rather, the burden is on Watkins to show that the delay is unreasonable or inexcusable. Watkins has offered nothing in this regard, other than its self-serving statement that "EEOC was not diligent in pursuing this matter, and its delay was unreasonable." Id. Notwithstanding that it was not the EEOC's burden to demonstrate the reasonableness of its actions, we provided a detailed account below of factors influencing the timing of decision-making on whether to bring this case. (R.36, Shuster Decl. Ex.1, Apx29-31.) The EEOC also prepared an exhaustive summary of all related agency actions (roughly 45 separate inter-office tasks) over the relevant period. (R.36, Shuster Decl. Ex.2, Apx39-42.) This summary reveals a careful, deliberative process designed to ensure this was a suitable fact pattern to advance the EEOC's ADA litigation priorities. Indeed, it is difficult to determine which of the roughly 45 agency actions were superfluous or prolonged unduly. Consequently, contrary to Watkins's characterization of events, the EEOC was not merely engaged in avoidable post-conciliation bureaucratic paper-shuffling. Watkins simply has not proven, as it must, that the EEOC's delay here was unreasonable or inexcusable. Because Watkins has failed to meet its burden of establishing the "unreasonable delay" prong of a laches defense, this Court should decline Watkins's invitation to apply laches here. Watkins has also failed to prove the requisite prejudice. Watkins makes general allegations that "memories of virtually all witnesses, including Grindle, have faded, including Grindle's memory of matters central to this dispute." Watkins Br. at 53. This claim of prejudice does not withstand scrutiny. Watkins asserts Grindle cannot remember visiting Dr. Zancan on June 18, 1996. Watkins Br. at 53. Yet there is no dispute that Grindle went to see Dr. Zancan on that date or that Grindle indicated during this visit that his "knee stay[s] sore" and "swells at times." Watkins proffered evidence at summary judgment establishing these events. (R.36, Linebarier Decl. Ex.3 pg.2, Apx107); (R.36, Shuster Decl. Ex.5, Apx51.) The EEOC cited to this evidence in its opening brief. See EEOC Opening Br. at 8. Therefore, Grindle's failure to remember this particular doctor visit is not significant. Watkins also contends "if this case were to proceed to trial much of the testimony would be limited to a reading of past recollections recorded pursuant to FRE 803(5)" because Watkins officials "could not testify on the basis of present recollection refreshed under FRE 612." Watkins Br. at 11-12; see also id. at 53-54. Even if this is true, Watkins has failed to explain how this in any way compromises Watkins's defense. There is ample contemporaneous documentation of all relevant events in this case. Such evidence is often far more reliable than witness recall. Watkins complains that Grindle cannot remember his "vascular problems" which "relate[] directly to the decision to place Grindle on safety hold." Watkins Br. at 53. Yet nowhere in its own brief does Watkins indicate that it put Grindle on "safety hold" because of alleged "vascular problems," that it even knew anything about these "vascular problems" at the time it took the adverse actions at issue, or that Grindle's own assessment of his "vascular problems" affected its decision-making. See Watkins Br. at 7-9, 48-49. Thus, it is hard to see how Grindle's failure to recall details about any "vascular problems" is relevant to Watkins's decision put Grindle on "safety hold" in the first place. In fact, in a different section of its brief, Watkins admits as much. See Watkins Br. at 16 (explaining that "the only relevant facts about an employee's condition are those facts that are known to the employer at the time the alleged discriminatory conduct occurred."). Watkins's also claims its case has been compromised by the loss of relevant documents. Watkins Br. at 54. This assertion of prejudice is similarly unpersuasive. Watkins complains that certain medical records prepared by Dr. Posevitz have disappeared. Watkins Br. at 12, 55. This is just not true. Copies of these records still exist – Watkins itself produced them during discovery. (R.41, Anderson Decl. pg.2 ¶ 6, Ex.3, Apx206,233-39.) While Watkins speculates Dr. Posevitz may have possessed other relevant records that Watkins does not have, Watkins has not shown how the EEOC's delay led to the destruction of any of these hypothetical documents. Dr. Posevitz's assistant indicated that records "could have been destroyed in the fire our office sustained in December 2001." (R.36, Shuster Decl. Ex.7, Apx55.) This assistant also told Watkins it is quite possible that Dr. Posevitz simply had no other related records at all – that he "interpreted a study which may have been done at the hospital." (Id.) Watkins thus cannot prove that the EEOC is responsible for the loss of any medical records. Watkins insists that records relating to Grindle's post-Watkins earnings and benefits are also gone, allegedly hindering its ability to mount a mitigation defense to damages. Watkins Br. at 12, 54-55. However, Grindle's post-Watkins employment records have not been destroyed and are still available. The EEOC has the originals of these records, produced copies of them during discovery, and attached them in exhibits to the EEOC's response to Watkins's motion for summary judgment. (R.41, Anderson Decl. pgs.1-2 ¶¶ 3-5, Exs.1, 2, Apx205-32); (R.41, Grindle Decl. pg.4 ¶¶ 15-16, Apx244.) To the extent there may be isolated gaps in these records, Watkins has failed to prove that the EEOC's delay in filing this suit caused their purported loss or destruction. In addition, if any such gaps actually exist, the appropriate remedy would be a limitation on allowable backpay – not dismissal of the EEOC's suit altogether. See, e.g., Rasimas v. Mich. Dep't of Mental Health, 714 F.2d 614, 628 (6th Cir. 1983) ("Backpay should be awarded even where the precise amount of the award cannot be determined" and "[a]ny ambiguity in what the claimant would have received but for discrimination should be resolved against the discriminating employer."); United States v. City of Warren, 138 F.3d 1083, 1097 (6th Cir. 1998) (same). Watkins notes that it converted to a new computer system and "lost" computer access to data regarding its leave-of-absence policy. Watkins Br. at 12, 54. Even assuming that the information that has been "lost" would have been relevant to Watkins's defense, its loss is attributable to Watkins, not the EEOC. Watkins has again utterly failed to prove that any delay by the EEOC in filing this suit caused Watkins to reconfigure its computer systems. Indeed, guarding against risk of loss in this situation falls squarely on the defendant. See, e.g., Howard v. Roadway Express, Inc., 726 F.2d 1529, 1533-34 (11th Cir. 1984) (internal quotations omitted) (finding that once a defendant is notified of the possibility of an EEOC enforcement action, the company should preserve its records and interview key employees in anticipation of the ensuing litigation; ruling that "[a] party cannot assert the defense of laches merely because it has failed to preserve evidence despite knowledge of a pending claim"; concluding that in such a scenario, any prejudice to a defendant "resulting from the destruction of records . . . may not be attributed to [the plaintiff's] delay"); cf. Great Atl. & Pac. Tea Co., 735 F.2d at 85 (explaining that a defendant "may not wash its hands of years of employment discrimination by instituting unilateral changes in its business, and then complain that it is unable to defend the charges of discrimination because it has unilaterally instituted such changes"). As a general matter, vague assertions of "faded memories" or "lost documents" – without particularized proof of how better recall or the preservation of records would support the defendant's theory of the case – are insufficient as a matter of law to establish the requisite prejudice. See, e.g., Tobacco Workers Int'l Union, Local 317 v. Lorillard Corp., 448 F.2d 949, 958 (4th Cir. 1971) (emphasis added) (a defendant can only demonstrate prejudice by proving that the "delay has resulted in the loss of evidence which would support the defendant's position"); Goodman v. McDonnell Douglas Corp., 606 F.2d 800, 809 n.17 (8th Cir. 1979) (same). Watkins has not detailed exactly what Grindle or other witnesses would be able to recollect, but for the delay, that would help it here. Watkins likewise has not identified which exact computer files, employment data, or medical records it believes were destroyed due to delay that would buttress its case on liability or damages. To the contrary, Watkins has even admitted that it is speculating about the existence of much of this evidence. See Watkins Br. at 55 ("Watkins has absolutely no way of knowing everything that might have been included in Posevitz's files regarding Grindle's veinous condition."). Therefore, Watkins cannot prove prejudice. In sum, given that Watkins has utterly failed to demonstrate any unreasonable or inexcusable delay or prejudice therefrom, it would be completely inappropriate for this Court to affirm a grant of summary judgment on the basis of laches. See Hoste v. Radio Corp. of Am., 654 F.2d 11, 12 (6th Cir. 1981) (summary judgment on the basis of laches is inappropriate where the plaintiff "raised material issues of fact as to whether the delay in bringing suit was unreasonable and whether the defendants were prejudiced by the delay"); Watkins v. N.W. Ohio Tractor Pullers Ass'n, Inc., 630 F.2d 1155, 1164 (6th Cir. 1980) (where "the record before the Court on a motion for summary judgment shows factual issues in dispute which could affect the equity of the application of laches to bar the claim, the Court must deny the motion and permit the parties to present proof [to a jury]"). Moreover, even if Watkins had made its required showing on laches, this still would not be an appropriate reason for this Court to affirm summary judgment. The proper recourse, if any, would be to allow the suit to proceed and to assess the impact of laches at the damages phase. CONCLUSION For the reasons discussed above and in the EEOC's opening brief, the EEOC respectfully requests that this Court reverse the district court's grant of summary judgment in favor of Watkins, and remand this case for further proceedings. Respectfully submitted, ERIC S. DREIBAND General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ___________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4571 daniel.vail@eeoc.gov CERTIFICATE OF COMPLIANCE WITH RULE 32(a) 1. I certify that this brief complies with the type-volume limitation set forth in Fed. R. App. P. 32(a)(7)(B) because this brief contains 6987 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. I certify that this brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using WordPerfect 9 in 14-Point Font in Times New Roman Style. ____________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4571 daniel.vail@eeoc.gov July 13, 2005 ADDENDA Unpublished Opinions Cited in Appellant's Reply Brief . .A-2 Dole v. Hopple Plastics, Inc., 1990 WL 51409 (6th Cir. 1990). . . . . . . . . . . .A-3 EEOC v. Nat'l City Bank, 1988 WL 136541 (6th Cir. 1988) . . . . . . . . . . .A-4 Verzeni v. Potter, 2004 WL 1946513 (3d Cir. 2004) . . . . . . . . . . .A-5 UNPUBLISHED OPINIONS CITED IN APPELLANT'S REPLY BRIEF Dole v. Hopple Plastics, Inc. 1990 WL 51409 (6th Cir. 1990) EEOC v. Nat'l City Bank 1988 WL 136541 (6th Cir. 1988) Verzeni v. Potter 2004 WL 1946513 (3d Cir. 2004) CERTIFICATE OF SERVICE I certify that on July 13, 2005, I served the requisite number of copies of this brief by mailing them first-class, postage prepaid, to the following: Leonard Green Clerk United States Court of Appeals for the Sixth Circuit 100 East Fifth Street Room 532 Potter Stewart U.S. Courthouse Cincinnati, OH 45202-3988 Katharine C. Weber Susan R. Bell Cors & Bassett 537 East Pete Rose Way Suite 400 Cincinnati, OH 45202-3578 ____________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4571 daniel.vail@eeoc.gov July 13, 2005 *************************************** <> <1> Watkins also alleges that language in other opinions – indicating that “obesity” without a physiological disorder is not an impairment – somehow suggests that no weight-related condition without a physiological disorder can ever be an impairment. See Watkins Br. at 19-23 (discussing Cook v. R.I. Dep’t of Mental Health, Retardation, & Hosps., 10 F.3d 17 (1st Cir. 1993); Smaw v. Va. Dep’t of State Police, 862 F. Supp. 1469 (E.D. Va. 1994); Francis v. City of Meriden, 129 F.3d 281 (2d Cir. 1997)). To the contrary, these cases merely say exactly what the EEOC has argued all along – being relatively overweight (i.e., just “obese”), without more, is not an impairment. Recognition of this general rule does not preclude the complementary principle – that extreme obesity, without more, is an impairment. <2> See 29 C.F.R. pt. 1630 app. § 1630.2(l) (emphasis added) (“As the legislative history [of the ADA] notes, sociologists have identified common attitudinal barriers that frequently result in employers excluding individuals with disabilities. These include concerns regarding productivity, safety, . . . liability, . . . workers’ compensation costs . . . .”). <3> “Direct threat” means “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 29 C.F.R. § 1630.2(r). This determination must be based on “an individualized assessment of the individual’s present ability to safely perform the essential functions of the job” and “a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence.” Id.; see also Chevron U.S.A., Inc. v. Echazabal, 536 U.S. 73, 86 (2002) (citing this regulation with approval). According to a detailed analysis prepared by EEOC expert Dr. Shaw, Dr. Lawrence’s conclusions about Grindle’s weight-related condition do not reflect “reasonable medical judgment” and are not based on “the most current medical knowledge and/or the best available objective evidence.” (R.41, Shaw Dep. Ex.1 pgs. 9-11, Apx127-29.) Dr. Lawrence’s opinions thus cannot establish that Grindle was a “direct threat.” Cf. Holiday v. City of Chattanooga, 206 F.3d 637, 645 (6th Cir. 2000) (employers cannot escape their legal obligations under the ADA by contracting out personnel functions to third parties, and courts “need not defer to an individual doctor’s opinion that is neither based on the individualized inquiry mandated by the ADA nor supported by objective scientific and medical evidence”). Similarly, Linebarier’s and Thatcher’s liability fears were based on sheer speculation, and cannot serve to show that Grindle was a “direct threat.” See 29 C.F.R. pt. 1630 app. § 1630.2(r) (in determining whether a “direct threat” exists, employers “must rely on objective factual evidence – not on subjective perceptions, irrational fears, patronizing attitudes, or stereotypes – about the nature or effect of a particular disability”; also stating that a “speculative or remote risk” of harm is not a “direct threat”); Hamlin v. Charter Township of Flint, 165 F.3d 426, 432 (6th Cir. 1999) (applying this rule). <4> This case is unpublished. However, the EEOC believes our citation of this case comports with this Court’s local rules. See 6 Cir. R. 28(g) (allowing citation of an unpublished decision if it relates to “a material issue” and no published opinion “would serve as well”). <5> The only case uncovered in this Circuit applying laches to the EEOC in any fashion is EEOC v. National City Bank, 1988 WL 136541, **2 (6th Cir. 1988), an unpublished per curiam decision involving an EEOC subpoena enforcement action. It is thus non-precedential and distinguishable. In addition, this case does not address (much less explicitly reject) the argument the EEOC is advancing here – that laches cannot be applied against the EEOC. To the extent it can be read to allow the application of laches against the EEOC as a general matter (i.e., in a substantive enforcement action), we believe it contradicts Supreme Court and this Court’s published precedent (e.g., Summerlin, Waffle House, Frank’s Nursery & Crafts). <6> That is not to suggest that there is no available redress where there is undue EEOC delay. As the Supreme Court noted in Occidental, if a defendant in an EEOC enforcement action is “significantly handicapped” because of “an inordinate EEOC delay in filing the action after exhausting its conciliation efforts” then “federal courts do not lack the power to provide relief.” Occidental, 432 U.S. at 373. The Supreme Court specifically indicated that in such an instance, a given court could “restrict or even deny backpay relief.” Id.; see also Morgan, 536 U.S. at 121 (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 424-25 (1975)) (“[A] party may not be ‘entitled’ to relief if its conduct of the cause has improperly and substantially prejudiced the other party” and in such cases, “the federal courts have the discretionary power to ‘locate a ‘just result’ in light of the circumstances peculiar to the case.’”). Watkins implies that Occidental allows laches to bar an EEOC suit. See Watkins Br. at 51 n.13, 52. This is not the case. The Supreme Court in Occidental did not indicate in any way that laches was an appropriate defense to an EEOC enforcement action, much less authorize the result Watkins seeks here – dismissal of the EEOC’s entire case. The appropriate time and manner for applying this Occidental equitable rule would be during a court’s determination of appropriate damages (e.g., by limiting backpay, as the Occidental court itself suggested), not as a complete bar to liability. Cf. Cleveland Newspaper Guild, 839 F.2d at 1155 (even when laches does apply, “dismissal of a plaintiff’s claim is an extreme result, and should be accomplished only when the prejudice to the defendant can be avoided in no other way”); EEOC v. Am. Nat’l Bank, 574 F.2d 1173, 1176 (4th Cir. 1978) (applying Occidental and finding that “[w]hether the Commission’s delays caused prejudice that will justify a limitation of the relief which the district court should decree can best be considered after the facts have been fully developed, if the Commission ultimately prevails”); EEOC v. Airguide Corp., 539 F.2d 1038, 1042 n.7 (5th Cir. 1976) (“Even if substantial prejudice is found to have occurred, this would not necessarily defeat the whole case but only those portions of the case affected by the prejudice.”). prejudice is found to have occurred, this would not necessarily defeat the whole case but only those portions of the case affected by the prejudice.”). <7> The pertinent “delay” for purposes of laches in a case like this is the time that elapsed between the end of the EEOC’s conciliation efforts (required in ADA actions by 42 U.S.C. § 12117(a) and 42 U.S.C. § 2000e-5(b)) and the filing of its suit. See, e.g., Occidental, 432 U.S. at 373 (emphasis added) (concerned with the EEOC’s delay in filing suit “after exhausting its conciliation efforts”); Fowler v. Blue Bell, Inc., 596 F.2d 1276, 1279 (5th Cir. 1979) (same). Watkins does not dispute that this is the relevant time frame. See Watkins Br. at 49.