The Cleveland Newspaper Guild, Local 1 v. The Plain Dealer Publishing Co.

RALPH B. GUY, Jr., Circuit Judge.

This appeal involves the applicability of the doctrine of laches to bar a Title VII employment discrimination claim. 42 U.S. C. § 2000e-2. Specifically, we are asked to decide whether a claimant who awaits the outcome of the Equal Employment Opportunity Commission’s (EEOC) administrative proceedings for a period of ten years before filing suit has caused inexcusable delay sufficient to justify the application of the doctrine of laches. The district court found the delay to have been inexcusable and, since it also found that the delay resulted in prejudice, it granted defendant’s motion for summary judgment. We affirm.

I.

The facts are essentially uncontroverted. On April 12, 1972, the Cleveland Newspaper Guild (Guild), on behalf of its female members, filed a charge with the EEOC alleging sex discrimination in merit pay, promotions, assignments, and other terms and conditions of employment at The Plain Dealer Publishing Company. On May 8, 1972, defendant was sent a form notice of the charge of employment discrimination. The notice did not name the person or persons bringing the charge; however, it did state that “[sjection 1602.14 of the Commission’s Regulations requires the preservation of all relevant personnel records until this charge is resolved.” Additionally, the notice asked that defendant withhold any questions about the complaint until the investigation commenced. The form stated that it was uncertain when defendant would be contacted in connection with the investigation due to the EEOC’s “heavy backlog of pending work.”

On April 12, 1974, the EEOC sent the Guild a form notice entitled “Charging Party Follow-up.” It stated that the EEOC had not been able to process the charge and could not predict when it would begin to do so. Therefore, it asked the Guild to choose one of three courses of action: (1) keep the charge open and have it processed when the EEOC could attend to it, (2) sue the Plain Dealer in federal court, or (3) close the charge without further action. In a letter dated September 4, 1974, Jack Weir, then Executive Secretary of the Guild, indicated the Guild’s decision to have the EEOC continue to process the charge.

The EEOC’s investigation began in May of 1976. On May 19, 1976, counsel for the Plain Dealer was given a copy of Charge No. 1613 filed by the Guild on April 12, 1972. This is the first time that the Plain Dealer became aware of who had filed the charge and why. On June 22, 1976, the Plain Dealer requested that the EEOC dismiss the charge and cease its investigation, asserting that the four-year delay had substantially impaired the Plain Dealer’s ability to respond to the charge. On June 24, 1976, the EEOC notified the Plain Dealer that it would not dismiss the charge, and it requested documents and information regarding Guild employees for the previous six years. The Plain Dealer refused to submit the requested information.

On August 25, 1976, the EEOC issued a subpoena demanding production of the documents previously requested. The Plain Dealer then filed, on September 1, 1976, a petition to revoke and/or modify the subpoena. Over one year later, in September of 1977, the EEOC denied revocation and directed the Plain Dealer to appear at the EEOC for production of the documents. On October 17,1977, counsel for defendant wrote the EEOC that it would not appear in the offices of the EEOC as ordered. Nothing further occurred in this case until July 30, 1979, when Guild Secretary J. Stephens Hatch wrote to the EEOC concern*1150ing the status of the charge. Almost a year later, on June 17, 1980, the EEOC notified defense counsel that the Commission would not seek to enforce the subpoena of August 25, 1976.

On July 3, 1980, the Plain Dealer submitted a position paper in response to the Guild’s charge. It stated that because of the lapse of time, management personnel and documents relevant to the charge were no longer available. On October 10, 1980, the EEOC issued a finding of reasonable cause and thereafter attempted to commence conciliation efforts. The attempt proved fruitless and, on May 21, 1982, the EEOC issued a right to sue notice to the Guild. The Guild then filed this suit in the district court on August 18, 1982. The defendant filed a motion for summary judgment based on the affirmative defense of laches, and the district court granted the motion.

The trial court determined that plaintiffs had failed to provide sufficient explanation for the ten-year delay in bringing suit. The trial court also found prejudice to the defendant in the form of unavailable witnesses, destruction of documentary evidence, and erosion of available witnesses’ memories. As to the EEOC’s notice to defendant to retain personnel records, the court found it too ambiguous to serve as a valid command. Accordingly, the court entered judgment for defendant.

On appeal, plaintiffs contend that the defense of laches will not lie to effect dismissal of a Title VII complaint brought by claimants who choose to await completion of the EEOC’s administrative process before filing suit. Assuming that the doctrine of laches may be invoked, however, plaintiffs contend that they acted reasonably and did not inexcusably delay the proceedings. Plaintiffs also argue that defendant is barred from asserting the laches defense based on the doctrine of unclean hands.

II.

A Title VII claimant must file a claim with the EEOC (in a nondeferral state) within 180 days after the allegedly discriminatory act. 42 U.S.C. § 2000e-5(c). Once EEOC proceedings have terminated and the agency issues its right to sue notice, the claimant has 90 days to file suit in federal court. Id. at § 2000e-5(f)(l). If, however, the EEOC proceedings are still in progress, a claimant may request a right to sue letter 180 days after filing of the charge. Id. This 180-day provision is not a statute of limitations. Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 361, 97 S.Ct. 2447, 2451, 53 L.Ed.2d 402 (1976). “[I]t simply provides that a complainant whose charge is not dismissed or promptly settled or litigated by the EEOC may himself bring a lawsuit, but that he must wait 180 days before doing so.” Id. Thus, while there are no statutory limitations facing Title VII claimants awaiting EEOC action, we must decide whether equitable considerations affect a Title VII claimant’s decision to indefinitely delay bringing suit.

A.

Equitable considerations have influenced the Supreme Court in the context of Title VII. In Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975), the district court denied an award of back pay because the respondents initially disclaimed any interest in back pay, first asserting their claim five years after the complaint was filed. The district court concluded that the defendants had been prejudiced by this conduct. The Supreme Court agreed that a party may not be entitled to relief if its conduct of the cause has improperly and substantially prejudiced the other party. 422 U.S. at 424, 95 S.Ct. at 2375. The Court noted that district courts have discretion to locate “a just result” in light of the circumstances peculiar to the case, Langnes v. Green, 282 U.S. 531, 541, 51 S.Ct. 243, 247, 75 L.Ed. 520 (1931), and that to deny back pay because a particular cause has been prosecuted in an eccentric fashion, prejudicial to the other party, did not offend the broad purposes of Title VII. 422 U.S. at 424, 95 S.Ct. at 2374 (emphasis supplied).

In Occidental Life Ins. Co. v. EEOC, 432 U.S. at 355, 97 S.Ct. at 2449, the Court *1151addressed whether any time limitation is imposed on the EEOC’s power to bring suit in federal court once a claim has been filed. That case had been filed by the EEOC approximately three years and two months after the complainant first communicated with the EEOC, and five months after conciliation efforts had failed. 432 U.S. at 358, 97 S.Ct. at 2450. While the Court rejected the argument that the EEOC was required to bring an enforcement action within 180 days of the filing of the charge, it also recognized the possibility that, despite procedural protections afforded a Title VII defendant, delay in bringing suit could cause prejudice. Id. at 373, 97 S.Ct. at 2457. But in that case, the Court noted, “the federal courts do not lack the power to provide relief.” Id.

B.

Against the backdrop of these cases, the courts of appeals have disagreed as to whether the application of equitable principles to Title VII cases permits a dismissal based on laches when, as here, a claimant chooses to await the termination of EEOC proceedings.

In Bernard v. Gulf Oil Co., 596 F.2d 1249 (5th Cir.1979), on rehearing en bane, 619 F.2d 459 (5th Cir.1980), aff'd, 452 U.S. 89, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981), the Fifth Circuit acknowledged that laches could apply to a Title VII case so as to bar an action; however, the court refused to hold that plaintiffs’ failure to file their Title VII claim until completion of the EEOC process, some nine years later, constituted inexcusable delay. During that time, the EEOC was engaged in active conciliation efforts and, in fact, a conciliation agreement had been reached one month before plaintiffs filed suit. 596 F.2d at 1253. Accord Fowler v. Blue Bell, Inc., 596 F.2d 1276 (5th Cir.1979), cert. denied, 444 U.S. 1018, 100 S.Ct. 671, 62 L.Ed.2d 648 (1980).

The Ninth Circuit has also held that lach-es may be used as a defense to a Title VII action. Boone v. Mechanical Specialties, 609 F.2d 956, 959 (9th Cir.1979). In Boone, the EEOC charge remained pending for almost seven years, while Boone repeatedly refused the EEOC’s offer of a right to sue letter and asked the EEOC to keep his file open. 609 F.2d at 959. In the meantime, defendant suffered prejudice in the form of lost witnesses and documentary evidence. The court held that laches barred the plaintiff’s action due to his unexcusable delay, especially in the absence of continuing administrative proceedings. Id. at 960. Subsequently, however, the Ninth Circuit has repeatedly denied defendants relief based on laches, emphasizing that Boone stated the exception and not the general rule. See Bratton v. Bethlehem Steel Corp., 649 F.2d 658 (9th Cir.1980) (four-year delay was not inexcusable where plaintiffs did not delay in requesting right to sue letters and no prejudice to defendant shown); Gifford v. Atchinson Topeka and Santa Fe Ry. Co., 685 F.2d 1149 (9th Cir.1982) (ordinarily, if the EEOC retains control over a charge, a private plaintiff will not be charged with its mistakes); Brown v. Continental Can Co., 765 F.2d 810 (9th Cir.1985) (EEOC delays are not to be charged against private plaintiffs and complainants are not required to terminate the administrative process by requesting a notice of right to sue).

In Rozen v. District of Columbia, 702 F.2d 1202 (D.C.Cir.1983), twenty-one months passed between the EEOC’s determination of no reasonable cause to believe the discrimination allegation was true and the issuance of the right to sue notice. In dismissing his suit, the district court determined that Rozen had unreasonably and inexcusably delayed filing suit, and that defendant had been prejudiced by the delay. 702 F.2d at 1203. The court of appeals reversed. The court acknowledged that laches may apply to Title VII actions, but found the defense unsupportable on the record presented. Id. at 1204. The court refused to hold Rozen accountable for the delay in the issuance of the right to sue notice, distinguishing those cases where a plaintiff fails to file suit when that option is known and within the plaintiff’s power. Id. (citing EEOC v. Dresser Industries, Inc., 668 F.2d 1199 (11th Cir.1982), and Boone, supra).

*1152The Eleventh Circuit agreed in Howard v. Roadway Exp., Inc., 726 F.2d 1529 (11th Cir.1984). Howard filed a charge with the EEOC in December, 1976. In 1978, Howard’s attorney requested issuance of a right to sue letter, but later withdrew that request. In December, 1981, the EEOC determined that there was no reasonable cause to believe plaintiffs allegations and issued notice of right to sue. When plaintiff filed suit in March, 1982, defendant moved to dismiss, arguing that laches barred plaintiffs claim, and emphasizing plaintiffs early knowledge of his cause of action and his ability to obtain a right to sue letter as indicative of inexcusable delay. 726 F.2d at 1532. The Eleventh Circuit, too, recognized that the doctrine of laches could be applied, but held that Howard’s failure to file his Title VII claim until completion of the EEOC process was not inexcusable delay and could not support the application of laches. Id. at 1533. The court distinguished its earlier Dresser decision, 668 F.2d at 1199, where the doctrine of laches was applied to an action filed by the EEOC, stating that the Dresser court had not suggested that inexcusable delay attributable to the EEOC could be transferred to the plaintiff in a private suit. Id., 726 F.2d at 1533 n. 2.

In contrast is Jeffries v. Chicago Transit Authority, 770 F.2d 676 (7th Cir.1985), cert. denied, 475 U.S. 1050, 106 S.Ct. 1273, 89 L.Ed.2d 581 (1986), where plaintiff filed his race discrimination claim with the EEOC in November, 1974. The EEOC notified defendant of the charge, and it responded in December, 1974, denying the allegation of discrimination. The EEOC took no further action on the claim until June 9, 1982, when it informed the defendant that reasonable cause existed for the discrimination claim and invited the defendant to participate in conciliation. Defendant responded that the EEOC had lost jurisdiction over the matter due to the eight-year delay. A right to sue notice was issued in January, 1984. The Seventh Circuit affirmed the district court’s dismissal based on the doctrine of laches, finding the ten-year delay to be manifestly unreasonable. 770 F.2d at 680. The court rejected plaintiff’s major justification — ignorance of the statute and regulations giving him the option to request a right to sue letter— stating that plaintiff should have known of his power to prod the agency through the language of the statute. Id. at 680. Accordingly, the court held that relying on the administrative process could not excuse a delay of this length and that plaintiffs must show “some interest in prosecuting their claims.” Id. at 680-81.

The Third Circuit, in Waddell v. Small Tube Products, Inc., 799 F.2d 69 (3d Cir.1986), also agreed that laches on the part of the plaintiff could support dismissal of a Title VII claim. Waddell’s claim for unlawful termination was filed with the EEOC in March, 1975, and with the corresponding state agency in December, 1975. In August, 1976, the state agency dismissed the claim. Waddell requested reconsideration by the state agency, and also filed a new charge for failure to rehire. In October, 1976, the state agency denied the petition for reconsideration but, in January, 1977, it prepared a formal complaint based on the failure to rehire charge. The complaint was then referred to the EEOC for filing. The EEOC stated that it would assert jurisdiction on the sixtieth day after the charge was filed with the state agency, but would not engage in any compliance activities until the state agency had completed its investigation. The state agency then dismissed the complaint on the ground that the identical issues had been disposed of when it denied Waddell’s petition for reconsideration. The state agency’s letter notifying Waddell of the dismissal of his charge was sent April 29, 1977.

The state agency failed to notify the EEOC when it dismissed Waddell’s charge, as it was obliged to do. In fact, the agency did not send the EEOC any such notification until November 30, 1981, more than four and one-half years later. In the meantime, Waddell wrote two letters to the EEOC about his case. When the EEOC finally was notified of the state agency’s closing of the case, it conducted an investigation and determined that there was no reasonable basis to believe Waddell had *1153been subject to discrimination, but that there was reasonable cause to believe Wad-dell had not been rehired in retaliation for the charges he originally brought. Wad-dell received a right to sue letter in June, 1983, and brought suit in August, 1983.

After reviewing the cases discussed above, the Third Circuit concluded that, although plaintiffs have some obligation to monitor the progress of their charge and do not have the absolute right to await termination of EEOC proceedings where it would appear to a reasonable person that no administrative resolution will be forthcoming, whether the circumstances warrant the delay in a particular case must be decided on an ad hoc basis. 799 F.2d at 77. The circumstances which the court felt militated against the application of laches were that Waddell had written two letters to the EEOC, neither of which had elicited any reply; Waddell testified that he did not know of his right under the statute to request a right to sue letter; and Waddell had only a seventh grade education, and at the time in question, had no counsel. Id. At the same time, the court found the arguments on both sides of the laches question to have merit. Accordingly, it concluded that the situation was appropriate for the trial court’s exercise of discretion, and affirmed the district court’s refusal to dismiss based on laches. Id.

Finally, in Whitfield v. Anheuser-Busch, Inc., 820 F.2d 243 (8th Cir.1987), the Eighth Circuit affirmed the dismissal of plaintiff's case based on the doctrine of laches. While plaintiff filed his charge with the EEOC in January, 1973, and the EEOC held a hearing in October, 1974, the case then remained dormant for almost ten years, until June, 1983, when the EEOC issued a right to sue notice. Because Whitfield made no attempts to check on the status of his charge, and had not provided any meaningful explanation for his long silence or denied that he knew he could request a notice of right to sue, the court affirmed. Id. at 245.

In sum, each court to have considered the question agrees, at least in theory, that the doctrine of laches can bar a Title VII action. These cases also illustrate the fact-dependent nature of the inquiry, as well as the necessity for the reasoned exercise of discretion on the part of trial courts.

III.

The defense of laches “requires proof of (1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense.” Costello v. United States, 365 U.S. 265, 282, 81 S.Ct. 534, 543, 5 L.Ed.2d 551 (1961). We conclude that the doctrine of laches, like other equitable considerations, should be applicable to a Title VII proceeding in practice as well as theory. At the same time, we understand the reluctance courts have shown in dismissing cases based on delay attributable at least in part to the EEOC. This reluctance is understandable in light of the fact that Title VII is “remedial legislation dependent for its enforcement on laymen.” Bethel v. Jefferson, 589 F.2d 631, 642 (D.C.Cir.1978). Moreover, as recognized by the Court in Occidental Life, 432 U.S. at 367-68, 97 S.Ct. at 2454-55, the administrative resolution of claims is the preferred method. We are not unmindful of these concerns. Nevertheless, in rare cases, the only avenue for relieving unfair prejudice to the defendant is dismissal of the plaintiff's claim.

Those cases that appear to allow claimants an unqualified right to await indefinitely termination of the administrative process often speak to the fact that claimants cannot be held responsible for the delays occasioned by the EEOC. But whether another party contributes to the delay is only one factor in assessing the reasonableness of a plaintiff’s actions. The question is not purely one of assigning fault. As stated in Pomeroy’s treatise: “A court of equity, which is never active in relief against conscience or public convenience, has always refused its aid to stale demands, where the party has slept upon his rights, and acquiesced for a great length of time. Nothing can call forth ... [the] court into activity but conscience, good faith and reasonable diligence.” J. Pomeroy, II Equity Jurisprudence, § 419 at *1154171 (S. Symons 5th ed. 1941). Thus, even though another party may have contributed to the delay, the court still must determine whether plaintiffs own delay or inaction inexcusably caused prejudice to the defendant.

IV.

The district court found that both elements of the laches defense had been satisfied; that is, that plaintiffs’ lack of diligence had prejudiced the defendant. As to lack of diligence by plaintiffs, the court indicated that because of the fact the Guild was a labor union, with specific knowledge and responsibility in equal employment opportunity matters, it could not reasonably account for its continued inaction during the extended period that the charge was pending. It was undisputed that the Guild knew of its ability to obtain a right to sue notice and institute a civil action. And while the district court did not fault the Guild for initially refusing the first offer of a right to sue letter, the court was justifiably troubled by the lack of activity over the next eight years. The court also specifically referred to the lack of Guild contacts with the EEOC during that period.

Likewise, as noted by the district court, there was little EEOC activity during this time which could explain plaintiffs’ failure to act. The EEOC did not take enforcement action on the subpoena issued to discover relevant information. Moreover, no conciliation ever occurred. In other words, there was nothing ongoing which the Guild could point to in order to justify its inaction.1

The Guild now argues that it was defendant who delayed the administrative process, by refusing to cooperate with the EEOC. This argument ignores, however, the prejudice resulting from the four-year delay that occurred before defendant received a copy of the charge and, further, it erroneously presupposes that defendant’s assertion of prejudice at that point was somehow wrongful. In short, this contention does not persuade us that the court erred in finding inexcusable delay.

No one seriously disputes the district court’s finding that defendant has suffered prejudice in the form of lost witnesses and documentary evidence. Affidavits submitted in the district court detail those witnesses who are no longer available to defendant and their specific knowledge as to the underlying dispute. The Guild argues, however, that defendant was informed that a sex discrimination charge had been filed and was ordered to retain all records, and, therefore, if defendant suffered prejudice, it was of its own making.

The district court found that the EEOC’s notice to defendant to retain personnel records was too ambiguous to serve as a valid command. Under the specific circumstances of this case, we agree. It must be kept in mind that the defendant was not initially informed of any of the details of the charge. It was EEOC policy at that time not to send an actual copy of the charge. Accordingly, all defendant knew was that a charge of employment discrimination based on sex had been filed against it. It was not until four years after the filing of the charge that the defendant received an actual copy of it. In the meantime, it was, of course, impossible to determine which personnel records were “relevant” to the unknown charge. In any event, retention of records would still not alleviate the problem of witnesses who have become unavailable or whose memories have faded.

We find no error in the district court’s application of the doctrine of laches under these circumstances.

V.

We must also reject plaintiffs’ argument that defendant is barred from eq*1155uitable relief by the doctrine of unclean hands. The unclean hands doctrine derives from the equitable maxim that “he who comes into equity must come with clean hands.” This maxim “closes the doors of a court of equity to one tainted with ineq-uitableness or bad faith relative to the matter in which he seeks relief, however improper may have been the behavior” of the opposing party. Precision Inst. Mfg. Co. v. Automotive Maintenance Mach. Co., 324 U.S. 806, 814, 65 S.Ct. 993, 997, 89 L.Ed. 1381 (1945).

While the defendant clearly refused to cooperate with the EEOC’s administrative process, it asserted that by the time that process began, four years after the charge had been filed, it had already suffered prejudice. Defendant consistently maintained that position. There was no indication that this position was advanced in bad faith. Moreover, we have found no authority for the proposition that one resisting an administrative process by asserting a legal defense can be found to have unclean hands. Consequently, we do not believe that the doctrine of unclean hands operates here to deny defendant relief.

VI.

We affirm the district court’s holding because we believe that the court’s power to “locate a just result” includes the possibility that a case may be dismissed on the basis of laches. We find no abuse of discretion in the court’s dismissal of this case, nor clear error in its findings of lack of diligence on the part of the plaintiffs and prejudice to the defendant. We emphasize, however, that 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. Accordingly, the judgment of the district court is AFFIRMED.

. On appeal, the Guild has asserted that part of the reason it delayed bringing suit was because it was monitoring a parallel charge against the Cleveland Press, which it believed would, when concluded, establish a precedent for the resolution of the charge filed against the Plain Dealer. This argument was not raised below and is not properly before us. Consequently, we do not consider it. We note in passing, however, that the argument is not helpful to the Guild’s position. The fact that the Guild felt it was in its interest to wait does little to offset as an equitable consideration the prejudice being suffered by the defendant.