EEOC v. Watkins Motor Lines, Inc. (6th Cir.)
Reply proof brief
June 17, 2005

                          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
      ______________________________________________________

              PROOF COPY OF THE 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 Working . . . . . . . . . . . . . . . . .  4

     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 Enfor
		cement Actions . . . . . . . . . . . . . . .   11

          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 
	  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

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 this 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, Apx.    .)  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, Apx.    .)  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, Apx.    .)  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, Apx.    .)  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, Apx.    ); (R.36, Shuster Decl. Ex.5,
Apx.   .)  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, Apx.    .)  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, Apx.      .)  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, Apx.    ); (R.41, Grindle Decl. pg.4
 15-16, Apx.    .)  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 6996 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.
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     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

June 17, 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 June 17, 2005, I served the requisite number of copies of this
proof 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

June 17, 2005

***************************************
<NOTES>

<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. Dept of Mental Health, 
Retardation, & Hosps., 10 F.3d 17 (1st Cir. 1993); Smaw v. Va. Dept 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 individuals 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. Lawrences conclusions about Grindles 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, Apx.    .)  Dr. Lawrences 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 
doctors opinion that is neither based on the individualized inquiry mandated by the 
ADA nor supported by objective scientific and medical evidence).  Similarly, 
Linebariers and Thatchers 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 Courts 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 
Courts published precedent (e.g., Summerlin, Waffle House, Franks 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 EEOCs entire case.  The appropriate time and manner for applying 
this Occidental equitable rule would be during a courts determination of appropriate 
damages (e.g., by limiting backpay, as the Occidental plaintiffs 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. Natl Bank, 574 F.2d 1173, 1176 (4th Cir. 1978) 
(applying Occidental and finding that [w]hether the Commissions 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.).

<7> The pertinent delay for purposes of laches in a case like this is the time that 
elapsed between the end of the EEOCs 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 EEOCs 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.