In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 05-2933 & 05-4176

BERNARD PRUITT, et al.,

Plaintiffs-Appellants,

v.

CITY OF CHICAGO, ILLINOIS,

Defendant-Appellee.

____________

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 03 C 2877—Samuel Der-Yeghiayan, Judge.

____________

ARGUED SEPTEMBER 8, 2006—DECIDED DECEMBER 28, 2006

____________

Before EASTERBROOK, Chief Judge, and CUDAHY and

MANION, Circuit Judges.

EASTERBROOK, Chief Judge. Ten of Chicago’s maintenance workers at O’Hare Airport filed this suit under

42 U.S.C. §1981 plus Title VII of the Civil Rights Act of

1964. They contend that for more than 20 years Anthony

Jason, a foreman, insulted and hassled black and Hispanic

workers, denying them the same terms and conditions of

employment that others enjoyed. They also maintain that

Jason used his position to deprive them of promotions and

inflict unequal discipline. The charge of discrimination

was not filed until after Jason retired. The district court

declined to certify plaintiffs as representatives of a class

of all laborers who worked with Jason, 2004 U.S. Dist.
2 Nos. 05-2933 & 05-4176

LEXIS 9103 (N.D. Ill. May 19, 2004), and it later dismissed

the whole case as time-barred.

Plaintiffs’ lead argument on appeal is that the district

judge should have certified a class. Coming after the

plaintiffs have lost on the merits, that’s problematic. Do

they want to take all other employees down in flames with

them? If so—or if they just don’t care about that

risk—then they have demonstrated inadequacy as other

workers’ representatives and rendered class certification

impossible. See Fed. R. Civ. P. 23(a)(4). What’s more,

plaintiffs do not come to grips with the ground on which

the district court acted. The judge concluded that the

proposed class flunked the numerosity requirement, see

Rule 23(a)(1), because joinder of the fewer than 40 workers

affected by Jason’s excesses and desiring to participate

(some maintenance workers told the court that they

wanted no part of this suit) would be practical. Plaintiffs

argue at length that all other requirements of Rule 23

have been satisfied, and maybe that’s so, but if joinder

would be practical then the other criteria don’t matter.

Sometimes “even” 40 plaintiffs would be unmanageable,

but plaintiffs do not contend that this is one of those

occasions. They devote only one page of their brief to Rule

23(a)(1) and do not discuss why it would be any harder to

have 40 plaintiffs than to have 40 hearings (each employee’s interactions with Jason, and the resulting damages if any, are person-specific) as part of one class action.

So we proceed to the merits, and our decision will affect

only the ten named plaintiffs.

Claims about discrete employment actions, such as

failure to promote, must be made within 300 days under

Title VII or four years under §1981. See National Railroad

Passenger Corp. v. Morgan, 536 U.S. 101, 110-15 (2002);

Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369 (2004).

That discrete acts may have been mixed with a hostile

environment does not extend the time; Morgan, which
Nos. 05-2933 & 05-4176 3

involved just such a mixture, shows as much. Morgan also

tells us that a hostile environment is one wrong, and that

an employee therefore may file the charge (under Title VII)

or suit (under §1981) within the statutory time from the

last hostile act. 536 U.S. at 115-21. In litigation that is

timely under this approach, the employee may refer to

hostile acts that occurred earlier, because the “entire

hostile work environment encompasses a single unlawful

employment practice.” Id. at 117. Plaintiffs contend that

Morgan makes the 20-year history of Jason’s hostile

behavior actionable, even if discrete acts such as discipline and lack of promotion are no longer contestable.

The Justices recognized in Morgan that their treatment

of a hostile environment as one discriminatory employment practice had the potential to drag up ancient history,

to the employer’s prejudice. The Court sought to deal

with this possibility by authorizing district judges to

invoke the doctrine of laches. It wrote:

This Court previously noted that despite the

procedural protections of the statute “a defendant

in a Title VII enforcement action might still be

significantly handicapped in making his defense

because of an inordinate EEOC delay in filing the

action after exhausting its conciliation efforts.”

Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S.

355, 373 (1977). The same is true when the delay

is caused by the employee, rather than by the

EEOC. Cf. Albemarle Paper Co. v. Moody, 422 U.S.

405, 424 (1975) (“[A] party may not be ‘entitled’ to

relief if its conduct of the cause has improperly

and substantially prejudiced the other party”). In

such cases, the federal courts have the discretionary power to “to locate ‘a just result’ in light of the

circumstances peculiar to the case.” Id., at 424-

425.
4 Nos. 05-2933 & 05-4176

In addition to other equitable defenses, therefore,

an employer may raise a laches defense, which

bars a plaintiff from maintaining a suit if he

unreasonably delays in filing a suit and as a result

harms the defendant. This defense “ ‘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.’ ” Kansas v. Colorado,

514 U.S. 673, 687 (1995) (quoting Costello v.

United States, 365 U.S. 265, 282, (1961)). We do

not address questions here such as “how—and how

much—prejudice must be shown” or “what consequences follow if laches is established.” 2

Lindemann [& Grossman, Employment Discrimination Law] 1496-1500 [(3d ed. 1996)]. We observe

only that employers may raise various defenses

in the face of unreasonable and prejudicial delay.

536 U.S. at 121-22 (footnote omitted). The district court

concluded that plaintiffs were guilty of unwarranted delay and that Chicago had been prejudiced; that’s why it

dismissed the suit as untimely.

Plaintiffs devote much of their brief to arguing that

laches applies only to suits in equity and may not be used

to shorten a statutory period of limitations. Whatever one

can say for and against that proposition—which divided

this court in Martin v. Consultants & Administrators, Inc.,

966 F.2d 1078 (7th Cir. 1992); see also Herman v. Chicago,

870 F.2d 400 (7th Cir. 1989)—Morgan tells us that hostileenvironment claims are exceptional. The Supreme Court

treated a hostile environment as one employment practice, potentially reaching far into the past; to curtail the

effect of this conclusion on the short period for filing a

charge under Title VII, it also told courts to apply the

doctrine of laches. Having given generously with one hand,

the Court took back some with the other. Our duty is to
Nos. 05-2933 & 05-4176 5

apply both aspects of Morgan, not just the plaintifffavoring portion.

The district court found both unreasonable delay and

prejudice; it is hard to fault either conclusion. If what

plaintiffs say about Jason is true, they had ample basis for

suit 10, 15, or 20 years ago. The situation they describe is

not remotely like one that concerned the Justices in

Morgan, in which it may be difficult to tell whether a

given supervisor’s misconduct is isolated as opposed to

so severe or pervasive that it amounts to a hostile and

discriminatory environment. There was nothing isolated,

infrequent, or moderate about the statements and conduct that the plaintiffs attribute to Jason. Delay cannot

be justified by a desire to find out what the workplace

will be like in a few months, and to gather facts in order

to avoid making baseless charges. “How much is too much”

may be a difficult assessment in many cases, but if plaintiffs are telling the truth they knew by 1981 that Jason’s

behavior was over the line.

As for prejudice: By the time plaintiffs finally filed

charges of discrimination, Jason was on leave and soon to

retire. He moved outside the district court’s subpoena

power and has refused to return. Plaintiffs’ counsel tried

for months to schedule a deposition of Jason in his current home town; the efforts were unavailing. A deposition

that Jason gave in another suit shows that by 2003 he

had suffered a stroke and was experiencing severe

memory problems; he was unable to answer most of the

questions asked of him. Plaintiffs say that they complained about Jason to his supervisor, Jason Bontempo,

who retired in 1998 and died in February 2003, two

months before plaintiffs filed their complaint. Whatever

Bontempo may have known is unavailable now. Plaintiffs

also say that they complained to O’Hare’s general manager

for operations, Hoan Le, who retired in 1992; all of Le’s

records were destroyed as outdated well before plaintiffs
6 Nos. 05-2933 & 05-4176

initiated litigation. Both sides sought the testimony of

Joyce Dunlop, plaintiffs’ union steward; efforts to obtain

her deposition have been unsuccessful because she is

suffering from cancer and other ailments. Although other

maintenance employees remain available to testify (as

are some supervisors), their memories of events in the

1980s and 1990s are unlikely to be reliable, and documents

that would have confirmed (or refuted) plaintiffs’ assertions that they complained within the bureaucracy are no

longer in existence.

This is quite enough to show prejudice. An employer

need not also show detrimental reliance on plaintiffs’

delay—for example, that it destroyed records as a result of a belief that they would not sue. See Smith v.

Caterpillar Inc., 338 F.3d 730, 735 (7th Cir. 2003); cf. Hot

Wax, Inc. v. Turtle Wax, Inc., 191 F.3d 813, 824 (7th Cir.

1999). It is hard to see how an employer can rely, detrimentally or otherwise, on delay in initiating litigation,

unless the employer knows that the workers were contemplating suit. Usually employers are ignorant of the workers’ plans, and employers that doubt the occurrence of

discrimination would be ignorant even of a reason to

suspect that the workers may or should have been planning litigation. That’s why prejudice from the employees’

delay, rather than prejudice from a mistaken supposition

about what the employees would do, is all that’s required.

There remains the final question posed by Morgan:

“what consequences follow if laches is established”? 536

U.S. at 122. The district court assumed that the upshot

of laches must be outright dismissal. Yet that’s not the

only possible consequence. A less severe consequence

would be to carve off the aspects of the plaintiffs’ claim

that are no longer subject to meaningful adversarial

testing. It might well be sensible to allow litigation about

events back to 1999 (four years before the §1981 suit

began) while foreclosing litigation about older events. That
Nos. 05-2933 & 05-4176 7

would respect the fact that prejudice is not an all-or-none

affair—evidence about what happened three or four years

ago is more accessible, and memories of that time more

reliable, than evidence about the events 10 or 20 years

earlier.

Dismissing the whole suit because it is no longer feasible

to litigate about the most ancient of the asserted wrongs

could be functionally equivalent to giving the employer

an easement across Title VII. By violating the statute

for long enough, the employer would acquire a right to

continue indefinitely. That’s the upshot of Chicago’s

position and the district court’s holding: once Jason had

made plaintiffs’ lives miserable for a decade or so, laches

would bar all litigation no matter what Jason did in the

future. That can’t be right. It would be like saying that,

if Jason had punched Bernard Pruitt (the lead plaintiff)

in the nose every week, he could do so for the rest of

Pruitt’s life if two years passed without suit after the first

punch. (Two years is the statute of limitations in Illinois

for personal-injury suits.)

Chicago allows that this would be an unacceptable

application of laches but replies that hostile-environment

claims differ: each punch is a discrete wrong, while (per

Morgan) a hostile environment is a single wrong. Application of laches to a single wrong extinguishes the right to

sue. We doubt that this is what the Court meant in

Morgan when calling a hostile environment a single employment practice. The Court’s point was that Title VII

addresses the terms and conditions of employment, and

discrimination effected by making the workplace painful for one sex or race but pleasant for another is a single

kind of injury: one sues about the disparate terms and

conditions rather than about each insult, taunt, leer, or

physical contact. This does not imply that, if unequal

working conditions persist for years, the worker must

sue for the whole course rather than some subset.
8 Nos. 05-2933 & 05-4176

If plaintiffs could have elected to limit their own claim to

events of 1999 and later, why can’t a court (using the

doctrine of laches) limit it for them? If, as Chicago maintains, Morgan really creates an all-or-none approach, why

did it reserve the question what the consequences of

laches would be? Consider a parallel: segregated education. That, like a discriminatory workplace, is an ongoing

offense, but we held in Palmer v. Board of Education, 46

F.3d 682 (7th Cir. 1995), that pupils always may litigate

about current conditions even if delay in filing suit has

made it impossible to obtain relief for segregation during

earlier years.

Although using laches to carve years out of a claim thus

may be a sensible way to answer the question reserved in

Morgan, it is not the relief that plaintiffs sought in the

district court. They did not try to identify the scope of the

prejudice caused by delay and specify a temporal bound

that would leave the opposing sides with roughly equal

access to evidence. Their appellate brief hints at such a

possibility but does not undertake any of the work necessary to determine how far back the claim could reach

without undue prejudice to the employer. In the district

court plaintiffs’ argument was limited to the proposition

(one inconsistent with Morgan) that the claim must

stretch at least four years back because laches never may

be used to abbreviate the time allowed by a statute of

limitations. The City argued that plaintiffs have forfeited

the benefit of any other approach. Plaintiffs then filed a

reply brief that ignored the City’s argument that forfeiture has occurred. Such a head-in-the-sand position is

unavailing. We hold the parties to the positions they

preserved in the district court, which means that we need

not attempt to draw a line between recent events (unaffected by laches) and older ones where the employer’s

ability to defend has been undermined.
Nos. 05-2933 & 05-4176 9

This also means that we need not discuss Chicago’s

fallback argument that Morgan’s one-employment-practice

holding is limited to Title VII (which has a short period of

limitations) and does not apply under §1981. If the City

is right, then an employee never may complain about

episodes of hostile environment that occurred more than

four years before the suit began. Whether that is so is a

question for another day.

Plaintiffs pepper their brief with other contentions, none

developed fully. For example, plaintiffs complain about

seven items in the bill of costs but devote only a sentence or two to each; insufficient development forfeits all

of these arguments. Appellate counsel must recognize that

scattergun contentions are doomed to failure. These and

all remaining arguments do not require further analysis.

AFFIRMED

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—12-28-06