                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 01-1028
                                    ___________

Deborah Brown-Mitchell,             *
                                    *
            Appellant,              *
                                    * Appeal from the United States
     v.                             * District Court for the
                                    * Western District of Missouri
Kansas City Power & Light Company, *
                                    *
            Appellee.               *
                               ___________

                              Submitted: September 14, 2001

                                   Filed: October 5, 2001
                                    ___________

Before McMILLIAN, BEAM and HANSEN, Circuit Judges.
                           ___________

McMILLIAN, Circuit Judge.

       Deborah Brown-Mitchell (plaintiff), an African-American female formerly
employed as a marketing representative for Kansas City Power & Light Co. (KCPL),
appeals from a final order entered in the United States District Court1 for the Western
District of Missouri granting summary judgment in favor of KCPL on her claims of
racial discrimination and retaliatory discharge under Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. § 2000(e), et seq. See Brown-Mitchell v. Kansas City

      1
      The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
Western District of Missouri.
Power & Light Co., No. 99-0454-CV-W-2 (W.D. Mo. Nov. 14, 2000) (order)
(hereinafter "slip op."). For reversal, plaintiff argues that the district court erred in
holding that her claims are barred as a matter of law under the doctrine of laches or for
failure to exhaust administrative remedies. For the reasons stated below, we affirm the
order of the district court.

       Jurisdiction was proper in the district court based upon 28 U.S.C. §§ 1332, 1343.
Jurisdiction is proper in this court based upon 28 U.S.C. § 1291. The notice of appeal
was timely filed pursuant to Fed. R. App. P. 4(a).

      The following summary of the background facts is based upon the district court's
order. See slip op. at 1-4. On March 25, 1993, plaintiff filed a charge with the Equal
Employment Opportunity Commission (EEOC) and the Missouri Human Rights
Commission alleging that her employer, KCPL, treated her adversely based upon her
race. She cited an unfavorable performance review and a denial of a merit salary
increase, among other things, as adverse employment actions. On March 31, 1993,
KCPL terminated plaintiff's employment. Plaintiff then amended her EEOC complaint
on April 2, 1993, to include a retaliatory discharge claim. In its response, KCPL
maintained that its actions were solely based upon plaintiff's job performance, as
evidenced by an inordinate number of customer complaints and eight years of
performance reviews rating her work as "adequate" or "competent" on a scale of five
possible ratings: "provisional," "adequate," "competent," "commendable," and
"distinguished."

       Pursuant to 42 U.S.C. § 2000e-5(d), the EEOC deferred plaintiff's case to the
Kansas City Human Relations Department (KCHRD), and plaintiff was notified of the
deferment in or about January 1994. While her case was pending with KCHRD,
plaintiff was informed that she could request a right-to-sue letter from the agency and,
upon receipt of such letter, file a lawsuit within ninety days. No progress was made on
plaintiff's case while it was pending at KCHRD, and, on December 31, 1998, she was

                                          -2-
informed that her case was being closed for "Failure to Cooperate." On February 17,
1999, KCHRD issued plaintiff a right-to-sue letter.

       On May 10, 1999, more than six years after her EEOC charges were filed,
plaintiff brought the present action against KCPL in federal district court. KCPL
moved for summary judgment, and the district court granted the motion. The district
court held that, in view of facts not genuinely disputed, (1) the action is barred under
the doctrine of laches because plaintiff unreasonably, inexcusably, and prejudicially
delayed filing her lawsuit and (2) the action is barred for failure to exhaust
administrative remedies because plaintiff's lack of cooperation with KCHRD led to the
eventual dismissal of her EEOC charges. Judgment was granted for KCPL, and
plaintiff appealed.

       Upon careful review of the parties' arguments and the record on appeal, we now
affirm the district court's summary judgment decision on the basis of its application of
the doctrine of laches. Accordingly, we find it unnecessary to address the question of
whether plaintiff failed to exhaust her administrative remedies.

       The equitable doctrine of laches is a proper defense to claims of discrimination
and retaliatory discharge under Title VII when based upon the plaintiff's post-charge
delay in filing his or her Title VII lawsuit. See Whitfield v. Anheuser-Busch, Inc., 820
F.2d 243, 244-45 (8th Cir. 1987).2 "[A] court may use laches to reach 'a just result.'"


       2
        Contrary to plaintiff's argument, the holding in Ashley v. Boyle's Famous
Corned Beef Co., 66 F.3d 164, 168-70 (8th Cir. 1995) (en banc), does not govern the
outcome of the present case because Ashley concerns pre-charge delays (i.e., delays
preceding the filing of an EEOC charge), not post-charge delays, which is what we are
dealing with here. Moreover, notwithstanding the fact that plaintiff in the present case
did comply with the 90-day limitations period for filing suit after receiving a right-to-
sue letter, the delay at issue in this case is the six-year delay from the time plaintiff filed
charges with the EEOC to the time plaintiff filed the present action in the district court.

                                             -3-
Id. at 244 (citing EEOC v. Liberty Loan Corp., 584 F.2d 853, 856 (8th Cir. 1978), citing
Albermarle Paper Co. v. Moody, 422 U.S. 405, 424-25 (1975)). For laches to apply,
the defendant must persuade the court that (1) the plaintiff unreasonably and
inexcusably delayed filing the lawsuit and (2) prejudice to the defendant resulted from
the delay. Id. The determination of whether laches applies in the present case was a
matter within the sound discretion of the district court, id. at 245, and we, accordingly,
review the district court's application of laches for an abuse of discretion.

       Plaintiff argues on appeal that the district court abused its discretion in
determining that her post-charge delay in bringing the present action was unreasonable
and inexcusable. She maintains that she diligently pursued her claims, having contacted
KCHRD approximately five times during the relevant six-year time period. She also
argues that, although she knew she could request a right-to-sue letter at any time, a
KCHRD investigator told her that she should wait to request a right-to-sue letter until
after she had found an attorney willing to accept her case, and that is exactly what she
did. She further argues that the delay did not result in sufficient prejudice to KCPL.
She contends that the prejudice to KCPL cited by the district court, particularly the loss
of witnesses' memories over the years, is relatively minor when compared with the
difficulties considered in other cases. At a minimum, she argues, there are at least
genuine issues of material fact precluding the district court's application of laches at the
summary judgment stage.

       Upon careful review, we cannot say that the district court abused its discretion
in determining that plaintiff's delay in filing suit was neither reasonable nor excusable.
As the district court noted, plaintiff had an obligation to monitor the progress of her
charges with KCHRD and did not have an absolute right to wait until the proceedings


Therefore, the reasoning in Ashley – which was based upon the existence of, and the
plaintiff's compliance with, a statute of limitations – also does not apply to the issue
before us.

                                            -4-
had concluded before requesting a right-to-sue letter. See Hukannen v. International
Union of Operating Engineers, Hoisting & Portable, Local No. 101, 3 F.3d 281, 286
(8th Cir. 1993). Plaintiff's inability to provide or recall details about her five or so
contacts with KCHRD over the relevant six-year period belies her allegation that she
"diligently pursued" her claims. The advice she received from the KCHRD
investigator – that she should secure legal representation prior to requesting a right-to-
sue letter – could not reasonably be interpreted to mean that any delay would be
excused by her failure to obtain a lawyer.3 In any event, "[i]n this circuit, laches may
apply either when the delay in bringing suit was caused by a private plaintiff or when
the delay is the fault of an administrative agency." Whitfield v. Anheuser-Busch, Inc.,
820 F.2d at 244-45 (footnote omitted). Finally, in light of the number of witnesses who
have testified that they cannot remember details about plaintiff's employment (which
is now more than eight years in the past), we also cannot say that the district court
abused its discretion in concluding that KCPL had sufficiently demonstrated prejudice.



      The judgment of the district court is affirmed. See 8th Cir. R. 47B.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




      3
        Plaintiff unsuccessfully attempted to retain counsel in 1994. She successfully
retained counsel in July 1998. She could not recall whether she had attempted to retain
counsel at any time between her unsuccessful attempt in 1994 and her successful effort
in 1998. See Brown-Mitchell v. Kansas City Power & Light Co., No. 99-0454-CV-W-
2, slip op. at 4 (W.D. Mo. Nov. 14, 2000).

                                           -5-
