Equal Employment Opportunity Commission v. Foley Products Company

Filing 82

ORDER that Mr. Pharham's Rule 24(a)(1) Motion to Intervene 76 is GRANTED and that Mr. Pharham may intervene as a plaintiff in this action. It is further ORDERED that Mr. Pharham file his complaint in intervention on or before February 2, 2012. Mr. Pharham and his counsel are also DIRECTED to attend the February 2, 2012 status conference (see 78 ). All parties should be prepared to discuss the posture of this case at the status conference, including Mr. Pharham's request for mediation. (Doc. 76 .). Signed by Chief Judge William Keith Watkins on 1/31/2012. (jg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff,
v.
FOLEY PRODUCTS COMPANY,
Defendant.

)
)
)
)
)
)
)
)
)
)

CASE NO. 2:10-CV-827-WKW
[WO]

ORDER
Before the court is Mr. Freddie Pharham’s Rule 24(a)(1) Motion to Intervene.
(Doc. # 76.) The Equal Employment Opportunity Commission and Foley Products
Company filed responses (Docs. # 79, 80), to which Mr. Pharham replied (Doc. # 81).
The EEOC does not oppose Mr. Pharham’s motion to intervene. (Doc. # 79 ¶ 6.)
Foley opposes Mr. Pharham’s motion, arguing that it was not timely because the
motion was filed more than a year after the case was filed. (Doc. # 80 ¶¶ 9, 11.) Mr.
Pharham contends that his motion was timely because it was filed within sixteen days
of learning that a conflict of interest existed between himself and the EEOC. (Doc.
# 81 ¶ 5.) For the reasons discussed below, the motion is due to be granted.
Rule 24 of the Federal Rules of Civil Procedure requires a court to permit
anyone to intervene who 1) is given an unconditional right to intervene by a federal

statute and 2) files a timely motion to intervene. Fed. R. Civ. P. 24(a)(1). Title VII
confers an aggrieved person the unconditional right to intervene in a civil suit brought
by the EEOC. 42 U.S.C. § 2000e-5(f)(1) ( A “person or persons aggrieved shall have
the right to intervene in a civil action brought by the [EEOC] . . . .”); see also EEOC
v. Pizza & Sub Express, Inc., No. 3:09-CV-85, 2009 WL 2912905, at *1 (M.D. Ga.
Sept. 3, 2009) (“It is beyond dispute that Title VII confers an aggrieved employee
with an unconditional right to intervene in civil law suits brought by the EEOC.”).
Mr. Pharham, as the charging party to this action, has an unconditional right to
intervene by Title VII.
Mr. Pharham and Foley dispute the second requirement of Rule 24(a), whether
Mr. Pharham’s motion was timely. The determination of whether a motion to
intervene is timely is within the district court’s discretion. Maddow v. Procter &
Gamble Co., 107 F.3d 846, 854 (11th Cir. 1997) (citing Stallworth v. Monsanto Co.,
558 F.2d 257, 263 (5th Cir. 1977)1). “[T]imeliness is not limited to chronological
considerations but is to be determined from all the circumstances.” Stallworth, 558
F.2d at 263–64 (citations and internal quotation marks omitted). The timeliness
inquiry involves consideration of four factors:

1

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit Court of Appeals adopted as binding precedent all of the decisions of the
former Fifth Circuit handed down prior to the close of business on September 30, 1981.
2

(1) the length of time during which the would-be intervenor knew or
reasonably should have known of his interest in the case before he
petitioned for leave to intervene; (2) the extent of prejudice to the
existing parties as a result of the would-be intervenor’s failure to apply
as soon as he knew or reasonably should have known of his interest; (3)
the extent of prejudice to the would-be intervenor if his petition is
denied; and (4) the existence of unusual circumstances militating either
for or against a determination that the application is timely.
United States v. Jefferson Cnty., 720 F.2d 1511, 1516 (11th Cir. 1983) (citing
Stallworth, 558 F.2d at 264–66.) Additionally, a more lenient standard of timeliness
should be applied where the proposed intervenor qualifies for intervention of right
rather than permissive intervention. Stallworth, 558 F.2d at 266.
After considering all four factors, the court finds that Mr. Pharham’s motion to
intervene is timely. While Mr. Pharham filed his motion more than a year after the
EEOC filed suit, he did so as soon as he discovered that a conflict of interest existed
between himself and the EEOC. Foley has proposed a confidential settlement to the
EEOC. The EEOC does not find the terms of this settlement to be agreeable;
however, the terms are agreeable to Mr. Pharham. (Doc. # 76, ¶ 2.) As the charging
party, Mr. Pharham has an interest in this litigation (in particular, back pay and
compensatory damages for Foley’s alleged violations) that may not be protected
adequately if he is not allowed to participate.
There is some slight prejudice to the existing parties by allowing Mr. Pharham
to intervene. In its response, Foley states that it will be prejudiced by Mr. Pharham’s
3

intervention because intervention will cause delay to the resolution of this case as
there is a pending summary judgment motion and a trial date of February 27, 2012.
(Doc. # 80, ¶ 11.) However, the recent divergence of interests between the EEOC and
Mr. Pharham is an unusual circumstance that has left Mr. Pharham’s interests
inadequately protected and warrants a finding that the motion was timely.
Accordingly, it is ORDERED that Mr. Pharham’s Rule 24(a)(1) Motion to
Intervene (Doc. # 76) is GRANTED and that Mr. Pharham may intervene as a plaintiff
in this action. It is further ORDERED that Mr. Pharham file his complaint in
intervention on or before February 2, 2012.
Mr. Pharham and his counsel are also DIRECTED to attend the February 2,
2012 status conference (see Doc. # 78). All parties should be prepared to discuss the
posture of this case at the status conference, including Mr. Pharham’s request for
mediation. (Doc. # 76.)
DONE this 31st day of January, 2012.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

4